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

[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"

Dear paz1960,

Thanks a lot for your continuous support of this forum long after you case has been solved! I hope you can now enjoy you victory and improve local nuclear science despite the best efforts by the Greenies to get rid of it altogether.

Thanks again,
snorlax

 

[sweetapple]

Thanks snorlax

That is the conclusion many of us have arrived at. I personally know 3 people stuck in this dreaded namecheck for 4+ years after the interview. For 2 of them it really is a serious problem as they can not take the jobs of their dream because of clearance requirements – stuck forever in the positions for which they are overqualified with no chance of any career growth.

Well, “Mr.” in the FOIPA reply should probably be mentioned in the Complaint as it would help demonstrating to the judge how sloppy the FBI really is. Error like this could be the whole reason for triggering a false positive in the namecheck.

Best of luck,
snorlax

Thanks for your reply. Well, after I saw the number of people and the time they have been waiting on the name check process on the petition web site, I didn't see anything could be done to clear my name check except a lawsuit.

1) People on this forum somewhere mentioned a April deadline for filing the 1447b lawsuit, where does this come from?

2) It's been 15 months since my first FP, should I contact USCIS to schedule a second one?

Thanks for your inputs.

 

[angtus]

Thank you Mecahel1008! Your input is very helpful. However if there has been previous case with similar amendment filed, do you think that I can file mine and simply cite that case to the court?

Thanks again,

Angtus

 

[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.

Thank you Assur! The message did appear as you quoted. But how could it create hindrence since I am suing FBI and USCIS for delay of name check in my WOM? Also do you mean I need to file a certification of service to the court with the letter I received from USCIS?

Thanks again!

Angtus

 

[shvili]

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))

Paz,

Thank you for pointing it out! I also saw it but forgot to make a note to myself to see more, because I have a save 1447 draft made by some attorney Esperaza (?)(-back from 2 yrs. old posts),where it says this:

[He was not informed at the interview, as required by law, of the option to have this court decide his applications, pursuant to 8 U.S.C. §1447(b)] (comment—USCIS began including this information after about 2/1/2005 on the notices at interview that the applicant had passed the tests—check to see if he received the notice, and make the allegation if he did not).

So in my mind I guess I treated it as irrelevant as my husband passed interview before 2005-in May 2004 and I read it as it wasn't applicable before 2005. The question is, was it really applicable before (may be the section was amended in 2005)? If it was it surely applies to my husband. His interviewer never mentioned it, just said that he should check back with him in 90 days, then just said to wait. And of course the form is the old one without this text.

Shvili

 

[mmz]

Hi, missingpa,
My case is in southern district of new york. I didn't do anything to my case. I think it should be ok since we have USCIS and FBI as defedents, although our case is no longer in Vermont, USCIS has the full authority to adjudicate the case.
What I am concerned is that USCIS may argue that they are acting on your case, since in the notification they say " to speed up the processing, we transfered your case...". Right now the only argument I can think of is to try to show that even transfered to TSC, the case is still pending name check.
Any other thoughts?

regards,
mmz

Hi MMZ,

Anything new regarding your situation? Which district court is your case in? I have a similar situation: I filed my WoM case against DHS, USCIS, VSC and FBI on 1/26/07 and my case was transferred to TSC on 3/7/07!! Today I just received another automated message saying my case is pending at TSC.

I have another complication to my situation, that is my court is not answering any phone calls!! I tried calling the civil intake unit and the court clerk of the judge assigned to my case, and there was no answer. I tried emailing the court clerk and there was no response either.

Can you share your experience?

 

[kefira]

explanation of 120 days

Guys,
I think it is a good document for naturalizaiton cases. The hearing was March 13, NCA

 

[myang1969]

Thank you Mecahel1008! Your input is very helpful. However if there has been previous case with similar amendment filed, do you think that I can file mine and simply cite that case to the court?

Thanks again,

Angtus

I do remember there is a similar case which plaintiff forget put his wife's name in the plaintiff list. The case was filed in North California and back to Nov. 2006 time frame. He argued with AUSA and Court, but they said it is invalid argument. Fortrunately, his wife's case got approval after one week of his approval. Hope you will be the same lucky one!if there has been previous case with similar amendment filed, sure you can ask court to do so. I still think you need find out your wife's name check status. If you login to your on line case status, the msg will show different between name check pending and name check cleared. Do you notice that?

 

[shvili]

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

Preparing Your Complaint

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.

(from the Pro Se handbook of Westen Michigan district)

Paz,

Thank you for the quote, I think I saw similar advice in CA Pro Se, but forgot. So did you leave all "legalese" out of your original complaint? And would you mind sharing how long it was?

Thank you!

 

[mmz]

My case is also transfered from VSC to TSC after filing WOM on 2/28/07.

I agree with michael1008 that it should be OK since we have USCIS and FBI as the defendents.

What I am concerned is that USCIS may argue that they are actively acting on your case, since in the notification they say " to speed up the processing, we transfered your case...". But we are trying to show that they are not acting on our case for years, so that the delay is unreasonable.

Right now the only argument I can think of is to try to show that even transfered to TSC, the case is still pending name check. So that the transfer is yet another delay.

Any insights from the gurus?

thanks!
mmz

Thank you Assur! The message did appear as you quoted. But how could it create hindrence since I am suing FBI and USCIS for delay of name check in my WOM? Also do you mean I need to file a certification of service to the court with the letter I received from USCIS?

Thanks again!

Angtus

 

[shvili]

Guys,
I think it is a good document for naturalizaiton cases. The hearing was March 13, NCA

Kefira, thank you for the link.

Did the judge order anything on the hearing? Or was it a pre-trial hearing?

The cases quoted are the ones where plaintiffs got to the point they started from, as judges refused to compel FBI to act. The good arguments against it are presented in recent CA orders (WOM I think,-the quotes are from ~3 days ago) where judges agreed that FBI should act whitin "reasonable time", i.e., applied Mandamus to the FBI delay.

So that is why I think 1447(b) should also include Mandamus to their complaints, we want judges to compel FBI to act on nc, and we need to convince the time is unreasonable. So 1447(b) alone is not enough.


What do you guys think?

 

[shvili]

Snorlax,

Thank you for your input! You said you had 10 pages in the body of your complaint, did you include any "legalese" (-from Michigan's Pre Se book Paz quoted), or was it just details of your case? Also, if you don't mind me asking, have you also include Mandamus statues? I think actually most of the 1447-s I saw did include Mandamus, and as I said above, I'll definitely include it in mine.

Thank you again!

Shvili

 

[snorlax]

1) People on this forum somewhere mentioned a April deadline for filing the 1447b lawsuit, where does this come from?

2) It's been 15 months since my first FP, should I contact USCIS to schedule a second one?

Thanks for your inputs.

1. I do not know how trustworthy this info about the deadline is. I believe one can safely ignore it. On the other hand – why wait with the filing?
2. I do not know if you can schedule it yourself – it is the USCIS that does the scheduling. You may contact USCIS over the phone or through INFOPASS appointment and nag for it, but I think it would be just a waste of time. They will be quick to schedule FP when they are nudged by the AUSA to work on your case.

Best of luck,
snorlax

 

[snorlax]

Snorlax,

Thank you for your input! You said you had 10 pages in the body of your complaint, did you include any "legalese" (-from Michigan's Pre Se book Paz quoted), or was it just details of your case? Also, if you don't mind me asking, have you also include Mandamus statues? I think actually most of the 1447-s I saw did include Mandamus, and as I said above, I'll definitely include it in mine.

Thank you again!

Shvili

Not much of a “legalese” – just plain language and several references to appropriate statues. No Mandamus, I preferred not to dilute clear 1447b with anything else. My thinking was to keep things as simple as possible and not to get the judge distracted by possible arguments whether my 15-month name check delay was reasonable or unreasonable. Any delay beyond statutory 120 days is a violation of law – period. Plain and simple.

Those are just my personal preferences – nothing more, please do not take this as advice. It is better for everybody to think for oneself.

Best of luck,
snorlax

 

[nt5]

I filed a WOM for delay of my I-485 application on Jan.2007. The application is stuck in FBI name check. AUSA replied that she is going to file a MTD, and what she uses is: "...Instead of conferring subject-matter jurisdiction, the INA, as amended by the Real ID Act of 2005 (“RIDA”), deprives this Court of subject-matter jurisdiction. " Basically she said the judge does not have rights to order FBI because of the national security interest.
Any idea on how to response?

 

[GC-Pending]

Just filed my WOM

Hi Guys,
I have recently filed my WOM for delayed namecheck on I-485 based on the information I gathered from this forum. I have heard that USCIS is fiercely fighting back with motion to dismiss, mainly based on “lack of jurisdiction” and that “the delay is not unreasonable”. I am trying to prepare by lookuping the cases that USCIS has used so far. My question is how do I find those cases? Does anyone know of a website that has all such cases?

 

[786riz]

Snorlax,

Thank you for your input! You said you had 10 pages in the body of your complaint, did you include any "legalese" (-from Michigan's Pre Se book Paz quoted), or was it just details of your case? Also, if you don't mind me asking, have you also include Mandamus statues? I think actually most of the 1447-s I saw did include Mandamus, and as I said above, I'll definitely include it in mine.

Thank you again!

Shvili

Hi shvili,
Mine is 8 pages long plus exhibits. In my opinion venue and prayer are the most important part, so I paid most attention to it. I prepared mine after reviewing 100s of complaints. I copied prayer from paz’s complaint. After completing I sent it to some members of this forum for review including paz. I also had my son and department secretary to review for any mistakes. I stayed away from “legalese”; I just explained my situation and referenced appropriate laws.
Thank you.

 

[united2007]

A small article on it

I filed a WOM for delay of my I-485 application on Jan.2007. The application is stuck in FBI name check. AUSA replied that she is going to file a MTD, and what she uses is: "...Instead of conferring subject-matter jurisdiction, the INA, as amended by the Real ID Act of 2005 (“RIDA”), deprives this Court of subject-matter jurisdiction. " Basically she said the judge does not have rights to order FBI because of the national security interest.
Any idea on how to response?

I think this is something new. Since we haven't see your MTD, it is difficult for us to decide how to respond.

I did a quick research, and here is short article from AILF talking about this RIDA.
http://www.callyourlawyers.com/pdfcaselaw/judicialreview_AILF.pdf
Please read especially carefully the last two pages of this article. That is regarding its impact on WOM and "discretionary decision"

It seems that this is still a very new thing, and there are not many established court orders to clarify its impact on us. This is exactly the situation we need to be very careful, and try to brainstorm each case to make sure it will not become something that really hurts us in the future.

Please keep us posted.

 

[united2007]

Hi Guys,
I have recently filed my WOM for delayed namecheck on I-485 based on the information I gathered from this forum. I have heard that USCIS is fiercely fighting back with motion to dismiss, mainly based on “lack of jurisdiction” and that “the delay is not unreasonable”. I am trying to prepare by lookuping the cases that USCIS has used so far. My question is how do I find those cases? Does anyone know of a website that has all such cases?

Many of us are now in the same battlefield. Generally speaking, there are not many *good* and *updated* court orders that can really help us, especially for the Employment-based WOM of AOS. (There are some samples scattered in the last ~50 pages of this forum.) The judge's personal view played a very important role in this type of cases, because there is no hard-coded statutory, such as the 1447(b) for the naturalization, to support us.

This is mainly because we are almost the first wave of WOM complaints that started to sustain CIS's new tough legal strategy. If most of us are successful, I think we can turn over the tide. Otherwise, I think most of the AOS complainers should go back to the "waiting game".

 

[Hiram]

again that's another reason why someone should not to wait to sue...
every other week we see MTD being filed for new reasons....