Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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yourfirstname
Registered Users (C)
Jefkorn,
I used the same "certificate of service" template which meteor8 suggested and is on the wiki. I tried to file Certificate of service (2 copies) + 6 original summons (1st page of AO44) for each defendant + 6 copies of certified mail for each defendant. Clerk said that certificate of service is not required but I need to fill up 2nd page of AO44 for all the 6 original summons.
I think second page needs to be filled up and filed with the court for each named defendants and all others required to be served(AG if not named, USA). Proof of Service is a proof that you served the initial Complaint and any related exhibits etc. I think the Certificate of Service when used in place of Proof of Service at the very first step of initiating the action caused the whole confusion.
I wonder if clerk meant "Certificate of Service" which is also filed with the court along with any subsequent pleadings. It's usually one little paragraph at the end of the actual document filed with the court stating that you sent a copy of the said document to counsel on record. See here for sample Certificate of Service as it appears at the end of Plaintiff's Response to MTD.
Here's a sample:
Welcome to joys of legal world!!!
I wonder if clerk meant "Certificate of Service" which is also filed with the court along with any subsequent pleadings. It's usually one little paragraph at the end of the actual document filed with the court stating that you sent a copy of the said document to counsel on record. See here for sample Certificate of Service as it appears at the end of Plaintiff's Response to MTD.
Here's a sample:
Welcome to joys of legal world!!!
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For ND CAL, Certificate of Service is allowed even for serving the initial complaint(see the excerpt from Prose Handbook I posted above). Maybe that's true for most districts, and that's why Certificate of Service sample is posted on wiki. I am afraid some clerks just don't know it.
I was preparing my case couple days ago and thought I would double check the defendants name to make sure they are still current. I found out that Emilio Gonzalez has resigned and it was effective 4/18/08. Now Jonathan Scharfen is their Acting Director effective 4/21/08. http://www.uscis.gov/portal/site/us...nnel=c0fbab0a43b5d010VgnVCM10000048f3d6a1RCRD
So I am assuming I should put Scharfen as one of the defendant replacing Gonzalez?
Also, I have another question. Do I include all my 'proof of exhausted remedies' (ie. letter to first lady, USCIS respond letters, FOIPA, etc in my initial complaint?
So I am assuming I should put Scharfen as one of the defendant replacing Gonzalez?
Also, I have another question. Do I include all my 'proof of exhausted remedies' (ie. letter to first lady, USCIS respond letters, FOIPA, etc in my initial complaint?
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Yes, that's correct. See here for a list of usual Defendants, and their addresses. You may have named more Defendants than what's on the list.
Just so that you know, even if you had named Gonzales by mistake, he would have been replaced by Sharfen as per FED. R. CIV. P. 25(d)(1) by the Court.
See FED. R. CIV. P. 25(d)(1) ("When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party").
Just so that you know, even if you had named Gonzales by mistake, he would have been replaced by Sharfen as per FED. R. CIV. P. 25(d)(1) by the Court.
See FED. R. CIV. P. 25(d)(1) ("When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party").
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yourfirstname
Registered Users (C)
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barani1000
Registered Users (C)
Does anyone know if the FBI meet its July goal for processing Name Check longer than 2 years?
yourfirstname
Registered Users (C)
My application is more than 2 years old and name check is still pending so I would say no.
Aronov v. Chertoff - Lazycis and others
On August 1, the US Court of Appeals for the First Circuit had issued a decision in Aronov v. Chertoff et al, case No. 07-1588.
The Court of Appeals upheld the lower court decision (by a US District Judge Nancy Gertner) that awarded attorney's fees to a plaintiff in 1447(b) natz case.
However, what might turn out to be more important, the Court had opined that the name check is not a statutory requirement for naturalization, and therefore cannot serve as a justification for delays in processing natz applications:
// There is nothing in the language of 8 U.S.C. 1446(a) or the 1998 Appropriations Act that requires USCIS to include the NNCP in the naturalization process. Neither provision cited by the government states explicitly that an FBI name check is required, let alone a name check that includes an evaluation of all FBI reference files in addition to the main files. Section 1446(a) requires only that a "personal investigation" be conducted prior to allowing an individual to be naturalized, while the 1998 appropriations bill limits funds to the USCIS to complete adjudication of a naturalization application until the agency has received FBI confirmation that a "full criminal background check" has been completed. There is no specification in the bill beyond this phrase. It is entirely plausible -- indeed likely -- that the language used by Congress in the 1998 appropriations bill referred to the FBI's criminal history check, which is an established, preliminary step taken in the naturalization process, rather than the FBI name check.
Importantly, the FBI name check program had already been in place for decades at the time the statutes relied upon by the government were enacted. If Congress intended to mandate that the USCIS commission FBI name checks before granting naturalization applications, it could have explicitly referenced such checks. See, e.g., United States v. Cabrera, 208 F.3d 309, 314 (1st Cir. 2000) (examining Congress's other textual options in interpreting the statutory language at issue). Other than an unpersuasive reliance on the text of the statutes, the government has not identified any evidence that Congress intended to require the FBI name checks.
Indeed, USCIS did not even begin requiring the full, comprehensive FBI name checks until 2002, years after passage of the applicable statutes. That fact confirms that the comprehensive name checks were a result of a policy change within the agency after the September 11, 2001 attacks rather than a congressional mandate.
In sum, the statutes cited by the government did not require USCIS to commission FBI name checks -- let alone comprehensive ones -- before adjudicating a naturalization application. Therefore, the "mandated by statute" rationale fails as a substantial justification for the agency's delays in adjudicating Aronov's application.//
I see this decision as decidedly good news, especially for WOM'ers who reside in the First District.
Here is the link to the full text of the decision:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=docket&no=071588
On August 1, the US Court of Appeals for the First Circuit had issued a decision in Aronov v. Chertoff et al, case No. 07-1588.
The Court of Appeals upheld the lower court decision (by a US District Judge Nancy Gertner) that awarded attorney's fees to a plaintiff in 1447(b) natz case.
However, what might turn out to be more important, the Court had opined that the name check is not a statutory requirement for naturalization, and therefore cannot serve as a justification for delays in processing natz applications:
// There is nothing in the language of 8 U.S.C. 1446(a) or the 1998 Appropriations Act that requires USCIS to include the NNCP in the naturalization process. Neither provision cited by the government states explicitly that an FBI name check is required, let alone a name check that includes an evaluation of all FBI reference files in addition to the main files. Section 1446(a) requires only that a "personal investigation" be conducted prior to allowing an individual to be naturalized, while the 1998 appropriations bill limits funds to the USCIS to complete adjudication of a naturalization application until the agency has received FBI confirmation that a "full criminal background check" has been completed. There is no specification in the bill beyond this phrase. It is entirely plausible -- indeed likely -- that the language used by Congress in the 1998 appropriations bill referred to the FBI's criminal history check, which is an established, preliminary step taken in the naturalization process, rather than the FBI name check.
Importantly, the FBI name check program had already been in place for decades at the time the statutes relied upon by the government were enacted. If Congress intended to mandate that the USCIS commission FBI name checks before granting naturalization applications, it could have explicitly referenced such checks. See, e.g., United States v. Cabrera, 208 F.3d 309, 314 (1st Cir. 2000) (examining Congress's other textual options in interpreting the statutory language at issue). Other than an unpersuasive reliance on the text of the statutes, the government has not identified any evidence that Congress intended to require the FBI name checks.
Indeed, USCIS did not even begin requiring the full, comprehensive FBI name checks until 2002, years after passage of the applicable statutes. That fact confirms that the comprehensive name checks were a result of a policy change within the agency after the September 11, 2001 attacks rather than a congressional mandate.
In sum, the statutes cited by the government did not require USCIS to commission FBI name checks -- let alone comprehensive ones -- before adjudicating a naturalization application. Therefore, the "mandated by statute" rationale fails as a substantial justification for the agency's delays in adjudicating Aronov's application.//
I see this decision as decidedly good news, especially for WOM'ers who reside in the First District.
Here is the link to the full text of the decision:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=docket&no=071588
barani1000
Registered Users (C)
Is there anyone waiting longer than 3 years for name check?
My is more than 2 years too. So probably not.
yourfirstname
Registered Users (C)
FYI
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Court Cites USCIS and FBI “Business Plan” as Evidence Name Check will be Completed
In a pre-interview naturalization delay mandamus action, a district court relied on assurances made by USCIS and the FBI in the National Name Check Program Business Plan (“The Business Plan”). The plaintiff has not yet had a naturalization interview because the name check is not complete. The Business Plan, agreed to and signed by USCIS and the FBI in March 2008, was designed to eliminate USCIS name check requests that had been pending for extended periods of time and speed processing in the future. nter alia, the Business Plan indicated that July 2008 was the target date for processing USCIS name check requests that had been pending for over two years. Defendants cited the Business Plan in their pleadings and stated that because plaintiff’s naturalization application will have been pending for more than two years by July 31, 2008, the FBI “will work to complete Plaintiff’s FBI name check no later than July 31, 2008.” Based on these assurances, the court found it unnecessary to determine whether USCIS was required to schedule an interview absent a completed FBI name check. The court stayed the case until December 1, 2008. The case is Cherenkov v. Mukasey, No. 08-376 (W.D. Wash. filed Mar. 5, 2008).
http://www.ailf.org/lac/litclearinghouse/litclr_newsletter_080608.pdf
----
Court Cites USCIS and FBI “Business Plan” as Evidence Name Check will be Completed
In a pre-interview naturalization delay mandamus action, a district court relied on assurances made by USCIS and the FBI in the National Name Check Program Business Plan (“The Business Plan”). The plaintiff has not yet had a naturalization interview because the name check is not complete. The Business Plan, agreed to and signed by USCIS and the FBI in March 2008, was designed to eliminate USCIS name check requests that had been pending for extended periods of time and speed processing in the future. nter alia, the Business Plan indicated that July 2008 was the target date for processing USCIS name check requests that had been pending for over two years. Defendants cited the Business Plan in their pleadings and stated that because plaintiff’s naturalization application will have been pending for more than two years by July 31, 2008, the FBI “will work to complete Plaintiff’s FBI name check no later than July 31, 2008.” Based on these assurances, the court found it unnecessary to determine whether USCIS was required to schedule an interview absent a completed FBI name check. The court stayed the case until December 1, 2008. The case is Cherenkov v. Mukasey, No. 08-376 (W.D. Wash. filed Mar. 5, 2008).
http://www.ailf.org/lac/litclearinghouse/litclr_newsletter_080608.pdf
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Hi Lazycis,
I tried to send you PM but your mail box size is full; could you please make some room for meThanks,
OK-Boy
OK-Boy,
I just did that. Can we petition moderator to double the size of my inbox?
A quick question on Stipulation of Dismissal
Finally my I485 got approved. AUSA asked me to dismiss the WOM complaint. She drafted a short letter. Can anyone comment on the draft letter? Should I just sign the letter and send it back to the Court? Do I need to do anything else to defend my interest? Thank you. Good luck to all who are fighting with USCIS.
Stipulation of Dismissal
It is hereby stipulated that this action be dismissed with prejudice, each party to bear its own costs and attorney's fees.
Respectfully submitted,
Plaintiff
XXXX
Finally my I485 got approved. AUSA asked me to dismiss the WOM complaint. She drafted a short letter. Can anyone comment on the draft letter? Should I just sign the letter and send it back to the Court? Do I need to do anything else to defend my interest? Thank you. Good luck to all who are fighting with USCIS.
Stipulation of Dismissal
It is hereby stipulated that this action be dismissed with prejudice, each party to bear its own costs and attorney's fees.
Respectfully submitted,
Plaintiff
XXXX
That's true cuz you are above the rule of law...
OK-Boy,
I just did that. Can we petition moderator to double the size of my inbox?
Summons Question
Lazycis and Other,
In the summons it is mentioned that “an answer to the complaint which is served on you with this summon, with XX days after ther service of the summons on you.” Normally those XX days are 60 days but can I change to 30 days OR this is something we need to ask with the clerk of court. Please advice….
Lazycis and Other,
In the summons it is mentioned that “an answer to the complaint which is served on you with this summon, with XX days after ther service of the summons on you.” Normally those XX days are 60 days but can I change to 30 days OR this is something we need to ask with the clerk of court. Please advice….