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

[lazycis]

jefkorn and wommei,

I am soooo glad to hear good news about your approvals!!! It's a pity that some times those who deserve it most have to fight to get it, but I'm excited that it's over for you (jefkorn, keep us updated on your wife's status and do not dismiss the lawsuit until she is approved).

Wishing you the best,
LC

 

[jefkorn]

Let's give lazycis a big welcome back!!

We are so glad to have you back

 

[jefkorn]

wow!! we hit the Submit button at the very same second for my post above.
Thanks for your best wishes and help always!! As I mentioned in previous post here and here, CIS has sent an RFE on 08/01/2008 on my spouse's AOS and I haven't received it yet. Also my Card Production ordered was on 07/31/2008 so I guess this week I should receive it.

I hadn't added my spouse as plaintiff and neither did I ask for her adjudication directly. I did mention that her AOS couldn't be adjudicated because primary's(mine) AOS was pending.

AUSA hasn't contacted me yet. If she does I wonder, can I ask her about my wife AOS that RFE has been received(if I receive it before AUSA calls/contact me) and I wouldn't dismiss the case until my spouse's AOS is complete?

I don't need to amend my Complaint, do I?

jefkorn and wommei,

I am soooo glad to hear good news about your approvals!!! It's a pity that some times those who deserve it most have to fight to get it, but I'm excited that it's over for you (jefkorn, keep us updated on your wife's status and do not dismiss the lawsuit until she is approved).

Wishing you the best,
LC

 

[jefkorn]

wommei,
Wow! wonderful news and I'm glad that it finally ended for you.
Did you just receive Card Production Ordered(CPO) email and not the "approval notice sent" email? I hear that people usually receive card within a week to two week. Well deserved win and every one learns and shares their knowledge here and that's just great!!

Hey, Lazycis and others,

Our I485 applications are approved this morning and I am so glad that I will get the green card soon. When I started the lawsuit in September 2007, I knew little about the caselaws, federal statues and regulations. I have learned so much from lazycis, wom_ri and other Womers since then. I am very grateful for your generous help during this process and I know that I cannot do this without your help, guidance and encouragement. Although I am a little dispointed that aliens who file lawsuit after me won't be able to cite a written opinion on my case, I think I can live with that.



Current Status: Card production ordered.

On August 5, 2008, we ordered production of your new card. Please allow 30 days for your card to be mailed to you. If we need something from you we will contact you. If you move before you receive the card, call customer service. You can also receive automatic e-mail updates as we process your case. Just follow the link below to register.

 

[OK-Boy]

Query

Lazycis and others,

When I mention the similar (1447b) cases of my State (different districts) in the ARGUMENTS section of my complaint; most of them were voluntarily dismissed by the Plaintiff as he/she got the Citizenship. Can I mention this statement in my Complaint, assuming it would not offend either AUSA or Judge. Please explain….

 

[jefkorn]

If you are using 1447(b) then 120 days wait after the interview is a must but if you are using WOM then you don't need to have been interviewed provided:
1. Your Natz is unreasonable delayed(the determination of what is an unreasonable delay depends a lot on the individual's circumstances and on prior precedents in and outside your circuit). I know for AOS there have been favorable rulings for plaintiff in the delays of 6 months to 2 years and more.
2. You have exhausted your remedies. This just means that you have tried your best and you have the proof to show for it. InfoPass, Phone calls, contacting Senator/Congressman/Ombudsman/USCIS Service Center in writing. Again there's not a definite number of people to contact or options to try to be considered as exhausting the available remedies but at least some of them.
Is she using name check in the three tiered background check? Then yes you can attach NC causing the delay. Also your Natz. application is delayed by 2 years and that's good enough reason to argue. Also did you compare the processing times posted by the local office processing your Natz application and show the court that even by CIS's own standard your application is delayed.
You need to counter arguments from her MTD in your "Opposition to Motion To Dismiss" and argue on assert jurisdiction as well.

Hi wommei,jefkorn
Thank you for a fast responde , here is what the AUSA said in her MTD :
NAT process is 5 steps (1) application (2) three -tiered background check (3) interview (4) deny or grant the application (5) oath , now AUSA did say the court should dissmis the case because i didn't go through the interview yet and i cann't sue until 120 days of expired from the interview date , she didn't say any thing about background check is pending at all and of course i didn't exhaust my administrative remedies , mean while i submit in my original complaint the letters that i got from CIS about the background check still pending , info pass , letters from the senator and so on .
so now should i attack the background check in my resopnds even she didn't talk about it or just go after the jurisdication and unresonable delay ??
thanks guys very much

 

[jefkorn]

See here

Lazycis and others,

When I mention the similar (1447b) cases of my State (different districts) in the ARGUMENTS section of my complaint; most of them were voluntarily dismissed by the Plaintiff as he/she got the Citizenship. Can I mention this statement in my Complaint, assuming it would not offend either AUSA or Judge. Please explain….

 

[OK-Boy]

Sending Separate Summon to AUSA

Lazycis and others,

I tried to ask with my clerk for sending a separate summon to AUSA but he refused to reply being a legal advice. I looked into the civil suit procedure but couldn't find the answer. I think I should send the copy of complaint plus the copy of summons (all defandants) to AUSA w/o having a separate summon for him/her because he/she is not in defendants' list. Can some shed some light?

OK-Boy

 

[jefkorn]

Here's the math:
Number of named Defendants = Number of Summons (in most courts) in addition to one for the local US Attorney
Everyone gets a copy of the complaint +exhibits+summons.

If you you named DHS, CIS and AG(US Attorney General) then you will have 4 summons, each one of those bearing the named defendants and their addresses and one with local US Attorney's name and address on it.

I didn't have to serve US Attorney's office with copies of summons for all named Defendants. I just served one summons for local US Attorney's office. Once you serve the US Attorney's office, an AUSA is assigned to the case and he/she is going to file a Notice of Representation with the court and that's how you would know who is the AUSA. When filing a new Complaint, you don't directly serve Summons to AUSA.

US Attorney is not in the named defendant's list but whenever US Govt. is sued, he/she needs to be served.

From AILF: WHOM TO SUE AND WHOM TO SERVE IN IMMIGRATION-RELATED DISTRICT COURT LITIGATION

"...
1. Service on the United States
In suits against the United States, Federal Rule of Civil Procedure 4(i)(1)(A)-(C) provides that counsel must serve the summons and complaint on the:
* local US Attorneys Office either by in person delivery to the US Attorney, an Assistant US Attorney or clerical employee designated to accept service or by registered or certified mail to the civil process clerk; and
* US Attorney General by registered or certified mail (to the address in Appendix A);
"

If you already named US Attorney General, Michael Mukasey as defendant, you don't need to serve him twice.

Lazycis and others,

I tried to ask with my clerk for sending a separate summon to AUSA but he refused to reply being a legal advice. I looked into the civil suit procedure but couldn't find the answer. I think I should send the copy of complaint plus the copy of summons (all defandants) to AUSA w/o having a separate summon for him/her because he/she is not in defendants' list. Can some shed some light?

OK-Boy

 

[yourfirstname]

Lazycis and others,

I tried to ask with my clerk for sending a separate summon to AUSA but he refused to reply being a legal advice. I looked into the civil suit procedure but couldn't find the answer. I think I should send the copy of complaint plus the copy of summons (all defandants) to AUSA w/o having a separate summon for him/her because he/she is not in defendants' list. Can some shed some light?

OK-Boy

California Pro-se handbook clearly says that summons (with complaint) have to be delivered to local US attorney and Attorney General. Here is the handbook, its on page 40.


To serve the complaint and summons on the United States, you must:
1. a. Hand deliver the complaint and summons to the United States Attorney
for the Northern District of California, or
b. Hand deliver the complaint and summons to an assistant United States
Attorney or clerical employee designated by the United States Attorney in a
writing filed with the clerk of the court, or
c. Send a copy of the summons and complaint by registered or certified mail
addressed to the civil process clerk at the office of the United States Attorney for
the Northern District of California;AND
2. You must also send a copy of the summons and complaint by registered or
certified mail to the Attorney General of the United States in Washington, D.C.;
AND
3. If your lawsuit challenges the validity of an officer or agency of the United States
but you have not named that officer or agency as a defendant, you must also send
a copy of the summons and complaint by registered or certified mail to the officer
or agency.

 

[jefkorn]

Diffference among AUSA, USA, AG

It was confusing to me in the beginning. There's one AG (US Attorney general, aka US AG, AG, USAG), he the highest official that represents United States. There's one United States Attorney in a judicial district or state. Then there are couple of Assistant United States Attorneys (AUSAs) working out of US Attorney's office. Whenever an official is sued in hi/her official capacity, United States(hence AG) needs to be served.If you have named AG as the defendant, you don't need to serve his office twice.

As a practical matter, AUSA deals with the WOMs and 1447(b) although neither AUSA nor US Attorney is named as a defendant

 

[jefkorn]

Update on my AOS

This seems new but looks like there's another email that is sent when the card is actually mailed. I think it's for real
"
Current Status: Card Mailed

On August 5, 2008, we mailed the new card directly to the address we have on file. You should receive your new card within 30 days. If you do not, or if you move before you get it, call customer service.
"

 

[OK-Boy]

Jefkorn,

So if I have 4 defendants then I would have 5 summons; each defendant will serve with complaint + exhibits+ the 1 copy of the summon having that particular defendant's name NOT the copies of all the summons BUT US Attorney will serve Complaint+exhibits+ his/her summon plus copies pf all four summons (for 4 defendants). Finally, even though US attorney doesn't have the name as a defendant but we have a separate summon for him/her. I hope I didn't mix anything???

It was confusing to me in the beginning. There's one AG (US Attorney general, aka US AG, AG, USAG), he the highest official that represents United States. There's one United States Attorney in a judicial district or state. Then there are couple of Assistant United States Attorneys (AUSAs) working out of US Attorney's office. Whenever an official is sued in hi/her official capacity, United States(hence AG) needs to be served.If you have named AG as the defendant, you don't need to serve his office twice.

As a practical matter, AUSA deals with the WOMs and 1447(b) although neither AUSA nor US Attorney is named as a defendant

 

[yourfirstname]

Jefkorn,

So if I have 4 defendants then I would have 5 summons; each defendant will serve with complaint + exhibits+ the 1 copy of the summon having that particular defendant's name NOT the copies of all the summons BUT US Attorney will serve Complaint+exhibits+ his/her summon plus copies pf all four summons (for 4 defendants). Finally, even though US attorney doesn't have the name as a defendant but we have a separate summon for him/her. I hope I didn't mix anything???

Ok-boy,

Is attorney general a defendant in your case?

If you are in N.CAL and do NOT have attorney general as defendant than you will have six as, as per handbook, you must serve US attorney and AG even if they are not listed as defendants.

 

[N400-Misery]

You are right ! OK-BOY

Lazycis and others,

I tried to ask with my clerk for sending a separate summon to AUSA but he refused to reply being a legal advice. I looked into the civil suit procedure but couldn't find the answer. I think I should send the copy of complaint plus the copy of summons (all defandants) to AUSA w/o having a separate summon for him/her because he/she is not in defendants' list. Can some shed some light?

OK-Boy:

That's exactly what I did in my case.. I did not draft a separate summon in the Local US Attorney’s name. Just made copies of all summons, exhibits, and original complaint and mailed everything to US attorney's office with Return receipt. Once he sees the original complaint he knows what he/she needs to do next! Good Luck.

--------------------------------
N400 @ TSC
PD: 11/06
FP1: 12/06
ID: ???????
WoM: 05/08
FP2: 07/08

 

[OK-Boy]

Yes attorney general is in the list. When you say service of process is conduct on someone; it means you have served him with a summon on his name plus complaint with the certified mail...Right?

Ok-boy,

Is attorney general a defendant in your case?

If you are in N.CAL and do NOT have attorney general as defendant than you will have six as, as per handbook, you must serve US attorney and AG even if they are not listed as defendants.

 

[OK-Boy]

THIS IS the point i was making earlier to draft/make a seperate summon for US attorney or NOT? There is a debate of having different districts of different procedure. I think for the safe side I will draft a separate smmon for USA and if it redundant then it would be disregarded by the court/judge...

OK-Boy:

That's exactly what I did in my case.. I did not draft a separate summon in the Local US Attorney’s name. Just made copies of all summons, exhibits, and original complaint and mailed everything to US attorney's office with Return receipt. Once he sees the original complaint he knows what he/she needs to do next! Good Luck.

--------------------------------
N400 @ TSC
PD: 11/06
FP1: 12/06
ID: ???????
WoM: 05/08
FP2: 07/08

 

[jefkorn]

Yes, even if US attorney's is not named as a defendants, he/she receives the a separate summons in his name. In MA, it needs to be addressed as,

US Attorney, Michael J. Sullivan,
Attn: Civil Process Clerk
1 Courthouse Way
John Joseph Moakley Courthouse
Boston, MA 02210

see here and ensuing replies for a similar discussion or search for "summon" or summons" in this thread using Search This Thread feature to find out more about it.

Should you also serve a copy of summons for named defendants(in your example 4) in addition to one for US Attorney's to US Attorney's office? I didn't serve additional summons to US Attorney's office do it but you can check local rules if they required you to do so.

By the way, you serve(notify) defendants, defendants don't serve (at least not in this case) by themselves.

Jefkorn,
So if I have 4 defendants then I would have 5 summons; each defendant will serve with complaint + exhibits+ the 1 copy of the summon having that particular defendant's name NOT the copies of all the summons BUT US Attorney will serve Complaint+exhibits+ his/her summon plus copies pf all four summons (for 4 defendants). Finally, even though US attorney doesn't have the name as a defendant but we have a separate summon for him/her. I hope I didn't mix anything???

 

[yourfirstname]

Well, from ND CAL's handbook, it looks like serving to US Attorney and attorney general is required, serving to rest of the defandants is optional.

Defendants are required to be served only in case of point#3 in below cut/paste for ND CAL's handbook.

To serve the complaint and summons on the United States, you must:
1. a. Hand deliver the complaint and summons to the United States Attorney
for the Northern District of California, or
b. Hand deliver the complaint and summons to an assistant United States
Attorney or clerical employee designated by the United States Attorney in a
writing filed with the clerk of the court, or
c. Send a copy of the summons and complaint by registered or certified mail
addressed to the civil process clerk at the office of the United States Attorney for
the Northern District of California;AND
2. You must also send a copy of the summons and complaint by registered or
certified mail to the Attorney General of the United States in Washington, D.C.;
AND
3. If your lawsuit challenges the validity of an officer or agency of the United States
but you have not named that officer or agency as a defendant, you must also send
a copy of the summons and complaint by registered or certified mail to the officer
or agency.

 

[jefkorn]

It doesn't hurt to serve the USA. After you have served USA and named Defendants (if AG is not named, serve him as well). As the next step you are going to file proof of service with court and at that point court is going to look at the delivery of summons and see if you delivered (served) summons to all who are required to be served.
Are you using form (AO440?) from court's web site or writing it on your own? It may look like this.

THIS IS the point i was making earlier to draft/make a seperate summon for US attorney or NOT? There is a debate of having different districts of different procedure. I think for the safe side I will draft a separate smmon for USA and if it redundant then it would be disregarded by the court/judge...