Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[lazycis]

Could someone help me to locate this case in LEXIS? Especially the opp to MTD doc? I am interested in the arguments related to TRAC factors in preparation of my response to defendants' response to order to show cause for my WOM case.

2008 U.S. Dist. LEXIS 16998

Also, can I file MSJ at the same time when I file my response to AUSA's response to order to show cause?

Thanks a lot!

http://www.immigrationportal.com/attachment.php?attachmentid=17428&d=1210592300

check also the brief I posted couple pages back.
http://www.immigrationportal.com/attachment.php?attachmentid=17433&d=1210686304
It has a whole section dedicated to TRAC analysis
MSJ is a possibility, as long as you have enough undisputed facts to establish unreasonablesness of the delay

 

[lazycis]

There is no right to get a visa, but there is a right to get a decision upon a visa application within a reasonable time. Two different things. Don't let AUSA confuse you

Read this article to better understand the concept:
http://findarticles.com/p/articles/mi_qn4183/is_20030208/ai_n10054759

"Thus was born the Accardi doctrine. It has never been entirely settled whether this is a matter of due process as well as of administrative common law, but it is at least a principle of the latter. Since Accardi, the federal courts have at least professed to require government agencies to follow their own rules when dealing with the regulated public. Over the years, Accardi has been as useful to regulated businesses as to individuals."

Another case in our support (DOS as a defendant)
http://bibdaily.com/pdfs/Amidi 25 3-18-08.pdf

"Normally a consulate's discretionary decision to grant or deny a visa petition is not subject to judcial review. However, consular determinations that do not relate to the actual grant or denial of a visa have been deemed to be subject to judicial review. Jurisdiction exists when the suit challenges authority of a consulate to take or fail to take action, as opposed to decision taken within consulate's discretion. Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997); see also Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir.1988); Kleindienst v. Mandel, 408 U.S. 753 (1972) (finding that judicial review exists when the government has denied a visa if the government did not act “on the basis of a facially legitimate and bona fide reason.”).
...
Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997) (Whether a consular official complied, or not, with their own regulations and procedures is not an issue within their discretionary powers.)
"

 

[meteor8]

http://www.immigrationportal.com/attachment.php?attachmentid=17428&d=1210592300

check also the brief I posted couple pages back.
http://www.immigrationportal.com/attachment.php?attachmentid=17433&d=1210686304
It has a whole section dedicated to TRAC analysis
MSJ is a possibility, as long as you have enough undisputed facts to establish unreasonablesness of the delay

Thanks a lot, Lacycis. You have been a big help for my WOM case!

BTW, some of TRAC factor analysis pertain to AOS only. Do you know if there is anything more specific to N400?

 

[lazycis]

sample Natz WOM Opposition

Thanks a lot, Lacycis. You have been a big help for my WOM case!

BTW, some of TRAC factor analysis pertain to AOS only. Do you know if there is anything more specific to N400?

OK, you've talked me into it Attached is a sample Natz WOM Opposition for your circuit.

 

[wommei]

Nice finding, Lazycis!

Hey, lazy,

This case is very useful to counter AUSA's argument about constitutional rights in immigration visas. I will include this in my MSJ. I was almost tricked by AUSA on this issue.

Another case in our support (DOS as a defendant)
http://bibdaily.com/pdfs/Amidi 25 3-18-08.pdf

"Normally a consulate's discretionary decision to grant or deny a visa petition is not subject to judcial review. However, consular determinations that do not relate to the actual grant or denial of a visa have been deemed to be subject to judicial review. Jurisdiction exists when the suit challenges authority of a consulate to take or fail to take action, as opposed to decision taken within consulate's discretion. Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997); see also Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir.1988); Kleindienst v. Mandel, 408 U.S. 753 (1972) (finding that judicial review exists when the government has denied a visa if the government did not act “on the basis of a facially legitimate and bona fide reason.”).
...
Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997) (Whether a consular official complied, or not, with their own regulations and procedures is not an issue within their discretionary powers.)
"

 

[wommei]

Visa # is available when the application is filed?

Hey, lazycis and others,

I just found the following from page 36 on Ombudsman Report for 2007. Basically, Ombudsman suggest that USCIS should assign visa numbers when the application is filed, not when it is approved. It also mentioned the visa number was assigned to an application when it is FILED. But they modified the procedure because USCIS could not adhere to the requirements to return unused visa numbers immediately.
Do you think it is better to include this as Exhibit in my MSJ, lazy? I am not sure if this will work for me or against me? Thanks a lot!

USCIS also added (at p. 8):
With respect to the recommendation that USCIS assign visa numbers to cases as they are received, the process the Ombudsman describes was the process in place a number of years ago. DOS, which manages overall visa number allocations, modified that process to the procedure in effect today. It is their policy to allocate visa numbers to USCIS adjustment cases only as the point of approval is reached.
However, through the tri-agency meetings, DOS explained that the modification to the program occurred in the early 1980s because INS could not adhere to the requirements to return unused visa numbers immediately. The Ombudsman understands that DOS prefers that cases are reported qualified for a visa earlier than at approval. In the last several months, there have been several suggestions on how to accomplish that task, but operational concerns remain. The Ombudsman hopes that USCIS and DOS can reestablish the older program with improved processing and technology to ensure timely and accurate reporting of cases ready-to-issue and to prevent the future loss of visa numbers.
In the 2006 Annual Report (at p. 16, AR 2006 -- 02), the Ombudsman also recommended that USCIS assign visa numbers to employment-based green card applications as applicants file them. The Ombudsman continues to recommend that USCIS work with DOS to reinstate that process which existed in the early 1980s, wherein DOS issued visa numbers for both employment and family-based applications for applicants as they applied rather than as they were approved. This process would ensure that USCIS does not accept more applications than the number of visas available.

 

[lazycis]

I'd include it. It proves your point that the correct interpretation of the INA is that a visa needs to be available and should be assigned when I-485 is filed.

 

[meteor8]

Moretazpour v. Chertoff

In the defendants' response to judge's order to show cause for my WOM case, defendants disputed the court's decision regarding Moretazpour v Chertoff case. I am listing the defendants' argument here:

Defendants acknowledge a decision in this District to the contrary, but respectfully submit that this minority decision is in error because that decision didn't consider the discretionary nature of the name check process. See Moretzapour v. Chertoff, No. 074264 BZ, 2007 WL 4287363(N.D. Cal. Dec. 5, 2007). Moreover, in that decision, the court suggested that the Department of Homeland Security had, by regulation, imposed a duty upon the FBI to process name checks. Id., at *1. It is doubtful that one agency can create such a duty for another, particularly in light of the discretionary nature of the name check program itself. See 1991 Appropriations Act, Pub. L. 101-515, 104 Stat. 2102, 2112(Stating that the FBI "may" establish a name check program); Pacific Marine Conservation Council, Inc. v. Evans, 200 F. Supp. 2d 1194, 1201(N.D. Cal. 2002) (describing "may" as discretionary language). Although the district court also considered Congress' directive in the 1998 Appropriations Act discussed above, it is equally doubtful that Congress intended, in restricting action by one agency, to impose a duty upon another.

 

[au071]

Filed my wom case in Eastern PA district earlier this month and it was assigned to Judge Surrick. Wonder where can I check the judge's record on this kind of cases.

 

[lazycis]

In the defendants' response to judge's order to show cause for my WOM case, defendants disputed the court's decision regarding Moretazpour v Chertoff case. I am listing the defendants' argument here:

Defendants acknowledge a decision in this District to the contrary, but respectfully submit that this minority decision is in error because that decision didn't consider the discretionary nature of the name check process. See Moretzapour v. Chertoff, No. 074264 BZ, 2007 WL 4287363(N.D. Cal. Dec. 5, 2007). Moreover, in that decision, the court suggested that the Department of Homeland Security had, by regulation, imposed a duty upon the FBI to process name checks. Id., at *1. It is doubtful that one agency can create such a duty for another, particularly in light of the discretionary nature of the name check program itself. See 1991 Appropriations Act, Pub. L. 101-515, 104 Stat. 2102, 2112(Stating that the FBI "may" establish a name check program); Pacific Marine Conservation Council, Inc. v. Evans, 200 F. Supp. 2d 1194, 1201(N.D. Cal. 2002) (describing "may" as discretionary language). Although the district court also considered Congress' directive in the 1998 Appropriations Act discussed above, it is equally doubtful that Congress intended, in restricting action by one agency, to impose a duty upon another.

It's a win-win situation for you.
There are two possibilities:
1) Congress mandated name check to adjudicate N400. In this case FBI does have a mandatory duty. See Kaplan v. Chertoff, 481 F. Supp. 2d 370, 400 (E.D. Pa. 2007).
2) Congress did not mandate name checks for N400. In this case the USCIS does not have authority to require it as part of the application processing! The court can set aside agency action which is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" 5 USC 706(2)(A); "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" 5 USC 706(2)(C); or "without observance of procedure required by law" 5 USC 706(2)(D). If court finds that is the case, Plaintiff is ready to dismiss FBI as a defendant.

 

[wommei]

au071

I think you can try justia.com and find the similar cases (against Chertoff) in your district first. And then it shows which judge preside which case. you have the option to login in Pacer if you find a particular case presided by your judge. But you will have to pay $0.08 per page in pacer.

Filed my wom case in Eastern PA district earlier this month and it was assigned to Judge Surrick. Wonder where can I check the judge's record on this kind of cases.

 

[soccergirl]

Did you post your Template yet. I've read through everything on the forum since this post and did not see it but I wanted to make sure I didn't miss it. I think it will be very helpful. Thank you so much for doing this!

I wish I knew everything, especially the future

You should look for opinions in pacer (court system) if you do not have access to Lexis
https://ecf.txed.uscourts.gov/cgi-bin/login.pl

It's free to search for opinons, but you need to have a PACER account (free to get). After you log in to pacer, click on "Reports-Written opinons" and you will get to the search screen. Search by "Chertoff".

You can find info about rules and procedures on your court website:
http://www.txed.uscourts.gov/

I am not aware of opinons coming from your district.

P.S. I am currently working on a template for N-400 wom with no interview. Will post it soon.

 

[lazycis]

Natz sample complaint - no interview

Did you post your Template yet. I've read through everything on the forum since this post and did not see it but I wanted to make sure I didn't miss it. I think it will be very helpful. Thank you so much for doing this!

Here it is - Natz sample complaint for those who did not have an interview.

 

[lazycis]

Not sure if it was posted already, but it may be helpful in filing Wom:

USCIS RELEASES PROJECTED NATURALIZATION PROCESSING TIMES FOR LOCAL OFFICES

http://www.uscis.gov/files/article/processing_update_042208.pdf

Please note that this projection is from September 2008.

 

[wommei]

The second round of MTD

lazycis and others,

I just got the second motion to dismiss and it is on two grounds 1) The case must be dismissed based upon the doctrine of Consular Nonreviewability; 2) The district court does not have jurisdiction over this case because plaintiffs failed to exhaust their administrative remedies. This feels like a non-ending nightmare...I will probably have to calm down first before I do any serious thinking or research. Any suggestions or comments are welcome!

 

[Vorpal]

Not sure if it was posted already, but it may be helpful in filing Wom:

USCIS RELEASES PROJECTED NATURALIZATION PROCESSING TIMES FOR LOCAL OFFICES

http://www.uscis.gov/files/article/processing_update_042208.pdf

Please note that this projection is from September 2008.

I've been trying to figure out what exactly "September 2008" means in relation to these projections. Take NYC, for instance. According to the projected times, NYC applications from summer 2007 will be processed in 10.1 months in September 2008. Does this mean that it will take an additional 10.1 months from 09/2008 to process an N-400 from summer 2007? That would put the total processing time at around 24 months, which exceeds even the original 16-18 month projections.

 

[lazycis]

lazycis and others,

I just got the second motion to dismiss and it is on two grounds 1) The case must be dismissed based upon the doctrine of Consular Nonreviewability; 2) The district court does not have jurisdiction over this case because plaintiffs failed to exhaust their administrative remedies. This feels like a non-ending nightmare...I will probably have to calm down first before I do any serious thinking or research. Any suggestions or comments are welcome!

1) Plaintiff is not seeking a review of a consular decision;
2) The fact is that Plaintiff's priority date was current when the complaint was filed; it's irrelevant to the case that it's not current now, according to Defendant's interpretation;
3) Defendants fail to cite a statute which prohibits Plaintiff from obtaining a visa number, citing their policies and practices instead;
4) Courts held that exhaustion of the administrative procedures should not be required in cases where such exhaustion would be futile either as a legal or practical matter; see Honig v. Doe, 484 U.S. 305, 327 (1988); McCormick v. Waukegan Sch. Dist., 374 F.3d 564, 568 (7th Cir. 2004).

 

[wommei]

Thanks, Lazycis!

Hey, Lazy,

These are very good points. I will put them in my oppo. to second MTD. I think it is better to file my second oppo. to second MTD, and then file MSJ shortly within a few days. What do you think?
About 4th point, "such exhaustion would be futile either as a legal or practical matter", how do I prove that in my case? IF this is about name check, I can say that I wrote to FL, congressman, senator, USCIS, FBI name check program and so forth. But this is about the visa number or priority date and I don't know how to prove that? Thanks.

1) Plaintiff is not seeking a review of a consular decision;
2) The fact is that Plaintiff's priority date was current when the complaint was filed; it's irrelevant to the case that it's not current now, according to Defendant's interpretation;
3) Defendants fail to cite a statute which prohibits Plaintiff from obtaining a visa number, citing their policies and practices instead;
4) Courts held that exhaustion of the administrative procedures should not be required in cases where such exhaustion would be futile either as a legal or practical matter; see Honig v. Doe, 484 U.S. 305, 327 (1988); McCormick v. Waukegan Sch. Dist., 374 F.3d 564, 568 (7th Cir. 2004).

 

[meteor8]

hi, Lacycis

I am going to use the NAT_WOM_OPP_MTD document you have as a sample for my response.

But I also need to fight AUSA's request to dismiss defendants Mukasey and Mueller. For Mukasey(AG), 8 U.S.C § 1241(a) says "The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General". AG, in turn delegated that authority to former INS. Since the abolition of the INS in 2002, USCIS has been the federal agency responsible for processing and adjudication ofnaturalization applications, does this mean 8 U.S.C § 1241(a) is no longer valid or it just means USCIS took over the role from INS but the duty was still delegated by AG?

On another hand, should I just argue that FBI is mandated and has the non-discretion duty to perform the name checks? Since FBI is under DOJ and AJ is the head of DOJ, so both Mukasey(AG) and Mueller(Dic of FBI) shouldn't be dismissed from the action.

BTW, I am attaching the AUSA's response here for you to review.

Thanks a lot!

 

[lazycis]

http://boards.immigrationportal.com/attachment.php?attachmentid=17321&d=1204813360

In fact, defendants concede that “the FBI is obliged to complete background checks and the USCIS has an obligation to adjudicate the naturalization application.” Defs. Mem., p. 30

"I conclude that the FBI has a mandatory duty to complete its background check within a reasonable time even though that duty is not expressly stated in a statute. Such a duty must follow from the 1997 funding legislation and the implementing regulations which injected the FBI into the naturalization process by requiring that the FBI conduct a full criminal background check of a naturalization applicant before the USCIS can complete its adjudication of the application. Pub.L. 105-119, 111 Stat. 2440, 2448-49, Title I, Nov. 26, 1997. This requirement is codified in 8 C.F.R. § 335.2(b). Other regulations require applicants to submit their fees to USCIS, which in turn provides a portion of the fees to the FBI to complete the fingerprint and name checks. 8 C.F.R § 334.2; 72 Fed.Reg. 4888, 4889 (proposed Feb. 1, 2007) (proposing increased fees for applicants based, in part, to “costs due to the FBI for background checks”). “[W]here Congress has conditioned CIS's mandatory action on the FBI's completion of background checks, and where applicants must pay the FBI, through CIS, to complete the background checks, the Court holds that Congress has, by implication, imposed on the FBI a mandatory duty to complete the background checks.” Kaplan v. Chertoff, 481 F.Supp.2d 370, 401 (E.D.Pa.);

See also Al Daraji v. Monica, 2007 WL 2994608 at *3-*5 (E.D.Pa.); Dawoud v. Department of Homeland Security, 2007 WL 4547863 at *6, n. 3 (N.D.Tex. Dec. 26, 2007) (“the manner in which Defendant USCIS conducts the required investigation into an applicant’s moral character imposes a mandatory duty on Defendant FBI to conduct the background investigation”).

I would focus on proving that name check is not authorized by Congress in its current form, but it does not hurt to show the judge that if he thinks otherwise, FBI has mandatory duty to process NC.