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

[jefkorn]

wommei

Following case talks about Plaintiffs having to wait because of pending NC but Defendants contended that waiting was an adequate remedy. It's similar to what they are implying by saying that you haven't exhausted administrative remedies. In their eyes, waiting for your PD to be current is an adequate remedy and hence you have not exhausted "all" remedies. You want to contest that waiting is not an adequate remedy. Court agreed in the attached case that waiting was not an adequate remedy.

0-06-cv-03215-23-DMN: On Page 10:
"..Therefore, Defendants contend that Plaintiffs’ adequateremedy is waiting until their applications are adjudicated.Defendants miss the point. The question is whether the Plaintiffs have adequate, alternative means to address this very issue: the fact that they are still waiting. Plaintiffs have made extensive efforts through communications with the USCIS and others to try to speed up the process. And because Plaintiffs are currently lingering in asylee status,there is no adequate remedy at this juncture other than to request the Court’s help."

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!

 

[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.

See the case.referenced above

Finally, the Court finds no merit to defendants contention that plaintiffs’ suit should be dismissed because their claims are not ripe for review, and that they have not exhausted their administrative remedies. Defs. Mem., pp. 39, 44. Defendants submit that plaintiffs’ claims are not ripe for review because the requisite background investigation has not been completed for plaintiff’s application for naturalization. Defs. Mem., p. 40. This argument is premised on defendants’ reasoning that no final agency action has been taken in plaintiff’s case. Defs. Mem., pp. 41-42. However, as discussed above, the Court finds that CIS’s inaction for over two years to be reviewable, and applies the same reasoning to the ripeness analysis. “In determining whether a claim is ripe for adjudication, the Court weighs three factors: (1) the probability that the harm alleged by plaintiff will occur; (2) the sufficiency of the factual record to produce a fair adjudication of the merits; and (3) the hardship to the plaintiff if judicial relief is denied at this stage in the proceedings.” Totonchi v. Gonzales, 2007 WL 2331937 at *4 (N.D.Ohio Aug. 13, 2007) (citing Adult Video Ass'n. v. U.S. Dept. of Justice, 71 F.3d 563, 568 (6th Cir. 1995)).

See also Haidari, 2006 WL 3544922 at *5 (finding that defendants’ argument that plaintiffs had not exhausted their administrative remedies missed the point where plaintiffs had made extensive efforts to try to speed up the adjudication process).

 

[lazycis]

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!

Read the attached opinion Jiang v. CHertoff, C 08-00332 SI, Order on Mot. to Dismiss (N.D. Cal Apr 28,2008)

 

[haplabor]

WOM In New Jersey

I am getting ready to file WOM in New Jersey in two weeks. Is NJ favorable for WOM's. Any feedback from experience from your friends/collegues is much appreciated. Any downsides? etc. etc. Thank you very much.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EB2
PD- 02/2002
I-140 - 05/2005(AD)
I-485 - 04/2005(RD)

 

[meteor8]

Read the attached opinion Jiang v. CHertoff, C 08-00332 SI, Order on Mot. to Dismiss (N.D. Cal Apr 28,2008)

Sweet. lacycis, you should seriously think to become a lawyer

Since AUSA also asked the dismissal of AG, should I argue that because AG is the head of DOJ, and DOJ encompasses FBI, hence, AG shouldn't be dismissed either?

 

[soccergirl]

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

Thank you! You are awesome!

 

[wommei]

Very good point, Jefkorn!

Hey,jefkorn,

Thanks for uploading this case and I think it will work very well for organizing my arguments.

 

[wommei]

Thanks, lazy!

Hey, Lazycis,

That is a good caselaw that I could use in the opposition. Thanks a lot!
Attached is the Totonchi case, if anyone interested.

 

[jefkorn]

Suggestion for someone with Lexis Academic access

To all,
If you have academic access, please help out the member when they are asking for case reference to respond to an issue raised in MTD. I rely on Google, some case search sites, personal memory to find let say "exhaustion of remedies" case references/case law or any other counter arguments to issues raised in MTDs.

If Lexis has a feature where one can do free form text searches, it would be great to gather the reference cases.

Also is there an option to see how often and in what cases a citation has been used. For example, if you can find which cases have cited and responded to Yanez v. Holder (cited in second MTD posted by wommei), you may find some good counter-arguments.

Lastly, can you please upload the cases where the Feb. 04, 2008 NC memo is being used? I would think that after the NC memo (NC > 180 days), how come judges are still looking at the reasonable delay question and still determining whether anything over 180 days is unreasonable.

I would think that memo reference in the Complaints should sway the court in favor or plaintiff even when the delay is less that what court "used to" consider as unreasonable when USCIS's public policy didn't acknowledge NC > 180 days as "approvable".

More case law in our favor, the better!

 

[Bobsmyth]

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.

The way I read it is that by September 2008, applications filed in June-July 2007 will have taken so many months to process. For example, NYC shows 10.1 months, so that means that they expect all NYC applications from June-July 2007 to be processed since 10.1 months from June-July 2007 is April-May 2008. I base this on the statement that USCIS previously released that they expect 50% of applications from last summer to be complete by September 2008. From the chart, 21 of the 70 DOs listed will have completed all applications from last summer by September 2008. So from that it can be deduced that 30% of the listed DOs handle 50% of the backlog from last summer. The other 70% of DOs hold the other 50% of applications from last summer.

 

[wommei]

The second opposition and MSJ

Hey, lazycis and others,

I just drafted the second opposition and MSJ. I will probably wait until some time next week to file it with the court, so that I will have some time to proofread it. Also my judge will not preside over cases until June 1st.
Most of the MSJ was organized from lazy's arguments, although a small portion of it was through my efforts or research. It include arguments about jurisdiction, unreasonable delay and visa number issue. I hope that will be helpful and comments are welcome.
The opposition is kind of a short one, because I just learned that the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff when deciding a motion to dismiss. But I may add more stuff in there if I can find more caselaws.
Have a nice memorial weekend, every one!

 

[GhantaBro]

Hey Guys,

I am even more confused as what is the status of my case now (as they don't say if it cleard or not)... I will certainly find something more on this on Tuesday when I call the USCIS...

This is what the letter from FBI said:



You letter dated, March 25, 2008, directed to Mrs, George W. Bush concerning you rname check status for immigration purposes, was forwarded to the FBI for reply.

A review of the FBI's Name Check program database revealged that your request was received from the USCIS on Oct 17, 2006. This submission was processed and finalized on May 13, 2008. The results were forwarded to the USCIS headquarters. I trust this information will be of assistance.


Signed by Michael A Cannon Section Chief (National Name Check Program section)...

People with experience please say something that will keep me abreast.

Thanks!

 

[jefkorn]

NSC told AILA to inquire about [02/04/08 NC memo] affected cases after 04/30/2008

For what it is worth, NSC did inform AILA on Feb. 28, 2008 in a conference call to check with them if no decision had been received by April 30, 2008 for cases affected by Feb. 04, 2008 NC memo.

" 9) Please advise how you are interpreting the new Michael Aytes memo of February 4, 2008, on Revised National Security Adjudication and Reporting Requirements. We have communicated with Nebraska on some cases that should benefit from the memo, specifically refugee adjustment of status cases, but have received various responses suggesting that there still may be significant delays in how these cases are processed. Will these cases be prioritized?

Answer: New guidance has been issued regarding I-485 with pending FBI name checks. Where the application is visa available and otherwise approvable and the FBI name check request has been pending more than 180 days, the adjudicator may approve the I-485 and proceed with card issuance. NSC is working these cases but because of the large volume we anticipate it will take 30-60 days to complete. Please inquire after April 30th if your case meets the above guidelines and you haven’t received a decision."

 

[meteor8]

Read the attached opinion Jiang v. CHertoff, C 08-00332 SI, Order on Mot. to Dismiss (N.D. Cal Apr 28,2008)

Jiang v. Chertoff case has not been closed yet. I tried to download the Plaintiff's opp to MTD from PACER but it says the document cannot be found. Any idea why that is or if the doc can be retrieved at all?

Thanks!

 

[jefkorn]

Court gets Exclusive Jurisdiction after 1447(b) is filed

In this case filed under 1447(b), USCIS denied the application but judge O'Toole took CIS to task, it's the same judge who issued unfavorable opinion (posted by wom_ri) on an AOS case:
"I conclude that § 1447(b) vests this Court with exclusive jurisdiction. CIS lacked authority to deny the plaintiff’s application once this action had been commenced."

http://pacer.mad.uscourts.gov/dc/cg...ename=otoole/pdf/escobar v chertoff order.pdf

 

[wommei]

jefkorn

That is good to know. But to me, USCIS means a series broken promises and delibrate lies. So I wouldn't put too much faith in this. IF you put an inquiry with them, you will have to wait for 45 days or longer, if they reply to your inquiry. After the status hearing for me (04/24/08), USCIS replied an inquiry that I put on 11/28/07. I think it is better to hope for the best, and prepare for the worst.

For what it is worth, NSC did inform AILA on Feb. 28, 2008 in a conference call to check with them if no decision had been received by April 30, 2008 for cases affected by Feb. 04, 2008 NC memo.

" 9) Please advise how you are interpreting the new Michael Aytes memo of February 4, 2008, on Revised National Security Adjudication and Reporting Requirements. We have communicated with Nebraska on some cases that should benefit from the memo, specifically refugee adjustment of status cases, but have received various responses suggesting that there still may be significant delays in how these cases are processed. Will these cases be prioritized?

Answer: New guidance has been issued regarding I-485 with pending FBI name checks. Where the application is visa available and otherwise approvable and the FBI name check request has been pending more than 180 days, the adjudicator may approve the I-485 and proceed with card issuance. NSC is working these cases but because of the large volume we anticipate it will take 30-60 days to complete. Please inquire after April 30th if your case meets the above guidelines and you haven’t received a decision."

 

[Thoughtful]

It means that your name check was completed and forwarded to the USCIS on May 13th. From this point you only have to deal with the USCIS's painfully slow process. Hopefully they will schedule your interview soon.

FYI: it is strange that it is only after the FBI recieved the letter you sent to the First Lady that they sent the completed check to the USCIS. It seems they had all the information to make a decision and just needed a little prodding to send out the results.

Hey Guys,

I am even more confused as what is the status of my case now (as they don't say if it cleard or not)... I will certainly find something more on this on Tuesday when I call the USCIS...

This is what the letter from FBI said:



You letter dated, March 25, 2008, directed to Mrs, George W. Bush concerning you rname check status for immigration purposes, was forwarded to the FBI for reply.

A review of the FBI's Name Check program database revealged that your request was received from the USCIS on Oct 17, 2006. This submission was processed and finalized on May 13, 2008. The results were forwarded to the USCIS headquarters. I trust this information will be of assistance.


Signed by Michael A Cannon Section Chief (National Name Check Program section)...

People with experience please say something that will keep me abreast.

Thanks!

 

[OK-Boy]

GhantaBro,

I have exactly the same situation when I got this letter back in Jan '08. I went on info pass and was told that my file in under extended review and I'll be gettin the second FP soon. I gto that after 2 week and got done within month and then they schedule me for IV after 1.5 months. So the point is to keep pressing them until you get the outcome. Don't STOP writing the congressional/executive branches.

OK-Boy

Hey Guys,

I am even more confused as what is the status of my case now (as they don't say if it cleard or not)... I will certainly find something more on this on Tuesday when I call the USCIS...

This is what the letter from FBI said:



You letter dated, March 25, 2008, directed to Mrs, George W. Bush concerning you rname check status for immigration purposes, was forwarded to the FBI for reply.

A review of the FBI's Name Check program database revealged that your request was received from the USCIS on Oct 17, 2006. This submission was processed and finalized on May 13, 2008. The results were forwarded to the USCIS headquarters. I trust this information will be of assistance.


Signed by Michael A Cannon Section Chief (National Name Check Program section)...

People with experience please say something that will keep me abreast.

Thanks!

 

[meteor8]

Hi, Lacycis and other gurus,

I am in the process of preparing my response to AUSA's response to order to show cause. I have the FBI response to my FOIPA request which was obtained after I filed my complaint. I would like to attach it to my response just to show from one aspect that my backgound is clean. I am wondering if that will be okay since the evidence was obtained after I filed my complaint.

Thanks!
Meteor

 

[lazycis]

You can certainly attach it to your response, but it will not be considered as part of your pleadings. If you attach it to MSJ or file amended complaint, it will be part of your pleadings.