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

case number said:
Thank you Paz, i was thinking about the 4th circuit since AUSA often cited cases decided in the 4th circuit. i am almost overwhelmed of all this "CIS headache." i have another question, in my pacer is specified that an answer is expected by the January 5, 2006. that means that my counterclaim is due by then? thanks
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Hello case number,
I looked up on PACER the case which you posted in your post #7595. I assume that the Motion to Dismiss or Remand filed by AUSA attached to this post is part of your case. The "answer due on January 5, 2007" simply refers to the fact that you served FBI director on 11/06/2006 and the clerk counted the 60 days when the defendant's answer is due from the date of service. In my opinion this is incorrect because the FRCP clearly states that in lawsuits filed against the United States the answer is due 60 days after the US Attorney is served. This is irrelevant in your case, because defendants already filed a motion. Now the judge first has to rule on this motion; if the motion is denied, the order will specify the next step and a deadline for that (filing the motion only delayed the answer, they still need to file an answer, or can be an initial status conference or the hearing or maybe something else, depending on the judge).

Bottom line, you don't have to answer anything with January 5, 2007 deadline. But you should prepare an Opposition to the Defendants' Motion to Dismiss or Remand (not a counterclaim, this type of filing is irrelevant in these immigration cases). You should consult the local rules of your court, this should contain the format requirement (i.e., max number of pages) and deadline till when you need to file the Opposition. In my district the Opposition can't be longer than 25 pages and has to be filed in 28 days from the date of filing the motion by the moving party.
 
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case number said:
Thank you Paz, i was thinking about the 4th circuit since AUSA often cited cases decided in the 4th circuit.
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Kia v. INS - 4th Circuit held that INS (USCIS) has jurisdiction over an application for naturalization even after a 1447b petition has been filed. The decision was based on a 9th Circuit case. However, shortly afterwards, that particular case was distinguished by the 9th Circuit itself and overruled in Hovsepian Case. So the basis for the Kia decision does not exist anymore.

But these days the main question seems to be when the when the 120 period commences and not whether USCIS has jurisdiction.
 
kk405 said:
First of all, thank you all, and especially paz and aka808 for your help so far...I am at the beginning of the process, so I am sure you'll be hearing lots from me and I will do the best I can to post details of my step by step experience. I will start doing that in this post, but before doing that I have a couple of points that I'd like to raise...

As all of us who have come across this forum can attest, this is an extremely valuable forum. I began reading the first few pages of it (lots of great information by Publicus and early contributors...However, I soon realized that this forum is 500+ pages long...so, I decided to read from page 200 forward, and it took me 3 full days to finish reading the 300+ pages. The first problem is that those pages are full of people congratulating each other and or writing repetitive comments and questions, making it difficult to find relevant and useful information quickly. yes, you can perform a search, but you would miss a lot in those searches. for example, I was shocked to see that there is very little posting and information regarding the busiest district court, the Southern District Court, covering New York City and the NYC offices of the USCIS. Also, one needs to read through at least 100+pages to figure certain basic things, for example the COMPLETE listing of people that need to be served. Lots of people have had successful experiences and they should be the ones posting whom did they list in their suits!!! and one more thing about those who have benefited enormously form this forum and have filed successful suits: Most of them have little or no DETAILED posting of EXACTLY what they did and how they did it...and I mean step by step!. You can do this while your case is pending, or even after the entire process is finished...but why not write a complete post for the benefit of thousands of others whose pain and sufferings you do associate with so closely? (by the way, each posting should include a signature so everyone can distinguish whether the posting is from an N-400 or an I-485 applicant, and which INS office and which District Court are they from, as to make 'search' results more relevant and useful.

Now, my process has begun. After aka808’s response, I went to 500 Pearl Street, room 230 and picked up a Pro Se package. It is not really a package, but a 2-sided sheet of paper that describes how you should file your suit. The clerk asked me what this suit was about and I told her a 1447(b) immigration related case and she said they do not have an immigration-specific form, but they do have a general form that describes the procedure. She told me to bring my typed or neatly-written complaint back to her and after I pay the $350 fee, she will tell me the rest of the procedure, including how to serve, etc.

My first question to the experts of the forum is this: I assume the list of defendants and those that will be served is the same? If so, this is my list and is it correct? Also, everyone on this board refers to a US Attorney in your district (mine is Southern District of New York). There can’t be just one US Attorney for the district…who is he and how do you find his name/address? Michael J. Garcia, One St. Andrews Plaza New York, NY 10007
(212)637-2200

List of defendants & those that will be served:

Alberto Gonzales,
United States Attorney General
US Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530-0001


Michael Chertoff,
Secretary of the Department of Homeland Security
Office of the General Counsel
US Department of Homeland Security
Washington, DC20528

Emilio T. Gonzalez, Director of United States Citizenship and Immigration Services
Office of the Chief Counsel
U.S. Citizenship and Immigration Services (USCIS)
20 Massachusetts Ave, NW, Rm 4025
Washington, DC 20529

Robert S. Mueller, Director of Federal Bureau of Investigation
Directory of Federal Bureau of Investigation
Office of the General Counsel of the FBI
935 Pennsylvania Ave, NW
Washington, DC 20530-0001

For the Director of USCIS, is it Paul Novak the Director of the Vermont Service Center where I sent my N-400 application, or Director of the New York City office (Federal Plaza) where I had my interview done? I can’t find the name or address of the NYC Director… :confused:

Paul Novak
Director, Vermont Service Center
U.S. Citizenship and Immigration Services
75 Lower Welden St.
Saint Albans, Vermont 05479

United States District Court
Southern District of New York
US Attorney
Michael J. Garcia, USA
One St. Andrews Plaza
New York, NY 10007
Web Site | Press Releases (212)637-2200
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I had very similar feelings when I finished reading all the pages from one to the end (without skipping 200). But you should understand that this forum is not only an information repository; so far nobody had the time and determination to make an organized web site where you can retrieve easily all the info you need. Probably the closest to this is Publicus' summary posted on the first page. Members participating on this forum have feelings, emotions, they go through extraordinary anxiety during this whole ordeal; it is a major decision to file a lawsuit against the so powerful US Government.

Your proposals how to make this forum more efficient are all very valid and welcomed, but I think that there is little chance to convince several thousands readers to adopt them. You better accept the fact that there is no easy way to get what you want, take this forum "as is" and try to benefit as much as you can. By reading most of the posting you became probably an expert and already found answers to many of your potential questions. So, please get involved actively and try to give back something from this knowledge you aquired reading through this forum.

Now the answers to your questions:
1. I didn't put in the list of the defendants the USCIS Service Center Director, instead I put the USCIS District Office Director. I'm not sure that it matters anyhow, because seems that the expedited process is initiated by the DHS General Counsel Office. But my rationale was the following: because I had my interview in the DO, they should have my case (file) and they have the authority to adjudicate my N-400 application. The Service Center is not involved anymore in the process. (This is somewhat contradicted by the fact that the second FP notice came from the Service Center).
2. Each federal district has ONE US Attorney, nominated by the President of the US and confirmed by the US Senate. This position is indefinite, just like the federal district court judges. The US Attorney has many assistants (these are also lawyers) who handle the cases. In the forum's jargon these are the AUSA (Assistant US Attorney).
3. The US Attorney is not a defendant, (s)he is the defendants' counsel in lawsuits filed against the US Government.
4. Although the US Attorney is not a defendant, you still need to serve his(her) office a summons and a copy of your complaint. As a rule of thumb: whatever you file with the court during your lawsuit you should serve a copy also to the US Attorney's Office.
5. You don't need to know the US Attorney's name (although this can be found easily with a search on the internet). You should serve your complaint to the following address:

US Attorney's Office
[your district's name]
Civil Process Clerk
street, city, zip

6. The first four defendants and addresses are the same I used; so far seems that it was correct.

7. The 60 days start ticking from the day you served the US Attorney's Office. Your case will be assigned to an AUSA after XX days (nobody knows the exact value of XX). It is advisable to contact the US A's Office and try to find out who is the AUSA assigned to your case and try to build a good working relationship with him/her, because they can make a real difference in your case. They can put pressure on FBI and USCIS, using their internal channels.
 
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bashar82 said:
Kia v. INS - 4th Circuit held that INS (USCIS) has jurisdiction over an application for naturalization even after a 1447b petition has been filed. The decision was based on a 9th Circuit case. However, shortly afterwards, that particular case was distinguished by the 9th Circuit itself and overruled in Hovsepian Case. So the basis for the Kia decision does not exist anymore.

But these days the main question seems to be when the when the 120 period commences and not whether USCIS has jurisdiction.
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bashar82 is right; the exclusive/concurrent jurisdiction issue can be important only if uSCIS denies your application AFTER the 1447(b) lawsuit is filed. (If they approve your application, you probably wouldn't argue that they lost jurisdiction as soon as you filed your complaint.)

But the jurisdictrion issue and the 120 days starting date has a connection. AUSA usually argues that the 120 days didn't even start before the full background check is complete, so the court has no jurisdiction is such cases. However, seems to me that there is a relatively good chance to convince the judge that the 120 days starts when the examination (i.e., the interview) was done. For this part the crucial issue is which definition is accepted for the "examination".

A more delicate issue is what happens if the court assumes jurisdiction. So far I didn't see a single case when the judge granted citizenship without the name check being done or the court would do this name check and adjudicate the application after that. Theoretically, at least this would be the first possibility according to 1447(b). However, judges invariantly state that the courts are not equipped to do the background check and they choose the second option conferred them by law: to remand the matter to the Service.

And here is the most critical point, in my opinion. To convince the judge, that this remand order should contain a meaningful specific instruction, i.e., a timetable. In many cases the "specific instruction" was something like: "USCIS should adjudicate Plaintiff's application as soon as the FBI completed the background check". The value of such order tends to zero and Plaintiff is back to square one, just like before (s)he filed the complaint.

In several other cases the judges realised that remanding without meaningful specific instructions (i.e., a timetable) is meaningless and would violate the intent of Congress, who wanted to provide an avenue for stalled naturalization applications, when they crafted 1447(b). In these cases, the judge ordered that the name check should be completed in XX number of days and after that USCIS should adjudicate the application.

In my opinion, the realistic goal of any 1447(b)-based lawsuit should be to get such a decision (besides the fortunate cases when the application is adjudicated before the lawsuit goes further down in the judicial process).
 
paz1960 said:
I had very similar feelings when I finished reading all the pages from one to the end (without skipping 200). But you should understand that this forum is not only an information repository; so far nobody had the time and determination to make an organized web site where you can retrieve easily all the info you need. Probably the closest to this is Publicus' summary posted on the first page. Members participating on this forum have feelings, emotions, they go through extraordinary anxiety during this whole ordeal; it is a major decision to file a lawsuit against the so powerful US Government.

Your proposals how to make this forum more efficient are all very valid and welcomed, but I think that there is little chance to convince several thousands readers to adopt them. You better accept the fact that there is no easy way to get what you want, take this forum "as is" and try to benefit as much as you can. By reading most of the posting you became probably an expert and already found answers to many of your potential questions. So, please get involved actively and try to give back something from this knowledge you aquired reading through this forum.

Now the answers to your questions:
1. I didn't put in the list of the defendants the USCIS Service Center Director, instead I put the USCIS District Office Director. I'm not sure that it matters anyhow, because seems that the expedited process is initiated by the DHS General Counsel Office. But my rationale was the following: because I had my interview in the DO, they should have my case (file) and they have the authority to adjudicate my N-400 application. The Service Center is not involved anymore in the process. (This is somewhat contradicted by the fact that the second FP notice came from the Service Center).
2. Each federal district has ONE US Attorney, nominated by the President of the US and confirmed by the US Senate. This position is indefinite, just like the federal district court judges. The US Attorney has many assistants (these are also lawyers) who handle the cases. In the forum's jargon these are the AUSA (Assistant US Attorney).
3. The US Attorney is not a defendant, (s)he is the defendants' counsel in lawsuits filed against the US Government.
4. Although the US Attorney is not a defendant, you still need to serve his(her) office a summons and a copy of your complaint. As a rule of thumb: whatever you file with the court during your lawsuit you should serve a copy also to the US Attorney's Office.
5. You don't need to know the US Attorney's name (although this can be found easily with a search on the internet). You should serve your complaint to the following address:

US Attorney's Office
[your district's name]
Civil Process Clerk
street, city, zip

6. The first four defendants and addresses are the same I used; so far seems that it was correct.

7. The 60 days start ticking from the day you served the US Attorney's Office. Your case will be assigned to an AUSA after XX days (nobody knows the exact value of XX). It is advisable to contact the US A's Office and try to find out who is the AUSA assigned to your case and try to build a good working relationship with him/her, because they can make a real difference in your case. They can put pressure on FBI and USCIS, using their internal channels.
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Paz, Thank You for your response...once I am done with my entire filing (and hopefully successful conclusion), I will post a detailed and up-t-date story, so that perhaps everyone can benefit from, without having to go through 7000+ posts, like you, I and some others have...anyway, a quick question...you mentioned you named the local USCIS District Office Director as a defendant rather than the USCIS Service Center Director..where did u get his name and address from? I have searched everywhere and can't find the one for NYC/Manhattan Office (26 Federal Plaza)....anyone has his/her name and address?...Many Thanks....

P.S. Preparing the 1447(b) this weekend and will file on Wednesday January 3, 2007 :)
 
kk405 said:
Paz, Thank You for your response...once I am done with my entire filing (and hopefully successful conclusion), I will post a detailed and up-t-date story, so that perhaps everyone can benefit from, without having to go through 7000+ posts, like you, I and some others have...anyway, a quick question...you mentioned you named the local USCIS District Office Director as a defendant rather than the USCIS Service Center Director..where did u get his name and address from? I have searched everywhere and can't find the one for NYC/Manhattan Office (26 Federal Plaza)....anyone has his/her name and address?...Many Thanks....

P.S. Preparing the 1447(b) this weekend and will file on Wednesday January 3, 2007 :)
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Looking in the file where I saved the useful info reading through the postings, I found this:

New York District Office
26 Federal Plaza New York, NY 10278
7:30A - 3:30P (Mon - Fri)
District Director: Edward J. McElroy
Phone: 212-264-5891

I am not sure if this is up to date, but you can try calling them, or simply use this name and address. I am in Michigan...
 
Time Frame to receive Summons from court

Hi All,

Started my WOM journey on 12/22 for 485 pending FBI name check for 2 years with help of an attorney. My attorney filed the WOM on 12/22 and says that he has not yet received the summons from court to send to defendants. How much time does the court take to issue the summons ??

Thanks,

Will_get_there1
 
i got the summons the same day i filed my case in the court.

will_get_there1 said:
Hi All,

Started my WOM journey on 12/22 for 485 pending FBI name check for 2 years with help of an attorney. My attorney filed the WOM on 12/22 and says that he has not yet received the summons from court to send to defendants. How much time does the court take to issue the summons ??

Thanks,

Will_get_there1
Click to expand...

But the clerk told me, that i was lucky because that day i had case number avaliable, i m not sure what that mean, but i guesse that one judg only can deal with certain number of cases, only the judg has avaliable case number for u, they will issue summons. Normally, u can get the case number within one week. after the case number is avalialbe, they will mail u the summons. and now it's still holiday season, so, just be patient
 
will_get_there1 said:
Hi All,

Started my WOM journey on 12/22 for 485 pending FBI name check for 2 years with help of an attorney. My attorney filed the WOM on 12/22 and says that he has not yet received the summons from court to send to defendants. How much time does the court take to issue the summons ??

Thanks,

Will_get_there1
Click to expand...
This really depends on the district where you are. In a smaller district, like mine, I got the summonses back right at the spot, after the clerk stamped and signed them. (I filed my complaint in person).

As a general recommendation: if you decided to go with an attorney, trust him/her. They know a lot more about all the procedural rules and regulations than anybody here on this forum.
 
paz1960 said:
This really depends on the district where you are. In a smaller district, like mine, I got the summonses back right at the spot, after the clerk stamped and signed them. (I filed my complaint in person).

As a general recommendation: if you decided to go with an attorney, trust him/her. They know a lot more about all the procedural rules and regulations than anybody here on this forum.
Click to expand...

Thanks for help Paz1960, mgzh; I was getting worried.
 
Paz, thanks for all your help....I just finished typing up my complaint..now ready to file my 1447(b) on Wednesday...I also finished the Civil Cover Sheet...but not sure what to do with the Summons form...I have a blank form I downloaded from Southern District COurt's website, but do I need to fill it out or is this something that the court will do after I fiule my complaint on Wednesday?




paz1960 said:
Looking in the file where I saved the useful info reading through the postings, I found this:

New York District Office
26 Federal Plaza New York, NY 10278
7:30A - 3:30P (Mon - Fri)
District Director: Edward J. McElroy
Phone: 212-264-5891

I am not sure if this is up to date, but you can try calling them, or simply use this name and address. I am in Michigan...
Click to expand...
 
Where to file, Oakland or San Jose?

I'm planning to file a "PETITION FOR HEARING ON NATURALIZATION APPLICATION". My citizenship application has been pending on name check since interview in June 2006. I have been living in San Jose area but recently moved to Oakland area. Should I file at Oakland or San Jose court in the northern district of California?
 
kk405 said:
Paz, thanks for all your help....I just finished typing up my complaint..now ready to file my 1447(b) on Wednesday...I also finished the Civil Cover Sheet...but not sure what to do with the Summons form...I have a blank form I downloaded from Southern District COurt's website, but do I need to fill it out or is this something that the court will do after I fiule my complaint on Wednesday?
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In my district they required two summonses per defendant + 2 summonses for the US Attorney in my district. Each summons was filled by me, these were stamped and signed by the court's clerk when I filed the complaint in person.

I mailed one summons + one stamped copy of the complaint per defendant + one summons and one complaint (also stamped) to the US Attorney's office.

After I got proof of delivery, I filed the second set of summonses as part of the Certificate of Service, filling the required info on the summonses empty spaces.
 
Writ of Mandamus

I am married to an American and have 4 American Children. I was deported on 2/01/2006 - everything was going OK! my 1-212 and I-824. Until we heard from our congressmen on 9/25/2006 informing my name has a "hit" and it has to go through a manual clearance. We were also told they (congressman office) cannot help us before this is done by the FBI. So, we did get the typical blow-off "Wait" answer.

My questions are:

1. When will I qualify to fill Writ of Mandamus?
2. Is it true the president soon is going to sign a new bill to stop filling lawsuits against USCIS based on Writ of Mandamus?

Not sure what do to next!!
 
Update

I was preparing my "oppose to motion to dismiss" and trying to find an attorney to handle my case in last a couple of days. I really need your opinion about this. It is a little hard for me to find a lawyer to handle my case in case it will go to trial or be dimissed and need to appeal. Finnally I get one who is trying to charge me $350 for initial one hour meeting, i.e. just consult my case initially. I feel it is too expensive. Usually I think it should be OK around $150 per hour. He want to meet in a coffee houses this Thursday. Do you think if he is a shark?
 
kisaac said:
I am married to an American and have 4 American Children. I was deported on 2/01/2006 - everything was going OK! my 1-212 and I-824. Until we heard from our congressmen on 9/25/2006 informing my name has a "hit" and it has to go through a manual clearance. We were also told they (congressman office) cannot help us before this is done by the FBI. So, we did get the typical blow-off "Wait" answer.

My questions are:

1. When will I qualify to fill Writ of Mandamus?
2. Is it true the president soon is going to sign a new bill to stop filling lawsuits against USCIS based on Writ of Mandamus?

Not sure what do to next!!
Click to expand...


If you are out side the country you are not eligible for Writ of Mandamus. Court does not have jurisdiction on the area where you live. In some rare cases when USCIS really mess things up and delay is way unreasonable you can attempt WOM for consular processing but it is very rare you need very knowledgeable attorney who can convince judge.

Secondly I believe if you are deported you need i-601 waiver that is pure discretionary. If you look at the language of the law it clearly say that Attorney General is not mandate to act on application in any certain timetable it is purely based on Adjudicator decision and he can take as long as it takes.

If you are in that situation talk to this lawyer www.visacentral.net Laural Scott she is really good at waivers. She charge good money but have very good success rate also she wrote many advisories for AILF.
 
2nd fingerprint

I did my second fingerprint on 12/27/06 and visited local Immg office through INFOPASS on the same day. My namecheck was not cleared when I did my 2nd fingerprint. However, my case is different since they assigned a wrong A # to my I485 application (the name check with the old A# is still pending). The 2nd fingerprint was done with the new assigned A#. But immg officer told me that she didn't have any records related with the new A#. I don't know why they required me to do 2nd fingerprint at this point.
 
Writ of Mandamus

Wenlock, Thanks for the feedback. My wife and kids are still living in the US. My paper work is still bouncing back and forth between NVC, NBC and FBI. I thought this does count, is it not?!!

The wavier form is I-212 (Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal) which is what we have already filed along with the I-824 (Application for Action on an Approved Application or Petition).
 
Hi, Everyone.

I filed WOM for my 485 AOS on 11/28/2006. After that, I was trying to call US Attorney office. However, The lady who picked up the phone always told me that I should wait for their response within 60 days.

I remember that a lot of posts in this thread mentioned that they had chance to talk with AUSA before the deadline. What should I do at this stage. Thanks a lot.

BTW, I am in San Diego District. It seems AUSA in San Diego started to fight back. I saw some motions filed by AUSA. They were from same template. One major reason is that foreigner can not establish venue. So have to follow defendant's venue. but defendants are living in Washington DC. So San Diego is not the right venue...
 
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