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

[ernorman]

Hi Guys,
Please take a look at my situation as I am seeking your benign suggetion/opinions/comments to file a writ of mandamus or whatever it may be, if that is indeed an option...here goes the chronolgy...

Nov. 2004
Concurrent filing of I140,I485, I131
Status - All petitions are pending due to the "security check".
Contacted Senator,congress men and made tons of enquiries but of no avail.

Aug 2005
6th year h1B extension was filed.
Status - Pending due to the "security check"....

March 2006
Filed FOIPA and received "No records" .

July 2006
7th year H1B extension was filed in "premium processing" although the 6th year's extension is still pending.
Status - Pending due to the "security check".....


Now, since my H1B (regular & premium) case is also stuck due to the same #$@&^%&^ security check, I am not even in a position to visit my homeland anymore. it is causing a lot of stress and frustration on my family here and back in India...No clue what to do... I just came across this thread and it seems like I could probably file a writ of mandamus in my case...??? anybody could please share the experience or head me in a right direction ??

Thanks a lot in advance and keep up doing the noble job of helping/sharing...

This is horrible..... I just couldn't believe your PD is so far behind.

You should file a motion immediately. I don't know how long your PD becomes current, but I have been seeing in some AUSA's motion to dismiss, they mentioned that "since the petitioner has been waiting for XXX years after the PD becomes current, it can be reasonably concluded that he/she has abandoned his right to pursue in this court." This arguement derives from the "statue of limitation", you claim you are owed some debt, but you have to actively collecting it from the debtor, otherwise it is deemed that you forfeit your rights....

 

[Mette]

Mette,

Based on what I heard from various sources, two is enough. In some district, AUSA don't even bother to tell you that he/she is asking for the extension. You have to follow up on this. When he asks for an extension, you have the right to file a motion to oppose it within 10 days. After he files the first one, you SHOULD PROMPTLY FILE A MOTION TO OPPOSE, you probably won't be able to stop the first one, but if judge agrees that the extension can not be indefinite, he will have a hard time to file a second one. You have to state in your motion that "at least extensions can not be routinely granted without careful review of XXXX".

Enorman, thank you very much for your reply! Do you think it would be wise to fight him right away on the first extension with the motion to oppose? Could it really hurt my case?

 

[Mette]

This is horrible..... I just couldn't believe your PD is so far behind.

You should file a motion immediately. I don't know how long your PD becomes current, but I have been seeing in some AUSA's motion to dismiss, they mentioned that "since the petitioner has been waiting for XXX years after the PD becomes current, it can be reasonably concluded that he/she has abandoned his right to pursue in this court." This arguement derives from the "statue of limitation", you claim you are owed some debt, but you have to actively collecting it from the debtor, otherwise it is deemed that you forfeit your rights....

You scared me to death! My PD is January 2001 and it's always been current - and what could I do??? I made numerous requests to USCIS, contacted senators (similar to actively collecting it from the debtor) - just to find out that my security checks are pending. I exhausted all the administrative options and then I filed a lawsuit as a last resort.
You file too early - they can dismiss it as frivolous, because you didn't give USCIS enough time to perform the namecheck, you file too late - they say you abandoned your rights?????

_________
US Attorney served July 3, 2006
60 days end September 3, 2006

 

[ernorman]

Enorman, thank you very much for your reply! Do you think it would be wise to fight him right away on the first extension with the motion to oppose? Could it really hurt my case?

Mette,

I think it is up to you. You don't have to "fight" him--you can speak with him nicely over the phone but file a motion to oppose. You just have to remind the court that the extension should not be "open-ended".

One point, make sure you have done enough research before talking to him. Never ask him "what is the next step...". Don't make him think that you are stupid. I made a mistake by asking that type of question on the first call. from his tone, he believes i am a idiot. when he does, he look down upon you. you have to tell him: i am not a lawyer, but being a well-educated person, i know the procedure and i am comitted to litigating.

 

[ernorman]

You scared me to death! My PD is January 2001 and it's always been current - and what could I do??? I made numerous requests to USCIS, contacted senators (similar to actively collecting it from the debtor) - just to find out that my security checks are pending. I exhausted all the administrative options and then I filed a lawsuit as a last resort.
You file too early - they can dismiss it as frivolous, because you didn't give USCIS enough time to perform the namecheck, you file too late - they say you abandoned your rights?????

_________
US Attorney served July 3, 2006
60 days end September 3, 2006

Mette,

Remember, your APA (Administrative Procedures Act) and due process (equal protection) claims arise from the fact that you have property rights on the administrative actions--in plain language, you have property rights on the allocated visas made available to you. If you don't claim it in the right way, you lose the right (of course it is their argument.) Contacting member of congressman is not "through the right channel" since they don't have decision-making authority over your case.

On the other hand, remember AUSA are attorneys, attorneys can argue whatever they want and it is up to the Court to decision which one is right. BUT BE PREPARED, BECAUSE YOU HAVE TO REBUT IT.

 

[gctarget06]

ernorman,
I have been trying (enquiry every 2 months by myself & through Senator) ever since my PD became current. Now my question is.....how do they establish that I abandoned my petitions/rights ? Is it too late now to file WOM ?? appreciate any response...

 

[Mette]

Mette,

Remember, your APA (Administrative Procedures Act) and due process (equal protection) claims arise from the fact that you have property rights on the administrative actions--in plain language, you have property rights on the allocated visas made available to you. If you don't claim it in the right way, you lose the right (of course it is their argument.) Contacting member of congressman is not "through the right channel" since they don't have decision-making authority over your case.

On the other hand, remember AUSA are attorneys, attorneys can argue whatever they want and it is up to the Court to decision which one is right. BUT BE PREPARED, BECAUSE YOU HAVE TO REBUT IT.

Thank you for sharing this info!! I really appreciate it.

 

[ernorman]

ernorman,
I have been trying (enquiry every 2 months by myself & through Senator) ever since my PD became current. Now my question is.....how do they establish that I abandoned my petitions/rights ? Is it too late now to file WOM ?? appreciate any response...

If you inquire through USCIS actively, you should be fine. Make sure you have all the BS paperwork they sent you as exhibits.

 

[opthb]

what's the impact of retrogression on WoM law suit

Gurus,

As things stand right now, my PD is current. But if history repeats itself and the current dates have a significant retrogression in September or October, how does this affect my WoM law suit? Can US attorney dismiss my law suit on this ground?

 

[Mette]

Gurus,

As things stand right now, my PD is current. But if history repeats itself and the current dates have a significant retrogression in September or October, how does this affect my WoM law suit? Can US attorney dismiss my law suit on this ground?

I think that if you apply right now while your PD is current your case couldn't be dissmised on the grounds of visa unavailability. Then you only have to worry about September, because they start a new year and new visa qoutas in October 2006. And since the Defendants have 60 days to answer your claim, you should be fine assuming that in October your PD will become current again. Though they can still try to dismiss your case in September, I think there are ways to oppose them.
But if your PD is not current in October, then ....

 

[gctarget06]

OpthB,
Have you already filed WOM ? I am struggling to find a step by step approach to file a WOM exclusively for I1485 in this thread. But the problem is that its a merged thread for Naturalization & mandamus which makes it even more confusing beside the complexity invloved in the litigation/law itself...merging these two issues probably wasn't such a good idea....could anyone share the how to (step by step exclusively for I485) ?, where to find info or paste the link if it has already been covered ? Thanks much in advance...

 

[Ralphy]

Finita la comedia: I took the oath today

My oath in Baltimore went with no problems. I was even able to move my ceremony from 11:00 am (as scheduled) to an earlier 9:00 ceremony. I guess, when it comes to the technical part, they don't fight you anymore.

My timeline is below. My deepest thanks go to "founding fathers" of this thread (Publicus, gegemon, et al). Without them I would be still sitting in my office at work thinking what I could do.

For novices on this forum:
I discovered this thread in mid-December 2005. By the end of December 2005 there were only about 25-30 pages in the forum. That's when I prepared my first 1447 case (it was for my close relative who was also sitting in the fbi name check hole). Then I filed my own case in March.

My point is that: first 25-30 pages on this forum is enough to compose your 1447 case. Don't get scared of 300+ pages (up to today) that you might think you need to read in order to file the lawsuit. Read first 30 pages and that should be plenty for you to understand how to do this.

Good luck to all!

 

[gzmbk1]

1 more for MD

Hello all

Today I went for my 2nd interview.
The interview went pretty smooth. He went over my application again and asked me some questions in regards to the last 2 years, as far as how many times did I travel outside of the US, have I committed any crime, etc...
He then scheduled me for the oath at 11:00am today.

Now I'm a US citizen...

I like to thank everyone in this thread. If it wasn't for this forum, I'd still be waiting for my citizenship. One more case completed for Baltimore, MD.

Now the journey begins for my wife. I can now apply for her GC.

Thanks again to everyone and for those who are still waiting, do not lose hope.

Regards

 

[moody22]

Hello all

Today I went for my 2nd interview.
The interview went pretty smooth. He went over my application again and asked me some questions in regards to the last 2 years, as far as how many times did I travel outside of the US, have I committed any crime, etc...
He then scheduled me for the oath at 11:00am today.

Now I'm a US citizen...

I like to thank everyone in this thread. If it wasn't for this forum, I'd still be waiting for my citizenship. One more case completed for Baltimore, MD.

Now the journey begins for my wife. I can now apply for her GC.

Thanks again to everyone and for those who are still waiting, do not lose hope.

Regards

Congratulation, gzmbk1.

Do you know if the reason for your 2 years delay was the name check pending or backgorund security checks pending?

I was able to knoew from FBI directly that my name check was cleared 2 years ago, after Mrs.Bush inquiry.

But when i took the FBI letters to the CIS, they said FBI name check is not evrything, we do other checks too.

Regards,

Moody

 

[gctarget06]

If you inquire through USCIS actively, you should be fine. Make sure you have all the BS paperwork they sent you as exhibits.

ernorman,
As you might have noticed that my PD is not current anymore. Do you think I should still go ahead and file WOM ? or just wait until it becomes current again and then file it...

 

[Wolbachia]

ernorman,
As you might have noticed that my PD is not current anymore. Do you think I should still go ahead and file WOM ? or just wait until it becomes current again and then file it...

I think you should still file, as it will likely help you clearing out the name check procedure. As I heard, USCIS will quickly review those cases once their PD become current, if name check is cleared, then approval! If not, the case went back to shelf and wait indefinitely.

 

[ICU Doc]

new resource, call your ACLU

Hello everyone
ACLU is probably the oldest and largest civil liberties agency in the US. They recently filed a law suit against the USCIS because of naturalization delays (name check) in LA Cali on behalf of 10 immigrants mostly middle eastern. I contacted the local office here in North Carolina and they told me they are looking into doing the same if they can get a few people. I suspect this could become a nationwide (class action) suit if everyone contact the ACLU. I suggest you all contact them and see what you get.
On other note I finally found a lawyer in North Carolina who has filed Writ of Mandamus against USCIS (actually 6 WoM and all won none went to court). It will cost me 3500$ which I am willing to cough up if it will end the pain and humiliation of dealing with USCIS. I will keep you posted

 

[ernorman]

ernorman,
As you might have noticed that my PD is not current anymore. Do you think I should still go ahead and file WOM ? or just wait until it becomes current again and then file it...

There are plenty of cases you can use as references, that the Court ordered to put the Petitioner (that is you) in the same footing as if the your rights had not been violated.

I will post some cases when I get home, but.... as far as I can remember:

A derivative asylee's I-485 was retroactively approved in the same date as his father's approval.
Several DV I-485 cases were approved as if the fiscal year had not been ended, i.e., the visa were still available.

Fifth amendment of U.S., gurarantees the equal protection of every resident.

As 03-CV-4677:

I’m very troubled by the idea that Congress clearly has intended that an unfairness in our immigration history be corrected and that visas be issued and that the program not be stymied by delays in completing the processing and in each of these cases I have a situation where the Plaintiffs has fulfilled all of the obligations that a Plaintiff must fulfill or applicant must fulfill, that agencies have acknowledged that, everything has been done including the fingerprint check and the only thing that remains is the name check process. As I’ve said, the details, which only the Defendants are privy to as to these two individuals which might support a basis for saying that they legitimately need more time that would justify them not completing the process by September 30th which is the deadline, they just haven’t provided that.

So, in light of all that, I am going to issue an order, I’m satisfied that having reviewed all of these cases submitted by the government and the Plaintiffs that the more persuasive position with regard to mandamus jurisdiction in this circumstance is the position taken that was taken by Judge Edelman in the Paunescu case, which is 76 F. Supp. 2d 896, and I believe that it’s Section 1255 and INA 1153(c) taken together which provides mandamus jurisdiction to direct that this ministerial act of adjudicating the Plaintiffs applications for adjustment of status based upon the Diversity Visa program be effectuated.

It is so ordered.

 

[AL11]

If you inquire through USCIS actively, you should be fine. Make sure you have all the BS paperwork they sent you as exhibits.

Ernorman,
you said before that you have prepaired a 20 page response anticipating a motion to dissmis, luckly for you, you did not have to use it. can you please post your response here so it will be a resource for anyone who may need to use it. Thanks

 

[gzmbk1]

Congratulation, gzmbk1.

Do you know if the reason for your 2 years delay was the name check pending or backgorund security checks pending?

I was able to knoew from FBI directly that my name check was cleared 2 years ago, after Mrs.Bush inquiry.

But when i took the FBI letters to the CIS, they said FBI name check is not evrything, we do other checks too.

Regards,

Moody

Moody

I believe it was my background check that wasn't completed. Once they took my fingerprints a 2nd time, it was then cleared to be approved.

good luck