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

Sorry, I posted this on another thread but this one seems to be more relevant to my situation.

I had been following this forum for a long time but never write much. I had been stuck with the name check since May 2006. I have sent many letters (i.e. first lady, congressmen, senator, etc) and requested FOIPA, but didn’t do much. I am considering WOM and live in Seattle, WA can anyone tell me if WA is a good state for WOM and how should I start it?

PD: 05/06
FP: 06/06
Name check pending.....
Letter to various gov. 01/08 (no result)
Letter to First Lady 03/08 (no result)
 
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eg0788

Hey, eg0788,

I think the federal court at western district of Washington is friendly to aliens on the WOM suits. IF you want to do more research, register a PACER accout for free. You need to pay 8 cents per page if you look the documents or records in pacer. However, wrriten opinions are free. So you can log in the PACER account in your district, go to "reports", then "written opinions", use "Chertoff" as a party name and run a search. You will get written opinions on probably dozens of cases. You could pick those opinions in the "writ of mandamus" catergory and read them (or just the conclusion part), then you have a better idea how friendly your district is.


eg0788 said:
Sorry, I posted this on another thread but this one seems to be more relevant to my situation.

I had been following this forum for a long time but never write much. I had been stuck with the name check since May 2006. I have sent many letters (i.e. first lady, congressmen, senator, etc) and requested FOIPA, but didn’t do much. I am considering WOM and live in Seattle, WA can anyone tell me if WA is a good state for WOM and how should I start it?

PD: 05/06
FP: 06/06
Name check pending.....
Letter to various gov. 01/08 (no result)
Letter to First Lady 03/08 (no result)
Click to expand...
 
mish said:
Thanks Lazycis,
My only worries that the INS office could play the waiting game again and start counting the120 days all over again after the second interview? I don’t trust them any more; I don’t know what to do please advice.
Click to expand...


There is another issue here: once you filed your 1447(b) lawsuit, the USCIS should lose jurisdiction over your case. If you go to the second interview, it might be later construed as you agreeing to USCIS keeping jurisdiction.

In any case, they had an opportunity to call you for a second interview within the time period and they did not use it. I would insist that the USCIS follow the letter of the law - I do not see what you could gain by agreeing to a second interview. Ask the judge to give you the oath.
 
I don’t know what to do, I was thinking to call the local U.S. Attorney on Monday and ask him what is going on with USCIS office and let him know that I haven’t receive any thing form USCIS office yet. Please, advice. Thanks.
 
Mish,

I believe rather than talking to AUSA and wasting more time; you should file immediately “Motion for Expedited Hearing” with the proposed timetable to ask the court to get you Oath.

What do you suggest Lazycis?


mish said:
I don’t know what to do, I was thinking to call the local U.S. Attorney on Monday and ask him what is going on with USCIS office and let him know that I haven’t receive any thing form USCIS office yet. Please, advice. Thanks.
Click to expand...
 
Mish

Hi Mish,

If you want to do an expedited hearing, be sure you do the right way.

I tried to file an expedited hearing on district 9 court, but got very strong oppose from AUSA. And, immediately got denied from the judge.

The reason for the AUSA to oppose my expedited hearing was:
1. USCIS said my background check was not over, even thought my FBI name check was over.
2. I did not talk to her to set up right expedited hearing date. She claimed she was too busy and no way for her to attend the hearing for the date I set.

Plus, for 9th district, hearing date has to be 35 days from filing date, unless you can show emergency (which you need to show that in your motion and not just in your complaint).

If I were you, I would call AUSA tomorrow. I would check what USCIS's plan for the case. If they can promise you to adjudicate your case within 1-1.5 month, you will get same result as you file an expedited hearing without too much other trouble.
 
Waitforsolong:

I'm not totally agreed with you and will quote this:

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. 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)."

Everyone is requested to make comments as it's very pressing issues and noone among us is an attorney by anychance...

waitforsolong said:
Hi Mish,

If you want to do an expedited hearing, be sure you do the right way.

I tried to file an expedited hearing on district 9 court, but got very strong oppose from AUSA. And, immediately got denied from the judge.

The reason for the AUSA to oppose my expedited hearing was:
1. USCIS said my background check was not over, even thought my FBI name check was over.
2. I did not talk to her to set up right expedited hearing date. She claimed she was too busy and no way for her to attend the hearing for the date I set.

Plus, for 9th district, hearing date has to be 35 days from filing date, unless you can show emergency (which you need to show that in your motion and not just in your complaint).

If I were you, I would call AUSA tomorrow. I would check what USCIS's plan for the case. If they can promise you to adjudicate your case within 1-1.5 month, you will get same result as you file an expedited hearing without too much other trouble.
Click to expand...
 
mish said:
I don’t know what to do, I was thinking to call the local U.S. Attorney on Monday and ask him what is going on with USCIS office and let him know that I haven’t receive any thing form USCIS office yet. Please, advice. Thanks.
Click to expand...

Call AUSA and tell him that you may file a join stipulation to dismiss a complaint if USCIS agrees to adjudicate your N400 within 30 days. You can fight the second interview, but the quickest way for you to get citizenship is probably to go to the interview.
 
Lazycis and Others:

In the “Arguments” section of my main complaint (1447b) I wrote: “The Plaintiff meets all the statutory requirements for Naturalization. See 8 U.S.C §1427(a); INA § 316(a). Also, mentioned in the M-476 (A guide to naturalization) that:”

a. Physical presence and continuous residence in the USA. See 8 U.S.C §1427(a)(1),(a)(2)---It is proved by the Plaintiff’s employment history.
b. Time in the USCIS District. ---It is confirmed by Plaintiff’s residence history in XX State.
c. Good moral character. See 8 U.S.C §1427(a)(3); 8 C.F.R. § 316.10.---It is confirmed by FBI security clearance as well Plaintiff’s FOIPA and FBI RAP sheet results.
d. English and civic knowledge---Plaintiff’s N-652 form verified it.
e. Attachment to the constitution---Plaintiff affirmed it during his interview on May 1, 2008.

First of all, will this argument convince the court to get me Oath rather than remanding my case back to USCIS.

Secondly, there was a discussion last month as how can somebody prove his/her evidence of Good Moral Character and Lazycis had asked for some “Reference Letter” from friends and families showing that person has a GMC while I provided the FBI namecheck, FBI Rap Sheet and FOIPA as proof. Is it enough or else? Please advice.

Case Details:
N-400
1- Receipt Date: Oct 10, 2006
2- First Fingerprinting: Oct 25, 2006
3- Got a letter from FBI that namecheck was cleared on Nov, 2007
4- Got second fingerprinting on Feb, 2008
5- Got the IV in 1 May, 2008 and was told that the decision cannot be made due to supervisor’s absence
6- Had written numerous letters of everybody but no Oath Letter yet.
 
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Few points regarding my Complaint:
1. The exact delays is not 24 months, it's going to be more like ~21 months in my case when I will file Complaint but I'm using "close to two years" phrase. That should be ok?
2. The case reference in one of the samples I downloaded from the forum is incorrect: it read: Elkhatib v. Butler whereas the correct reference is "Elkhatib v. Bulter" so please correct your references.
3. Regarding privacy concerns, I read in the local district rules that I don't need to provide my complete DOB, year is sufficient. For address, I can just provide "Town, State". Is that what you did when filing pro se?

jefkorn said:
Folks, Here's my final(I think!) draft of Complaint for your perusal. As always comments and feedback are welcome.
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OK-Boy said:
Lazycis and Others:

In the “Arguments” section of my main complaint (1447b) I wrote: “The Plaintiff meets all the statutory requirements for Naturalization. See 8 U.S.C §1427(a); INA § 316(a). Also, mentioned in the M-476 (A guide to naturalization) that:”

a. Physical presence and continuous residence in the USA. See 8 U.S.C §1427(a)(1),(a)(2)---It is proved by the Plaintiff’s employment history.
b. Time in the USCIS District. ---It is confirmed by Plaintiff’s residence history in XX State.
c. Good moral character. See 8 U.S.C §1427(a)(3); 8 C.F.R. § 316.10.---It is confirmed by FBI security clearance as well Plaintiff’s FOIPA and FBI RAP sheet results.
d. English and civic knowledge---Plaintiff’s N-652 form verified it.
e. Attachment to the constitution---Plaintiff affirmed it during his interview on May 1, 2008.

First of all, will this argument convince the court to get me Oath rather than remanding my case back to USCIS.

Secondly, there was a discussion last month as how can somebody prove his/her evidence of Good Moral Character and Lazycis had asked for some “Reference Letter” from friends and families showing that person has a GMC while I provided the FBI namecheck, FBI Rap Sheet and FOIPA as proof. Is it enough or else? Please advice.
Click to expand...

In Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. December 31, 1996) the 9th Circuit court held that the court could not rely solely upon petitioner's criminal history to deny naturalization (although aggravated felony is a bar to naturalization). However, I am not sure if absense of criminal history automatically gives you GMC. This being said, I do not think a reference letter/affidavit is needed when you have FBI rap sheet and FBI name check clearance.
 
jefkorn said:
Few points regarding my Complaint:
1. The exact delays is not 24 months, it's going to be more like ~21 months in my case when I will file Complaint but I'm using "close to two years" phrase. That should be ok?
2. The case reference in one of the samples I downloaded from the forum is incorrect: it read: Elkhatib v. Butler whereas the correct reference is "Elkhatib v. Bulter" so please correct your references.
3. Regarding privacy concerns, I read in the local district rules that I don't need to provide my complete DOB, year is sufficient. For address, I can just provide "Town, State". Is that what you did when filing pro se?
Click to expand...

1. It's OK.
2. Westlaw gives me "Elkhatib v. Butler"
3. Court needs your full address/phone, otherwise they may not be able to contact you.
 
Lazycis and Others,

If court remands the (1447b) with instruction to promptly adjudicate the case back to USCIS and if they deny the case then would Plaintiff need to appeal in the same District court or he needs to go to Immigration court this time. Please advice..
 
OK-Boy said:
Lazycis and Others,

If court remands the (1447b) with instruction to promptly adjudicate the case back to USCIS and if they deny the case then would Plaintiff need to appeal in the same District court or he needs to go to Immigration court this time. Please advice..
Click to expand...

I believe that the proper sequence is: remand - denial - admiistrative appeal (N-336) - back to district court.

A hint regarding the complaint: title it "Petition for hearing on naturalization application".
 
Thanks lazycis! I had downloaded the attached opinion from the forum quite a while back. Sorry I meant to say it was Bulger in the sample and the correct party is Bulter.

lazycis said:
1. It's OK.
2. Westlaw gives me "Elkhatib v. Butler"
3. Court needs your full address/phone, otherwise they may not be able to contact you.
Click to expand...
 
Success:)

After 14 months of waiting for the pending name check, I filed WOM suit in Easter PA district court early May. Got email from district attorney today with attached interview letter next week.

So, all they need is just a little push:)

The appointment document is dated 6/30, so I guess I will get the real one in couple days; once I get it, I will go ahead and withdraw my lawsuit.

Thanks for all the people who posted detail information on how to file the law suit.
 
Interview letter means NOT necessarily that they would send you Oath soon so hang on to your WOM until you get Naturalized; just my 2 cents in it...

au071 said:
Success:)

After 14 months of waiting for the pending name check, I filed WOM suit in Easter PA district court early May. Got email from district attorney today with attached interview letter next week.

So, all they need is just a little push:)

The appointment document is dated 6/30, so I guess I will get the real one in couple days; once I get it, I will go ahead and withdraw my lawsuit.

Thanks for all the people who posted detail information on how to file the law suit.
Click to expand...
 
Interesting. I guess I should hang on to it until after the interview at least.

For the WOM suit, we can hold it indefinitely? should I do anything or contact the court to hold it?
 
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