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

[jefkorn]

Best of luck for your OATH. You are almost done. So this happened without filing the lawsuit? I'm sorry if I am forgetting about your case.

An update on my case....I just came back from the interview, everything went smoothly

I got 2nd fingerprint done on 9/3, today (9/5) was my interview and got oath letter for 9/9....everything completed in just one week..

 

[yourfirstname]

Best of luck for your OATH. You are almost done. So this happened without filing the lawsuit? I'm sorry if I am forgetting about your case.

Jefkorn,

lawsuit was filed in the last week of July. US attorney has time untill end of this month to file response to the complaint.

 

[lvla]

Need advice on I-485 WOM. Thanks!

I'd appreciate advice from you WOM experts. Thank you very much in advance!

My I-485 case detail:

EB-2, China

Texas Service Center
PD: 09/2005
RD: 09/2005
1st FP: 10/2005
Namecheck cleared: 10/2007 (2 years from RD)
2nd FP: 09/2008

Visa retrogression started 10/2005. Then My PD was current for 6 months in 2007 (from 06/2007 to 11/2007), but case was not processed first due to Namecheck delay, then in October and November 2007, USCIS did not touch my case although it is eligible. My PD is current again in August and September of this year. But similar to last winter, USCIS didn't bother to touch my case. TSC has been approving 2006 PD cases since August 2008 and it appears that they are not interested in processing older cases. My case has been pending for almost 3 years. Another retrogression could happen anytime. That is why I want to file a WOM now. I wanted to file it while my PD is still current. Basically, ASAP in this month.

I have done some research online and was directed to this valuable thread. I read the first page and some later pages - 500+ will take a long time to go through

My questions are:

1. Could any of you please direct me to a most recent I-485 WOM complaint template posted here?

2. As described above, out of my 3-year delay, FBI namecheck contributed 2 years! Will USCIS use FBI delay as an excuse? Since my NC is cleared now, I can not put FBI on the defendant list anymore, right?

3. Similar to question 2, the visa availability issue: visa was available for my case during the following period of time in the past 3 years. 06/2007 to 10/2007, NC not cleared. 10/2007 to 12/2007 and from 08/2008 until now, USCIS not processing. How should I handle this in my writing? And what if visa retrogresses again?

Again, thanks so much for all your help!

 

[jefkorn]

What's your district? I hope you are in a WOM friendly district because it makes it a lot easier to get CIS moving on your case without a whole lot of opposition from Govt. You can use the wiki page as a starting point. Just remember that because of the recent server migration of this forum, some links may not work. You can try changing part of the url from boards.immigrationportal.com to boards.immigration.com and it will probably work.

1. Could any of you please direct me to a most recent I-485 WOM complaint template posted here?

You may want to start at page 560 as suggested here..
Here's a sample complaint recently posted: http://boards.immigration.com/showpost.php?p=1954949&postcount=17416
The posted complaint lists only primary as the plaintiff but I had to amend it to add my wife recently after my AOS was approved so her AOS will be under AUSA's watch and will be processed by CIS on time. If you are married and your dependants' I-485 is also pending because of your I-485, add them to the list of Plaintiffs.

2. As described above, out of my 3-year delay, FBI namecheck contributed 2 years! Will USCIS use FBI delay as an excuse? Since my NC is cleared now, I can not put FBI on the defendant list anymore, right?

How do you know your FBI name check was cleared? Although it doesn't matter now if you FBI NC was cleared or not because of the CIS memo.IMHO, leave out FBI from defendants list if your application and any of your dependents AOS applications are pending beyond 180 days. CIS doesn't have a strong position in arguing now that NC can be used to withhold adjudication. Even if CIS says that NC delayed the adjudication, why the application wasn't processed timely after NC was complete.

3. Similar to question 2, the visa availability issue: visa was available for my case during the following period of time in the past 3 years. 06/2007 to 10/2007, NC not cleared. 10/2007 to 12/2007 and from 08/2008 until now, USCIS not processing. How should I handle this in my writing?

You can mention in the complaint, that your application could be adjudicated because the visa number was available and it should have been according to the Congressional mandate of 180 days and as per the processing times posted by USCIS online for TSC. But USCIS inaction left you waiting which caused you further harm (emotional/financial). Other applications filed after you were being processed before you and no explanations was even given to you.

And what if visa retrogresses again?

This is important. You should highlight this and state that if your application was not adjudicated while your PD is current. With the
Here's an example of TRO (Temporary restraining order) that you could look into.
Another member wom_ri filed TRO and got his AOS adjudicated within the VB when his PD was current. If the PD is current at the time of filling WOM, the complaint won't be dismissed but USCIS will certainly oppose by saying that CIS can't adjudicate AOS if the PD is not available.

 

[eg0788]

AUSA should contact you about this. If not, you can contact AUSA. You are pro se, AUSA should prepare a joint statement and all you need to do is to sign it. Check your local rules regarding "initial disclosure". It may not be required for individuals. If it is required in your court, you should be able to find form on court's website or you can get it from clerk. It's a very simple form.

lazycis,

What usually happen during the conference? Is there anything that I should be aware of? Also, I don't see the initial disclosure form. Is there any copy I can look at? Is the conference a common thing that all cases have to do?

 

[lvla]

Jefkorn, thank you so much for all the advice.

I am in Northern District of Texas. I heard this is a relatively friendly court, is that the case? If there are similar AOS cases in my district court that the applicants won, should I quote them in my complaint?

Thanks for providing the sample. I will start working on it tomorrow. I am the primary applicant without dependent so the template would apply to my case.

Last December I sought the administrative help to inquire my namecheck status. FBI wrote back in Feb 08 in response to First Lady's office inquiry that my namecheck was cleared and sent to USCIS in Oct 2007 (It is interesting that meanwhile USCIS still told me my namecheck was pending - must be another mis-communication between FBI/USCIS and this did not surprise me at all). Anyway, since then in every phone call or Infopass session, CIS told me my namecheck is completed.

Your arguments and suggestions on the visa issue are great! I will certainly adapt the strategy in my complaint.

I will post my complaint here for advice as soon as I finish it.

 

[jefkorn]

wommei, lazycis and others,
Did you ever resolve this issue? How did you dismiss the case?

I was informed by AUSA that my wife's AOS has been approved few days back but I haven't received the approval notice or online status update yet. AUSA is suggesting to file dismissal when I inform her that I have received the approval notice. AUSA didn't mention anything about dismissal without or without prejudice.

How should I approach this? Do I have the choice of using option #1 or #2 in wommei's message?

Should I bring this subject before I see how AUSA is planning to dismiss?

Help!!

Update:

I have received the approval notice for my wife but it says that she "may" have to go in for FP or pictures before her card can be issued. She was scheduled for FP code 1 on Aug. 15 and she did get fingerprinted. The FP were received by FBI on the date of the appointment and were processed and results sent back to USCIS same day. My wife called the NSC and apparently the immigration officer said that she will "refresh" the biometrics and we will receive the cards in few days. Don't know how credible is that?

Here's the wording from wife's I-485 approval notice:

"The above application has been approved. Prior to receiving your permanent resident card you may be required to report for biometrics processing (photo/fingerprint/signature). Please do not take any action on this at this time. If you are required to report for this processing, you will receive another notice advising you of the date, time and location to appear.

If you have not received your permanent resident card or the above mentioned notice to appear for biometrics processing within 90 days, please call this office at the number listed below"

Is the wording above a general statement and doesn't mean that wife will need to go for biometrics again?

Should I inform AUSA that I have received the approval notice but not the actual card even though my wife had given the FP on CIS's request?

Should I try to get AUSA to not dismiss? Do you think it's going to be a stretch or even possible? Wife's AOS has been adjudicated, the missing piece is the card and why CIS may send her another FP appointment notice for FP or picture?

Lazy and others,

I just got an email from AUSA. She told me that I have 3 options to dismiss the case. But if I want to dismiss it without prejudice, I can only use option 1 or 3. Does anyone know which one is better?

1) You can file a motion to dismiss unilaterally;
2) We can file a stipulation for dismissal;
3) You can call the clerk and request a status so you can orally dismiss.

Thanks a lot.

 

[eg0788]

Help

I am not sure if anyone asked this before but any help would be great. I received a 'minute order regarding initial disclosure, joint status report and early settlement' from the district court. It stated that I am suppose to have a conference with the defendants, file initial disclosure and combined joint status report.

Did anyone know what this is and what do I need to do?

Thanks.

PS I have not receive answer from AUSA yet just the notice to appear.

I look into the local rule here and the exempt provision is spell as follow.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii)an action by the United States to collect on a student loan guaranteed by the United States;

(viii)a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

Can anyone tell me if Pro se WOM exempt or point me to the right direction? I tried to call the court clerk and it wasn't too helpful. They told me they do not have the form if I can't find it on their website.

 

[lvla]

jefkorn,

Regarding the TRO (Temporary restraining order) you mentioned, is it something I have to file separately with the complaint, or I could raise this in the complaint?

Thanks!

 

[jefkorn]

I think you can directly file it without the complaint. I may be wrong on that. Others please correct me on this?

Looking at the Murthy's case, it appeared as if TRO was the initiating document.

wom_ri filed it during the case proceedings because he was afraid that because of the VB PD, he may have to wait for quite long.

jefkorn,

Regarding the TRO (Temporary restraining order) you mentioned, is it something I have to file separately with the complaint, or I could raise this in the complaint?

Thanks!

 

[jefkorn]

I am in Northern District of Texas. I heard this is a relatively friendly court, is that the case?

I'm not sure but don't worry. Relatively friendly is good enough for you. You may not even have to go through the Motions or later stages if you get a cooperative AUSA.

If there are similar AOS cases in my district court that the applicants won, should I quote them in my complaint?

Certainly. This should be a must. If the case was dismissed because the AOS/Natz. was granted and court never ruled on the WOM, you will not be able to quote the case. You may want to brush up on using PACER and doing some research on the previous cases on your district. Search the forum for PACER, research, JUSTIA and you will get a good idea how to utilize them.
You can look here to find some favorable and unfavorable decisions for your district. This list is not exhaustive by any means but will give you an idea. http://www.ailf.org/lac/clearinghouse_mandamus.shtml

 

[jefkorn]

Only if I had practiced what I preached

Should the future AOS Complaints include receiving a card as part of the prayer? It would be an insurance against potential delay in card issuance.

 

[yourfirstname]

Hi WOM experts,

AUSA sent an email asking to stipulate the case with the following language. Does it look ok or should I ask AUSA to change it?

"Plaintiff, Pro Se, and Defendants, by and through their attorneys of record, hereby stipulate, pursuant to Fed. R. Civ. P. 41(a), to dismissal of the above-entitled action in light of the fact the United States Citizenship and Immigration Services has adjudicated Plaintiff’s application for naturalization."

Thanks

 

[lazycis]

Hi WOM experts,

AUSA sent an email asking to stipulate the case with the following language. Does it look ok or should I ask AUSA to change it?

"Plaintiff, Pro Se, and Defendants, by and through their attorneys of record, hereby stipulate, pursuant to Fed. R. Civ. P. 41(a), to dismissal of the above-entitled action in light of the fact the United States Citizenship and Immigration Services has adjudicated Plaintiff’s application for naturalization."

Thanks

It looks OK. Jefkorn, you can use the similar language. Congrats to you both!!!

Note that you can simply file a notice of voluntary dismissal under rule 41(a)(1)(A)(i) without AUSA imvolvment. I think that's easier to do as it does not require AUSA consent or court ruling.

 

[lazycis]

I look into the local rule here and the exempt provision is spell as follow.



Can anyone tell me if Pro se WOM exempt or point me to the right direction? I tried to call the court clerk and it wasn't too helpful. They told me they do not have the form if I can't find it on their website.

what district are you in?
Here is a sample form:
http://www.mdd.uscourts.gov/publications/forms/DisclosureCorpFees.doc

 

[lazycis]

jefkorn,

Regarding the TRO (Temporary restraining order) you mentioned, is it something I have to file separately with the complaint, or I could raise this in the complaint?

Thanks!

You have to file the complaint first, then TRO (you can file TRO right after the complaint is filed).

 

[lazycis]

An important decision in the 2nd Circuit for Wom-ers:
SHARKEY v. QUARANTILLO
http://www.ca2.uscourts.gov:8080/is...A2LTEzOTctY3Zfb3BuLnBkZg==/06-1397-cv_opn.pdf

Court explains in details why jurisdiction is proper under APA in mandamus when agency fails to act. There is a good dicussion regarding jurisdictional bar of 8 USC 1252(a)(2)(B).

 

[jefkorn]

Lazycis, Thanks for your response. Would you please clarify the following?

At this point(see update in my post above esp. the wording of the approval notice), CIS has adjudicated my wife's AOS but card issue needs to be resolved. Should I send scanned copy of my wife's approval notice to AUSA to show her why CIS thinks that card may not be issued and see if she can get CIS to work it out either by linking the existing biometrics with my wife's file or if CIS really needs to have her go for biometrics appointment, then they should do it asap. OR assume that it's a matter of time(preferably asap) before CIS fixes the underlying cause and issues the card.

I understand that I could go ahead and file dismissal myself or let AUSA file it if it includes "WITHOUT PREJUDICE"?
The language that mka posted doesn't have "WITHOUT PREJUDICE" (magic phrase) in it.

The language also implies that defendants through their attorney of record along with plaintiff dismiss..etc. Does this mean I should tell AUSA that she doesn't need to file dismissal rather I will do it? She already expressed her intention of filing dismissal (I haven't seen it and she hasn't asked for my consent yet) when I inform her of receipt of the approval notice for my wife.

Could I request AUSA to send me what is she planning to file as the dismissal and then agree to it OR request her to change it if need be?

It looks OK. Jefkorn, you can use the similar language. Congrats to you both!!!

Note that you can simply file a notice of voluntary dismissal under rule 41(a)(1)(A)(i) without AUSA involvement. I think that's easier to do as it does not require AUSA consent or court ruling.

 

[lazycis]

Lazycis, Thanks for your response. Would you please clarify the following?

At this point(see update in my post above esp. the wording of the approval notice), CIS has adjudicated my wife's AOS but card issue needs to be resolved. Should I send scanned copy of my wife's approval notice to AUSA to show her why CIS thinks that card may not be issued and see if she can get CIS to work it out either by linking the existing biometrics with my wife's file or if CIS really needs to have her go for biometrics appointment, then they should do it asap. OR assume that it's a matter of time(preferably asap) before CIS fixes the underlying cause and issues the card.

I understand that I could go ahead and file dismissal myself or let AUSA file it if it includes "WITHOUT PREJUDICE"?
The language that mka posted doesn't have "WITHOUT PREJUDICE" (magic phrase) in it.

The language also implies that defendants through their attorney of record along with plaintiff dismiss..etc. Does this mean I should tell AUSA that she doesn't need to file dismissal rather I will do it? She already expressed her intention of filing dismissal (I haven't seen it and she hasn't asked for my consent yet) when I inform her of receipt of the approval notice for my wife.

Could I request AUSA to send me what is she planning to file as the dismissal and then agree to it OR request her to change it if need be?

I think you should not dismiss it until your wife gets a card. Work it out with AUSA. Tell that you are not opposed to dismissal, but you are hesitant to do it right away because of the card issue.

AUSA usually proposes to file a dismissal to justify his/her time spent on the case Also, in pro se cases, they are suppose to take the initiative. Either way, dismissal under rule 41 is without prejudice, no matter what language AUSA puts in it. Definitely you should get a draft from AUSA and AUSA should wait for your consent before filing the paper.

 

[jefkorn]

Thanks again for your input and it's a good idea. I will be responding to AUSA on those lines. So I understand rule 41 it correctly, it means that if AUSA and plaintiff files the joint dismissal, since there's no court order or response from defendants, or motion for summary judgment, unless the stipulation says "With Prejudice", the case is going to be dismissed Without Prejudice. If the plaintiff files the dismissal by himself or herself, in the circumstances described above, it's still without prejudice.

Bottom line, I or AUSA don't need to explicitly say "Without Prejudice" in the circumstances of my case.

I think you should not dismiss it until your wife gets a card. Work it out with AUSA. Tell that you are not opposed to dismissal, but you are hesitant to do it right away because of the card issue.

AUSA usually proposes to file a dismissal to justify his/her time spent on the case Also, in pro se cases, they are suppose to take the initiative. Either way, dismissal under rule 41 is without prejudice, no matter what language AUSA puts in it. Definitely you should get a draft from AUSA and AUSA should wait for your consent before filing the paper.