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

[ZUR]

A couple of days ago I received an ORDER SETTING CASE MANAGEMENT CONFERENCE AND REQUIRING JOINT CASE MANAGEMENT CONFERENCE STATEMENT for the court.

Can somebody please elaborate if this Order is received via mail only or is it also posted on the PACER as well? Since I check PACER everyday, I want to make sure that I don't miss anything in the mail in case if mail gets lost.

 

[PendingN400]

I am little confuse by the term automatic name check expedite. Is this some thing that US attorney do at his part with DHS or it is result of Complaint recieved by DHS office or local district office?....

There is nothing automatic about expediting name checks, but it a term I have heard subsequent to filing complaint against CIS for 485/N400 petitions. The US Attorney who works within DOJ requests an expedite on name check to DHS (CIS is part of DHS) and DHS then forwards the request to FBI which may or may not be able to complete name checks in timely manner. Should these name checks not come back within 60 days or if there is any derogatory information, we can expect a fight.

 

[lotechguy]

There is nothing automatic about expediting name checks, but it a term I have heard subsequent to filing complaint against CIS for 485/N400 petitions. The US Attorney who works within DOJ requests an expedite on name check to DHS (CIS is part of DHS) and DHS then forwards the request to FBI which may or may not be able to complete name checks in timely manner. Should these name checks not come back within 60 days or if there is any derogatory information, we can expect a fight.

PendingN400,
Do you have to list FBI as a defendant for this on your petition ? From what I heard USCIS has their own attorneys/legal depts and AUSA works with the USCIS attorney/legal depts. Is this not correct ?

 

[paz1960]

PendingN400,
Do you have to list FBI as a defendant for this on your petition ? From what I heard USCIS has their own attorneys/legal depts and AUSA works with the USCIS attorney/legal depts. Is this not correct ?

I think that the info is correct. My AUSA said that he contacted the USCIS attorney (he didn't tell me what did they talk, hopefully I'll find out this next Tuesday at the meeting I requested with the AUSA).

On the other side, I think that listing FBI (the director of FBI) as defendant, it is not a bad idea, because in fact they are holding up all these cases, so if you want the court to compel them to finish your name check in certain timeframe, they have to be listed as defendants. I saw one case, where USCIS argued that they don't have a control on how fast (or slow) the FBI processes these name checks and the judge wrote in his opinion&order that he can't compel FBI to finish the name check in certain timeframe, because FBI was not part of the litigation (they were not listed as defendants). But if the Attorney General is listed as a defendant, the judge can order him to instruct FBI (Robert Mueller's boss is Alberto Gonzales) to finish the name check in certain timeframe, like in the Al-Kudsi v. Gonzales or Eng v. Chertoff cases.

 

[ZUR]

I think that the info is correct. My AUSA said that he contacted the USCIS attorney (he didn't tell me what did they talk, hopefully I'll find out this next Tuesday at the meeting I requested with the AUSA).

I have just received this email from my AUSA. This highlights the backlog with FBI for "Expedited Name Check Requests".
Qoute "We called the FBI on Monday when I returned to the office, and they informed me that CIS requested expedited name checks for you in September and more recently on 11/13. The name check request is still pending with the FBI. They are now dealing with an unusual backlog of the expedited name check requests, which is such that they can't even do the regular name check requests." End Quote

 

[PendingN400]

I haven't heard of this Eng v. Chertoff case. Do you have the opinion for this case or the case number? In the 6th district I have seen cases routinely processed and dismissed once name checks are completed and naturalizations adjudicated while petitions are pending. Meaning CIS concurrently keeps processing applications while petitions are pending for hearing from a judge.

 

[PendingN400]

I have just received this email from my AUSA. This highlights the backlog with FBI for "Expedited Name Check Requests".
Qoute "
We called the FBI on Monday when I returned to the office, and they informed me that CIS requested expedited name checks for you in September and more recently on 11/13. The name check request is still pending with the FBI. They are now dealing with an unusual backlog of the expedited name check requests, which is such that they can't even do the regular name check requests.
" End Quote

I heard almost the same argument from my US Att. Per my conversations, even the expedited name checks take weeks if not months. He even said 4-6 months in certain cases. I wonder what happens to the statutory 60 day period to respond - do plaintiff's file for default judgements? None is likely to be granted by the court. How does one keep a petition alive in front of a judge while name checks are being processed?

 

[PendingN400]

In addition, the nature of "backlog of expedited name checks (!$!*!)" probably indicates that the individuals actually do have a hit against their names and that a manual verification is required - leading to delays in processing expedited checks!

 

[ZUR]

I heard almost the same argument from my US Att. Per my conversations, even the expedited name checks take weeks if not months. He even said 4-6 months in certain cases. I wonder what happens to the statutory 60 day period to respond

Well, you can tell from my case. The first expedite request was made on Sept. 5 which is more than 60 days. AUSA asked for 30 day extension - nothing happened. AUSA asked for a 2nd 30 day extension which ends on Dec. 27. Let's see what happens by then.

 

[paz1960]

I haven't heard of this Eng v. Chertoff case. Do you have the opinion for this case or the case number? In the 6th district I have seen cases routinely processed and dismissed once name checks are completed and naturalizations adjudicated while petitions are pending. Meaning CIS concurrently keeps processing applications while petitions are pending for hearing from a judge.

Hello PendingN400,
Please see the memorandum and order for the Eng v. Chertoff attached.
The concurrent jurisdiction is OK (from our point of view) if USCIS actually makes progress and approves your petition, the problem is when they deny the application after the complaint based on 8 U.S.C. 1447(b) is filed with the district court. In that case the concurrent jurisdiction should be fought vigurously (mainly using the arguments from U.S. v. Hovsepian, 9th Cir. Court). Unfortunately, even if the court vacates the denial deciding that has exclusive jurisdiction, the judge still has the option to remand the matter to USCIS and as soon as they get back the jurisdiction, they can deny the application. I don't see a safe way how one can avoid such a situation... Any ideas?

 

[wenlock]

This sucks

I have just received this email from my AUSA. This highlights the backlog with FBI for "Expedited Name Check Requests".
Qoute "We called the FBI on Monday when I returned to the office, and they informed me that CIS requested expedited name checks for you in September and more recently on 11/13. The name check request is still pending with the FBI. They are now dealing with an unusual backlog of the expedited name check requests, which is such that they can't even do the regular name check requests." End Quote

Well this means we have another queue to follow. This expediated name check request queue. It means if USCIS does not get result of Name check from FBI with in time they will simply deny your application if they are under order from Court.

 

[firebird123]

Dismiss after promise to adjudicate within 30 days ?

My AUSA proposed that "USCIS is now prepared to adjudicate plaintiff's application for naturalization and agrees to adjudicate such application within 30 days of the dismissal of this action". Is this good ? My concern is that there is no legal responsibility on USCIS to do so within 30 days of dismissal even though it agrees to do so. Gurus, what should I do ? Propose a 30-day extension instead or bite his pill ? The deadline for AUSA to respond is still about 20+ days away.

In the "ORDER" section of the proposed "stipulation to dismiss and [Proposed] order" document, there is a single line of "Pursuant to stipulation. IT IS SO ORDERED.". What does that mean ? Does that give the legal responsibility
to USCIS's "agree to adjudicate within 30 days of the dismissal" ?

Over the phone, AUSA or the clerk also claimed that they can not proceed further with my N400 case without dismissal. Is this claim legal ?

Thanks for advice,

 

[PendingN400]

Hello PendingN400,
Please see the memorandum and order for the Eng v. Chertoff attached.
The concurrent jurisdiction is OK (from our point of view) if USCIS actually makes progress and approves your petition, the problem is when they deny the application after the complaint based on 8 U.S.C. 1447(b) is filed with the district court. In that case the concurrent jurisdiction should be fought vigurously (mainly using the arguments from U.S. v. Hovsepian, 9th Cir. Court). Unfortunately, even if the court vacates the denial deciding that has exclusive jurisdiction, the judge still has the option to remand the matter to USCIS and as soon as they get back the jurisdiction, they can deny the application. I don't see a safe way how one can avoid such a situation... Any ideas?

In addition to juridiction issue, I would point to retaliation argument for having filed a case and then leading to denial. I am not sure of the legal language used or statutes referred to, but one can expect that this does not routinely happen. I believe the strategy of remanding case with specific time deadlines on adjudication (not to use this term, but instead use "approval", since adjudication can also mean denial) is the most appropriate one. If the petition includes all agencies, a proactive judge can twist quite a few arms to get the job done.

 

[PendingN400]

My AUSA proposed that "USCIS is now prepared to adjudicate plaintiff's application for naturalization and agrees to adjudicate such application within 30 days of the dismissal of this action". Is this good ? My concern is that there is no legal responsibility on USCIS to do so within 30 days of dismissal even though it agrees to do so. Gurus, what should I do ? Propose a 30-day extension instead or bite his pill ? The deadline for AUSA to respond is still about 20+ days away.

In the "ORDER" section of the proposed "stipulation to dismiss and [Proposed] order" document, there is a single line of "Pursuant to stipulation. IT IS SO ORDERED.". What does that mean ? Does that give the legal responsibility
to USCIS's "agree to adjudicate within 30 days of the dismissal" ?

Over the phone, AUSA or the clerk also claimed that they can not proceed further with my N400 case without dismissal. Is this claim legal ?

Thanks for advice,

Congratulations, another victory! I see no harm in dismissal as long as you obtain in writing something from either the US Attorney or CIS that they are willing to approve within 30 days. Generally they don't play any games and their professional integrity is at stake if the matter is researched by the judge assigned to your case. You may wish to cite either the written correspondence or verbal conversations with date and times in your dismissal memo.

 

[PendingN400]

Paz...

This ENG case is one of the most optimistic scenario one can ever hope for. In this case, the court is ordering DHS to have name checks completed within 120 days and if not, is allowing plaintiff to have the court intervene again. One can't hope for any more. I believe as these type of decisions keep piling, all other courts can adopt their findings.

 

[wenlock]

Wom

Guys I have WOM case pending. My question is that in case US attorney filled for dismissal. When I response to his motion to dismissal can I cite cases referenced to 1447(b)?

As My interview is not complete I only filled application based on WOM. Do you think that response to WOM dismissal is close to same arguments you use in 1447(b) response for motion to dismiss?

 

[paz1960]

Paz...

This ENG case is one of the most optimistic scenario one can ever hope for. In this case, the court is ordering DHS to have name checks completed within 120 days and if not, is allowing plaintiff to have the court intervene again. One can't hope for any more. I believe as these type of decisions keep piling, all other courts can adopt their findings.

I agree, although my favorite is still the Al-Kudsi v. Gonzales case. The judge not only ORDERS the Attorney General to instruct FBI to complete the name check in 90 days, but effectively takes care of the situation if FBI doesn't comply.

 

[firebird123]

Congratulations, another victory! I see no harm in dismissal as long as you obtain in writing something from either the US Attorney or CIS that they are willing to approve within 30 days. Generally they don't play any games and their professional integrity is at stake if the matter is researched by the judge assigned to your case. You may wish to cite either the written correspondence or verbal conversations with date and times in your dismissal memo.

The proposed 30 days is on their written document of "Stipulation to Dismiss and [Proposed] Order".

My only concern is regarding USCIS based upon their past reputation of missing timelines. If they miss this one, can I suit them again on an already dismissed case or reopen it because they miss their own "agreement" ?

One last question, if I accept their offer, how can we both sign the stipulation ? Arrange for a time to go to the court and sign simultaneously in front of judge/clerk ?

Thanks for advice. I'm seeing some twilights but may just be a mirage.

 

[paz1960]

Guys I have WOM case pending. My question is that in case US attorney filled for dismissal. When I response to his motion to dismissal can I cite cases referenced to 1447(b)?

As My interview is not complete I only filled application based on WOM. Do you think that response to WOM dismissal is close to same arguments you use in 1447(b) response for motion to dismiss?

Unfortunately, because you didn't have your interview, the 120 day clock didn't start, so all the arguments used in the Oppositions to motions to dismiss lack of jurisdiction in cases based on 1447(b) are irrelevant.

In my opinion, you will need to work on the direction that USCIS has a clear, non-discretionary duty to ADJUDICATE (not necessary to approve) your application within a reasonable time. In this case it is less defined, what can be considered unreasonable. In several court decisions 2 years or more were considered unreasonable in immigration cases where there is no statutory time limit defined. For cases based on 1447(b), anything more than the staturory prescribed 120 day is unreasonable. I would concentrate mainly in reviewing WOM cases filed for I-485 stalled petitions; your case is more similar to these than to the 1447(b)-based complaints for stalled N-400 applications.

 

[paz1960]

My AUSA proposed that "USCIS is now prepared to adjudicate plaintiff's application for naturalization and agrees to adjudicate such application within 30 days of the dismissal of this action". Is this good ? My concern is that there is no legal responsibility on USCIS to do so within 30 days of dismissal even though it agrees to do so. Gurus, what should I do ? Propose a 30-day extension instead or bite his pill ? The deadline for AUSA to respond is still about 20+ days away.

In the "ORDER" section of the proposed "stipulation to dismiss and [Proposed] order" document, there is a single line of "Pursuant to stipulation. IT IS SO ORDERED.". What does that mean ? Does that give the legal responsibility
to USCIS's "agree to adjudicate within 30 days of the dismissal" ?

Over the phone, AUSA or the clerk also claimed that they can not proceed further with my N400 case without dismissal. Is this claim legal ?

Thanks for advice,

Congratulations Firebird123! You won! AUSA and USCIS is right that following 'ad literam' the statue, they lost jurisdiction in the moment you filed your complaint based on 1447(b), so they can't adjudicate your case till the lawsuit is dismissed or the judge remands back the matter to USCIS.

I agree with PendingN400 that it is extremely unlikely that AUSA or USCIS are playing tricks at this stage. But in order to make yourself more comfortable you can add one more sentence to the "stipulation to dismiss": "This case is dismissed WITHOUT PREJUDICE, but should further court review prove necessary, Plaintiff may reinstate his/her complaint in this court".

I am almost completely sure, that this will not happen (i.e, reopening your case with the district court); USCIS and AUSA would use other tactics to extend the time or to dismiss your case if they would not be ready to adjudicate your application. My guess is that as soon as you sign the joint motion to dismiss, USCIS will send you a decision letter (hopefully approval, with the oath ceremony scheduled).