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

[rob waiter]

it is like an administrative act.
so no worry is needed. actually, it is
more on the positive side as some
one is working on your files now.

Exact wording:

Examination of your application (N100) shows that additional information,
Documents or forms are needed before your application can be acted upon. Please RETURN
WITH THIS LETTER AND WITH REQUESTED INFORMATION and/or DOCUMENTS on:

Xx/xx/2006
At: USCIS address xxxxx

Reason:

To re-sign all your documents or to request name change documentation.

 

[paz1960]

Exact wording:

Examination of your application (N100) shows that additional information,
Documents or forms are needed before your application can be acted upon. Please RETURN
WITH THIS LETTER AND WITH REQUESTED INFORMATION and/or DOCUMENTS on:

Xx/xx/2006
At: USCIS address xxxxx

Reason:

To re-sign all your documents or to request name change documentation.

I assume, that your application is N400 and the N100 in your post is just a typo.

Did you request a name change in your application? Looks that they are asking you to show up at the USCIS office because they need your new signature on the application with the new name. But I'm just guessing, you didn't provide enough details about your case.

Another guess is that the lawsuit finally made them to do something with your application. They at least looked to your file and noticed that something is missing (?), like this new signature. I would definitely go at the required time and sign whatever they want me (of course, not anything, like I would not sign something like these: "I'm waiving my rights of 120 days ajdudication limit" or "I petition the court to dismiss my complaint"). Strictly speaking, they don't have jurisdiction on your case as soon as you filed the lawsuit (if this is based on 1447(b)) but if this is a step to get closer to the adjudication, I would collaborate with them.

 

[lotechguy]

Strictly speaking, they don't have jurisdiction on your case as soon as you filed the lawsuit (if this is based on 1447(b)) but if this is a step to get closer to the adjudication, I would collaborate with them.

Paz1960,
Is this true in the 6th circuit also ? Does USCIS loose jurisdiction once you file 1447b ? It looks from pacer that they adjudicate while the case is pending.

 

[paz1960]

Paz1960,
Is this true in the 6th circuit also ? Does USCIS loose jurisdiction once you file 1447b ? It looks from pacer that they adjudicate while the case is pending.

As far as I know, there is no such case, which reached the 6th Circuit Court of Appeals. But there are a couple of cases in the Eastern Michigan District Court, where the judge clearly affirmed that the court has jurisdiction (nothing said about the exclusive or concurrent jurisdiction). And yes, USCIS keeps adjudicating cases when they are still with the District Court.

As I wrote in one of my postings before, I would certainly not complain why they are approving my case when it is still pending in the court... I would fight it, if my case is denied. Although in this case I would try to motion the court for leave to go first through the mandatory administrative appeal with a senior USCIS officer. The court can review de nouvo a denied application only after the administrative appeal is denied.

 

[wenlock]

Question about WOM

I understand in case of 1447b judge in some instaces places some sort of time limit for processing name checks by FBI. What about in WOM cases where Court does not have jurisdiction on your case?

Can judge force USCIS to finish back ground check in some sort of time limit or it just make decision that it will grant Mandamus or not?

 

[paz1960]

Paz...

I like your line of reasoning. I suppose a cumulative reading of all reasonings cited in various case filings plus what you state should be included in any rebuttals. Do you have a list of cases (just case numbers will do) where a court has remanded the matter with explicit instructions on timely completions? If you cite these your chances may improve (although not in the initial complaint - for some reason I have never seen any initial complaint filed containing judicial opinions from other cases).

Hi PendingN400,

I will look for the cases when the court remanded the matter to USCIS with a timeline, specifically instructing FBI to complete the name check. The important point in order to convince the judge to remand but with a specific timeline is to argue about what is unreasonable delay.

Here is a citation from the Court order in the case of ElKhatib v. Bulter

"Although the Court has not found, and the parties did not cite, any Eleventh Circuit case law specifically addressing the issue raised in this case, other district courts have concluded that a petitioner has a clear right to have his or her application for lawful permanent residence status adjudicated within a
reasonable period of time . See Yu v . Brown, 36 F. Supp . 2d 922, 925 (D.N.M. 1999) ; Agbemaple v. INS, No. 97 C 8547, 1998 WL 292441 (N .D. Ill . May 18, 1998) . For instance, in Yu, where petitioner sought a writ of mandamus to force INS to act on her application for lawful permanent residence two and one half years after she applied, the court concluded that Yu's petition properly stated a claim for mandamus .
Id. at 925-933. In so holding, the court noted that administrative agencies do not possess discretion to avoid discharging the duties that Congress intended them to perform . Id. at 931 .
The Court agrees with the reasoning in Yu and Agbemaple and finds that Respondents have a non-discretionary duty to process Petitioner's Application within a reasonable period of time."

from ElKhatib_v_Bulter CASE NO. 04-22407-CIV-SEITZ/MCALILEY (SD FLA,2005)

I think that we have to look for WoM petitions decided favorably with a court order. In the text of the order the judge must address this issue, i.e., the government has a non-discretionary duty to act in a reasonable time upon applications. Looks to me that the 1447(b) cases will shiftt toward the WOM cases arguments. We will need to convince the judge essentially about the three same things, like in a mandamus complaint:
1. Petitioner has demonstrated a clear right to the relief sought (that seems relatively straightforward using the restrictive interpretation of the word "examination" and the 120 days rule (1447 b)
2. That no other remedy is available. (letters to USCIS, FBI, elected officials etc.
3. USCIS has a clear, ministerial, non-discretionary duty to adjudicate our applications in a reasonable time (here can come the argument that over 120 days is unreasonable). (see above)

See a good description and case law in the attached document about WOM cases.

 

[paz1960]

I understand in case of 1447b judge in some instaces places some sort of time limit for processing name checks by FBI. What about in WOM cases where Court does not have jurisdiction on your case?

Can judge force USCIS to finish back ground check in some sort of time limit or it just make decision that it will grant Mandamus or not?

Certainly this is a more difficult situation to argue. There is no 120 day rule to use it demonstrating jurisdiction. The same 120 day rule can't be used to define what delay is reasonable and what is unreasonable. But depending how long have you been waiting, you still can try to demonstrate that your case was unreasonably long delayed.

I just began to pay more attention to WOM cases. My lawsuit is based on 1447(b) but looks that I will need to use about the same arguments as in WOM cases if I have to Oppose AUSA's motion to remand without a timeline.

 

[PendingN400]

I concur. Elements of mandamus (exhaustion of administrative appeals) must be cited in 1447 cases as well, because later these will come back to haunt you. Information regarding, FOIPA, letters to CIS, Infopass visits, congressional assistance etc. should all be cited so you can raise the "reasonable attempts" issuees later in rebuttals.

 

[wenlock]

Some thing interesting

I found this document on DHS website explaining how USCIS is dealing with security clearances and here is what it said about NAME CHECK


USCIS may pay the
FBI double to “expedite” up to a few hundred FBI name checks per
month. USCIS restricts these requests to certain cases, such as when
the alien is about to become ineligible due to age, the applicant files
writ of mandamus lawsuits to compel USCIS to complete adjudication,or other humanitarian factors. The “expedite” requests are insufficient
to clear the backlog of FBI name checks.


It sure looks like they will move your case of you have mandamus sitting in court.

Here is funny part in this report

In March 2005, USCIS detailed five
personnel to the FBI National Name Check Program for up to a year to assist
with the pending FBI name checks.

Yahoo USCIS gave their five valuable resources to help FBI work on 130,000 cases. Well that seems helpful.

Here is info for those who wants to wait for ever for their security clearances

Additionally, USCIS has been pursuing regulatory and statutory options to
expand authority to withhold adjudication and to deny benefits due to national
security concerns. USCIS described the suggested statutory change as
providing the legal basis “to deny any benefit to aliens described in any of the
national security related provisions of inadmissibility or deportability in the
Immigration and Nationality Act (INA), who are the subject of a pending
investigation or case that is material to eligibility for a benefit, or for whom
law enforcement checks have not been conducted and resolved.”

So those who are planning to wait for ever before file law suit when this change comes in effect you will just get denial instead of waiting.

I hope our cases get resolved before this.

 

[wenlock]

I concur. Elements of mandamus (exhaustion of administrative appeals) must be cited in 1447 cases as well, because later these will come back to haunt you. Information regarding, FOIPA, letters to CIS, Infopass visits, congressional assistance etc. should all be cited so you can raise the "reasonable attempts" issuees later in rebuttals.

I would recommend when you file a complaint file based on all three basis

Hearing for N-400
Writ of mandamus
Administrative Procedure Act

Cover all three seperatly and make your argument. This will make strong case based on more then one Law

 

[paz1960]

important precedent found in 6th Circuit Court

Paz1960,
Is this true in the 6th circuit also ? Does USCIS loose jurisdiction once you file 1447b ? It looks from pacer that they adjudicate while the case is pending.

lotechguy and 786riz and other members of this forum who reside in states, which belong to the 6th Circuit Court,

Reading the judge opinion and order in the Castracani v. Chertoff (originally v. Ridge) case 377 F. Supp 2d 71,74 (D.D.C., 2005), I found a valuable info, essentially equivalent with the intent of the USA v. Hovsepian in the 9th Circuit Court. Although the case is not Immigration related, in my opinion is still important:

"Friends of the Crystal River v. EPA, 35 F.3d 1073, 1080 (6th Cir. 1994) (concluding that “where a statute both requires the agency to act within a certain time period and specifies a consequence if that requirement is not met, the agency will lose jurisdiction to act”)

The other very important part of the judge's opinion is in a footnote:

"DHS asserts that “n cases where there is a positive hit or match, clearance of the individual may take additional time pending the law enforcement agency’s response and ultimate resolution. Prior to a final adjudication, [BCIS] requires a definite response on a requested FBI name check.” Def.’s Mot. at 2. This cannot excuse the delay in processing Castracani’s application once he had taken his examination. DHS should not have scheduled his examination if Castracani’s background check had not been completed. See 8 C.F.R. § 335.2..."

 

[Floridawaiter]

Thanks for this wonderful forum

I found this forum two and a half month ago. It is very thrilled that people help others very much. I filed my 1447b and got a very satisfatory result. An oath letter came to my hand this afternoon. I am gonna call AUSA tomorrow to dismiss the lawsuit. Thanks, thanks, thanks for this forum.

My timeline:
N-4oo filed on Jan 24, 2005
Interviewed on Jan 19, 2006
1447b(Pro Se) on Aug, 21, 2006 in Middle FL
The first contact AUSA on Oct 24, 2006
2nd Fingerprint: Oct 26, 2006
Oath letter received on Nov 1, 2006

Good luck to everybody on his/her case

 

[paz1960]

I found this forum two and a half month ago. It is very thrilled that people help others very much. I filed my 1447b and got a very satisfatory result. An oath letter came to my hand this afternoon. I am gonna call AUSA tomorrow to dismiss the lawsuit. Thanks, thanks, thanks for this forum.

My timeline:
N-4oo filed on Jan 24, 2005
Interviewed on Jan 19, 2006
1447b(Pro Se) on Aug, 21, 2006 in Middle FL
The first contact AUSA on Oct 24, 2006
2nd Fingerprint: Oct 26, 2006
Oath letter received on Nov 1, 2006

Good luck to everybody on his/her case

Congratulations Floridawaiter! At least a good news for today.

Did you call AUSA or they called you?

 

[Bushmaster]

Received a case status letter from CIS today. It is an "informal" method that enables the shitheads to provide a more prompt response.

The response is of course automated "You will be notified by mail when further action has been taken on your case" NO SHIT retards!!! When further action has been taken, that means it has been sitting on the shelf and will sit on the shelf until you poke us.

Good thing, I can add this document into my petition.

 

[hayyyoot]

USCIS response

Paz;
Did they mention the FBI check in their letter? this sounds like the response I got, it is automated too.
Hey, looks like you are ready to file, good luck to you.
My news, the judge has granted the defendants 30 days extension, I filed my response today (I posted a copy of my response two days ago).
The AUSA hasn't returned my emails or phone calls, looks like he doesn't have anything for me besides remanding my case back without promises.
Be ready to fight hard.

Received a case status letter from CIS today. It is an "informal" method that enables the shitheads to provide a more prompt response.

The response is of course automated "You will be notified by mail when further action has been taken on your case" NO SHIT retards!!! When further action has been taken, that means it has been sitting on the shelf and will sit on the shelf until you poke us.

Good thing, I can add this document into my petition.

 

[paz1960]

cases with court order + specific timeline

Paz...

I like your line of reasoning. I suppose a cumulative reading of all reasonings cited in various case filings plus what you state should be included in any rebuttals. Do you have a list of cases (just case numbers will do) where a court has remanded the matter with explicit instructions on timely completions? If you cite these your chances may improve (although not in the initial complaint - for some reason I have never seen any initial complaint filed containing judicial opinions from other cases).

So far I found three cases when the matter was remanded to the defendants with specific timeline.

1. Aslam v. USCIS case no. CV 05-985 (Central D. California June 7, 2005)
Judge orders the Government to complete the name check in 30 days
2. Al Kudsi v. Chertoff CV 05-1584 (D. Oregon 3/22/2006) or 2006 WL 752556 *3
Judge orders instructs FBI to perform the name check in 90 days
3. Khelifa v. Chertoff 2:06-CV-10147 (E.D. Mich 6/9/2006)
remand to USCIS for prompt determination of application for naturalization in 90 days

I assume that there are more cases out in different districts, because the USCIS Interoffice Memorandum form April 25, 2006 which effectively forbids scheduling interviews before the full criminal background checks are complete, specifically mentions this:

"Not surprisingly, even when such lawsuits are brought, courts have not been approving the naturalization applications of applicants whose background checks have not been resolved. A few courts facing four-year old cases have given USCIS and FBI a deadline within which to complete the check, but the government has been able to complete the process within the court ordered deadline"

It would be really important to find some more cases where the courts imposed deadline to USCIS and FBI within which to complete the check. In my opinion reference to such cases will be REALLY pivotal in arguing for a deadline when the choice is to remand. Please, people who are searching cases on PACER, let's do an effort. I can't seach the whole country, I don't have time and the money to support a large scale search of such cases. Believe me, everybody who is in this boat, will need these references.

 

[rob waiter]

a case that was remanded back to CIS for 8 days.

 

[paz1960]

a case that was remanded back to CIS for 8 days.

Unfortunately, this is not relevant case for the above mentioned purpose. I just looked up on PACER, and USCIS was ready to adjudicate in 8 days after lawsuit dismissed. But again a case where the filing the complaint made USCIS to expedite the pending background check and managed to complete the case before AUSA would file a motion to dismiss or remand etc.

 

[phoenixui]

one more victory

Today, I received emails from uscis: my and my wife's I-485 are approved.
By the way, when can I get the card?

As some of you may know, I file I485 WOM in August 2006. Received
us attorney's motion to dismiss in Oct. I filed a response and opposition
a week later.

Summary:

1. whenever you file something with the court, mail an extra copy (the judge's copy).

2. us attorney is your friend. He is the one working on your green card.
His phone calls to uscis make things move, fast.

3. when you receive the motion to dismiss from the attorney, don't panic.
You must file a response, a strong one. Basically, the attorne would say
in the motion that a. lack of jurisdication, 2. delay is reasonable. You need
beat these two points hardly. I actually use digital library like Lexis Nexis
which is a wonderful resource. Read those case laws carefully from all other
district courts and cite accordingly. It's like writing a paper.

4. uscis and FBI, when working hard, are quite efficient.

In conclusion, treat your lawsuit carefully and spending time studying the law.
The system works.

Again, thanks to everybody in this forum.

 

[Floridawaiter]

Congratulations Floridawaiter! At least a good news for today.

Did you call AUSA or they called you?

I called on their office to find whether there was an attorney assigned on my case yet. I was told not yet. Next day, I called another office in Tampa and was told there was an attorney on my case. Then the result came very fast.