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

OttawaSenators

Registered Users (C)
Hi, my WOM case is for I-485 (EB-2) but I'd like to hear from the experts here what they think of this. The judge issued the following order after my sponsor's lawyer filed the WOM. He says this is good news that the gov't has to confer with us first. What do you think?

"This matter having recently come before the Court,
IT IS ORDERED that a motion pursuant to Federal Rule of Civil Procedure 12(b)
is discouraged if the defect can be cured by filing an amended pleading. Therefore, the
parties must meet and confer prior to the filing of a motion to dismiss to determine
whether it can be avoided. Consequently, motions to dismiss must be accompanied by a
notice of certification of conferral indicating that the parties have conferred to determine
whether an amendment could cure a deficient pleading and have been unable to agree that
the pleading is curable by a permissible amendment. In addition, parties shall endeavor
not to oppose motions to amend that are filed prior to the Rule 16 Scheduling Conference
or within the time set forth in the Rule 16 Scheduling Order. Motions to dismiss that do
not contain the required certification are subject to be stricken on the Court’s motion.
IT IS FURTHER ORDERED that Plaintiff shall serve a copy of this Order upon
Defendant(s) and file notice of service."


And the summons were served by my lawyer 2 days late on 4/20.
 
I am little surprised by Judge's order because I would assume in the lawsuit under facts you would have listed all the attempts such as InfoPass appointments, service requests, omsbud attempts. Its only after all the attempts fail that you are asking the judge to intervene. Its the first time I have seen such a response. Was this judgement after 60 day response period that USCIS has?
 

OttawaSenators

Registered Users (C)
I am little surprised by Judge's order because I would assume in the lawsuit under facts you would have listed all the attempts such as InfoPass appointments, service requests, omsbud attempts. Its only after all the attempts fail that you are asking the judge to intervene. Its the first time I have seen such a response. Was this judgement after 60 day response period that USCIS has?
Nope. This order was issued 2 weeks after WOM was filed at the court. The 60 day clock starts after the issuance of this order. According to the lawyer, "conferring with plaintiffs" means: settle outside the court and don't waste taxpayer's money! There will be conference calls for settlement negotiations run by the judge.

I think the case is too strong to ask for a defense. Therefore, the judge jumped straight into negotiations phase. As can be seen in the wordings of the order, the defense cannot file any motions, including motion to dismiss unless they prove to the judge we went thru negotiations and couldn't settle.

The ombudsman has sent me an email that they cannot provide a timeframe for my case. We are using that as grounds for a WOM. And I think that is what makes the case strong. I was in shock when I saw ombudsman's response and that pretty much triggered me looking into a WOM. I mean how can the gov't official be so stupid and dumb to say that in writing?!!! They have to provide some sort of a timeframe, even if it is estimated. They cannot sit on people's applications forever :mad:
 

OttawaSenators

Registered Users (C)
I am actually surprised that you say you are surprised by this judge's order! I just went thru a whole bunch of mandamus cases on Pacer and saw this order over and over repeated in a lot of cases. This is the norm. Basically the judge tells the parties to confer and settle.
 
oh ok. I see. Hopefully you are able to work out with US attorney the timeframe for adjudicating your I-485.
When will you and the US attorney planning on getting together to come to a resolution?
 
oh, then its just the start. Once a lawyer is assigned then you guys can come to a resolution. How long has your I-485 been pending and do you think its a CARRP case?
 

OttawaSenators

Registered Users (C)
Yes it is just the start of the WOM. We just filed it on 3/30. My 485 has been pending for 20 months. I do think I am being CARRPed just based on my place of birth even though I am Canadian. And I am not a Muslim either. The pattern is so obvious. Anybody who is born in Middle East, North Africa, Eastern Europe, former USSR countries and any communist country gets stuck in background check forever.
 
I know CARRP all too well. I know a person who is born in Middle Eastern, non-Muslim, but he has always been treated with extra scrutiny when it comes to flying, filing for immigration benefits. He recently got his N400 before mine though, this time it didnt take that long :)
The answer to the following question might help you
1) Do you know if your case is with service center or field office?
2) If its stuck in background check, which check is it? USCIS performs three checks criminal background check CJIS, IBIS check, name check. Most of the cases in the past until a few years used to get stuck in name check. There was a settlement between ACLU and USCIS where USCIS agreed to expedite over 500 cases which were stuck because of name check.
Once an attorney is assigned to your case, things should start moving quickly.
 

OttawaSenators

Registered Users (C)
Thanks for the reply. During Bush era, I was harassed by CBP at US-Canada border three times. They took me to the 2ndary inspection and kept asking if I had a passport from my POB. I even got a funny story about it but I'll tell you about it later. They eventually gave up on this nonsense because I really don't have a passport from my POB. And traveling for me has been smooth for years now. And this is not my first time in the US. I went to university in the US back in the 90s and worked for a couple of years after graduation.

1. According to my congresswoman, it is still at service center.
2. I don't know. All they tell the congresswoman is that I am stuck in background check.

I've got FBI FOIPA and nothing in it about me. I've also got my entire immigration FOIA. A couple of things that look weird in it are:
1. I've been assigned 2 A#'s, one from my 1990s OPT EAD, and one from I-140. But a lot of people are like that. The one they issue at I-140 is the one you will be stuck with for the rest of your life. I have quite a few coworkers like that with 2 A#.
2. Some of my CBP entries show POB as Canada and some show my real POB. But that is again not my fault if the CBP officer at US-Canada border screwed up. My passport clearly shows my POB.

Other than the above, everything else shows as it is supposed to. My employer's lawyer went thru the FOIA before filing the WOM and couldn't find anything explaining the delay.
 
It takes them time to assign someone to the case. Once assigned they dont act until the end of 60 day notice.
Worst case, judge can make a decision at the end of 60 day which will most like force USCIS to adjudicate your application
 

OttawaSenators

Registered Users (C)
Oh well, the 60 days will be up in a week and still no sign of the AUSA :( I've sent my attorney an email to see if we can enter a request to the judge to enter a default judgment. He hasn't replied yet. Very frustrating :( Some say no attorney wants to represent the Trump administration and that is why no one has taken the case.
 
Let your lawyer call them or have him deal with this situation. This is odd that no attorney is assigned. Its bad for department of Justice because the judge can enter a judgement against them
 
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