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

[liuym]

Hi 786riz,
As I read from the docket, there is no extension. They did have a
hearing several days before this answer. Thanks for your reply.

Hi liuym,
This is just standard answer to the complaint. It will buy some time to the AUSA. Before this answer, did AUSA ask for any extensions?
Thank you.

 

[liuym]

Thanks for your input

Dear Paz, Thanks for your input. I understand what you said.
One other question, if my judge does not arrange a joint report conference,
or hearing before the due date, what should I do ? I check the cases in my
court, the case assigned to my judge, he did not arrange anything before
the due date. This will be happen to my case, I guess.
Thanks for your time and knowledge, paz.

This is definitely an Answer which doesn't require any Opposition. Only a motion can be opposed.

I see immediately one problem with Plaintiffs' original complaint. They asked in their Prayer (Par. 23) at (b) "requiring Defendants to provide the Plaintiffs a Notice of Approval". The Court can't compel USCIS for a certain outcome of the adjudication. Adjudicating is non-discretionary, the outcome of the adjudication (i.e., approval or denial) is discretionary. WOM cases can ask the courts only to compel an agency to perform a non-discretionary duty in reasonable time.

If AUSA will not file a Motion to Dismiss, the next step will be initiated by the Court. It can be an Initial Case Management conference or pre-trial hearing, or something similar. Ultimately it will go to trial and both parties will have a chance to present their cases in front of the judge.

 

[Mr LA]

Hello Mr.LA,

Thank you very much for your information about how to use PACER. The old cases, maybe before 2003, are not available in PACER. I am thinking about Lexis and Westlaw, I found the below information about the charge of these two online libraries. Is there anyone has experience on using Lexis and Westlaw?

Thanks
Mercury

Pricing for Lexis and Westlaw varies depending on the size and nature of the organization, the volume of research performed, and the pricing plan. There are three basic options for pricing Lexis and Westlaw -- transactional, hourly, and fixed rate. Each has implications for searching. Some organizations have a combination of plans.

With transactional pricing, you incur a charge every time a new search is entered. You can view your search results for as long as you want with no additional communications or database charges. Under these plans, start with very broad searches and then narrow them using locate or focus rather than starting new searches.

The price per search depends on the file selected. As of Spring 2000, Lexis prices range from $0-$145 per search. Westlaw search charges also vary from database to database; for example: as of Spring 2001, individual state case files are $35 per search, the Wall Street Journal is $14 and ALLFEDS is $70.

Hourly pricing is based on the size and perceived value of the file or database. Larger, "mega" type files and public record files are more expensive. When searching under an hourly contract, select the smallest file possible (e.g., use US instead of COURTS to search Supreme Court cases). Get offline as soon as possible. If you need to view search results online, use KWIC or focus/locate to identify relevant documents. Better yet, print a cite list and read the cases or articles in hard copy.

Before volume discounts are applied, Lexis rates for private firms are $175- $885 per hour. Westlaw charges $48 per hour for communications and connect charges plus a fee to search each database. For example, individual state case files are $259.80 per hour. Hourly rates for government agencies are significantly discounted.

For both pricing options there are additional charges for printing and downloading ($5.00 per document for both services); charges for LEXSEE/LEXSTAT or FIND ($5 per cite); and charges for using the citator services, such as KeyCite, and Shepherd’s ($3.75 per cite).

More and more organizations are opting for fixed rate plans which are based on anticipated or past use. These contracts are customized and sometimes restrict access to parts of the service. The terms are confidential and vary with each client; Lexis has indicated that the pricing can range from $500.00 to $50,000.00 per month. Check with the library for searching guidelines and restrictions.

Hello Mercury,

Findlaw.com:
1- Go here www.findlaw.com. It’s free
2- Click on For Legal Professionals ( in the top of the page)
3- Click on cases&codes, from there just do your search…


Good luck

 

[paz1960]

Dear Paz, Thanks for your input. I understand what you said.
One other question, if my judge does not arrange a joint report conference,
or hearing before the due date, what should I do ? I check the cases in my
court, the case assigned to my judge, he did not arrange anything before
the due date. This will be happen to my case, I guess.
Thanks for your time and knowledge, paz.

You can't force the court to do anything. Practically, it's up to the judge how s/he wants to handle your lawsuit. If s/he is not ordering any joint conference report or pre-trial hearing, you can't do much. Certainly nothing before the answer is due from the defendants. Only thing you can do is to get prepared and draft an opposition to defendants' motion to dismiss.

You filed your complaint, now it's defendants' turn, you just need to be patient and wait for your turn.

 

[paz1960]

Hi Paz and/or other senior members of this forum, today I am starting to filie 1447b pro se. During the past month, I got a few letters lately from various sources: the senator's office said that FBI told her office to inquire again in 90 days, USCIS ombudsman said it has initiated a formal inquiry and USCIS will issue a response (not a decision, just another response) in 45 days, two letters from USCIS one says to contact them again in 120 days, the other says to contact them again in 180 days. I am not sure which one to take seriously. It all seems arbitrary.

The law says once a 1447b lawsuit is filed, the court has jurisdiction over the matter. The court can either determine my naturalization or remand back to USCIS with specific instructions. In my lawsuit, I plan to simply ask the court to determine my application and administrate the oath in the courtroom. The likely response from the AUSA will probably be a motion to dismiss due to pending name check, then in my opposition to the motion to dismiss, I will ask the court to remand USCIS with specific timetable to finish the name check. What do you guys think of this strategy? Thanks!

Well, it is not so clear that the court has EXCLUSIVE jurisdiction as soon as you filed your complaint. This is certainly the case in the 9th Circuit Court's jurisdiction since US v. Hovsepian, but the other Circuits didn't rule yet on this matter. USCIS will always try to argue that they have at least CONCURRENT jurisdiction, which is OK if they approve your case due to your lawsuit, but it should be vigurously opposed if the result of adjudication is denial. In some districts USCIS argued that they are ready now to adjudicate the case but they can't do this till the lawsuit is not dismissed or the case is not remanded to them to regain jurisdiction. In some other districts USCIS approved and even denied cases pending in court.

You certainly can ask in your prayer that the court should determine your application and IN THE CASE OF APROVAL administer the oath, but your chances for that are essentially nul. No judge in this country will approve a citizenship application without the full criminal background check completed. 1447(b) gives two options to the courts: determine the matter or remand the matter to the Service with specific instructions. So I would ask in the Prayer as an alternative to remand the case to Defendants, ordering them to complete the name check, adjudicate the application and in the case of approval, schedule the oath ceremony, all these with a specific timetable.

 

[yvesliu]

I got the similar answer about a month ago and tomorrow will be my first teleConf with the judge. According to your explaination, that means they are trying to deny expediting the name check. I am very confused. Because according to the previous AUSA (i have two), they did expedite my name check at the end of Dec. Does that mean they will withdraw the expedition if they really did it?

This is not a motion to dismiss. Its just an answer. There are not asking for dismissal but to deny the relief ie expidited processing. Several districts have begun filing these kinds of answers and motions. In the next 2 moths we have to see how the judges will rule on this. By June this year the picture on WOM should become more clearer with some decisions by judges being out there by that time.

 

[Mark Brown]

Cases AUSA uses to support motion to dismiss

My AUSA uses several court orders to support her motion to dismiss. I found three cases from PACER and attach them here.

There is another one she uses: Zheng v. Reno, 166 F. Supp. 2d 875, 880 (S.D.N.Y. 2001). I could not get it from PACER, so if anyone is able to get a copy, could you please posted? (since it's year 2001, I guess it is not about FBI name check)

I find it difficult to argue against these cases, therefore looking for good ideas from the folks in this thread.

 

[786riz]

Attorneys are using paz's counter motion, what?

Hey paz my man,
I told you early that your counter motion is really a bomb because after reading tons of counter motions, your was the first one who covered all of the grounds and referenced almost all of the successful cases. You know what now attorneys are using yours in filing their counter motion; see the case 06-15394 in Eastern district of Michigan.
Sorry due to privacy and case is under going, I can not post here.
I thought I will be the first one to drop this one, but well someone already took the lead. I will be very interesting to see AUSA brief, if they file one.

 

[786riz]

My AUSA uses several court orders to support her motion to dismiss. I found three cases from PACER and attach them here.

There is another one she uses: Zheng v. Reno, 166 F. Supp. 2d 875, 880 (S.D.N.Y. 2001). I could not get it from PACER, so if anyone is able to get a copy, could you please posted? (since it's year 2001, I guess it is not about FBI name check)

I find it difficult to argue against these cases, therefore looking for good ideas from the folks in this thread.

Hi Mark Brown,
I think there are two ways to write a counter motion, you can go paragraph by paragraph and answer motion and oppose different reference by AUSA or you look at the main points of AUSA motion and present more and recent cases that favor you, if AUSA present 5 cases to oppose you, you present 10 or 20 cases in favor of you. I think farmer is more difficult to write but it is just a personal opinion.
The cases you attached, it is true court ruled against them but in you opposition you do not need to argue on these cases, what you need to do is to research and present lot of cases who have very favorable ruling.
Thank you.

 

[Mark Brown]

Hi Mark Brown,
I think there are two ways to write a counter motion, you can go paragraph by paragraph and answer motion and oppose different reference by AUSA or you look at the main points of AUSA motion and present more and recent cases that favor you, if AUSA present 5 cases to oppose you, you present 10 or 20 cases in favor of you. I think farmer is more difficult to write but it is just a personal opinion.
The cases you attached, it is true court ruled against them but in you opposition you do not need to argue on these cases, what you need to do is to research and present lot of cases who have very favorable ruling.
Thank you.

Thanks for your reply. If I could not make good arguments against these cases, I have no choice but not mentioning them in my opposition. However, that will be a weak opposition. Unfortunately, my case is I-485, for which I cannot find as many cases in favor of Plaintiff compared to the 4 cases presented by the AUSA. I have been following posts in this forum carefully, the only solid I-485 cases so far is Elkhatib v Bulter. That's why I am still trying to see if there are good arguments people here can come up with.

 

[lotechguy]

Thanks for your reply. If I could not make good arguments against these cases, I have no choice but not mentioning them in my opposition. However, that will be a weak opposition. Unfortunately, my case is I-485, for which I cannot find as many cases in favor of Plaintiff compared to the 4 cases presented by the AUSA. I have been following posts in this forum carefully, the only solid I-485 cases so far is Elkhatib v Bulter. That's why I am still trying to see if there are good arguments people here can come up with.

See ibrahim vs Chertoff, Eastern Michigan District on Pacer.

 

[Comfused]

Hi Kefira and Comfused!
Discovery is part of the usual court procedures and is defined under FRCP Rule 26 I think. But the AUSA tries to strongly oppose it because they don't want to produce any or your files from USCIS and claimed as confidential. Here is what my AUSA is mentioning in his stipulations as part of JSR in order to preclude discovery:

"Defendants assert that, if jurisdiction exists for this action (which is denied), the only basis would be the APA under which discovery is generally improper. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994); Franklin Savings v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991), cert. denied, 503 U.S. 937 (1992). The merits of Plaintiff’s immigration application are not at issue in this case, only whether the delay by the agency in acting on it is unreasonable. In such circumstances, the matter should be resolved on agency declarations stating the reasons for the delay. See, e.g., Center for Biological Diversity v. Norton, 163 F.Supp.2d 1297, 1298-1300 fn 2, fn 6 (D.N.M. 2001) (citing to CIV No. 01-0258 PK/RLP, Docket Nos. 17 & 23). Thus, if discovery is required, Defendants will provide a declaration from the appropriate individuals from the agencies involved and copies of any releasable documents from Plaintiff’s immigration file".

I have have got these three cases from local law school and I am trying to make sense out of them as these are not immigration cases obviously. But what I have understood so far is that they include discovery of current record and dont allow using any new information in the trial. What AUSA ends up doing is submit a generic statement from Michael Connon from FBI Name Check Department. They dont actually produce your file.

I can only put my limited thoughts about it. If you are in discovery stage, you can ask questions to defendants, such as what they have done to your case? the timetable they have acting on your case and so on. It is not necessary for you to ask your file if they said it is confidential. The bottom line is they must prove they are acting on your case, not just put it in a corner. I don't know if there are some legal code to support this. You may notice that your AUSA wrote "whether the delay by the agency in acting on it is unreasonable." I think the reason that our name check is pending is because they are not acting on it. In discovery stage, you can ask questions to them. They may perfunctorily give you something or just avoid to do anything. All these efforts may make them to pay attention to your case and then clear your name check finally.

In my case, USCIS give a report about what they have done to my case (not genetic statement). FBI never give any statement or document formally. I think the reason they didn't give me some genetic declaration is my NC is pending over 3 years (just 1 year later than when they starting the NC). Any excuses (first-in-first-out, backlog and so on) that they made are invalid.

I don't know your situation. In my opinion, discovery is good thing to us. I don't have many knowledge about law. I can only give you my thoughts (maybe wrong) and some of my unfortunate experiences with them

 

[lotechguy]

I got the similar answer about a month ago and tomorrow will be my first teleConf with the judge. According to your explaination, that means they are trying to deny expediting the name check. I am very confused. Because according to the previous AUSA (i have two), they did expedite my name check at the end of Dec. Does that mean they will withdraw the expedition if they really did it?

If that is the case they are just trying to buy time since they have to file something. They could have asked for extension but maybe they decided that that nothing would happen in the next 30 days so just filoed an answer. I dont think they will cancel an expedite if they already made it.

 

[yvesliu]

If that is the case they are just trying to buy time since they have to file something. They could have asked for extension but maybe they decided that that nothing would happen in the next 30 days so just filoed an answer. I dont think they will cancel an expedite if they already made it.

Thanks. I will share my teleconf experience here tomorrow.

 

[paz1960]

My AUSA uses several court orders to support her motion to dismiss. I found three cases from PACER and attach them here.

There is another one she uses: Zheng v. Reno, 166 F. Supp. 2d 875, 880 (S.D.N.Y. 2001). I could not get it from PACER, so if anyone is able to get a copy, could you please posted? (since it's year 2001, I guess it is not about FBI name check)

I find it difficult to argue against these cases, therefore looking for good ideas from the folks in this thread.

A common problem with all three cases, in my opinion, is that FBI is not listed as defendant on any of these cases and each Plaintiff is asking the court to compel USCIS to adjudicate immediately their petition. USCIS rightfully can argue that they are not allowed to adjudicate an AOS petition till the full criminal background check is complete.

More appropriate would be to name FBI also as a defendant and ask in the Prayer to compel USCIS to expedite the name check with FBI, to compel FBI to finish the name check in XX days and after that to compel USCIS to adjudicate the petition in YY days.

In addition here are a few comments to the individual cases:

In Chaudry, Plaintiff made several mistakes.

1. He didn't mention in his original complaint 5 U.S.C. 555(b) as a basis for jurisdiction and the court was reluctant to re-write the complaitn to create proper subject matter jurisdiction. A complaint must specifically identify the basis for subject matter jurisdiction
2. The judge considered that 17 months waiting can not be considered unreasonable.
3. Plaintiff showed lack of knowledge of immigration law when he listed 1447(b) as a basis for jurisdiction. This statue has nothing to do with AOS petitions, it is clearly about stalled N-400 aplications.
4. The judge dismissed the case without prejudice, hinting that Plaintiff's claims if properly pled, may have merit if the FBI and USCIS persist in delaying adjudication.

With other words, the judge just conveyed to the Plaintiff that Pro Se is not an excuse to be not well prepared.

In Attias Plaintiff didn't bother to oppose defendants' motion to dismiss.

However, what bothers me the most is the judge's remark: "The fact that a delay has been lengthy does not necessarily mean that action has been unlawfully withheld or unreasonably delayed". I don't know how to counteract this statement. And unfortunately, what is unreasonable (and granting a mandamus relief) is completely at the discretion of the court. This is the main reason why a WOM is more difficult than a 1447(b) case.

 

[sfdurrani]

Thanks for your reply. If I could not make good arguments against these cases, I have no choice but not mentioning them in my opposition. However, that will be a weak opposition. Unfortunately, my case is I-485, for which I cannot find as many cases in favor of Plaintiff compared to the 4 cases presented by the AUSA. I have been following posts in this forum carefully, the only solid I-485 cases so far is Elkhatib v Bulter. That's why I am still trying to see if there are good arguments people here can come up with.

Hi Mark Brown!
My case is similar to yours. It is an I-485 case pending name check since October 9,2004. The only difference is that I got an "answer" rather than a "motion". So I did not have to respond to it. But the AUSA has indicated that he plans to file motion to dismiss later on. Looking at the cases you posted these are no doubt strong cases against WOM. But as one of the other member said you need to give examples of cases that favour WOM. One example frequently quoted is Yu v Brown which happened in my NM District court. I posted the actual court order few weeks ago. It is a landmark cases as it was appealed and decision was upheld in the circuit court and also the INS had to pay the attorney fees upto $15,000 There are lot of other example cases supporting WOM posted on this forum. The other thing is to be aware of the time frame under your local court rules that you need to respond to that motion. Keep us posted!
sfdurrani

 

[Mark Brown]

Hi Mark Brown!
My case is similar to yours. It is an I-485 case pending name check since October 9,2004. The only difference is that I got an "answer" rather than a "motion". So I did not have to respond to it. But the AUSA has indicated that he plans to file motion to dismiss later on. Looking at the cases you posted these are no doubt strong cases against WOM. But as one of the other member said you need to give examples of cases that favour WOM. One example frequently quoted is Yu v Brown which happened in my NM District court. I posted the actual court order few weeks ago. It is a landmark cases as it was appealed and decision was upheld in the circuit court and also the INS had to pay the attorney fees upto $15,000 There are lot of other example cases supporting WOM posted on this forum. The other thing is to be aware of the time frame under your local court rules that you need to respond to that motion. Keep us posted!
sfdurrani

Thank you for posting the Yu v Brown order, I did read that yesterday. Here is my AUSA's argument against Yu v Brown:

Plaintiff relies heavily on Yu v. Brown, but there the plaintiff's complaint alleged that since the filing of her application with the INS "no action was taken on the application" (noting also that Defendants' exhibits demonstrated that the INS had waited some ten months after receiving the application to notify the applicant that it was incomplete). Here, Plaintiff's own Complaint concedes, and Defendants' exhibits demonstarted (referring to FBI's general namecheck procedure), that the processing of the application is ongoing. CIS promptly acted upon the receipt of the application, and the FBI is continuing, as explained in detail (same FBI doc again), to process the necesary law enforcement investigation. The circumstances of agency inaction persuasive to the court's analysis in Yu are not attendant here where a law enforvement background investigation is ongoing.

Honestly, I think that's a good argument AUSA presents here. After I read Yu v. Brown last night, the order actually focus on whether the new law congress passed is applicable retrospectively to Yu's application submitted before the law was made. You don't find much in the Judge's order that can be used to support our WOM. Of course, that's still one of the best case we have at hand. (It also shows most of us, including myself, have been using templates without much research, b/c wom was easy before)

I think one key question here is AUSA cannot show exactly what FBI has done to our cases, they always try to use the general name check procedure to support that FBI is making diligent efforts in doing so. Which I think will be the main point to fight back.

 

[mgzh]

fight has to be continued, update on my case

the tortureing is going on...... got email from ausa today


regret to inform you that the agency's current position is that the goverment should seek to have your case dismissed if we do not have a clear timeframe for when adjudication of your application would be completed. ............


i will start prepare opposition to the motion to dismiss this weekend. That's only time i can use. work is stressful, family is depressed, 40 months NC, 4 ead, i bent my backwards to wait the approval.......


anyone has good draft, i really appreciate, 485 case, family based. please send message or email me. thanks

 

[lotechguy]

the tortureing is going on...... got email from ausa today


regret to inform you that the agency's current position is that the goverment should seek to have your case dismissed if we do not have a clear timeframe for when adjudication of your application would be completed. ............


i will start prepare opposition to the motion to dismiss this weekend. That's only time i can use. work is stressful, family is depressed, 40 months NC, 4 ead, i bent my backwards to wait the approval.......


anyone has good draft, i really appreciate, 485 case, family based. please send message or email me. thanks

See ibrahim Vs Chertoff in Eastern Michigan District.

 

[786riz]

Thank you for posting the Yu v Brown order, I did read that yesterday. Here is my AUSA's argument against Yu v Brown:

Plaintiff relies heavily on Yu v. Brown, but there the plaintiff's complaint alleged that since the filing of her application with the INS "no action was taken on the application" (noting also that Defendants' exhibits demonstrated that the INS had waited some ten months after receiving the application to notify the applicant that it was incomplete). Here, Plaintiff's own Complaint concedes, and Defendants' exhibits demonstarted (referring to FBI's general namecheck procedure), that the processing of the application is ongoing. CIS promptly acted upon the receipt of the application, and the FBI is continuing, as explained in detail (same FBI doc again), to process the necesary law enforcement investigation. The circumstances of agency inaction persuasive to the court's analysis in Yu are not attendant here where a law enforvement background investigation is ongoing.

Honestly, I think that's a good argument AUSA presents here. After I read Yu v. Brown last night, the order actually focus on whether the new law congress passed is applicable retrospectively to Yu's application submitted before the law was made. You don't find much in the Judge's order that can be used to support our WOM. Of course, that's still one of the best case we have at hand. (It also shows most of us, including myself, have been using templates without much research, b/c wom was easy before)

I think one key question here is AUSA cannot show exactly what FBI has done to our cases, they always try to use the general name check procedure to support that FBI is making diligent efforts in doing so. Which I think will be the main point to fight back.

Hi Mark Brown,
When your counter motion is due? Do not be panic someone in this good forum will help you in this task. My case is 1447b but here in this forum, several members just filed or preparing their counter motion based on WoM, they will help you in this. As paz mentioned in his posting that the case you attached were weak cases. I know there are a lot of very good WoM cases out there whom you can mention in your motion. I will my stash to see if I have any.
Thank you.