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

[snorlax]

didn't you check with the FBI lab about your fingerprints when they were taken in Dec, 2005? There is a phone number (I didn't keep it, but I found it by googling around) that one should call a couple of days later. Fingerprints are usually cleared within 24 hours.

No, I did not specifically check my FP results with the FBI. During the interview my adjudicating officer told me that everything was fine, but the Name Check. I am not sure if the FP and NC are linked. May be senior members can comment?

I will surely check the FP results with the FBI this time – excellent point!

Best of luck,
snorlax

 

[micahel1008]

Dear All,

I am a new comer to this thread. I have a question related to my I-485 WOM (Pro Se), which I filed on Feb 6, 2007, by then my employment based I-485 has been pending for 43 months. About two days after the USCIS VSC received my summons, the cases of mine and my wife's got transferred to TSC from VSC. I wonder under this circumstance should I send an additional summons to the TSC center or not, since my case is no longer with VSC? Also my wife, as a derivative beneficiary declared in the complaint and exhibit document of the WOM, was not listed as a plaintiff there. Shall we file additional amendment to add her in the plaintif list? If so, shall I also shall send new summons to each defendants?

Thank you very much for any advices!

Angtus

When you sue goverment agent, you acturally sue the head of that department. The major defendent of your WOM is Director of USCIS and Director of FBI. You can add as much co-defendents as you want, but the purpose is to push them to get your case solved. Regional Centers do not in charge of solving WOM case, they follow the General Counsel Office instruction. If you put Regional Ceter Director in your defendent in your list, it is a plus since they will get a copy of summons and complain directly from you and they will be aware of your case and do wantever they can do to get ride of you, if there is a quick answer, they will try to solve it by themself. but it should be OK if you not includes Regional Center Director in your defendent list since your case will go to Washington Office, that's the office in charge for WOM cases. When you submitt your WOM to federal court, you can't add plaintiff or change your complain anymore, but the hope is: you are the major applicant, and your wife's can't get approval due to your stuck name check. when they settle down your WOM and adjudicate your case, your wife's case should be approved on same day. The worst case is : both you and your wife's get stuck name check and WOM will only solve your problem. I suggest you to call USCIS and find out if your wife's name check is already get cleared or not, then you can decide what's next

 

[united2007]

Horrible, I just can't find any law that support Employment-based AOS is a duty

Hello All Gurus:

I have been reading a lot of orders recently. However, what is bad is that I haven't found the law that supports that the employment-based AOS is a government duty.

The 8. 1255 (a) clearly says "... … adjusted by the Attorney General, in his *discretion* and under such regulations as he may prescribe, ...". Please note the horrible word of "in his discretion" here.

Most of the references to the law in the successful AOS are either for Asylum, or relative-based cases.

The only place where I can find something related is
" Decision--(i) General. The applicant *shall* be notified of the decision of the director and, if the application is denied, the reasons
for the denial." 8 C.F.R. § 245.2(a)(5)

Am I missing anything? I really need your help here! Thank you so much in advance.

 

[gmlvsk]

Most suits argue that discretion here means discretion grant or deny AOS, not discretion to delay

Hello All Gurus:

I have been reading a lot of orders recently. However, what is bad is that I haven't found the law that supports that the employment-based AOS is a government duty.

The 8. 1255 (a) clearly says "... … adjusted by the Attorney General, in his *discretion* and under such regulations as he may prescribe, ...". Please note the horrible word of "in his discretion" here.

Most of the references to the law in the successful AOS are either for Asylum, or relative-based cases.

The only place where I can find something related is
" Decision--(i) General. The applicant *shall* be notified of the decision of the director and, if the application is denied, the reasons
for the denial." 8 C.F.R. § 245.2(a)(5)

Am I missing anything? I really need your help here! Thank you so much in advance.

 

[gmlvsk]

Anyway this is not the hardest part, the hardest part is to convince judge the delay is unreasonable. In some cases it was decided 10 months is unreasonable and in some that 5 years is reasonable

Most suits argue that discretion here means discretion grant or deny AOS, not discretion to delay

 

[united2007]

Anyway this is not the hardest part, the hardest part is to convince judge the delay is unreasonable. In some cases it was decided 10 months is unreasonable and in some that 5 years is reasonable

I think we can argue the "unreasonable delay" from two perspectives
(1) The "qualitative" perspective:
We can use the following arguments to turn down most of the "tough exmaples":
(a) our case is not as complicated as those "tough examples", and we are not so complicated (such as we have been lawful residence in US for xxx years without any bad records, etc).
(b) we are not the responsible party for the delay, (we file our petition properly, and we response timely)
(c) FBI's security check delay is not an excuse in our cases, because FBI is also a defendent here.

(2) The "quantitative" perspective:
We can cite some "good cases" to justify that our delay time is unreasonable.

I hope, in this way, we can reduce the chance to only make a judgement based on time.

 

[snorlax]

Hello All Gurus:

I have been reading a lot of orders recently. However, what is bad is that I haven't found the law that supports that the employment-based AOS is a government duty.

The 8. 1255 (a) clearly says "... … adjusted by the Attorney General, in his *discretion* and under such regulations as he may prescribe, ...". Please note the horrible word of "in his discretion" here.

Most of the references to the law in the successful AOS are either for Asylum, or relative-based cases.

The only place where I can find something related is
" Decision--(i) General. The applicant *shall* be notified of the decision of the director and, if the application is denied, the reasons
for the denial." 8 C.F.R. § 245.2(a)(5)

Am I missing anything? I really need your help here! Thank you so much in advance.

The duty to adjudicate your AOS application is created at the very moment you have properly paid the processing fee to USCIS. Show a copy of your receipt as an Exhibit in your Complaint and no court will deny that the duty to adjudicate your application has been clearly established. Once you check is cashed - the USCIS owes you to act within reasonable time. What time is reasonable is solely at the judge’s discretion. You have to somehow convince the judge that your delay is unreasonable.

All the best!
snorlax

 

[assur]

Dear All,

I am a new comer to this thread. I have a question related to my I-485 WOM (Pro Se), which I filed on Feb 6, 2007, by then my employment based I-485 has been pending for 43 months. About two days after the USCIS VSC received my summons, the cases of mine and my wife's got transferred to TSC from VSC. I wonder under this circumstance should I send an additional summons to the TSC center or not, since my case is no longer with VSC? Also my wife, as a derivative beneficiary declared in the complaint and exhibit document of the WOM, was not listed as a plaintiff there. Shall we file additional amendment to add her in the plaintif list? If so, shall I also shall send new summons to each defendants?

Thank you very much for any advices!

Angtus

In the Transfer Notice, VSC gives explanation, if it reads "...Speed Up Processing...' , then it could create hinderence to get justice. Because, you would have to sumbit USCIS correspondence, and it will be noticed by case attorny/judge.
It is just my opinion.

 

[united2007]

Thanks for the answer

Most suits argue that discretion here means discretion grant or deny AOS, not discretion to delay

The duty to adjudicate your AOS application is created at the very moment you have properly paid the processing fee to USCIS. Show a copy of your receipt as an Exhibit in your Complaint and no court will deny that the duty to adjudicate your application has been clearly established. Once you check is cashed - the USCIS owes you to act within reasonable time. What time is reasonable is solely at the judge’s discretion. You have to somehow convince the judge that your delay is unreasonable.

All the best!
snorlax

Many thanks for gmlvsk and snorlax's reply.

I wonder if you have any good OPP examples that used the arguments you suggestions.

 

[united2007]

In the Transfer Notice, VSC gives explanation, if it reads "...Speed Up Processing...' , then it could create hinderence to get justice. Because, you would have to sumbit USCIS correspondence, and it will be noticed by case attorny/judge.
It is just my opinion.

I don't think this is an issue, and I haven't see any AUSA used this as an argument so far. In fact, my case was also transferred from VSC to TSV with the similar message. I called my AUSA the following day, he told me that he didn't see any significiance out of it. I personally consider that this message just another CIS routine language. We should all know this because I believe everyone must have learned that the CIS constantly ignored their max. "due date" (promised on those receipts, status reports, etc.).

 

[assur]

I don't think this is an issue, and I haven't see any AUSA used this as an argument so far. In fact, my case was also transferred from VSC to TSV with the similar message. I called my AUSA the following day, he told me that he didn't see any significiance out of it. I personally consider that this message just another CIS routine language. We should all know this because I believe everyone must have learned that the CIS constantly ignored their max. "due date" (promised on those receipts, status reports, etc.).

If you did confirm with AUSA, then it should not be a problem. Other wise, I was thinking that USCIS could present it as argument to buy more time.

 

[snorlax]

Many thanks for gmlvsk and snorlax's reply.

I wonder if you have any good OPP examples that used the arguments you suggestions.

Sorry, my case is 1447b, not the AOS, so I know very little about those. With 1447b cases I have never seen an MTD arguing that USCIS had no duty to adjudicate the application.

All the best!
snorlax

 

[shvili]

Many thanks for the update, Shvili!
That is what I thought – better to fight this individually. Messiah never comes (well, not very often).

Legislation seems to work. In two weeks after filing I have received a second PF notice saying “Your fingerprint card (FD-258) was recently rejected by the FBI because it was “Unclassifiable” (could not be read or processed). In order for the USCIS to continue processing your application, it will be necessary to have your fingerprints re-taken.”

Excellent sample of bureaucratic doublespeak. Does not one feel guilty!? “Your fingerprint card” not the “USCIS fingerprint card”. No one has ever even seen the FD-258 card, but most certainly is responsible if there is something wrong with it. My 15 months have not expired yet, so my FPs should have been acceptable if they were taken properly.

Bottom line – if you fight – there is a chance to move you case, otherwise you are at the mercy of some petty bureaucrats.

Best of luck to all!
snorlax

For anyone who has a legitimate case of 1447b complaint, I suggest to file immediately. Every month, you hope there will be progress for your application, expectation is greeted by disappointment, but you hope the next month will bring you good news, .... the emotional cycle repeats. Why not do something proactive?

You can use the wait time to collect evidence for your lawsuit to show the court that you have tried all remedies (contacting USCIS, congressperson, senator, FBI, USCIS ombudsman etc). You can also monitor the SF class action case closely and cite the case number in your 1447b complaint. But I suggest we all file the pro se for 1447b cases. It's fairly plain and straightforward.

Guys,
You are so right on not "waithing for messiah" and filing immediately!

In my husband's case FP-s expired waay back and no one's called us so far for an update. So from this and many other posts about FP notices, I think its definitely a sign they started to work on your case, Snorlax. Just so ridiculous it takes you to file a law suit to make them do their duty!

Snorlax, I also think your points in your reply to UNITED2007 are excellent:

"The duty to adjudicate your AOS application is created at the very moment you have properly paid the processing fee to USCIS. Show a copy of your receipt as an Exhibit in your Complaint and no court will deny that the duty to adjudicate your application has been clearly established. Once you check is cashed - the USCIS owes you to act within reasonable time. What time is reasonable is solely at the judge’s discretion. You have to somehow convince the judge that your delay is unreasonable."

There is a really appalling argument in some MTD I saw where AUSA argues, that to act on an AOS case is totally "discretionary". Hell, no!!! When you pay for services and spend your time waiting for the answer from these lazy ?:"!@! you are OWED an answer. (They are lucky no one so far initiated Punitive damages law suit, because they should also pay for the pain and suffering their delays cost families). From this standpoint, the latest orders posted (where judges use humanitarian burden (-not sure of the actual term)) and rule they have jurisdiction to adjudicate are very true and we should also use this argument if need to reply to MTD.

Whatsnamecheck, thank you for your answer, I also agree with you.

I wanted to ask you both, how long did you make your 1447-s? I saw some very short ones (3-4 pages) and some really long going into detail, up to 10-15. Would you mind commenting? I haven't decided whether to use some preventive techniques and put quotes from precedents in original petition or just write a very simple complaint and wait for their answers to really bring up the argument.

Again, thank you for your comments and good luck!

Shvili

husband passed N-400 interview May 2004,
nc pending since Ocotber 2003.

 

[snorlax]

Guys,
I wanted to ask you both, how long did you make your 1447-s? I saw some very short ones (3-4 pages) and some really long going into detail, up to 10-15. Would you mind commenting? I haven't decided whether to use some preventive techniques and put quotes from precedents in original petition or just write a very simple complaint and wait for their answers to really bring up the argument.

Again, thank you for your comments and good luck!

Shvili

husband passed N-400 interview May 2004,
nc pending since Ocotber 2003.

My complaint is 10 pages + ~10 exhibits. Yes, I have seen successful 1447b-s 3-4 pages long. It looks like these civil cases are turning into a commodity, so nowadays the judges know well what to expect as they have seen tons of nearly identical cases by now. I do not believe the volume of one’s case matters much.

All the best!
snorlax

 

[P400A]

The complaint that I have drafted up is just 2 pages. I intend to present my argument in
every detail possible when defendants file an answer/MTD.

Question:
On the back of the GC it says "MAY BE REVOKED BY INS". Does this mean that CIS can
revoke one's GC at any point in time with no reasons, is there a process to this,
is this codified in statutes/regs?

The scare is once a 1447(b) is filed, would CIS come around and revoke the very basis
for Citizenship that is the GC for some wierd reason that they could come up with.

May be I am too paranoid!

 

[vmedikon]

Nor Cal district AUSA adward olsen

hi,

i just find out the AUSA assigned to my case is adward olsen, does anyone file in Northern california district has experience with him? i did not call him yet, guess check with you guys first to see whether it will be worth to call or not, cause saw lots of post says AUSA does not replay to any phone or whatsoever.

thanks bunch,

pearlgal

Pearlgal, what is the status of your case? My case (1447b) also went to Edward and I talked to him today. He said as is quote "I am sorry to hear that you had to wait for so long for my N-400, but in the grand scheme of things it is ok for this amount of time".

I interview was on June 13th, filed 1447(b) on Jan 17th.

 

[paz1960]

Guys,
You are so right on not "waithing for messiah" and filing immediately!

In my husband's case FP-s expired waay back and no one's called us so far for an update. So from this and many other posts about FP notices, I think its definitely a sign they started to work on your case, Snorlax. Just so ridiculous it takes you to file a law suit to make them do their duty!

Snorlax, I also think your points in your reply to UNITED2007 are excellent:

"The duty to adjudicate your AOS application is created at the very moment you have properly paid the processing fee to USCIS. Show a copy of your receipt as an Exhibit in your Complaint and no court will deny that the duty to adjudicate your application has been clearly established. Once you check is cashed - the USCIS owes you to act within reasonable time. What time is reasonable is solely at the judge’s discretion. You have to somehow convince the judge that your delay is unreasonable."

There is a really appalling argument in some MTD I saw where AUSA argues, that to act on an AOS case is totally "discretionary". Hell, no!!! When you pay for services and spend your time waiting for the answer from these lazy ?:"!@! you are OWED an answer. (They are lucky no one so far initiated Punitive damages law suit, because they should also pay for the pain and suffering their delays cost families). From this standpoint, the latest orders posted (where judges use humanitarian burden (-not sure of the actual term)) and rule they have jurisdiction to adjudicate are very true and we should also use this argument if need to reply to MTD.

Whatsnamecheck, thank you for your answer, I also agree with you.

I wanted to ask you both, how long did you make your 1447-s? I saw some very short ones (3-4 pages) and some really long going into detail, up to 10-15. Would you mind commenting? I haven't decided whether to use some preventive techniques and put quotes from precedents in original petition or just write a very simple complaint and wait for their answers to really bring up the argument.

Again, thank you for your comments and good luck!

Shvili

husband passed N-400 interview May 2004,
nc pending since Ocotber 2003.

Here is a good advice from my district's Pro Se handbook about writing your complaint.

Preparing Your Complaint
The complaint is a document telling the Court whom you are suing, what your case is about and what you want the Court to do about it. If you prepare your own complaint, it must be legibly handwritten or typed. All pages should be on white 8½ x 11 inch paper. The first page of your complaint should include the name of the Court and the names and addresses of ALL parties involved. Subsequent documents you file do not need to include the addresses of all parties, but must include the case number and case caption (the name of the first plaintiff and defendant, for example, Tom Jones v. John Smith).

It is important that you make your complaint clear and understandable. The Federal Rules require that the complaint set forth (1) the grounds on which the Court’s jurisdiction depends, and (2) a short, plain statement of the facts upon which the plaintiff relies as the basis for asking for relief. If the complaint fails to contain these two necessary requirements, the Court may dismiss the case. Therefore, your complaint should state, in numbered paragraphs, the type of claim you are asserting, why you believe this Court has jurisdiction over the matter, the facts of your claim, whether you demand a jury or not, and what relief you are seeking. It is not necessary to cite specific cases, and you should avoid “legalese.” Write your complaint in concise, plain English.

Make certain to sign and date at the end of the complaint. Type or print your full name, address, phone number, and fax number (if available) below your signature. This information must appear below your signature at the end of the last page of every document you file.

(from the Pro Se handbook of Westen Michigan district)

 

[paz1960]

8 Usc 1446

I found a very interesting detail, which I'm almost sure that USCIS keeps "forgetting".

Here is what 8 USC 1446 says about the duty of the examination officer:

(b) Conduct of examinations; authority of designees; record
The Attorney General shall designate employees of the Service to conduct examinations upon applications for naturalization. For such purposes any such employee so designated is authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any applicant for naturalization, to administer oaths, including the oath of the applicant for naturalization, and to require by subpena the attendance and testimony of witnesses, including applicant, before such employee so designated and the production of relevant books, papers, and documents, and to that end may invoke the aid of any district court of the United States; and any such court may, in the event of neglect or refusal to respond to a subpena issued by any such employee so designated or refusal to testify before such employee so designated issue an order requiring such person to appear before such employee so designated, produce relevant books, papers, and documents if demanded, and testify; and any failure to obey such order of the court may be punished by the court as a contempt thereof. The record of the examination authorized by this subsection shall be admissible as evidence in any hearing conducted by an immigration officer under section 1447 (a) of this title. Any such employee shall, at the examination, inform the applicant of the remedies available to the applicant under section 1447 of this title. (emphasis added).

This means that at the end of the interview, the adjudication officer must tell you that if USCIS fails to adjudicate your N-400 application in 120 days, you may file a complaint in the district court where you reside and ask the court to review your case and determine the matter or to remand the case to USCIS with specific instructions (8 USC 1447(b)). My interviewing officer certainly "forgot" to tell me this, otherways I would not wait almost two years to file my complaint....

Is anybody active forum member who received this information verbally or in writing after the interview? (Check the bottom small print of your interview result sheet; they changed the format just a month before my interview but in my case they still used the old form which didn't have anything about 1447(b))

 

[snorlax]

Is anybody active forum member who received this information verbally or in writing after the interview? (Check the bottom small print of your interview result sheet; they changed the format just a month before my interview but in my case they still used the old form which didn't have anything about 1447(b))

The officer did not mention it, but I did have this note at the bottom of my N-652 Naturalization Interview Results form. I kept bringing this up in my calls to USCIS customer service, in my letters to USCIS and during my INFOPASS appointments while I was trying to resolve this outside the court. The statutory 120 days requirement never impressed them. The written replies were invariably “Check back in 6 months”, customer service had no idea what I was talking about and at the INFOPASS appointments it ranged between “Yeah, a mere formality” and “There is a huge line ahead of you and we have to be fair to all these people” to “What, are you gonna sue the government?”.

Once I have heard “Name Check” at the interview, I should have prepared the lawsuit and filed it immediately upon the statutory 120 days expiration.

All the best!
snorlax

 

[paz1960]

The officer did not mention it, but I did have this note at the bottom of my N-652 Naturalization Interview Results form. I kept bringing this up in my calls to USCIS customer service, in my letters to USCIS and during my INFOPASS appointments while I was trying to resolve this outside the court. The statutory 120 days requirement never impressed them. The written replies were invariably “Check back in 6 months”, customer service had no idea what I was talking about and at the INFOPASS appointments it ranged between “Yeah, a mere formality” and “There is a huge line ahead of you and we have to be fair to all these people” to “What, are you gonna sue the government?”.

Once I have heard “Name Check” at the interview, I should have prepared the lawsuit and filed it immediately upon the statutory 120 days expiration.

All the best!
snorlax

I remember vaguely that the requirement to put that note at the bottom of the N-652 was a result of a class action lawsuit (I think in Seattle, WA) and a federal judge ordered USCIS to make this change of the form. No wonder why the USCIS people are treating it like you mentioned: "Yeah, a mere formality"