Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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This means that Judge ordered USCIS to adjust you case and get back to him. Unless USCIS does not repond to Court order at all, in the most cases, the 1447b plaintiffs are finally adjusted by USCIS and then file motion of dismiss. I don't see anyone in this forum are adjusted by Judge. Don't worry. Your case is in progress.
ournyla said:
PACER in Oregon
Hi Everyone. long time listener, first time caller.
so i've been on the PACER, and maybe spending too much time, but just wondering:
is it normal for the Answer to Complaint by the US Atty to be a line item deny, deny deny? is that just a formality, while they're putting pressure on USCIS?
and once they 'deny' everything, what's the next step?
i'm a bit nervous, becuase when you look at the 890 cases in oregon, you don't see almost ANY resolutions since december of 2005!!!
any insight would be helpful.. (see below...it's hot off the press)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Petitioner [Plaintiff],
v.
DEFENDANTS
JURISDICTION
1. The statement of jurisdiction calls for a legal conclusion and therefore no answer is
required. However, to the extent that an answer is required, Respondents submit that
“Every federal appellate court has a special obligation to ‘satisfy itself not only of its own
jurisdiction, but also that of the lower courts in the cause under review . . .” Kwai Fun
Wong v. United States, 373 F. 3d 952, 961 (9th Cir. 2004). This obligation continues at
every stage of the proceedings. See Moe v. United States, 326F.3d 1065, 1070 (9th Cir.
2003). WHAT DOES THAT MEAN?
is that their defense?
2. a. Admit that on June 2, 2003, Plaintiff filed an Application for
Naturalization, Immigration Form N-400.
b. Admit that an examination, ad defined by court cases interpreting 8 U.S.C. §
1447(b), of Plaintiff on his Application for Naturalization, Immigration
Form N-400, was conducted on November 19, 2003.
c. Admit that more than 120 days have elapsed since the date of that examination.
VENUE
3. Admit.
PARTIES
4. Admit.
5. Admit.
6. a. Admit that Defendant Emilio T. Gonzalez is the successor to Eduardo Aguirre as
the Director of United States Citizenship and Immigration Services (CIS).
b. Admit that Defendant Gonzalez, in his official capacity, has jurisdiction over
naturalization benefits.
c. Admit that Defendant William McNamee is the District Director of the United
States Citizenship and Immigration Services (CIS) in Portland, Oregon.
d. Admit that Defendant McNamee, in his official capacity, has delegated authority
for the adjudication of Applications for Naturalization, Immigration Form N-400.
e. Admit that Defendant Robert Mueller, is the Director of the Federal Bureau of
Investigation (FBI).
f. Deny that Defendant McNamee has jurisdiction over Plaintiff's name
check.
7. Admit.
8. Admit.
9. Admit.
10. a. Admit that 120 days have elapsed since the date of Plaintiff examination
on his Application for Naturalization, Immigration Form N-400, as the term
“examination” has been defined by court cases interpreting 8 U.S.C. § 1447(b). b. Deny that all of the Defendants have failed to make a determination as
background checks are still pending.
UM, EXCUSE ME?!
11. a. All the Defendants admit that Plaintiff meets the residency requirements of
8 U.S.C. § 1427.
b. All the Defendants lack sufficient information to form a basis of belief to the
allegation of good moral character of Plaintiff as required by
8 U.S.C. § 1427; and,
c. The remaining allegations contained in paragraph 11 are Plaintiff
characterizations of this action to which no response is necessary. To the extent
that an answer is deemed necessary, all the Defendants deny.
12. Deny.
13. All the Defendants admit that Plaintiff background checks remain pending, and
that, accordingly, his Application for Naturalization, Immigration Form N-400 remains
pending. The remaining allegations contained in paragraph 13 consist solely of Plaintiff
characterization of this action for which no answer is necessary, but insofar as
answers may be deemed necessary, all the Defendants deny.
14. All the Defendants lack sufficient information to form a basis of belief, and therefore
deny the allegations contained in paragraph 14.
PRAYER FOR RELIEF
To the extent a response may be required, all the Defendants deny the allegations of
Plaintiff prayer for relief. All the Defendants further allege that Plaintiff is not
entitled to any relief.
AFFIRMATIVE DEFENSES
All the Defendants reserve the right to assert any and all affirmative defenses as they become known or available to them during the course of this litigation.
CONCLUSION
WHEREFORE, having fully answered all paragraphs of Plaintiff Complaint,
all the Defendants pray that Plaintiff take nothing by way of his Complaint, that the same be dismissed, and that judgment be awarded in favor of all the Defendants, together with costs and such other and further relief as the Court deems appropriate in this case.
Dated this 31st day of July, 2006.
Hi Everyone. long time listener, first time caller.
so i've been on the PACER, and maybe spending too much time, but just wondering:
is it normal for the Answer to Complaint by the US Atty to be a line item deny, deny deny? is that just a formality, while they're putting pressure on USCIS?
and once they 'deny' everything, what's the next step?
i'm a bit nervous, becuase when you look at the 890 cases in oregon, you don't see almost ANY resolutions since december of 2005!!!
any insight would be helpful.. (see below...it's hot off the press)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Petitioner [Plaintiff],
v.
DEFENDANTS
JURISDICTION
1. The statement of jurisdiction calls for a legal conclusion and therefore no answer is
required. However, to the extent that an answer is required, Respondents submit that
“Every federal appellate court has a special obligation to ‘satisfy itself not only of its own
jurisdiction, but also that of the lower courts in the cause under review . . .” Kwai Fun
Wong v. United States, 373 F. 3d 952, 961 (9th Cir. 2004). This obligation continues at
every stage of the proceedings. See Moe v. United States, 326F.3d 1065, 1070 (9th Cir.
2003). WHAT DOES THAT MEAN?
is that their defense? 2. a. Admit that on June 2, 2003, Plaintiff filed an Application for
Naturalization, Immigration Form N-400.
b. Admit that an examination, ad defined by court cases interpreting 8 U.S.C. §
1447(b), of Plaintiff on his Application for Naturalization, Immigration
Form N-400, was conducted on November 19, 2003.
c. Admit that more than 120 days have elapsed since the date of that examination.
VENUE
3. Admit.
PARTIES
4. Admit.
5. Admit.
6. a. Admit that Defendant Emilio T. Gonzalez is the successor to Eduardo Aguirre as
the Director of United States Citizenship and Immigration Services (CIS).
b. Admit that Defendant Gonzalez, in his official capacity, has jurisdiction over
naturalization benefits.
c. Admit that Defendant William McNamee is the District Director of the United
States Citizenship and Immigration Services (CIS) in Portland, Oregon.
d. Admit that Defendant McNamee, in his official capacity, has delegated authority
for the adjudication of Applications for Naturalization, Immigration Form N-400.
e. Admit that Defendant Robert Mueller, is the Director of the Federal Bureau of
Investigation (FBI).
f. Deny that Defendant McNamee has jurisdiction over Plaintiff's name
check.
7. Admit.
8. Admit.
9. Admit.
10. a. Admit that 120 days have elapsed since the date of Plaintiff examination
on his Application for Naturalization, Immigration Form N-400, as the term
“examination” has been defined by court cases interpreting 8 U.S.C. § 1447(b). b. Deny that all of the Defendants have failed to make a determination as
background checks are still pending.
UM, EXCUSE ME?!
11. a. All the Defendants admit that Plaintiff meets the residency requirements of
8 U.S.C. § 1427.
b. All the Defendants lack sufficient information to form a basis of belief to the
allegation of good moral character of Plaintiff as required by
8 U.S.C. § 1427; and,
c. The remaining allegations contained in paragraph 11 are Plaintiff
characterizations of this action to which no response is necessary. To the extent
that an answer is deemed necessary, all the Defendants deny.
12. Deny.
13. All the Defendants admit that Plaintiff background checks remain pending, and
that, accordingly, his Application for Naturalization, Immigration Form N-400 remains
pending. The remaining allegations contained in paragraph 13 consist solely of Plaintiff
characterization of this action for which no answer is necessary, but insofar as
answers may be deemed necessary, all the Defendants deny.
14. All the Defendants lack sufficient information to form a basis of belief, and therefore
deny the allegations contained in paragraph 14.
PRAYER FOR RELIEF
To the extent a response may be required, all the Defendants deny the allegations of
Plaintiff prayer for relief. All the Defendants further allege that Plaintiff is not
entitled to any relief.
AFFIRMATIVE DEFENSES
All the Defendants reserve the right to assert any and all affirmative defenses as they become known or available to them during the course of this litigation.
CONCLUSION
WHEREFORE, having fully answered all paragraphs of Plaintiff Complaint,
all the Defendants pray that Plaintiff take nothing by way of his Complaint, that the same be dismissed, and that judgment be awarded in favor of all the Defendants, together with costs and such other and further relief as the Court deems appropriate in this case.
Dated this 31st day of July, 2006.
Their response in paragraph 10 doesn't make much sense to me. Section 1447(b) says: "If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section . . ." The "determination" to which section 1447(b) refers is the determination as to whether an application for naturalization should be granted or denied. Section 1446(b) states: "The employee designated to conduct any such examination shall make a determination as to whether the application should be granted or denied, with reasons therefor."
So, what the U.S. Attorney appears to be arguing is that the USCIS is excused from making the determination called for by section 1446, even though the 120-day period has elapsed, because background checks are still pending. Stated another way, the U.S. Attorney is attempting to read an implicit exception to the 120-day requirement of section 1447(b). Literally, of course, section 1447(b) does not provide for any exception, but unequivocally provides that if there is a failure to make a determination under section 1446 within the 120-day period - for ANY reason - then the applicant can apply for a hearing on the matter. This is why 8 C.F.R. section 335.2(b) provides that the USCIS may not schedule an "initial examination" (the interview) until "after the [USCIS] has received a definitive response from the [FBI] that a full criminal background check on an applicant has been completed." The USCIS has in some cases been ignoring this regulation in an effort to decrease its historically bad backlogs. Unfortunately, the FBI has not caught up.
It's also interesting that the U.S. Attorney appears to be conceding that "examination" (as used in section 1447(b)) means the initial interview, as interpreted by the relevant case law. Some U.S. Attorneys and judges have taken the position that the "examination" does not conclude until background checks are completed (i.e., that the interview is merely part of the "examination"). This U.S. Attorney does not make that argument. I wonder if that's because the U.S. District Court for the District of Oregon has interpreted "exmination" to mean the interview in prior cases.
As for their response to paragraph 1, what did you put in your complaint?
So, what the U.S. Attorney appears to be arguing is that the USCIS is excused from making the determination called for by section 1446, even though the 120-day period has elapsed, because background checks are still pending. Stated another way, the U.S. Attorney is attempting to read an implicit exception to the 120-day requirement of section 1447(b). Literally, of course, section 1447(b) does not provide for any exception, but unequivocally provides that if there is a failure to make a determination under section 1446 within the 120-day period - for ANY reason - then the applicant can apply for a hearing on the matter. This is why 8 C.F.R. section 335.2(b) provides that the USCIS may not schedule an "initial examination" (the interview) until "after the [USCIS] has received a definitive response from the [FBI] that a full criminal background check on an applicant has been completed." The USCIS has in some cases been ignoring this regulation in an effort to decrease its historically bad backlogs. Unfortunately, the FBI has not caught up.
It's also interesting that the U.S. Attorney appears to be conceding that "examination" (as used in section 1447(b)) means the initial interview, as interpreted by the relevant case law. Some U.S. Attorneys and judges have taken the position that the "examination" does not conclude until background checks are completed (i.e., that the interview is merely part of the "examination"). This U.S. Attorney does not make that argument. I wonder if that's because the U.S. District Court for the District of Oregon has interpreted "exmination" to mean the interview in prior cases.
As for their response to paragraph 1, what did you put in your complaint?
N400 Approved yesterday!
As much as I wanted to see the honorable presiding Chief Judge in his robe, apparently my attorney's assistant was misinformed that my behind the scenes presence was required! Anyway, my attorney had no idea what the conference meeting was all about, just that the clerk called and required his presence in chambers with Chief Judge.
It didn't seem to have taken long before my attorney called and told me the US attorney handed him a piece of paper showing my application was approved yesterday and am scheduled for the oath on 9/8/06. Lawsuit filed on 8/4 and 19 days later application gets approved! I wonder if anyone else here has had such a fast turnaround.
Good luck fellaz.
Here's what is showing in pacer for today's conference of counsel
Conference of Counsel/Status Conference held. Counsel to submit by August 28, 2006 a proposed joint order staying the case pending final approval. (smd, )
As much as I wanted to see the honorable presiding Chief Judge in his robe, apparently my attorney's assistant was misinformed that my behind the scenes presence was required! Anyway, my attorney had no idea what the conference meeting was all about, just that the clerk called and required his presence in chambers with Chief Judge.
It didn't seem to have taken long before my attorney called and told me the US attorney handed him a piece of paper showing my application was approved yesterday and am scheduled for the oath on 9/8/06. Lawsuit filed on 8/4 and 19 days later application gets approved! I wonder if anyone else here has had such a fast turnaround.
Good luck fellaz.
Here's what is showing in pacer for today's conference of counsel
Conference of Counsel/Status Conference held. Counsel to submit by August 28, 2006 a proposed joint order staying the case pending final approval. (smd, )
syt said:
Last edited by a moderator:
this wasn't my own file, but some other fella in OR... i cut and paste it, and then took all the plaintiff names off the filing..
when you read the original complaint by this person, it is word for word like the rest of our filings, including my own.. you know, the standard "1446 wasn't met, therefore, as allowed by 1447(b), please mr. uscis, sh*t or get off the pot"
i feel like they're getting the nod from DC to fight all the Pro Se's tooth and nail..i searched the filings, and they haven't settled one case yet going waaay back (other than the occasional voluntary dismissal) AND, there are definitely no turn around times like those in Northern Cali...this whole thing is particularly odd, since Oregon is in the 9th circuit, the same one that allowed Hovespian's case, which led to 1447(b)
i'm exhausted...
when you read the original complaint by this person, it is word for word like the rest of our filings, including my own.. you know, the standard "1446 wasn't met, therefore, as allowed by 1447(b), please mr. uscis, sh*t or get off the pot"
i feel like they're getting the nod from DC to fight all the Pro Se's tooth and nail..i searched the filings, and they haven't settled one case yet going waaay back (other than the occasional voluntary dismissal) AND, there are definitely no turn around times like those in Northern Cali...this whole thing is particularly odd, since Oregon is in the 9th circuit, the same one that allowed Hovespian's case, which led to 1447(b)
i'm exhausted...
rbarrage said:
ApplyInDenver
Registered Users (C)
Congratulations, good job.
Dubu said:
Another case approved
AUSA called today, she said my I-485 Was Approved. She e-mailed me a copy of my application stamped approved on 8/21/06.She asked me to call her when I get the official letter from USCIS so we can file to dissmis the case.
Good luck every one. Thanks to all the people who participated with their knwoledge and experience for the good of every one else. Without fidnig this site I would have been still stuck and still feel hopeless.
AUSA called today, she said my I-485 Was Approved. She e-mailed me a copy of my application stamped approved on 8/21/06.She asked me to call her when I get the official letter from USCIS so we can file to dissmis the case.
Good luck every one. Thanks to all the people who participated with their knwoledge and experience for the good of every one else. Without fidnig this site I would have been still stuck and still feel hopeless.
Dubu said:
Congratulations!!! I am a bit confused though, since I thought USCIS cannot approve the case before case is dismissed because they do not have jurisdiction over it. This is why attorneys have been asking for dismissal before naturalization approval. Is it a legally sound approval?
Need Urgent Help
I got a call t'day from US Attorney and she informed that my Name Check has been Cleared. However She mentioned that the case can not be adjuducated since the Visa's are not currently available for India in EB2 Category. My 60day expires in next week. She mentioned that I voluntary withdraw the WOM and can resubmit if needed in future, or they will dismiss the case.
What should I do? Please advice voluntary withdraw? once they file motion to dismiss the case, what do I need to do?
I mentioned her that I am seeing the cases being Approved even now. She asked me to gather some information and she will go back to USCIS. I need to respond her by Friday or she will prepare to dismiss the case.
1. Do we have anyone whose I485 cases have been Approved recently and are from India.
2. Any information when the visa's will be available. I heard they will be availabe starting October, but I need to provide some information on that. She will then check with USCIS.
I got a call t'day from US Attorney and she informed that my Name Check has been Cleared. However She mentioned that the case can not be adjuducated since the Visa's are not currently available for India in EB2 Category. My 60day expires in next week. She mentioned that I voluntary withdraw the WOM and can resubmit if needed in future, or they will dismiss the case.
What should I do? Please advice voluntary withdraw? once they file motion to dismiss the case, what do I need to do?
I mentioned her that I am seeing the cases being Approved even now. She asked me to gather some information and she will go back to USCIS. I need to respond her by Friday or she will prepare to dismiss the case.
1. Do we have anyone whose I485 cases have been Approved recently and are from India.
2. Any information when the visa's will be available. I heard they will be availabe starting October, but I need to provide some information on that. She will then check with USCIS.
congrats
congratulations to all of us and best wishes to everyone...
hey there, congratulations on your approval, it looks like you got it approved the same day i got my citizenship... by the way that went ok for me and applied for a passport the same day.AL11 said:
congratulations to all of us and best wishes to everyone...
WhyThisDelay
Registered Users (C)
Hi AL11.
Congrats. I was hoping to hear good news from you, since I'm also in Seattle area.
Can you please tell what exhibits you used in ur wom case? I'm still in the process of collecting all evidence that I made 'best effort' to resolve this with uscis.
Congrats. I was hoping to hear good news from you, since I'm also in Seattle area.
Can you please tell what exhibits you used in ur wom case? I'm still in the process of collecting all evidence that I made 'best effort' to resolve this with uscis.
AL11 said:
Info Pass
I have info pass for today, if my name check is not cleared then I will prepare for 1447(b), but there is a problem in my point of view ,I don't have copy of interview letter(I never made one) and I don't have a copy of the decision(may be I left it at the IO's desk when she told me name check is not cleared yet, I was mad) any suggestions? please advice what should I do?
Thanks
I have info pass for today, if my name check is not cleared then I will prepare for 1447(b), but there is a problem in my point of view ,I don't have copy of interview letter(I never made one) and I don't have a copy of the decision(may be I left it at the IO's desk when she told me name check is not cleared yet, I was mad) any suggestions? please advice what should I do?
Thanks