What lazycis said is very true. “[w]hat constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of a particular case.” Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999).
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
I found following Prayer from a I-485 case filed in Central CA on June 10, 2008. It does reference NC policy change and CIS/FBI joint backlog reduction press release. The point about retaliation stood out for me. I may include something similar in my own prayer.
- Accept jurisdiction and maintain continuing jurisdiction of this action.
- Declare as unlawful the violation by Defendants for failing to act on an I-485 application to register permanent resident.
- Declare Defendants’ failure to carry out the adjudicative function delegated to them by law with regard to the Plaintiff’s I-485 Application as agency action unlawfully withheld and unreasonably delayed pursuant to 5 U.S.C. § 706(1).
- Issue a preliminary and permanent injunction pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1) compelling the Defendants to take action on the Plaintiff’s I-485 Application.
- Issue a writ in the nature of mandamus pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), compelling the Defendants to take action on the Plaintiff’s I-485 Application by wither approving or denying the said application, and if the application is refused, that the decision include justification to preclude the sense of retaliation for having brought this lawsuit or for having exposed the Defendants’ violation of the law;
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Larka-m,
Your FP was taken in Oct 27, 2006 but USCIS sent your namecheck to FBI in August 1, 2007; WHY? I’m under the impression that the namecheck process kicked off the day you get the FP and if not the same day then within 1-2 weeks’ difference. There is a gap of more than 8 months in your case and if this is true then you need to mention it in your WOM. You are panelized for this time due to USCIS negligence.
Your FP was taken in Oct 27, 2006 but USCIS sent your namecheck to FBI in August 1, 2007; WHY? I’m under the impression that the namecheck process kicked off the day you get the FP and if not the same day then within 1-2 weeks’ difference. There is a gap of more than 8 months in your case and if this is true then you need to mention it in your WOM. You are panelized for this time due to USCIS negligence.
Update
OK-Boy,
My mistake - I inserted an incorrect date in the document. The correct date is Oct 27, 2006.
Thanks....
OK-Boy,
My mistake - I inserted an incorrect date in the document. The correct date is Oct 27, 2006.
Thanks....
When you login to PACER, click on Reports-Written Opinions and search by Chertoff.
You should look for favorable opinions in your district and in your circuit, which includes PA. Here is a link to recent decision from Eastern PA.
http://www.paed.uscourts.gov/documents/opinions/08D0665P.pdf
"[T]here is no record evidence suggesting that there have been any particular problems with Mr. Karimushan’s name check, if, in fact, it has even been started. Rather, Defendants essentially ask us to take on faith that they are processing Mr. Karimushan’s application as promptly as possible given its overall security concerns and administrative difficulties with immigration applications in general.
On summary judgment, we cannot take this representation on faith, but must instead look at the record evidence before us. As set forth above, the undisputed evidence establishes that Mr. Karimushan filed his naturalization application over two years ago, well before CIS advertised an average five-month processing time for naturalization applications. In spite of those facts, there is no record evidence that there has been any progress on Mr. Karimushan’s name check. Cf. Kiromi v. District Dir., USCIS Detroit, Civ. A. No. 07-10446, 2007WL 2049521, *2 (E.D.Mich. July 13, 2007) (two-year delay in processing of adjustment of status application is reasonable, where record evidence shows that applicant was identified as possible subject with FBI record). While this may be the result of inadequate funding or name check resources, there is simply no record evidence that establishes a causal connection between those problems and the inordinate delay associated with Mr. Karimushan application. In the end, considering the statutory scheme,which anticipates (albeit does not mandate) a 180-day processing time, and the absence of any evidence explaining the reason for Mr. Karimushan’s particular two-year delay, we can only conclude that the delay is unreasonable."
lazycis - how do I refer to an opinion in my writ?
I.e. what legal language should I use - or do you have a template that you could share with us?
Appreciate your help...
Karimushan v. Chertoff, 2008 WL 2405729 (E.D.Pa. Jun 11, 2008)
sweetapple
Registered Users (C)
Hi Lazycis:
I got a call from AUSA and asked me to dismiss my lawsuit today because I am going to oath ceremony tomorrow. Should I dismiss my lawsuit?
Please advise! Thank you.
I got a call from AUSA and asked me to dismiss my lawsuit today because I am going to oath ceremony tomorrow. Should I dismiss my lawsuit?
Please advise! Thank you.
NOTICE OF VOLUNTARY DISMISSAL
Pursuant to Fed. R. Civ. Proc. 41(a)(1), plaintiff sweetapple hereby dismisses the above-captioned action without prejudice.
You can file it with the court before going to oath ceremony. Killing two birds with one stone, so to speak
Pursuant to Fed. R. Civ. Proc. 41(a)(1), plaintiff sweetapple hereby dismisses the above-captioned action without prejudice.
You can file it with the court before going to oath ceremony. Killing two birds with one stone, so to speak
sweetapple
Registered Users (C)
Hi Lazycis:
I got a call from AUSA and asked me to dismiss my lawsuit today because I am going to oath ceremony tomorrow. Should I dismiss my lawsuit? Otherwise, my
citizenship may be invalid. He said he'll file a MTD without prejudice with my content. If something goes wrong, I can always reopen the case and the court will schedule another ceremony within a month.
Please advise! Thank you.
I got a call from AUSA and asked me to dismiss my lawsuit today because I am going to oath ceremony tomorrow. Should I dismiss my lawsuit? Otherwise, my
citizenship may be invalid. He said he'll file a MTD without prejudice with my content. If something goes wrong, I can always reopen the case and the court will schedule another ceremony within a month.
Please advise! Thank you.
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If it's not difficult for you, file a notice yourself. Otherwise, I would consent to AUSA's proposal.
sweetapple
Registered Users (C)
Hi lazycis:
Thank you for your prompt reply!!! Since I don't have time to do it today, so I'll
just consent to AUSA's proposal.
Thank you for your prompt reply!!! Since I don't have time to do it today, so I'll
just consent to AUSA's proposal.
a question for lazy
Hey, lazycis,
Could you please check your email and I have an question for you about how to proceed?
Today the status hearing is very brief because the judge was running late. I think I did all right today and the only thing bothers me is: I have to commute for 3-4 hours to and from the courthouse and can only speak for less than 1 minute. The judge seems to be in better mood today, or maybe because I didn't act as agressive as last time.
Hey, lazycis,
Could you please check your email and I have an question for you about how to proceed?
Today the status hearing is very brief because the judge was running late. I think I did all right today and the only thing bothers me is: I have to commute for 3-4 hours to and from the courthouse and can only speak for less than 1 minute. The judge seems to be in better mood today, or maybe because I didn't act as agressive as last time.
waitforsolong
Registered Users (C)
AUSA responded to our Motion for Expidited Hearing
Hi Lazycis and other experts,
The AUSA filed an "Opposition to Plaintiffs' Motion for an Expidited Hearing". Her main points were:
1. "Plaintiffs submit a proposed order which improperly asks the Court to make findings of fact without an evidentiary hearing."
2. "Plaintiffs failed to meet and confer with oposing counsel prior to filing the motion, as required by the Courts Standing Order
3. "Although Plaintiffs 'aver that Defendants have represented to Plaintiffs that the FBI background check on Plaintiff <self> is complete and satisfactory," no such representation has been made to Plaintiffs in the course of this litigation"
4. "Defendants will, in due course ..., file a motion to dismiss the First Amended Complaint with regard to Plaintiff <husband>, for lack of standing, ..."
5. "... and a motion to remand this matter to the agency for adjudication with regard to Plaintiff <self>."
6. "Plaintiffs present no reason why this action should be expedited, and Defendants' position should not be heard."
First, what kind of response could we file for this? What might we title it? Or should we just attempt to talk directly to the AUSA first?
For point 1: I filed the lawsuit on May 2 2008, and we're still within the initial 60-day timeframe, with no response to the initial complaint yet. Was it wrong to file this Motion so soon? If not, how do we argue against the AUSA's point here?
For point 2: soon after we filed the lawsuit, my husband tried to talk to the AUSA assigned to the case; she answered his voice mail back by stating that they would not be looking at the case until near the 60-day deadline. She also said that it was wrong for my husband to attempt to talk to her, because he was not a plaintiff (at the time). She then said that she would call us when she was ready to look at the case. To our minds, especially due to the anger that her comments were made with, this implied pretty strongly that she did not want us to contact her about the case.
Would an argument such as this be reasonable to make in our response?
For point 3: The USCIS told me in an INFOPASS appointment that the FBI namecheck was finished Nov 1, 2007. They did not give this information to me in written form, however, so I have no paper evidence for it. Is it enough that I say that they told me this in an INFOPASS appointment?
For point 4: we made a number of arguments in our Amended Complaint for why my husband should be included as a Plaintiff. AUSA seems to be ignoring them completely here. What can we say about this -- just repeat the reasons from the Amended Complaint?
Point 5: This sounds like the "typical" resolution of these kinds of lawsuits, where the order is that the USCIS has 30 days to adjudicate. Unfortunately, we can't wait this long, especially given that USCIS will likely file for an extension before filing that motion. We have a time limit because my parents' visitors visas expire in September, after which we will have to find daycare for our kids. That is a problem because my son has been diagnosed with autism, and a normal daycare environment is too stressful for him. He's already nearly a year behind in his development, likely due to the fact that we had him in daycare for more than 2 years, before my parents were able to get a visa to come to the US. He's been doing well with my parents taking care of him at home, but he may fall further behind if he has to go back into daycare. Applying for greencards is the only way to let my parents stay in the country, and we can only do that when I get citizenship. We explained this in the Amended Complaint.
Any advice on that point? Does this sound like something a judge would accept as a reason for an expidited hearing?
Point 6: we described my son's situation in our Amended Complaint, but not in the Motion for Expidited Hearing -- did we need to have it there too? Or is AUSA just trying to get the judge to ignore all the reasons we gave? What could we say in response to this?
Thanks a lot!!
Hi Lazycis and other experts,
The AUSA filed an "Opposition to Plaintiffs' Motion for an Expidited Hearing". Her main points were:
1. "Plaintiffs submit a proposed order which improperly asks the Court to make findings of fact without an evidentiary hearing."
2. "Plaintiffs failed to meet and confer with oposing counsel prior to filing the motion, as required by the Courts Standing Order
3. "Although Plaintiffs 'aver that Defendants have represented to Plaintiffs that the FBI background check on Plaintiff <self> is complete and satisfactory," no such representation has been made to Plaintiffs in the course of this litigation"
4. "Defendants will, in due course ..., file a motion to dismiss the First Amended Complaint with regard to Plaintiff <husband>, for lack of standing, ..."
5. "... and a motion to remand this matter to the agency for adjudication with regard to Plaintiff <self>."
6. "Plaintiffs present no reason why this action should be expedited, and Defendants' position should not be heard."
First, what kind of response could we file for this? What might we title it? Or should we just attempt to talk directly to the AUSA first?
For point 1: I filed the lawsuit on May 2 2008, and we're still within the initial 60-day timeframe, with no response to the initial complaint yet. Was it wrong to file this Motion so soon? If not, how do we argue against the AUSA's point here?
For point 2: soon after we filed the lawsuit, my husband tried to talk to the AUSA assigned to the case; she answered his voice mail back by stating that they would not be looking at the case until near the 60-day deadline. She also said that it was wrong for my husband to attempt to talk to her, because he was not a plaintiff (at the time). She then said that she would call us when she was ready to look at the case. To our minds, especially due to the anger that her comments were made with, this implied pretty strongly that she did not want us to contact her about the case.
Would an argument such as this be reasonable to make in our response?
For point 3: The USCIS told me in an INFOPASS appointment that the FBI namecheck was finished Nov 1, 2007. They did not give this information to me in written form, however, so I have no paper evidence for it. Is it enough that I say that they told me this in an INFOPASS appointment?
For point 4: we made a number of arguments in our Amended Complaint for why my husband should be included as a Plaintiff. AUSA seems to be ignoring them completely here. What can we say about this -- just repeat the reasons from the Amended Complaint?
Point 5: This sounds like the "typical" resolution of these kinds of lawsuits, where the order is that the USCIS has 30 days to adjudicate. Unfortunately, we can't wait this long, especially given that USCIS will likely file for an extension before filing that motion. We have a time limit because my parents' visitors visas expire in September, after which we will have to find daycare for our kids. That is a problem because my son has been diagnosed with autism, and a normal daycare environment is too stressful for him. He's already nearly a year behind in his development, likely due to the fact that we had him in daycare for more than 2 years, before my parents were able to get a visa to come to the US. He's been doing well with my parents taking care of him at home, but he may fall further behind if he has to go back into daycare. Applying for greencards is the only way to let my parents stay in the country, and we can only do that when I get citizenship. We explained this in the Amended Complaint.
Any advice on that point? Does this sound like something a judge would accept as a reason for an expidited hearing?
Point 6: we described my son's situation in our Amended Complaint, but not in the Motion for Expidited Hearing -- did we need to have it there too? Or is AUSA just trying to get the judge to ignore all the reasons we gave? What could we say in response to this?
Thanks a lot!!
waitforsolong,
Is your AUSA Melanie Lea Proctor, by any chance?
Title it "Plaintiffs' Response to Opposition to Plaintiffs' Motion for an Expidited Hearing"
1. 8 USC 1447(b) gives Plaintiff the right to request a hearing on application for naturalization when the USCIS has failed to issue a decision within 120 days after the examination of an applicant. It's undisputable that 120 days has been passed since the examination (see complaint, exhibit X). After a complaint is filed, the court has exclusive jurisdiction over Plaintiff's application. The 9th circuit precedent supports plaintiff's position. See U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004).
2. Again, 8 USC 1447(b) gives Plaintiff the right to request a court hearing without conferring with an agency or its representative. As the 9th Circuit noted in Hovsepian, Supra:"“n this legislation, it is the applicant, not the government, who decides the place and the setting and the timeframe in which the application will be processed.” 135 Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison) (emphasis added)."
Explaint history of communications with AUSA to show the court her improper behavior.
3. In order to request a hearing under 1447(b), the only thing Plaintiff has to show is that 120 days has been passed after she was examined by the USCIS. Plaintiff complied with all requests from the USCIS regarding her application for naturalization. The USCIS had more than enough time to make a determination. While Plaintiff received an oral confirmation from the USCIS official that her FBI name check is complete during an Infopass appointment on xx/xx/xxxx, the burden is on the government to show why the court should not grant Plaintiff's application for naturalization, why FBI name check is a prerequisite for naturalization and why the government has failed to meet the statutory deadline.
4. Request for hearing is made regarding Plaintiff wife's claims. Plaintiff husband claim's, while based on the same factual background, are distinguishible from Plaintiff wife's claims.
5-6. Refer to your amended complaint and reiterate the reasons in your response.
Did you attach affidavit from yourself stating that you've met requirements for naturalization along with the request for hearing?
Is your AUSA Melanie Lea Proctor, by any chance?
Title it "Plaintiffs' Response to Opposition to Plaintiffs' Motion for an Expidited Hearing"
1. 8 USC 1447(b) gives Plaintiff the right to request a hearing on application for naturalization when the USCIS has failed to issue a decision within 120 days after the examination of an applicant. It's undisputable that 120 days has been passed since the examination (see complaint, exhibit X). After a complaint is filed, the court has exclusive jurisdiction over Plaintiff's application. The 9th circuit precedent supports plaintiff's position. See U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004).
2. Again, 8 USC 1447(b) gives Plaintiff the right to request a court hearing without conferring with an agency or its representative. As the 9th Circuit noted in Hovsepian, Supra:"“n this legislation, it is the applicant, not the government, who decides the place and the setting and the timeframe in which the application will be processed.” 135 Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison) (emphasis added)."
Explaint history of communications with AUSA to show the court her improper behavior.
3. In order to request a hearing under 1447(b), the only thing Plaintiff has to show is that 120 days has been passed after she was examined by the USCIS. Plaintiff complied with all requests from the USCIS regarding her application for naturalization. The USCIS had more than enough time to make a determination. While Plaintiff received an oral confirmation from the USCIS official that her FBI name check is complete during an Infopass appointment on xx/xx/xxxx, the burden is on the government to show why the court should not grant Plaintiff's application for naturalization, why FBI name check is a prerequisite for naturalization and why the government has failed to meet the statutory deadline.
4. Request for hearing is made regarding Plaintiff wife's claims. Plaintiff husband claim's, while based on the same factual background, are distinguishible from Plaintiff wife's claims.
5-6. Refer to your amended complaint and reiterate the reasons in your response.
Did you attach affidavit from yourself stating that you've met requirements for naturalization along with the request for hearing?