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

[paz1960]

Paz-

Thanks very much for your response. I intend to use these cases and as many other from a cross-section of the country that have remand with time instructions incase I ever need to file a response against US Att motions. As I did this, I initially thought that the load will off, but not so! I have many doubts on the legal front, but following are key to such cases.

1. The issue of jurisdiction - this can range from most negative "no jurisdiction" to "concurrent jurisdiction" to "exclusive jurisdiction" by the court. I suppose in our case we need the middle one since we want the CIS to go ahead and process our checks and adjudicate while a case is pending. In the exclusive jurisdiction scenario, unless the judge is willing to exercise judicial powers to twist few arms, it is no good.
2. Expediting name checks - this is simply the most desired outcome for all cases. I am yet to see a case where this is by-passed. Arguments have been presented as to legality of name checks, but there is yet a court that has bought this. This will need a dream team of lawyers fighting on behalf of 130,000 or so naturalization applicatants stuck in name checks.
3. Remand with Instructions - unless time factors are involved, remand is useless. You will be back to square one with no resolution.

As a side note, I had talked to one attorney who said that unless there are increasing number of suits with attorney fees awarded under EAJA, CIS has no incentive to resolve name check black hole. Since most individuals are simply interested in resolving their own specific case, this does not happen and puts no special pressure on CIS.

Hello PendingN400,
I agree with your assesment. However, I saw many cases where USCIS interpreted that filing the complaint based on 1447(b) stripped them of jurisdiction, although they went ahead to complete the name check. When that was done, they informed Plaintiff through AUSA that USCIS is ready to adjudicate the N-400 application but Plaintiff has to voluntarily dismiss the case, so USCIS would regain jurisdiction to complete the adjudication. But strictly speaking, you are right; if the court has exclusive jurisdiction, USCIS would not be allowed to do anything on the Plaintiff's case. I saw in one judge's opinion the remark that after filing the complaint, USCIS could not call the applicant for a second interview because they lost jurisdiction.
2. About the legality of the name check. I have serious questions about this, and as I wrote in my letter to the CIS Ombudsman, in my opinion this whole controversy is due to the lack of precise definition of the "full criminal background check". It is clear that Congress mandated this in the FY98 Appropriation Act. But until November 2002 this included only a name check ran on the "main" file system, after that USCIS decided to include also the "reference" files, which created a lot of false positive hits and required manual checks, using an understaffed NNCP in FBI. The problem with this, again in my opinion, that USCIS forgot to go back to Congress and ask them to codify this change; this substantially changed policy (i.e., including the reference file search) is still based on the initial vague mandate of Congress. But considering the present political climate, it is unlikely that any judge would make such a bold decision to grant citizenship to a Plaintiff without this name check completed.
BTW, I didn't receive any answer yet from the CIS Ombudsman.
It will be interesting to watch a case in the Western Washington district (case no: 2:06-cv-00614) where plaintiff argues about the legality of this modified name check procedure.
3. Please share with us any case what you found with specific timetable in the remand instruction.

 

[EAin2005]

I remember that there is a form for this kind of things. When I filed my case pro se, I also got a form from the court clerk for adding a legal counsel, so maybe he needs to go to court and ask for this form. Or the attorney himeslf should be able to take care of this since he is a pro.

EA

Hello ZUR,

Go with PACER to the Southern District of California District Court and look to the case 3:06-cv-01675. Plaintiff filed Pro Se, when things got complicated he hired an attorney to represent him (and his wife). Seems that it is relatively simple to add an attorney, or essentially replace the Pro Se plaintiff with a counsel. In the mentioned case Plaintiffs through their newly hired attorney asked an extension to oppose defendants motion to dismiss, arguing that newly hired counsel needs some time to prepare the opposition.

 

[paz1960]

I remember that there is a form for this kind of things. When I filed my case pro se, I also got a form from the court clerk for adding a legal counsel, so maybe he needs to go to court and ask for this form. Or the attorney himeslf should be able to take care of this since he is a pro.

EA

EAin2005, you are right. In this case the newly hired attorney probably can and will take care of this issue. It may be more difficult the other way (there was a question about this recently on this forum), when Plaintiff wants to fire his counsel and wants to switch to Pro Se.

 

[PendingN400]

Interesting Case

Boy, this case you have mentioned from Western Washington is quite depressing to read. Despite an expedited name check, nothing is received as of yet. If mandamus does not apply to FBI, and the court states that CIS has done what it can, you are stuck between a rock and a hard place. This petitioner should cite Al-kudsi case and the Tyomkina case from that region where lack of response within a certain time is considered as if there is no derogatory information and thus naturalization should be granted.

Hello PendingN400,
...It will be interesting to watch a case in the Western Washington district (case no: 2:06-cv-00614) where plaintiff argues about the legality of this modified name check procedure.

 

[takayuki]

Filing wom with my spouse

Yes, this is my understanding. If you want to file Pro Se, you will need to file two separate lawsuits, if you hire a lawyer, both you and your wife can be Plaintiffs on the same lawsuit.

Hi paz1960,
Just to verfiy, I am not representing my wife or vice versa, we will co-file the WOM together (we will file WOM ourself, can't afford a lawyer), so, does anyone know if we can file together as 1 WOM case? or it really has to be 2 cases.

 

[paz1960]

Hi paz1960,
Just to verfiy, I am not representing my wife or vice versa, we will co-file the WOM together (we will file WOM ourself, can't afford a lawyer), so, does anyone know if we can file together as 1 WOM case? or it really has to be 2 cases.

I can only repeat what I already wrote. Maybe some other members have different opinions.

 

[khalafah2000]

Hi,
some members of the this forum graciously responded before as part of my earlier post about it. Just to double check what I should take with me on the oath day.

I have ONLY one 3 week trip outside of USA after my interview. During which, I went to my home country to see my family and Malaysia for visit in the same trip. I don't have any traffic ticket or parking ticket. So apart from my green card, passport, expired re-entry permit and dates of my trip, is there anything else, I should take with me? Any originals or anything else?

I have an expired re-entry permit. Should i give it to USCIS also? I never stayed more than 5 months outside of USA, but I had it in case I ever had to stay outside of the country due to my family situation. My ceremony is tomorrow, so please respond today.

 

[memme]

Motion to Dismiss by AUSA after I485 is approved

As posted earlier in this forum, I had received the approval notice form USCIS on 11/6. I noticed that AUSA has filed the following in the court on 11/13. I guess, it might be just a legal responsibility from her side to file this on the due date.

Defendants urge this Court to dismiss the case as moot. Defendants have granted plaintiff’s Application for Adjustment of Status and plaintiff is a lawful permanent resident.

The Complaint Should Be Dismissed As Moot Because This Court No Longer Has The Ability To Fashion Any Form Of Relief.

A case loses its quality as a live controversy and becomes moot when the court no longer can issue effective relief. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). In this case, plaintiff sought an order requiring the government to act on his application for adjustment of status. On November 6, 2006, defendants granted plaintiff’s application and plaintiff’s status was adjusted to that of lawful permanent resident. Exhibit 1 - Memorandum of Creation of Lawful Permanent Resident. This Court, therefore, no longer can grant the relief requested. The complaint should be dismissed as moot.

Question:

Is there any action pending from my side? Do I need to file any reply in the court? If yes, what should I state and what must be the procedure.

 

[paz1960]

As posted earlier in this forum, I had received the approval notice form USCIS on 11/6. I noticed that AUSA has filed the following in the court on 11/13. I guess, it might be just a legal responsibility from her side to file this on the due date.

Defendants urge this Court to dismiss the case as moot. Defendants have granted plaintiff’s Application for Adjustment of Status and plaintiff is a lawful permanent resident.

The Complaint Should Be Dismissed As Moot Because This Court No Longer Has The Ability To Fashion Any Form Of Relief.

A case loses its quality as a live controversy and becomes moot when the court no longer can issue effective relief. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). In this case, plaintiff sought an order requiring the government to act on his application for adjustment of status. On November 6, 2006, defendants granted plaintiff’s application and plaintiff’s status was adjusted to that of lawful permanent resident. Exhibit 1 - Memorandum of Creation of Lawful Permanent Resident. This Court, therefore, no longer can grant the relief requested. The complaint should be dismissed as moot.

Question:

Is there any action pending from my side? Do I need to file any reply in the court? If yes, what should I state and what must be the procedure.

I believe that you don't have to do anything. Because your case was solved before the judge made any decision, you are probably not entitled to any attorney's fee (if you had an attorney) or any other relief (e.g., recovering your filing fee and other expenses incurred during this lawsuit).If you would win your case (e.g., the judge would order defendants to adjudicate your case) you could ask the court to order defendant to pay your expenses related to the lawsuit.

 

[786riz]

Hi Team,
Just called the FBI at 304-625-2000, phone was picked by live an operator. I told her that I need to know the status of my name check and FP. She transferred me to a menu where I chose the option 3 and spoke to Amy. I told here that I think my name check or something is pending that is why USCIS is waiting on my application, if she can tell me what is pending? She said that name check is totally different department and she does not have any phone number of them but she can tell me my FP info. After taking my A number, DOB and name, she told me that FBI received the FP request on 3/2/2006 and was processed and sent back the same day. I asked her, if the FP cleared? She said that I do not know what do you mean by cleared or not cleared, we receive the request from different agencies, we run it and send the results back to them. We only mentioned record found or no record, if we found record, them we send the record. We are not allowed to tell any one that we found a record or not.

 

[Mercury369]

Name check and FP check

Hello 786riz,

I had a similar experience. The lady told me FBI sent back my fingure print check the same day they received it. However, name check is a different topic, she told me NC is handled by FBI in DC.

My NC for I485 has been pending around 1.5 years, I am thinking about lawsuit. Is there anyone has the similar thought and would like to discuss?

Mercury

Hi Team,
Just called the FBI at 304-625-2000, phone was picked by live an operator. I told her that I need to know the status of my name check and FP. She transferred me to a menu where I chose the option 3 and spoke to Amy. I told here that I think my name check or something is pending that is why USCIS is waiting on my application, if she can tell me what is pending? She said that name check is totally different department and she does not have any phone number of them but she can tell me my FP info. After taking my A number, DOB and name, she told me that FBI received the FP request on 3/2/2006 and was processed and sent back the same day. I asked her, if the FP cleared? She said that I do not know what do you mean by cleared or not cleared, we receive the request from different agencies, we run it and send the results back to them. We only mentioned record found or no record, if we found record, them we send the record. We are not allowed to tell any one that we found a record or not.

 

[Mercury369]

How to select district court?

Hello here,

I am doing research in order to make up my mind to file the lawsuit regarding my pending NC based on I485. Thanks to everybody here, this forum is really of information and help. The first question I come across is to select the district court to file my lawsuit. My 485 was filed to VSC due to my I140 was filed there, however, I am living now in the place within NSC. Although my fingure prints were done in my local USCIS. I am wondering where should I file. All cases I found in PACER in my local district court includes NSC USCIS as the defendant.
Your help is greatly appreciated.

Mercury

 

[boondi]

Questions regarding 1447b Summons?

Question?

I have been folllowing up on my case on Pacer, and notice that some cases closed (finished) by my attorney have a additional step after "Summons Issued", which says exactly "Summons Returned Executed as to AUSA". This usually happened after 20 odd days after the "Summons Issued".

I am worried that in my case, it has been almost 45 days, and no progress since "Attorney Designated" & "Summons Issueds". Am I assume that 60 days are ticking by? or is something missing from my Attorney's side?? I have called my attorney and they are not telling me much, other than to wait...

Please advise. Thank you!

 

[skyhigh7]

Repost my Qs

HI, Guys:

just update on my case. I spoke to AUSA assigned to my case today. He is very courteous and understands our plight. He mentioned that my expediated name check is set to FBI on Oct 17th, and hopefully we should hear something soon. He alsmo mentioned that my case should be resolved within 3 months, which is kinda long. Gurus, any ideas who initiated the expediated name check? AUSA ask CIS? or CIS by itself?

Wish us all good luck,
Sky

PS I am one of the few people filed I1447B in souther district of CA, in San diego. Not many people here filed.

 

[rob waiter]

in my case, it was
me ->AUSA ->CIS->FBI.

I think your case will be resolved
very soon.
good luck

HI, Guys:

just update on my case. I spoke to AUSA assigned to my case today. He is very courteous and understands our plight. He mentioned that my expediated name check is set to FBI on Oct 17th, and hopefully we should hear something soon. He alsmo mentioned that my case should be resolved within 3 months, which is kinda long. Gurus, any ideas who initiated the expediated name check? AUSA ask CIS? or CIS by itself?

Wish us all good luck,
Sky

PS I am one of the few people filed I1447B in souther district of CA, in San diego. Not many people here filed.

 

[skyhigh7]

Thanks for the encouragement, Rob. Defendents answer is due Dec. 4th, so far haven't heard anyting, not even update on pacer. My AUSA mentioned not until he filed something with pacer, I guess just before Dec. 4th. Cannot help keeping on thinking what might happen next.

Sky

in my case, it was
me ->AUSA ->CIS->FBI.

I think your case will be resolved
very soon.
good luck

 

[junhuaw]

I filed pro se together with my wife together (both are plaintiffs). However I think paz is probably right - if we have specific statute then we can be more sure. Anyway my AUSA did not need to challege me on that.

Hi paz1960,
Just to verfiy, I am not representing my wife or vice versa, we will co-file the WOM together (we will file WOM ourself, can't afford a lawyer), so, does anyone know if we can file together as 1 WOM case? or it really has to be 2 cases.

 

[junhuaw]

WOM filers: LPR date adjustment

For those who are interested:

I contacted my AUSA yesterday regarding whether they could adjust my start date of legal permanent residence (so that part of our waiting time can be counted toward naturalization requirement), the response is no:

"I have discussed your below request with CIS, which informed me that the adjustment you seek is precluded by statute."

:-(

 

[paz1960]

HI, Guys:

just update on my case. I spoke to AUSA assigned to my case today. He is very courteous and understands our plight. He mentioned that my expediated name check is set to FBI on Oct 17th, and hopefully we should hear something soon. He alsmo mentioned that my case should be resolved within 3 months, which is kinda long. Gurus, any ideas who initiated the expediated name check? AUSA ask CIS? or CIS by itself?

Wish us all good luck,
Sky

PS I am one of the few people filed I1447B in souther district of CA, in San diego. Not many people here filed.

I didn't reach yet (or I am not aware of) that stage, when somebody asked to expedite my name check, so I don't know who does that. However, on the FBI web page I saw posted that they expedite only if the requesting agency is asking this. This agrees with Rob's experience.

After waiting more than 2 years I would be extremely happy if this ordeal would be over in 3 months after I filed the lawsuit. You did the maximum what you can do at this point: filed your complaint, now you have to wait to their turn. Only thing what you can do is to prepare to oppose their motion to dismiss if they are filing one.

 

[paz1960]

Hi Team,
Just called the FBI at 304-625-2000, phone was picked by live an operator. I told her that I need to know the status of my name check and FP. She transferred me to a menu where I chose the option 3 and spoke to Amy. I told here that I think my name check or something is pending that is why USCIS is waiting on my application, if she can tell me what is pending? She said that name check is totally different department and she does not have any phone number of them but she can tell me my FP info. After taking my A number, DOB and name, she told me that FBI received the FP request on 3/2/2006 and was processed and sent back the same day. I asked her, if the FP cleared? She said that I do not know what do you mean by cleared or not cleared, we receive the request from different agencies, we run it and send the results back to them. We only mentioned record found or no record, if we found record, them we send the record. We are not allowed to tell any one that we found a record or not.

Hi 786riz,
Did you request a FOIPA? If that came back "no records", I think that your FP were also cleared. The FOIPA request is run on the "main"" file sytem, if FBI has a file about you (i.e., you were investigated in a crime, arrested or convicted) most likely they would store your fingerprints too.