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

[Bushmaster]

YOU NEED TO GET SOMETHING IN WRITING regarding your delayed name check before you file your suit, you can also walk in the local USCIS office and inquire about your status, when they tell you tehy are waiting on teh name check results, ask them to write this down on your infopas, I also have that, I just didn't include it as an exhibit since I got it after I filed my lawsuit.

Shoot, I don't have anything in writing. I specifically asked something in writing. But the info officer said he could not give me a print out from the computer. I was in the office last Thursday. It is a 4 hour drive. So I might ask congressman's office to get something in writing.

 

[Bushmaster]

Hello hayyyoot,

Se my posting #6322.
If you decide to file the Response to the AUSA motion to extend, you can state that you agree with the 30 day extension because the defendants signaled that they are willing to settle this case without litigation and YOU want to give them more time to do this but you didn't request the additional time. Your words against their words...

You file or not a response, agree or not with the 30 days extenstion request, the judge will grant them most likely.

Haya, file something to the effect that you are not the one who is not making up her mind. They are telling the judge falsehood about you. I don't know how this would affect the case in any way, but they are tagging you "she doesn't know what she is doing" before the judge. In the meantime, earning the trust of the judge, they can play with the case as they wish in the future. Remind them that you are on top of things and this is their mess not yours.

 

[Bushmaster]

Reading all kind of stuff about these N-400 applications pending security background checks (like mine), I don't understand couple of things. I would be interested to know your opinions.

In a November 26, 1997 appropriations act for the Department of Justice and other federal departments and agencies, Congress mandated that "during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the INS has received confirmation from the FBI that a full criminal background check has been completed". Pub. L. No. 105-199, Title 1, 111 Stat. 2440. 2448-49 (1997).

Now let's see what are the Federal Regulations: 8 C.F.R. Sec. 335.2 Examination of applicant. Paragraph (b) states:
b) Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.

(Paragraph (b) added effective 3/29/98; 63 FR 12979)

This is from the USCIS web page: from the Immigration law repository, see at http://www.uscis.gov/lpBin/lpext.dl...b-32058?f=templates&fn=document-frame.htm&2.0

If I go now and read what is at 69 FR 12979, I found nothing about name checks.

Now let's see what Michael Cannon, the chief of the National Name Check Program in FBI said in a declaration given in one of the 1447(b) lawsuits:

"(17) In this period of heightened national security concerns, a review of the background check procedures employed by USCIS was conducted in November 2002. It was determined that in order to better protect the people and the interests of the United States, a more detailed, in-depth clearance procedure was required. One of these procedures involved the name check clearance performed by the FBI. At that time only those "main" files that could be positively identified with an individual were considered responsive. The risk of missing a match to possible derogatory record(s) was too great and therefore, the search criteria was changed to access references. From a process standpoint, this meant many more files were required to be revieved for each individual."

(These main files are checked when we are requesting the FOIPA, and in most of the cases this comes back with "no record".)

In my interpretation, there is nothing in the statue, codified law or federal regulation, which includes the FBI name check in the definition of the full criminal background check. And, again, in my opinion, this is the explanation, why people were interviewed before the name check results came back from FBI. After 9/11/2001 somebody in DHS or USCIS decided in November 2002 that they should add the FBI name check to the full criminal background check requested from FBI about the N-400 and I-485 applicants. The problem is that they simply 'forgot' to go to Congress and ask them to ammend the law and now we are in this mess, with these name checks pending forever, without any legal basis, just an internal decision made by somebody in a government agency.

Please, please, tell somebody that I am wrong and point me to the correct legal basis of the name checks. I can't believe that this is true and NOBODY, neither the suffering applicants, nor the immigration lawyers or District Judges discovered till now the lack of legal basis....

Disclaimer: I am not advocating that the name check is not necessary if people who know better than me (like the responsible persons in DHS or USCIS) how useful is this name check to catch the bad guys. So be it. But in this case this should be codified, i.e., included in the law, and FBI should fix the process to not sit forever in this "black hole" called name check.

Paz, I see your point, problem is, they never amended the law appropriately, so they have no basis, that is why 1447(b) breaking the necks of these douchebags left and right. They are dropping like dead birds out of the sky. It might have become something for the administration to say "hey fellow citizens, we are taking care of national security, don't worry about immigrants, see we are holding them up for good". I am seeing them amending this to the law and fix the 1447(b) loophole, (that is what some American born citizens call this) and people waiting forever "legally" this time. Hopefully after we get our crap done!

 

[Haddy]

Dear Hayyyoot

Here you go Haya,

Plaintiff filed her Petition on August 28, 2006, and Defendants’ Answer or other responsive pleading is due on October 27, 2006. On October 24, 2006, undersigned Counsel spoke with Plaintiff and the parties are attempting to resolve this matter without further litigation. A thirty (30) day extension of time is required for Plaintiff to determine whether she will stipulate to remand this matter to the Citizenship and Immigration Services (“CIS”). For the reason stated, the CIS requests an additional thirty (30) days, to and including Monday, November 27, 2006, in which to file Defendants’ response to Plaintiff’s Petition.

DATED this 26th day of October, 2006.
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
/s/ CARLOS A. GONZALEZ
CARLOS A. GONZALEZ
Assistant United States Attorney

Dear Hayoot...
I can understand all other interpretations people on this forum may give you... but we have to look at it in a legal point of view from the AUSA'a stand point... The resoning is clear AUSA played a trick... tried to put the dirt on you... If I were you I would respond to the Motion stating that " It is not Plaintiff who needs to make up his/her mind whether or not to remand his/her case to USCIS, It is Defendants' decision to wether they would act on the Plaintiff's case and finish the processing on the Plaintiff's ## of months and ## of days N400 Natz application. Clearly, 120 days have passed after the Plaintiff's examination, the Defendant have broken the law and have not processed the Plaintiff's N400 Natz application. The same is clearly stated by the laws 8 C.F.R. § 335.1 and 8 U.S.C. 1446 (a) and (b). The Defendants' counsel is misdirecting this court to go against this PRO SE Plaintiff. It is Pro Se Plaintiff that has been trying to work with the Defendants counsel to finish his/her Application before the Defendants' answer is due so that the case does not proceed to litigation. The Wording used in the Defendants Motion of Extensio should be noted and checked by this Honorable Court. The Defendants instead of rectifying their own illegal actions and mistakes, are trying to prove to this court that this Plaintiff is confused about remanding his/her case to this court. Plaintiff has already brought his/her case to this court because the Defendants were not moving upon the Plaintiff's case. Even after providing the Defendants' with a lawfully complete application with assigned legal fees and making ## of enquiries, ## of infopasses, the Defendants had shown no interest to move a bit to process his/her case. There was no other remedy available than to get justice from this Court under the above mentioned laws of 8 C.F.R. § 335.1 and 8 U.S.C. 1446 (a) and (b). So it is Defendants who need 30 days to plan if they want to process the Plaintiff's case or if they still want to sit and do nothing.

Hayoot, Did you include FBI in Defendants' list? if you did good... if not even then it is fine... because it is USCIS's responsibility under the law to request updates and follow up on the background checks sent to the FBI.

And please remember, AUSA know that Pro Se are not lawyers and they try to intimidate us... dont be intimidated... just be firm... reherse before talking to AUSA... don't show any confusion on your end... show them you mean business but just dont be rude... be straight without being rude and confused...

Let me know what you think... You have to remember Your case is much stronger than WOM... so just keep doing your homework and as I have said earlier... be prepared to file you response to the Motion to Dismiss... because it is clear from AUSA's wording that they will file Motion to Dismiss or an Answer to your complaint... even though we know that they may try to process your case in the mean time... we should still be ready... especially in your case I will not show your AUSA any weakness...

 

[Haddy]

Dear Bushmaster

Hayyyoot, Paz1960, lovingusa, Haddy,

I NEED ADVICE ON SOMETHING,

I received a letter from my congressman about my N400.

My congressman's contact person in town send a short email to ATLANTA liaison saying that I had contacted them requesting assistance in expediting my N400 since it has been caught in the background check and I need this for my military career, they ask to respond.

Liaison responds back on the 25th, saying "Send me evidence of his military deployment and I will see if I can get the name check expedited."

I may be able to get a memorandum from my commander and/or higher that I will be deploying next year. Do you guys think I should halt the 1447(b) and pursue that?

Dear Bushmaster,

I would suggest doing both...

 

[hayyyoot]

Name check delay verification

Bushmaster;
The Immigration officer in Las Vegas office usually write by hand on the infopass sheet "delayed name check" and hand you back teh sheet, and stamps it, if you can get that from your local office, this should be enough, if not, write a letter to your local USCIS and wait their response, it took my office about three weeks to respond. good luck.

Shoot, I don't have anything in writing. I specifically asked something in writing. But the info officer said he could not give me a print out from the computer. I was in the office last Thursday. It is a 4 hour drive. So I might ask congressman's office to get something in writing.

 

[hayyyoot]

For the people who have been following my previous posts

Guys, what do you thinks of the following response for teh defendants motion for extension, please post your suggestions:

PLAINTIFF’S RESPONSE FOR DEFENDANTS’ “MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF’S PETITION”
Plaintiff ...Hayyyoot.., by and through pro se, would like to respond to the Defendants’ above motion, filed on October 26, 2006.
Plaintiff agrees to grant Defendants thirty (30) days extension in order to attempt to resolve this matter without further litigation. However, Plaintiff doesn’t need those thirty days for herself in order to determine her position on stipulating to remand this matter to the Citizenship and Immigration Services (“CIS”), as stated in the Defendants’ motion for extension. During Plaintiff’s conversation with Mr. Carlos Gonzalez, Assistant United States Attorney for the District of Nevada (Defendants’ attorney) on October 24, 2006, Plaintiff made it clear that she agrees to dismiss the case, or to request that the judge remand the matter back to the United States Citizenship and Immigration Services (“CIS”) providing the CIS sets a firm time frame in which they commit to adjudicate Plaintiff’s naturalization application. Plaintiff was clear in her position back then, and is standing by the same position now. Defendants’ attorney has requested that Plaintiff ask the judge to remand the case back to the CIS based on the fact that her FBI name check has been cleared. However, Defendants’ attorney didn’t provide any further information that contains firm dates or time frames. Defendants’ attorney later made a proposed stipulation for Plaintiff to remand her case back to the CIS. In return, the stipulation states that “completion of the process may be accomplished within thirty days.” Such proposal isn’t acceptable to the Plaintiff. Yet, Plaintiff is willing to give the Defendants extra time to consider another proposal.
If the name check has indeed been cleared, the CIS should be ready to adjudicate Plaintiff’s petition. The Immigration and Naturalization Services (currently CIS) stated on their correspondence dated July 20, 2006 to the Defendant that they are currently waiting for the FBI name check to be cleared, and when this is done, the application will be adjudicated (exhibit 6, original complaint).
Plaintiff would like to make it clear to the Defendants and the court that she is very willing to go to any reasonable length to try and resolve this matter without further litigation, including giving the Defendants extra time. Yet Plaintiff requests that dismissing the case, or remanding it back to the USCIS should be based on a plan that contains a firm time frame for approval of her naturalization application, and that sets a date or a time frame for an Oath Ceremony.

Dated: October 31, 2006 Respectfully submitted,

 

[paz1960]

Guys, what do you thinks of the following response for teh defendants motion for extension, please post your suggestions:

PLAINTIFF’S RESPONSE FOR DEFENDANTS’ “MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF’S PETITION”
Plaintiff ...Hayyyoot.., by and through pro se, would like to respond to the Defendants’ above motion, filed on October 26, 2006.
Plaintiff agrees to grant Defendants thirty (30) days extension in order to attempt to resolve this matter without further litigation. However, Plaintiff doesn’t need those thirty days for herself in order to determine her position on stipulating to remand this matter to the Citizenship and Immigration Services (“CIS”), as stated in the Defendants’ motion for extension. During Plaintiff’s conversation with Mr. Carlos Gonzalez, Assistant United States Attorney for the District of Nevada (Defendants’ attorney) on October 24, 2006, Plaintiff made it clear that she agrees to dismiss the case, or to request that the judge remand the matter back to the United States Citizenship and Immigration Services (“CIS”) providing the CIS sets a firm time frame in which they commit to adjudicate Plaintiff’s naturalization application. Plaintiff was clear in her position back then, and is standing by the same position now. Defendants’ attorney has requested that Plaintiff ask the judge to remand the case back to the CIS based on the fact that her FBI name check has been cleared. However, Defendants’ attorney didn’t provide any further information that contains firm dates or time frames. Defendants’ attorney later made a proposed stipulation for Plaintiff to remand her case back to the CIS. In return, the stipulation states that “completion of the process may be accomplished within thirty days.” Such proposal isn’t acceptable to the Plaintiff. Yet, Plaintiff is willing to give the Defendants extra time to consider another proposal.
If the name check has indeed been cleared, the CIS should be ready to adjudicate Plaintiff’s petition. The Immigration and Naturalization Services (currently CIS) stated on their correspondence dated July 20, 2006 to the Defendant that they are currently waiting for the FBI name check to be cleared, and when this is done, the application will be adjudicated (exhibit 6, original complaint).
Plaintiff would like to make it clear to the Defendants and the court that she is very willing to go to any reasonable length to try and resolve this matter without further litigation, including giving the Defendants extra time. Yet Plaintiff requests that dismissing the case, or remanding it back to the USCIS should be based on a plan that contains a firm time frame for approval of her naturalization application, and that sets a date or a time frame for an Oath Ceremony.

Dated: October 31, 2006 Respectfully submitted,

Hello hayyyoot,

In my opinion, this is excellent wording for the response to the AUSA motion to ask 30 days extension. There is one little (although, important) change I would suggest. In the last sentence you are asking "...a firm time frame for approval of her naturalization application, and that sets a date or a time frame for an Oath Ceremony." You can not ask for "a time frame for approval". Theoretically, the result of your name check could produce information which is used to deny your application (I'm not implying that this is the case!) So, in my opinion, the correct wording would be: "...a firm time frame for adjudication of her naturalization application, and in the case of approval, that sets a date or a time frame for an Oath Ceremony."

 

[Bushmaster]

Bushmaster;
The Immigration officer in Las Vegas office usually write by hand on the infopass sheet "delayed name check" and hand you back teh sheet, and stamps it, if you can get that from your local office, this should be enough, if not, write a letter to your local USCIS and wait their response, it took my office about three weeks to respond. good luck.

Yep, I knew this, and I insisted to get something in written from the info officer last Thursday. Maybe didn't insist enough. Anyhow, I can't go back there anymore because I have to get off from work and I can't most of the time. Well, I will write a letter similar to yours or Paz's.

 

[PendingN400]

Legal Issues

You bring up an issue which remains unresolved simply because there are no naturalization cases that have gone through the process of discovery and legal arguments in front of a jury/court. I believe this issue whether the congress has mandated name checks on naturalizations will only be resolved at appellate or possibly at supreme court level and not at federal district court level. I am yet to see a bold judicial decision at federal court level.

If you look at the petition filed by ACLU on behalf of 10 california residents, they have pointed (see up at the top of the page in link below) out that these name checks are not legal.

http://www.aclu-sc.org/News/Releases/2006/101998/

Reading all kind of stuff about these N-400 applications pending security background checks (like mine), I don't understand couple of things. I would be interested to know your opinions.....
... "black hole" called name check.

 

[Bushmaster]

Their petition says they are unlawfully delayed, is that what you are referring to? This is one of the cases I was going to base my petition on, as far as I know, 7 of these guys got their citizenship already, I don't know what happened to the rest.

 

[PendingN400]

Legal Issues

Their petition says they are unlawfully delayed, is that what you are referring to? This is one of the cases I was going to base my petition on, as far as I know, 7 of these guys got their citizenship already, I don't know what happened to the rest.

In the ACLU petition, look at item no. 30 onwards under the section titled "Legal Framework", where the ACLU attorney is stating that name checks are conducted without promulgating any regulations (my read is that this implies a congressional mandate/order). If you find a good attorney for a class action (such as this ACLU case) - and it goes through the process of discovery and litigation, the administrative powers exercised by CIS (my suspicion is that they will cite these administrative powers) will be subject to question.

 

[786riz]

Aclu

Hi There,
Have anyone tried to contct the ACLU in their region to ask them for a class action suit? What was there answer?

Thank you.

 

[olegius]

Sample letter

Can anyone post here a sample letter to Service Center Director or to FBI asking to expedite the namecheck. I want to file WOM lawsuit. As I understand I need to go through all USCIS and FBI steps before going to court.

 

[khan4nwfp]

6500 candidates remains in the backlog!!

I wonder if any one in this forum has heard this before. I called my congressman to see what, if anything they can do for my name check pending for N-400. This is what she told me and maybe if anyone can verify whether how much of it is true or not.
The person incharge of dealing with immigration issues told me that since 9/11 FBI was doing manual checks on people (like me and other's) which created a backlog. At this point the FBI has reduced that backlog to about 6500 candidates that are still stuck in the name check. She said they have a lot of candidates on her list (congressman's office) for the name check process and they keep an eye on this and contact the candidate when thier FBI check is done.
6500 doesnt seem a lot and I got to thinking if that is the case then I and a lot of others should get thier names clear soon or should have been already cleared.
I am not really sure who to believe anymore. Any thoughts or comments.??

 

[paz1960]

I wonder if any one in this forum has heard this before. I called my congressman to see what, if anything they can do for my name check pending for N-400. This is what she told me and maybe if anyone can verify whether how much of it is true or not.
The person incharge of dealing with immigration issues told me that since 9/11 FBI was doing manual checks on people (like me and other's) which created a backlog. At this point the FBI has reduced that backlog to about 6500 candidates that are still stuck in the name check. She said they have a lot of candidates on her list (congressman's office) for the name check process and they keep an eye on this and contact the candidate when thier FBI check is done.
6500 doesnt seem a lot and I got to thinking if that is the case then I and a lot of others should get thier names clear soon or should have been already cleared.
I am not really sure who to believe anymore. Any thoughts or comments.??

Hi khan4nwfp,

I received a similar letter from my congressman dated on May 5. That time he stated that there are approx. 8900 cases pending name check with the FBI. Let's see, 8900-6500=2400 done in almost 6 months, which means about 400/month. So if you are unlucky and your name is the last one on the list, your name check will be cleared in about 6500/400=16.25 months. It's your call...

 

[lotechguy]

Hi khan4nwfp,

I received a similar letter from my congressman dated on May 5. That time he stated that there are approx. 8900 cases pending name check with the FBI. Let's see, 8900-6500=2400 done in almost 6 months, which means about 400/month. So if you are unlucky and your name is the last one on the list, your name check will be cleared in about 6500/400=16.25 months. It's your call...

In my infopass sometime back the IO told me if you dont get name check cleared in 3 months it is taking upto 18 months to get name checks back. That seems to jive with this.

 

[vic_m]

The person incharge of dealing with immigration issues told me that since 9/11 FBI was doing manual checks on people (like me and other's) which created a backlog. At this point the FBI has reduced that backlog to about 6500 candidates that are still stuck in the name check.

That's really funny. USCIS reported 130000 cases stuck in name check, most of them stuck for years.

 

[paz1960]

That's really funny. USCIS reported 130000 cases stuck in name check, most of them stuck for years.

Depends when was that report issued. If we believe that they are working on reducing the backlog (at least in cases when we sue them), this number should be smaller every month. But many of us learned that the info you get from USCIS IO is not always the most reliable (to make it very polite).

 

[paz1960]

Can anyone post here a sample letter to Service Center Director or to FBI asking to expedite the namecheck. I want to file WOM lawsuit. As I understand I need to go through all USCIS and FBI steps before going to court.

Olegius, in principle, this letter should contain your name, alien number, address; a short presentation of your timeline (i.e., when did you submit your application, when were you fingerprinted, when was your interview date, when did you contacted them before etc.).

The most important is your own story, where you explain, why you want them to expedite your name check. Reminding them the 120 day clock probably will not really help. At this time, according to an USCIS memo, there are 5 cases when USCIS will ask an expedited namecheck: 1. imminent military deployment; 2. age out benefit; 3. WoM - lawsuit pending in Federal Court; 4. Immigration Judge cases - grant of lawful permanent residence 5. Compelling reasons as providing by the requesting office (i.e., critical medical condition) assessed on a case-by-case basis.

If you manage to fit in one of these cases, you can have a chance. Most of us fit in case 3, i.e., after we file a complaint in the District Court, they usually start to move.

You can keep it short, most likely they will not do anything, but you generate the papertrail which will be nedded in the WOM lawsuit to prove that you exhausted every possible administrative avenue. From this point of view, write also to your elected officials (the two US senators and your US representative).