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

[myang1969]

After I tried today again unsuccessfully to call my AUSA, I received finally the following e-mail from him:

"I understand that your N-400 application was adjudicated and approved on
January 9, 2007. Did you receive notice etc. directly from DHS/CIS? I
can get my hands on a copy if you have not received it by now. Can we
agree to dismiss the complaint? If not, let's discuss some alternative
to my responding and kicking the litigative process into gear. Thanks,"

I still can't believe... The problem is that the deadline for Defendants to file something (after the 30 day extension) is Thursday, Jan. 25. The other suspicious thing is how is it possible that I didn't receive anything from USCIS, although according to this e-mail, an approval was made on Jan. 9.

I will need to be careful with the wording of the Joint Stipulation to Dismiss. But first of all, I need to really see that copy of the approval notice...

 

[myang1969]

After I tried today again unsuccessfully to call my AUSA, I received finally the following e-mail from him:

"I understand that your N-400 application was adjudicated and approved on
January 9, 2007. Did you receive notice etc. directly from DHS/CIS? I
can get my hands on a copy if you have not received it by now. Can we
agree to dismiss the complaint? If not, let's discuss some alternative
to my responding and kicking the litigative process into gear. Thanks,"

I still can't believe... The problem is that the deadline for Defendants to file something (after the 30 day extension) is Thursday, Jan. 25. The other suspicious thing is how is it possible that I didn't receive anything from USCIS, although according to this e-mail, an approval was made on Jan. 9.

I will need to be careful with the wording of the Joint Stipulation to Dismiss. But first of all, I need to really see that copy of the approval notice...

Congratulation, my friend and advisor!!! YOU MADE IT AND YOU DESERVE IT

 

[paz1960]

http://www.immigration.com/newsletter1/uscisbackgroundcheck.html

It seems to me USCIS will take over the background check effective on Jan. 3, 2007 unless this proposal is rejected. I think this means USCIS wants to reduce the backlog due to FBI name check delays. What does it take to get us on to this new program? Filing a new N400 or filing a 1447b?

I'm afraid that you misread the above document. my understanding is that USCIS is creating a new database, where all the background check related requests and results will be centrally stored, it is not more than a (hopefully) more efficient book keeping. The name check, which is -as all of us experience this - the bottleneck, will be done as in the past by FBI. And till USCIS is paying $4/ name check, I don't see a huge incentive for FBI to put more resources to fix this problem.

 

[paz1960]

I believe what this new policy (I confirmed it with a congressional aide) means we have to convince the judge that the law [8USC' 1447(b)] is on our side. USCIS from now on will probably stop scheduling any new interview for an applicant until the name check is cleared. However, for those who were interviewed already and have been waiting, unless the law [8 USC '1447(b)] is changed, I think the court has to somehow remand an agency that doesn't follow its own rules.

USCIS stopped scheduling interviews without the completed background check since May 2006, see the Interoffice Memorandum by M. Aytes, USCIS deputy director for Internal Operations, posted several times on this forum.

 

[msenior]

Paz, this is best news today. Appreciate your help & encouragement

After I tried today again unsuccessfully to call my AUSA, I received finally the following e-mail from him:

"I understand that your N-400 application was adjudicated and approved on
January 9, 2007. Did you receive notice etc. directly from DHS/CIS? I
can get my hands on a copy if you have not received it by now. Can we
agree to dismiss the complaint? If not, let's discuss some alternative
to my responding and kicking the litigative process into gear. Thanks,"

I still can't believe... The problem is that the deadline for Defendants to file something (after the 30 day extension) is Thursday, Jan. 25. The other suspicious thing is how is it possible that I didn't receive anything from USCIS, although according to this e-mail, an approval was made on Jan. 9.

I will need to be careful with the wording of the Joint Stipulation to Dismiss. But first of all, I need to really see that copy of the approval notice...

 

[paz1960]

I have been lurking around on this forum for about a month now and am going to file my N400 WOM in 2 weeks.I have utilized all other channels like congressman to no avail as i am in military USCIS told my congressman office that only way they would expedite my name check is if i get deployed.My question is who has the jurisdiction after i file my case.I have good chances of getting deployed so if my case is in court can i still go to uscis and have my name check expedited on basis of my deployment thanks by the way my name check is pending for about 18 months now.Average time it takes for a military personnel to get his citizenship in my state is 3 months.

This depends in which circuit court jurisdiction you are. In the 9th Circuit Court jurisdiction, it is the law that as soon as you file a Petition for Hearing for Naturalization under 1447(b), the District Court will have exclusive jurisdiction. See U.S. v. Hovsepian.

In other jurisdictions, there are mixed outcomes. In many cases USCIS adjudicates applications when the lawsuit is still pending (incorrect, in my opinion) in some other cases, USCIS will wait with the adjudication till the lawsuit is dismissed or remanded to them.

If you file a WOM lawsuit, I believe that USCIS will not lose jurisdiction.

There is a clear instruction in an USCIS memo (posted previously on this forum) that people who are in the military and they are deplyed, their name check has to be expedited. This instruction is still valid, after the Dec. 22 policy change, according to a recent post on this forum. And it makes sense, the purpose of the policy change was to put a stop or at least to make it more difficult, to the lawsuits filed against USCIS for pending name checks.

Bushmaster, a formerly active member of this forum was in a similar situation like you. I don't know what is the outcome of his case.

 

[paz1960]

if what you said is correct, then I am gearing up for my day in court. I think USCIS is just being cheap by paying $4/request to FBI.

I sent my own request to FBI also http://www.fbi.gov/hq/cjisd/fprequest.htm ($18 for the request, and $10 for fingerprints). I plan to submit everything I've got to the judge.

I have to say, most native born US citizens would be disqualified if they went through such galvanizing procedure.

Don't make a comfusion between the FP check and the name check. The more evidence you attach to your complaint is better (of course, if it is relevant to your case), but you can't overcome the name check, which is a component of the full criminal background check. Unfortunately, this can be requested from FBI only by government agencies, like USCIS. Apparently, the result of this name check can contain classified information what they will never share with the applicant. Of course, this happens in a very small fraction of the cases, most of the initial positive "hits" ultimately are false and the name check is cleared.

But one thing is absolutely sure: I didn't see one singe case from the hundreds I studied, when somebody got naturalized or got GC without the background check completed. This simply is not going to happen, and we all can understand why.

 

[akram88]

Congratulations Paz, victory well deserved. I hope you are not going to leave this forum once you become a citizen , lots of ppl here including me need your expertise, knowledge and your very helpful contribution to this forum

I would like to hear your input on the questions I had in my last post regarding a joint WOM and 1447. what do you think? is it a good idea?

 

[paz1960]

Hi. I am new to this forum although I have been reading it for the past few months.
My timelne is the following:
N-400 PD: May 16, 2006
FP: July 7, 2006
IL: September 19, 2006
ID: October 26, 2006

On my N-652 form (the one with the interview results) there are only two things checked:
1. You passed the written tests of English and U.S history and government and
2. USCIS will send you a written decision about your application

It's been almost 3 months and still no decision has been made. I have tried going to infopass appointments and calling the service center. On my last infopass visit I was told that my background check was cleared but that for some reason the IO that interviewed me has my folder in his office and has not yet approved the case!!

I have no idea what to do. Has anyone been in the same situation? Who should I sue since the delay is not the FBI check? Any suggestions?

Hello apaulinar, welcome to this forum.
You are in a much better situation than most of the other members of this forum. You had your interview and you were told that your name check is completed. Your interview was only 3 months ago. USCIS by law has 120 days after the examination to adjudicate your application. Before the 120 days are up, you or anybody else, including a judge, can't do anything. You simply have to wait. If after the 120 days expired and you still didn't get your application adjudicated, you can file a complaint in the district court where you reside.

 

[paz1960]

Hello all,
Yesterday I started re-working on my suit. I started basically from where I left off about 8 month ago, I had a suit ready all I need to do is to update it with new information like new infopass visits, my second N400 and its withdrawal, congressman inquiries, etc...
While looking at other suits filed in NJ that I found on pacer, I saw few suits filed by this lawyer Edwin Rubin and I remember I that spoke to him back in may. He basically files WOM and 1447(b) in one civil action. I was thinking maybe I should do the same, I can use one of his suits as a template to create mine, all I need to change is the statement of facts.
I have few questions here:

1- do you think it's a bad idea to file WOM and 1447 together or should I stick with 1447 only
2- what do you think about taking this lawyer's suits and only changing the statement of facts. Will I be doing something wrong? I don't understand much about laws and technical words so the introduction, juridictions, venues, parties, request for relief and prayer for relief seem to me as general text not particular to the plaintiff in the suit (exept of course for the personal info). and that anyone by changing little in them can use them.

I'm attaching one of his suits here. Your help is really appreciated.

Because this strategy was adopted by a professional immigration attorney, I don't feel that I can have a more educated input to your question (I'm only an amateur). I can tell you what was my strategy, without claiming that this is better than filing a concurrent 1447(b) and WOM in the same complaint.

I filed only 1447(b), for several reasons:
1. the only thing in such a lawsuit Plaintiff needs to demonstrate is that examination=interview. If the judge buys this, after 120 days the court has clear subject matter jurisdiction, without all the other bells and wissles to demonstrate that you did everything possible to sole your case peacefully.
2. In theory, the judge can order a trial to review your case, ask USCIS to produce in the discovery phase all the necesary papers and decide the matter. Of course, this happens very rarely and usually, plaintiff ends up with a remand instruction. If this instruction contains a timetable, you esestially got what you wanted. If not, you are back to square one.
3. The court gets exclusive jurisdiction when you file your lawsuit (at least in the 9th Circuit Court's jurisdiction).

In my planned Opposition to Defendants' Motion to Dismiss or Remand, I had a section where I ask the judge that if the court find that lacks subject matter jurisdiction (because judge doesn't buy examination=interview) to leave the Court to ammend the complaint for a WOM.

 

[paz1960]

Hi Everyone,

This great forum helped me on every steps for preparing WOM. Many thanks goes to people like like Publicus, Panz1960, Wenlock, ..., just name a few. People who really spent time on the forum deserve respect. When I told people around me I filed a law suit for it, they are saying I should be in the front line ... Just be patient, you will prevail.

Here is the summary of the my case:

1. March 2005 - N400
2. April 2005 - 1st FP
3. June 2005 - IV -- waiting background check since March 2005
4. Nov. 29, 2006 - WOM
5 Jan. 20, 2007 - Oath Letter
6 Jan. 23, 2007 - Oath

Good luck to everyone.

Looks that today is a very good day. Congratulation 2005N400! It's amazing how quickly they scheduled you for the Oath. Now you can dismiss your lawsuit without much headache what to put in the Joint motion. I would still contact AUSA and agree with him/her and not leaving the case unfinished. Your dignity and the Court deserves this.

 

[paz1960]

Updates on my case:
Spoke to AUSA this morning, he checked agency & called me back. He said my name checked completed in FBI, forward result to USCIS. It should not take much longer. When I confirm with him if my name chacking cleared, he said he does not know the result.
As I post early, in other side he file motion to dismiss to court on Jan 8, 2007. I just find out from local rules. In my court (Alex, VA), I only have 20 days to file opposition to motion to dismiss.

Called court, confirmed my hearing date is at Feb 23, 2007:

I am not sure what AUSA play now. Any suggestion? thanks

Hello msenior,
Looks to me that you are now very close to the end. Having your name check completed, there is no other good reason why not to adjudicate your application.

But to be on the save side, I certainly would file an Opposition to Defendants' Motion to Dismiss, before January 28. My guess is that your case will be adjudicated before the February 23 hearing, but this is just a possibility, albeight, a pretty strong one. Did you get any Opposition from previous court cases what you can use as a guidance, how to write yours?

 

[yvesliu]

Anyone wants to comment on this? I am very nervous. With the new rule, even I filed my case in Nov, does that mean I still need to fight in court?

BTW, I have an infopass appointment tomorrow, I will know if they did expedite my namecheck.

I just talked to the US. Attorney who is dealing with my case. He said he just filed an answer to the court. I asked him if it is dismiss the case or extension for another 30 days, he said it is just an answer. After I receive the answer, I can write a letter to the judge asking for the ruling. Does this make any sense? I asked him if the expedite request expired (which I read from some posts here), he said FBI name check expedite request will never expire.

In Dec., this US. Attorney wrote me an e-mail saying that I should hear teh result of FBI name check very soon and I was in the last batch of names which got sent to FBI to expedite.

Any suggestions?

 

[paz1960]

Anyone wants to comment on this? I am very nervous. With the new rule, even I filed my case in Nov, does that mean I still need to fight in court?

BTW, I have an infopass appointment tomorrow, I will know if they did expedite my namecheck.

I think that you will get some good news soon. If your name check request was expedited, it will be done soon, most likely before a hearing will be scheduled.

Because AUSA filed an Answer, you don't have to file anything with the Court. The next move will come from the judge, who will schedule a case management conference or directly the hearing (seems to me that this really varies from judge to judge in different districts). Just in case, you still need to prepare your Opposition to a Motion to Dismiss, which can be filed up to the date of the hearing (or during the initial case management conference, the judge can establish a cutoff date till when can any party file a dispositive motion).

Although I see a good chance that your case will be resolved soon, please don't sit back and relax; prepare yourself for a hearing. It is unlikely that it will happen, but just in case.

 

[yvesliu]

Thanks Paz. I just found the answer from PACER, and it does not look very good. Here is a section of it. "Affirmative Defenses 1. Defendant USCIS and Defendant FBI hereby reserve the right to plead any and all affirmative defenses which may become applicable during the course of this litigation.
CONCLUSION WHEREFORE, having fully answered all allegations of Plaintiff Liu’s Complaint, Defendant USCIS and Defendant FBI pray that Plaintiff Liu take nothing by way of his complaint (CR 1), and that Plaintiff Liu’s Application To Register Permanent Residence or Adjust Status, Immigration Form I-485, be remanded to Defendant USCIS for final adjudication, that Plaintiff Liu not be awarded costs, and that this Court grant Defendant USCIS and
Defendant FBI such other and further relief as this Court may deem appropriate.".

Should I be worried?

I think that you will get some good news soon. If your name check request was expedited, it will be done soon, most likely before a hearing will be scheduled.

Because AUSA filed an Answer, you don't have to file anything with the Court. The next move will come from the judge, who will schedule a case management conference or directly the hearing (seems to me that this really varies from judge to judge in different districts). Just in case, you still need to prepare your Opposition to a Motion to Dismiss, which can be filed up to the date of the hearing (or during the initial case management conference, the judge can establish a cutoff date till when can any party file a dispositive motion).

Although I see a good chance that your case will be resolved soon, please don't sit back and relax; prepare yourself for a hearing. It is unlikely that it will happen, but just in case.

 

[myang1969]

Anyone wants to comment on this? I am very nervous. With the new rule, even I filed my case in Nov, does that mean I still need to fight in court?

BTW, I have an infopass appointment tomorrow, I will know if they did expedite my namecheck.

This is just a standard answer, but dont worry and dont expect nice word from it. One side, they should expedite your name check, but on other side they still file motion to dismiss or remand. If you find out your namecheck expedited, dont worry about rest of it. Like PAZ1960 said, perpare the worst, good luck!

 

[msenior]

Hi, Paz:
I found one from this forum. which is used for class action. I picked good part from that one. Again, thank you for remember my case so clear. I prepare to file Opposition by this Thursday. I like you comments for other friend. have a statement to ammend to WOM is really good idea. I have request to you, would you share part of your Opposition to me (zhang_zm@yahoo.com). It should help me alot. Thank you in advance!

Hello msenior,
Looks to me that you are now very close to the end. Having your name check completed, there is no other good reason why not to adjudicate your application.

But to be on the save side, I certainly would file an Opposition to Defendants' Motion to Dismiss, before January 28. My guess is that your case will be adjudicated before the February 23 hearing, but this is just a possibility, albeight, a pretty strong one. Did you get any Opposition from previous court cases what you can use as a guidance, how to write yours?

 

[snorlax]

Hi. I am new to this forum although I have been reading it for the past few months.
My timelne is the following:
N-400 PD: May 16, 2006
FP: July 7, 2006
IL: September 19, 2006
ID: October 26, 2006

On my N-652 form (the one with the interview results) there are only two things checked:
1. You passed the written tests of English and U.S history and government and
2. USCIS will send you a written decision about your application

It's been almost 3 months and still no decision has been made. I have tried going to infopass appointments and calling the service center. On my last infopass visit I was told that my background check was cleared but that for some reason the IO that interviewed me has my folder in his office and has not yet approved the case!!

I have no idea what to do. Has anyone been in the same situation? Who should I sue since the delay is not the FBI check? Any suggestions?

If the delay is not due to the FBI name check or other security checks, writing to your Congressman and/or Senator and asking them for help with USCIS should probably be sufficient. I would wait for statutory 120 days to pass and than ask one of them (or both) to help you with USCIS clearly violating your rights by stalling your naturalization. If that does not help – you will have big chunk of evidence for your 1447b case.

Best of luck
Snorlax

 

[nshan]

Hi,

I got this judge order today for my Mandamus case:

1) Defendant shall within 60 days show cause in writing why relief prayed should not be granted

2) Plantiff may file a response to def. filing within 20 days after receipt

3) Unless otherwise ordered by the court, the matter will be deemed submitted upon the filing of the response or upon the expiration of time to file a response

5) the order dated Dec 5. 2006 setting an initial case management conference and ADR deadlines is hereby vacated.

Had anyone received an order like this before? If so, how did UCIS respond? Does this mean I will only have to wait a maximum of 60 days for UCIS's response? Should I do anything in the meantime?

Thanks

 

[ICU Doc]

to "8970" You will win

your case is very much same to my case . I came to USA in 2000 and did
the all papers and fingerprint in 2001. In 2003, I sent my I-751 to USCIS.

after that no response up to 2005. And then I did applied for N-400 in Feb

2005, also no response up to Nov 2006 since in July of 2005 that I passed
the interview. Anyway I didn't get any response except I went to CIS

office asked them.Up to today my passport I-551 sign is I-751 & N-400

pending. now I did a lawsuit ( pro se), In 1-7-2007 it was the due time
but AUSA called me that they made a extention time of 2 months, I said
yes.
Now I have to wait after 2 months that will get finish of the case.

I am pretty sure things will resolve for you as well. I could not believe my ears when the immgration officer told me on the phone that they will do the fingerprints, I-751 interview, N-400 interview, and the oath ceremony in the same day. They obviously do not want to go to court for such loosing case BUT they will squeeze you till the end. We filed the WOM on Sep 20th and the interview is scheduled for Jan31st so they kept wasting time for 4 months and 11 days after filing my case. Good luck and keep us posted. I can not believe that my 7 years nightmare with CIS is about to be over. I am not dropping my case till I have the certificate of citizenship in my hand.