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

[DUDE12190]

Please reply!

Hello alone_in_ep, welcome to this forum. Hopefully, you will not need all the info posted here, because you will get your oath letter without any litigation. If 120 days pass after your interview and you still didn't receive anything, I would recommend to write a nice letter to the director of the USCIS District Office where you were interviewed and tell him/her that you are going to file a lawsuit in the federal district court based on 8 U.S.C. 1447(b) if they don't issue you a notice with the oath ceremony date in 15-(30) days. And if they don't react, do not hesitate, go and file the lawsuit.

Reading your posts on another forum, I understand that you had your interview and the officer didn't mention anything about a pending background check. In the view of the USCIS memo dated back to May 2006, they were not supposed to call you for the interview if your full criminal background check wasn't cleared. They did this frequently before this memo, exposing themselves to thousands of lawsuits, because the FBI didn't complete the name check part of the background check in 120 days after the interview.

The link and the document what you can download from there was posted several times on this forum, but because the active users are revolving (people tend to leave after their case is solved) and most of the newcomers don't have the time and patience to go through more than 8000 postings, it is worth to post again useful info.

Paz,
could you please post this memo from 2006. I am talking about " In the view of the USCIS memo dated back to May 2006, they were not supposed to call you for the interview if your full criminal background check wasn't cleared." . please post it if you have it or if anyone else has it, please post it. Thanks alot Paz!! and thanks everyone!! please keep up the good work.

 

[paz1960]

PAZ1960

I am still waiting for 60 days deadline to come, I am also prepared some evdence and study for upcomimg AUSA motion. Can you spent a little time to tell me if I have enough understanding to different motion.
(1) Motion to Dismiss: I believe this is the strongest one to plaintiff but it may also backfire to defendent; I guess Judge will lean to your side if (s)he denny the motion. after both side file the Motion, Judge will rule directly or rule after pre-hearing, am I right?
(2) Answer; I believe this is a middle intense fight back. Defendent will agree something, but denny rest part. They like to discuss issue in court and next thing is also hearing or conference.
(3) Motion to extension. it is the weakest one, possible they want settle, but need more time, but they may fight back with (1) after 30 days extension.
(4) Motion to remand: same as (1) but a little less intensive reply.
Feel free to comment for any of you. I believe for most of us, we have to go through this now.

I think that you got it right. I would add only that typically, in the majority of the cases when AUSA files a Motion to Dismiss this comes together with the motion to remand (so two actions together, in one motion: dismiss OR remand). again, in the majority of the cases where AUSA filed a motion to dismiss or remand, Plaintiff filed an Opposition to Defendants' motion, after that Defendants filed a Reply to Plaintiff's Opposition. The next move is coming from the judge, who either rules based on the documents filed (ie., no hearing) or orders a hearing and usually rules after that. The lawsuit rarely continues after this hearing, so discovery and the main trial happens only in a very small number of cases.

In the vast majority of the cases where the judge ruled about a Motion to Dismiss or Remand, it was either a remand (with or without a timetable) or an order to stay for XX number of days, to give Defendants time to complete the background check and adjudicate the matter.

 

[paz1960]

Paz,
could you please post this memo from 2006. I am talking about " In the view of the USCIS memo dated back to May 2006, they were not supposed to call you for the interview if your full criminal background check wasn't cleared." . please post it if you have it or if anyone else has it, please post it. Thanks alot Paz!! and thanks everyone!! please keep up the good work.

Here we go (it was posted earlier probably several times on this forum).
I remembered incorrectly the date, it was issued on April 25, 2006.

 

[yvesliu]

Thank you micahel1008 and PAZ1960. This is a very good summary. I got the answer the couple of days ago. When I talked to ASUS, he said I should write to the judge. Then there will be a conference coming up. Is that true? Or I should just wait? If I need to write the the judge, is there a sample about it?

PAZ1960

I am still waiting for 60 days deadline to come, I am also prepared some evdence and study for upcomimg AUSA motion. Can you spent a little time to tell me if I have enough understanding to different motion.
(1) Motion to Dismiss: I believe this is the strongest one to plaintiff but it may also backfire to defendent; I guess Judge will lean to your side if (s)he denny the motion. after both side file the Motion, Judge will rule directly or rule after pre-hearing, am I right?
(2) Answer; I believe this is a middle intense fight back. Defendent will agree something, but denny rest part. They like to discuss issue in court and next thing is also hearing or conference.
(3) Motion to extension. it is the weakest one, possible they want settle, but need more time, but they may fight back with (1) after 30 days extension.
(4) Motion to remand: same as (1) but a little less intensive reply.
Feel free to comment for any of you. I believe for most of us, we have to go through this now.

 

[micahel1008]

Thank you micahel1008 and PAZ1960. This is a very good summary. I got the answer the couple of days ago. When I talked to ASUS, he said I should write to the judge. Then there will be a conference coming up. Is that true? Or I should just wait? If I need to write the the judge, is there a sample about it?

If it is answer, you dont have to write to Judge, but you still need call court to see if Local Rule defined any response you need to follow. You also need talk to court clark to set up conference or hearing. The "answer" is one thing you need to be careful, AUSA may question your argument and they want push ball to Judge, and Judge may need some time to settle the lawsuit.

 

[paz1960]

Thank you micahel1008 and PAZ1960. This is a very good summary. I got the answer the couple of days ago. When I talked to ASUS, he said I should write to the judge. Then there will be a conference coming up. Is that true? Or I should just wait? If I need to write the the judge, is there a sample about it?

From the Northern California District Pro Se Handbook:

"Once the answer is filed, does the plaintiff have to file a response to it?

There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no need to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit."

But I agree with micahel1008, talk to the court's clerk to set up a conference, or hearing (it is called differently in different districts).

 

[paz1960]

When my interview was scheduled then de-scheduled, I went to an INFOPASS and was given a DHS memo dated April 25, 2006 but it's more like an FAQ on name check. The memo you posted explains why my initial interview was scheduled. However, USCIS rescheduled me a few weeks after the cancellation of my first interview. I don't know what happened. I feel like I have been jerked around.

By the way, has anyone contacted the press such as NY Times, LA Times or local TV channels? I am about to write a letter to Mr. Tom Friedman, the famous NY Times columnist about such lengthy delay. I pay taxes but I cannot vote. I feel disenfranchised.

From your timeline and considering the USCIS memo, there are two possibilities:
1. Either they don't follow even this new instructions to schedule an interview only after the name check is complete
2. Or, your name check was complete by the date of the interview and somebody is misinforming you about this.

I don't deny the power of the media, but I am rather scheptical that they can help your personal case. YOU are who can help yourself by standing up for your rights. The law is clear about the 120 day deadline, your interview was more than 120 days, you are entitled for a judicial action.

 

[gcok2006]

what does this mean?

Hello, experts and heroes:

Thanks a lot for your great posting which I followed a while and keeps my alive. I filed WOM at beginning of last Dec. still waiting and fighting. I got the following update today from PACer website, confused. do you have similar experience?: It seems two PROOF OF SERVICE are almost same expect for due date? Why the due date is extended on the second one?

===========================================
12/12/2006 3 PROOF OF SERVICE Executed by plaintiff ****, uponEmilio T Gonzalez served on 12/8/2006, answer due 2/6/2007; Alberto R Gonzales served on 12/8/2006, answer due 2/6/2007. The Summons and Complaint were served by personal, by Federal statute. Service accepted by Flabia dela Rosa on behalf of US Attorney's office. Original Summons not returned. (dmjr, ) (Entered: 12/27/2006)

01/05/2007 4 PROOF OF SERVICE Executed by plaintiff **** upon Emilio T Gonzalez served on 12/30/2006, answer due 2/28/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by PROUTHFARLK on behalf of ATTORNEY GENERAL OF THE UNITED STATES. Original Summons NOT RETURNED. (esa, ) (Entered: 01/24/2007)
============================================

appreciate your comments.

From your timeline and considering the USCIS memo, there are two possibilities:
1. Either they don't follow even this new instructions to schedule an interview only after the name check is complete
2. Or, your name check was complete by the date of the interview and somebody is misinforming you about this.

I don't deny the power of the media, but I am rather scheptical that they can help your personal case. YOU are who can help yourself by standing up for your rights. The law is clear about the 120 day deadline, your interview was more than 120 days, you are entitled for a judicial action.

 

[micahel1008]

Hello, experts and heroes:

Thanks a lot for your great posting which I followed a while and keeps my alive. I filed WOM at beginning of last Dec. still waiting and fighting. I got the following update today from PACer website, confused. do you have similar experience?: It seems two PROOF OF SERVICE are almost same expect for due date? Why the due date is extended on the second one?

===========================================
12/12/2006 3 PROOF OF SERVICE Executed by plaintiff ****, uponEmilio T Gonzalez served on 12/8/2006, answer due 2/6/2007; Alberto R Gonzales served on 12/8/2006, answer due 2/6/2007. The Summons and Complaint were served by personal, by Federal statute. Service accepted by Flabia dela Rosa on behalf of US Attorney's office. Original Summons not returned. (dmjr, ) (Entered: 12/27/2006)

01/05/2007 4 PROOF OF SERVICE Executed by plaintiff **** upon Emilio T Gonzalez served on 12/30/2006, answer due 2/28/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by PROUTHFARLK on behalf of ATTORNEY GENERAL OF THE UNITED STATES. Original Summons NOT RETURNED. (esa, ) (Entered: 01/24/2007)
============================================

appreciate your comments.

check your AUSA, the day counting will start after district US Attorney served

 

[paz1960]

Hello, experts and heroes:

Thanks a lot for your great posting which I followed a while and keeps my alive. I filed WOM at beginning of last Dec. still waiting and fighting. I got the following update today from PACer website, confused. do you have similar experience?: It seems two PROOF OF SERVICE are almost same expect for due date? Why the due date is extended on the second one?

===========================================
12/12/2006 3 PROOF OF SERVICE Executed by plaintiff ****, uponEmilio T Gonzalez served on 12/8/2006, answer due 2/6/2007; Alberto R Gonzales served on 12/8/2006, answer due 2/6/2007. The Summons and Complaint were served by personal, by Federal statute. Service accepted by Flabia dela Rosa on behalf of US Attorney's office. Original Summons not returned. (dmjr, ) (Entered: 12/27/2006)

01/05/2007 4 PROOF OF SERVICE Executed by plaintiff **** upon Emilio T Gonzalez served on 12/30/2006, answer due 2/28/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by PROUTHFARLK on behalf of ATTORNEY GENERAL OF THE UNITED STATES. Original Summons NOT RETURNED. (esa, ) (Entered: 01/24/2007)
============================================

appreciate your comments.

micahel1008 is right. The 60 days starts ticking from the date when the US Attorney's Office was served.

"Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity must file a written response to the complaint within sixty days after the United States Attorney is served.

What is a certificate of service?

After you complete service of the complaint and summons, you should file a “certificate of service“ (or a “proof of service“) with the court which shows when and how you served the complaint and summons on each defendant. The purpose of the certificate of service is to allow the court to determine whether service of the documents was actually accomplished in accordance with the requirements of the law. The certificate of service must state:
1. The date service was completed;
2. The place where service was completed;
3. The method of service used;
4. The names and street address or email address of each person served; and
5. The documents that were served.
The certificate of service must be signed and dated by the person who actually served the complaint and summons. If you hired a process server, the certificate of service must be signed by the process server. If you asked a friend to serve the complaint and summons, the certificate of service must be signed by the friend who actually served the complaint and summons. The person who served the documents must also swear under penalty of perjury that the statements in the certificate of service are true." (from the Pro Se Handbook, N. D. Cal.)

In my docket they posted similarly different due dates for answer of the different defendants, always counting 60 days from the date of service. But AUSA knew correctly the above posted rule from the Federal Rules of Civil Procedures and he filed his motion to extend on the due date, counting from the date when his office was served.

 

[zlin]

Seems your files were mailed twice. Who summoned them?

Hello, experts and heroes:

Thanks a lot for your great posting which I followed a while and keeps my alive. I filed WOM at beginning of last Dec. still waiting and fighting. I got the following update today from PACer website, confused. do you have similar experience?: It seems two PROOF OF SERVICE are almost same expect for due date? Why the due date is extended on the second one?

===========================================
12/12/2006 3 PROOF OF SERVICE Executed by plaintiff ****, uponEmilio T Gonzalez served on 12/8/2006, answer due 2/6/2007; Alberto R Gonzales served on 12/8/2006, answer due 2/6/2007. The Summons and Complaint were served by personal, by Federal statute. Service accepted by Flabia dela Rosa on behalf of US Attorney's office. Original Summons not returned. (dmjr, ) (Entered: 12/27/2006)

01/05/2007 4 PROOF OF SERVICE Executed by plaintiff **** upon Emilio T Gonzalez served on 12/30/2006, answer due 2/28/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by PROUTHFARLK on behalf of ATTORNEY GENERAL OF THE UNITED STATES. Original Summons NOT RETURNED. (esa, ) (Entered: 01/24/2007)
============================================

appreciate your comments.

 

[yvesliu]

I just got back from my Infopass appointment. The clerk there told me that she could not find record about expedition request for my name check in their system. So, does that mean US. Attorney lied to me? Here is the segment from US. Attorney's e-mail "CIS already asked the FBI to expedite your name check. As I said on 120-27-07 you were one of the last cases in which CIS, under their new policy will ask for expedited name checks when litigation is filed."

From the Northern California District Pro Se Handbook:

"Once the answer is filed, does the plaintiff have to file a response to it?

There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no need to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit."

But I agree with micahel1008, talk to the court's clerk to set up a conference, or hearing (it is called differently in different districts).

 

[yvesliu]

This is the quote from his other e-mail. "CIS has decided that they will no longer ask the FBI to expedite name checks just because an alien file a law suit. It is unfair to the aliens who have been waiting patiently in line and who have not filed a law suit."

Hello, I don't think the US attorney lied to you. It's probably due to the inert system within CIS to reflect that information in real-time.

I have a question about the new CIS policy that the US attorney's email referred to in his/her email to you. Does CIS stop responding to WOMs or all kinds of lawsuits with respect to name checks? I am ready to file a 1447b lawsuit for my citizenship application. There is a simple rule of statutory limit of 120 days after the naturalization interview, a decision has to be made. I have to think CIS cannot just brush 1447b lawsuits aside.

 

[paz1960]

I just got back from my Infopass appointment. The clerk there told me that she could not find record about expedition request for my name check in their system. So, does that mean US. Attorney lied to me? Here is the segment from US. Attorney's e-mail "CIS already asked the FBI to expedite your name check. As I said on 120-27-07 you were one of the last cases in which CIS, under their new policy will ask for expedited name checks when litigation is filed."

The expedite request is placed with FBI by the Office of General Counsel from DHS/USCIS (I still could not figure out if this is one office or USCIS has one separate from the DHS office of general counsel), at least this is what I heard from my AUSA. They might not updated the computer system. If the information officer has access to the same system what we, as pedestrian customers can access on-line, in that case I have serious doubts about the accuracy of the info they give. As I posted once, my wife's application still shows as "pending" although she was sworn-in in June 2005.

 

[gcok2006]

Will check again with my attorney

Hi Michael1008, paz1960 and zlin,

Thanks for your response and help. I had an attorney filed WOM for me, so it was not Pro Se. Contacted him for this question and was just told the case is undergoing. I will check again for this and figure out what position the US attorney is taking for my case.

micahel1008 is right. The 60 days starts ticking from the date when the US Attorney's Office was served.

"Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity must file a written response to the complaint within sixty days after the United States Attorney is served.

What is a certificate of service?

After you complete service of the complaint and summons, you should file a “certificate of service“ (or a “proof of service“) with the court which shows when and how you served the complaint and summons on each defendant. The purpose of the certificate of service is to allow the court to determine whether service of the documents was actually accomplished in accordance with the requirements of the law. The certificate of service must state:
1. The date service was completed;
2. The place where service was completed;
3. The method of service used;
4. The names and street address or email address of each person served; and
5. The documents that were served.
The certificate of service must be signed and dated by the person who actually served the complaint and summons. If you hired a process server, the certificate of service must be signed by the process server. If you asked a friend to serve the complaint and summons, the certificate of service must be signed by the friend who actually served the complaint and summons. The person who served the documents must also swear under penalty of perjury that the statements in the certificate of service are true." (from the Pro Se Handbook, N. D. Cal.)

In my docket they posted similarly different due dates for answer of the different defendants, always counting 60 days from the date of service. But AUSA knew correctly the above posted rule from the Federal Rules of Civil Procedures and he filed his motion to extend on the due date, counting from the date when his office was served.

 

[yvesliu]

The expedite request is placed with FBI by the Office of General Counsel from DHS/USCIS (I still could not figure out if this is one office or USCIS has one separate from the DHS office of general counsel), at least this is what I heard from my AUSA. They might not updated the computer system. If the information officer has access to the same system what we, as pedestrian customers can access on-line, in that case I have serious doubts about the accuracy of the info they give. As I posted once, my wife's application still shows as "pending" although she was sworn-in in June 2005.

Thank you paz. That gives me a little hope. I called the court earlier regarding what I should do next. The lady told me that when I filed my case, I received a package regarding my case. I should just follow it. I guess I just need to go home find that package and read it.

 

[paz1960]

Hello, I don't think the US attorney lied to you. It's probably due to the inert system within CIS to reflect that information in real-time.

I have a question about the new CIS policy that the US attorney's email referred to in his/her email to you. Does CIS stop responding to WOMs or all kinds of lawsuits with respect to name checks? I am ready to file a 1447b lawsuit for my citizenship application. There is a simple rule of statutory limit of 120 days after the naturalization interview, a decision has to be made. I have to think CIS cannot just brush 1447b lawsuits aside.

hi whatsnamecheck,
1447(b) unfortunately is not using the word "interview". The word "examination" is used. Now the government had an early victory in 2005, where they managed to convince the judge that "examination" is a process, not a single event, and is not finished till the full criminal background check is not done, so the 120 day clock starts only after that. I know that this is nonsense, but the judge in the Danilov v. Aguirre case didn't find it nonsense. Unfortunately, there were couple of more cases (3 more courts, to be exact) where they followed this argument. Please read the attached memorandum opinion. Now if your judge decides to go with this minority opinion, you lost. That's why is not as trivial as you might think to prevail in these lawsuits. And convincing the judge that the "examination"="interview" is still only half of the problem. After that, you need to convince the judge that if (s)he remands the matter to USCIS, (s)he should include a precise timetable, not only some generic instruction like "the case is remanded to USCIS for expedited adjudication after FBI completes the background check". Unfortunately, there are plenty of such examples. And guess where you are with such a decision? Exactly back to square one, where you started before you filed your complaint.

 

[paz1960]

Thank you paz. That gives me a little hope. I called the court earlier regarding what I should do next. The lady told me that when I filed my case, I received a package regarding my case. I should just follow it. I guess I just need to go home find that package and read it.

It always helps to do your homework.

 

[V12Perseverance]

Hello everyone, I’m new here and I’m joining today with this post to help keep this forum alive. As most visitors here I’m grateful to those who shared their experiences and provided help to others.

N-400 San Jose, CA
Notice Date: June 13, 2006
Fingerprint: July 7, 2006
Infopass: January 25, 2006: Name Check pending

 

[icare]

paz, I'm so happy to see this. you are such a wonderful human being and having you as a US citizen makes the country a little better

icare

Hi huxf, yes, yesterday I got a copy of the first page of my N-400 application with the big APPROVED stamp on it and signed by the same officer who interviewed me. It was sent by the AUSA as a pdf attachment to his e-mail. Later, after playing some phone tag, we managed to speak, and he agreed that he will try to arrange an oath date as soon as possible. I'm waiting today for this information. He also needs to draft a Joint Stipulation for a Motion to Dismiss, but I asked him to send me that first to review it before I agree to sign it. The (30 day extended) deadline for him to file something is today...