Thanks, Lacycis.
the judge set a hearing date on June 27, 2008 for my case. Can I file MSJ before the hearing?
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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Thanks, Lacycis.
the judge set a hearing date on June 27, 2008 for my case. Can I file MSJ before the hearing?
Absolutely. Don't you want to vote in November?
Of course I do.
I probably have no time to prepare MSJ so to submit it along with my response to defendants' response by the end of this week. I haven't read much about MSJ, but it might be easier to submit it along with my response(so no need to present the same argument twice). I will get my response completed first.
I probably have no time to prepare MSJ so to submit it along with my response to defendants' response by the end of this week. I haven't read much about MSJ, but it might be easier to submit it along with my response(so no need to present the same argument twice). I will get my response completed first.
Hey, lazycis,
I looked in the dictionary for "pleading" and still feel confused about it. For example, I included processing time of I485 as exhibit in opposition to MTD. Would the judge consider it as an evidence and valid? Or should I put all the exhibits in MSJ rather than 2nd Oppo since I will file them together to reinforce each other?
Thanks a lot.
I looked in the dictionary for "pleading" and still feel confused about it. For example, I included processing time of I485 as exhibit in opposition to MTD. Would the judge consider it as an evidence and valid? Or should I put all the exhibits in MSJ rather than 2nd Oppo since I will file them together to reinforce each other?
Thanks a lot.
Hi, Lacycis
Could you take a look at my response to AUSA's response to Court's order to show cause? I am also going to look into MSJ to see if I can combine it into my response.
AUSA's response to Court's order can be found here:
http://www.immigrationportal.com/attachment.php?attachmentid=17453&d=1211494389
Sincerely thanks for all your help!
meteor
Could you take a look at my response to AUSA's response to Court's order to show cause? I am also going to look into MSJ to see if I can combine it into my response.
AUSA's response to Court's order can be found here:
http://www.immigrationportal.com/attachment.php?attachmentid=17453&d=1211494389
Sincerely thanks for all your help!
meteor
MSJ and Response to Defendants' Response to Order to Show Cause
Hi, Lacycis
I modified my Response to AUSA's Response to Order to Show Cause and include MSJ in it. I basically used the same argument as the my Response just added some contents in the beginning and modified the Conclusion. Could you review it and let me know if it is okay?
Again, thanks a lot as always!
meteor
Hi, Lacycis
I modified my Response to AUSA's Response to Order to Show Cause and include MSJ in it. I basically used the same argument as the my Response just added some contents in the beginning and modified the Conclusion. Could you review it and let me know if it is okay?
Again, thanks a lot as always!
meteor
A few points:
1) Statement of undisputed facts - itemize each fact and support it by reference to complaint/evidence attached to MSJ and, if possible, to defendants response
2) MSJ standard
Summary judgment shall be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by [its] own affidavits, orby the ‘depositions, answers to interrogatories, or admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citations omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court does not make credibility determinations in considering a motion for summary judgment. See Anderson, 477 U.S. at 249. Rather, it views the inferences drawn from the facts in the light most favorable to the party opposing the motion. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractor’s Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
3) You cannot use reference to 8 CFR § 103.2(b)(18) in MSJ if you have no proof that the defendants did not comply with regulations. It's OK to use it in opposition to motion to dismiss for the want of subject matter.
4) Ask court to set a specific deadline to schedule the interview (i.e. 60 days from the court order).
On a side note, here is the reference to Jiang opinion: Jiang v. Chertoff, 2008 WL 1899245 (N.D.Cal. Apr 28, 2008)
There are different standards to resolve different questions. For example, to decide MTD for lack of subject matter, the court may consider matters outside the pleadings, but to decide MTD for failure to state a claim it may not. I'd add exhibits to both motions to be on the safe side.
fifth factor
Next, although the Plaintiff does not argue that national security is an important competing concern, the Congressional intent, such as the clear intent of Congress to reduce the waiting time for applicants, streamline the process for applying for naturalization, and provide applicants meaningful relief when their applications remain pending for lengthy periods of time, support plaintiff’s position that the delay in this case is unjustified. See Hovsepian, 359 F.3d at 1163-64. Congress concerned about the delays in the naturalization process. See, e.g. “Hearing on Naturalization Delays: Causes, Consequences and Solutions” (January 17, 2008)
http://judiciary.house.gov/oversight.aspx?ID=403
Next, although the Plaintiff does not argue that national security is an important competing concern, the Congressional intent, such as the clear intent of Congress to reduce the waiting time for applicants, streamline the process for applying for naturalization, and provide applicants meaningful relief when their applications remain pending for lengthy periods of time, support plaintiff’s position that the delay in this case is unjustified. See Hovsepian, 359 F.3d at 1163-64. Congress concerned about the delays in the naturalization process. See, e.g. “Hearing on Naturalization Delays: Causes, Consequences and Solutions” (January 17, 2008)
http://judiciary.house.gov/oversight.aspx?ID=403
OIG report mentioned in Aytes Feb 4th memo
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-06_Nov05.pdf
"At one district office, staff said they shelved cases with complete, positive FBI name check responses for months, pending guidance on how to adjudicate them."
"Like the IBIS check, USCIS repeats the FBI fingerprint check for updates on a 15-month expiration schedule. USCIS has not set an expiration period for the FBI name check, but the FBI considers a name check to be current for 120 days."
"Long-delayed cases increase USCIS’ workload other ways, as well. IBIS and FBI fingerprint checks can expire, requiring new checks and repeated
fingerprinting. In addition, adjudicators run queries on a regular basis for each case with a pending FBI name check, to learn whether FBI name checks
cleared."
"Nevertheless, USCIS would prefer not to approve any petition when security concerns have been identified. USCIS sometimes withholds adjudication through an informal abeyance; 8 C.F.R. § 103.2(b)(18) does not apply unless the investigation relates to the pending application.
...
However, delays from informal abeyance are also vulnerable to legal challenge."
"USCIS may pay the FBI double to “expedite” up to a few hundred FBI name checks per month."
"For example, USCIS and ICE disagree about the cost-benefit of holding a case until the FBI finalizes a pending response to name check hits, which takes over six months for one percent of cases. For example, ICE security check procedures allow an applicant to receive asylum while the FBI name check is still pending, which means the FBI believes it has investigative records on the applicant but has not completed collecting and reviewing them for transmittal to ICE. In contrast, USCIS holds asylum applications until the FBI name check is complete. Also, USCIS refused to provide documentation of status to ICE-processed asylees until they passed an FBI name check, which USCIS initiated for them. DHS headquarters and the Directorate of Border and Transportation Security did not resolve the disagreement between USCIS and ICE about whether waiting for completed FBI name checks has benefits outweighing its costs. After discussions, USCIS agreed to continue to initiate FBI name checks for its own and for ICE-processed applicants, but neither agency will wait for ICE-processed applicants to pass the FBI name checks before the case decision and documentation of status. Thus, screening procedures for the same benefits are inconsistent. DHS should reconcile the inconsistent interpretations of the check’s cost-benefits to improve security and efficiency."
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-06_Nov05.pdf
"At one district office, staff said they shelved cases with complete, positive FBI name check responses for months, pending guidance on how to adjudicate them."
"Like the IBIS check, USCIS repeats the FBI fingerprint check for updates on a 15-month expiration schedule. USCIS has not set an expiration period for the FBI name check, but the FBI considers a name check to be current for 120 days."
"Long-delayed cases increase USCIS’ workload other ways, as well. IBIS and FBI fingerprint checks can expire, requiring new checks and repeated
fingerprinting. In addition, adjudicators run queries on a regular basis for each case with a pending FBI name check, to learn whether FBI name checks
cleared."
"Nevertheless, USCIS would prefer not to approve any petition when security concerns have been identified. USCIS sometimes withholds adjudication through an informal abeyance; 8 C.F.R. § 103.2(b)(18) does not apply unless the investigation relates to the pending application.
...
However, delays from informal abeyance are also vulnerable to legal challenge."
"USCIS may pay the FBI double to “expedite” up to a few hundred FBI name checks per month."
"For example, USCIS and ICE disagree about the cost-benefit of holding a case until the FBI finalizes a pending response to name check hits, which takes over six months for one percent of cases. For example, ICE security check procedures allow an applicant to receive asylum while the FBI name check is still pending, which means the FBI believes it has investigative records on the applicant but has not completed collecting and reviewing them for transmittal to ICE. In contrast, USCIS holds asylum applications until the FBI name check is complete. Also, USCIS refused to provide documentation of status to ICE-processed asylees until they passed an FBI name check, which USCIS initiated for them. DHS headquarters and the Directorate of Border and Transportation Security did not resolve the disagreement between USCIS and ICE about whether waiting for completed FBI name checks has benefits outweighing its costs. After discussions, USCIS agreed to continue to initiate FBI name checks for its own and for ICE-processed applicants, but neither agency will wait for ICE-processed applicants to pass the FBI name checks before the case decision and documentation of status. Thus, screening procedures for the same benefits are inconsistent. DHS should reconcile the inconsistent interpretations of the check’s cost-benefits to improve security and efficiency."
Draft I-485 Complaint
Hi everyone and esp the lazy ones,
Here's my first draft of the Complaint for EB, I-485 pending for little over 20 months. I would appreciate if you guys could glance over it and give me your feedback so I can make it rock solid and go for it pretty soon. Be as critical as you can be. Thanks
Hi everyone and esp the lazy ones,
Here's my first draft of the Complaint for EB, I-485 pending for little over 20 months. I would appreciate if you guys could glance over it and give me your feedback so I can make it rock solid and go for it pretty soon. Be as critical as you can be. Thanks
jefkorn
Hey, Jefkorn,
Attached you may find a good template for WOM complaint. And I think you may want to check on the Injury part of this template and add more specific details. For example:
The cost to apply for EAD card is $340 per year and I have applied for three of them...
It takes four months to process application for travel documents and it is extremely hard to plan a busniess trip 4 months ahead of time.
A lot of positions in my profession requires premenent residency or US citizen. Therefore, the plaintiffs have been prejudiced and limited during job search. ... ( you can even use some job postings as exhibit)
It is important to get sympathy from the judge. That is why it is better to add more specific and concrete injuries.
Hey, Jefkorn,
Attached you may find a good template for WOM complaint. And I think you may want to check on the Injury part of this template and add more specific details. For example:
The cost to apply for EAD card is $340 per year and I have applied for three of them...
It takes four months to process application for travel documents and it is extremely hard to plan a busniess trip 4 months ahead of time.
A lot of positions in my profession requires premenent residency or US citizen. Therefore, the plaintiffs have been prejudiced and limited during job search. ... ( you can even use some job postings as exhibit)
It is important to get sympathy from the judge. That is why it is better to add more specific and concrete injuries.
Great feedback!
wommei, I will incorporate your feedback, Thanks for that.
wommei, I will incorporate your feedback, Thanks for that.
Hey, Jefkorn,
Attached you may find a good template for WOM complaint. And I think you may want to check on the Injury part of this template and add more specific details. For example:
The cost to apply for EAD card is $340 per year and I have applied for three of them...
It takes four months to process application for travel documents and it is extremely hard to plan a busniess trip 4 months ahead of time.
A lot of positions in my profession requires premenent residency or US citizen. Therefore, the plaintiffs have been prejudiced and limited during job search. ... ( you can even use some job postings as exhibit)
It is important to get sympathy from the judge. That is why it is better to add more specific and concrete injuries.
You asked for it
I think you can do better than this.You may wan to check this template:
http://www.immigrationportal.com/attachment.php?attachmentid=17057&d=1191491072
1. Font is to small. Judges are usually older people. Use at least 12pt or better yet 14pt font.
2. Check defendants section (Chertoff's name is misspelled, Gonzalez is no longer with the USCIS). Add US AG as a defendant (have to serve him anyway)
3. Expand jurisdiction section a bit. Add 5 USC 551, et seq, 8 U.S.C. § 1101 et seq. (Immigration and Nationality Act, INA) and applicable regulations
4. Check paragraph 42 (something is missing).
5. Rename "cause of action" section to "statement of the facts". The section itself is very good. I like the exhibits.
6. Expand grounds for relief, include as many causes of action as you can (check the template above).
Last edited by a moderator:
I knew what I was getting into when asked for critical feedback Thank you lazycis, I will incorporate your suggestions. You never know my subsequent drafts may become the next de facto template for future WOMers. Whoever said CIS will mend its ways. Old habits die hard!!
Thank you lazycis, I will incorporate your suggestions. You never know my subsequent drafts may become the next de facto template for future WOMers. Whoever said CIS will mend its ways. Old habits die hard!!You asked for it
You may wan to check this template:
http://www.immigrationportal.com/attachment.php?attachmentid=17057&d=1191491072
1. Font is to small. Judges are usually older people. Use at least 12pt or better yet 14pt font.
2. Check defendants section (Chertoff's name is misspelled, Gonzalez is no longer with the USCIS). Add US AG as a defendant (have to serve him anyway)
3. Expand jurisdiction section a bit. Add 5 USC 551, et seq, 8 U.S.C. § 1101 et seq. (Immigration and Nationality Act, INA) and applicable regulations
4. Check paragraph 42 (something is missing).
5. Rename "cause of action" section to "statement of the facts". The section itself is very good. I like the exhibits.
6. Expand grounds for relief, include as many causes of action as you can (check the template above).
I am ready to submit my response to AUSA's response to court's order to show cause. I signed up for ECF. AUSA also is receiving notification via email for the case.
From the court's ECF manual:
E-Mail Notification When Documents are Filed
Attorneys associated with ECF cases will be automatically notified by e-mail and
receive the Notice of Electronic Filing when a document is filed in those ECF
cases, provided they have an Internet e-mail address. This notice shall constitute
service of the document for which the notice was generated, pursuant to Local Rule
5-4 and General Order 45.
Does this mean I don't need to serve AUSA via postal mail after I submit my reply via ECF? If I don't need, what should I write in my Certificate of Service?
Thanks a lot!
From the court's ECF manual:
E-Mail Notification When Documents are Filed
Attorneys associated with ECF cases will be automatically notified by e-mail and
receive the Notice of Electronic Filing when a document is filed in those ECF
cases, provided they have an Internet e-mail address. This notice shall constitute
service of the document for which the notice was generated, pursuant to Local Rule
5-4 and General Order 45.
Does this mean I don't need to serve AUSA via postal mail after I submit my reply via ECF? If I don't need, what should I write in my Certificate of Service?
Thanks a lot!
waitforsolong
Registered Users (C)
Questions, please help
Hi Lazycis and other experts,
I have two silly questions to ask.
1. I saw the PDF file saying that court will have exclusive jurisdiction if filed 1447b. If so, why do I have to wait for 60 days to ask court to make decision? Is it possible to request court to make decision immediately?
2. I filed my 1447b on May 2, 08. I filed "prove of service" to court 2 weeks ago. Do I need to get something like confirmation from court, and mail it back to USA? I saw this step from wiki page, but, we did not get something like that when we filed "prove of service".
By the way, I am at San Jose, CA.
Thanks a lot,
Hi Lazycis and other experts,
I have two silly questions to ask.
1. I saw the PDF file saying that court will have exclusive jurisdiction if filed 1447b. If so, why do I have to wait for 60 days to ask court to make decision? Is it possible to request court to make decision immediately?
2. I filed my 1447b on May 2, 08. I filed "prove of service" to court 2 weeks ago. Do I need to get something like confirmation from court, and mail it back to USA? I saw this step from wiki page, but, we did not get something like that when we filed "prove of service".
By the way, I am at San Jose, CA.
Thanks a lot,