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

[paz1960]

Hi Team,
Thank you so much for your help and words of encouragements.
In my district most of the cases were remanded back to USCIS with out any specific instruction, so this is not new. Before filing my case I had a fear that may happen but as you know that the choices were either file or wait, so I chose the former.
This is first time I saw that a judge ruled by just looking the complaint. Furthermore, same judge remanded several other cases to USCIS without any specific instruction. In one case, attorney filed for motion to reconsider but the same judge denied the motion, I have attached the judge’s order, motion to reconsider and judge’s final ruling.
I understand that the prospects are not very promising with this judge but I will try all of the available options you folks mentioned and I will not give up. I will start shopping for a good attorney from Monday.
Thank you again.

Besides making sure that you file your motion in less than 10 days, I think that the key point lies in the following:

"Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the court, either expressly or by
reasonable implication. The movant must not only demonstrate a
palpable defect by which the court and the parties have been misled
but also show that correcting the defect will result in a different
disposition of the case."

This means that you will need to explain that with this kind of remand instruction you are stuck exactly at the same point where you were before you filed your lawsuit and FBI not being compelled by a precise timetable can take whatever time they want to process your name check. You understand that USCIS can't adjudicate your application without the completed name check, but if the court is not compelling FBI to do his job, the whole remand is meaningless. You are not stuck because USCIS didn't do his part of the job (at least there is no apparent evidence for that), you are stuck because FBI didn't complete the name check. This remand instruction clearly violates the intent of the legislator, who wanted to provide an avenue how to move the hopelessly stuck cases and to compel the Government to perform his job (use that part from the opposition). You should list all the cases which we have where the judges ordered precise timetable when they remanded the case back to the Service (see again the opposition). And finally, you should explicitely state that correcting the deficiency of the order (i.e., no timetable) will result in a different disposition of the case, i.e., you will get what you were looking for: an end in a certain time period, which is quite different from an indefinite delay.

 

[paz1960]

Hi 786riz, I think you definitely need to file a motion to alter or amend the judgment. It may not change the judge's word but at least you can use that motion and come back to the judge after a few more months of inaction of the agencies. By then, the judge will have to issue something less vague hopefully. Just do not agree to dismiss the case until you have gone through the oath ceremony (assuming your background is clean).

I think the appeal court is perhaps the last attempt but it definitely will consume your entire waking hours, and you do need a lawyer for that endeavor. In addition, what's to appeal? There is nothing inaccurate or biased or unreasonable in the judge's order. It's vague, but not incorrect.

However, to write a motion to amend the judgment, you don't need a lawyer. It's quite simple to write especially if you can find an order that has a precise timetable in your district or other districts. To get a lawyer to write a motion to amend, he'll probably charge you at least a few thousand dollars for a couple of pages write-up.

Here is something I found in California for 1447b suits, for what it's worth.

At the same time as you submit your motion to amend, I suggest you send current order from the judge along with your prayer page to USCIS. Since the judge already granted your petition, and did not dismiss any of your claims or prayers, I would interpret that "promptly" is the timetable in your prayer. USCIS has the responsibility to coordinate with FBI to meet that timetable in your prayer.

Unfortunately, this joint stipulation what you posted, doesn't help people who are still fighting this name check nightmare. As soon as that is done, usually it is not difficult to cut a similar deal with USCIS (i.e., adjudicate the application in 30 days). The problem is that when the name check is not done yet, USCIS would not commit itself voluntarily to any timetable. The only possiblity is to compel them and FBI by a court order to do so.

For similar reasons, I would not put much hope that sending the order to USCIS would help. They never argued that they would not adjudicate the application promptly AFTER they have the full criminal background check. And from the vast majority of the cases I saw here and on PACER, this is true. The problem is that with this order they will say, fine, this is exactly what we were saying. As soon as FBI completes the name check, we will adjudicate your application. But because the order says nothing about when FBI needs complete your name check, we will strictly follow the judge's order: wait till NC is done, and adjudicate promptly your application after that.

There must be some explicit instruction in the judge's order, at least to instruct USCIS to request an expedited processing of the name check from FBI. Again, the previous cases showed, that this usually solves the problem, maybe not as fast as the applicant would like, but the expedited list is certainly much shorter than the full list.

 

[united2007]

my two cents

Here is the details of my case and the most recent updates:

• Employement based 485, pending since 04/07/2003 (4th year anniversary is coming)
• Filed WOM on 12/26/2006
• Clerk put 20 days on the summons (clerk's mistake)
• AUSA asked for extension due to clerk's mistake, setting the 60 day deadline to 03/16/2007
• Judge ordered AUSA to show cause as to why my relief should not be granted. Order's deadline is 03/19/2007
• AUSA filed MTD on the deadline, 03/16/2007

MTD is based on FRCP 12(b)1 and FRCP 12(b) 6. AUSA claims that the court lacks jurisdiction and as a plaintiff I failed to state a claim. Looks like this is the standard MTD template nowadays. AUSA used the following in the MTD:

"The adjudication of an adjustment of status application is expressly committed to agency discretion. See 8 USC 1255(a). Moreover, no statutory or regulatory provisions provide a "meaningful standard" against which to measure the time it takes CIS to process an application. .... Without any mandatory time frame, in order to determine that CIS has "unreasonably delayed" adjudication of Plaintiff's application, this Court would have to create a temporal standards from thin air."

I will post the full MTD early next week for the seniors of the forum's review.

Let the fight begin!

vcs_victim

Again, I think you have to argue
(1) Adjudication of your case (vs. not doing it) is a non-discretionary duty. The problem is that we don't have a very clear law to support the employment-based AOS in this part. Anyway, this will not prevent us from arguing. At least, we have some wining cases, which we can use as "authorities".
(2) You have to clearly demonstrate your delay is "unreasonable". Again, you have to "argue" about it, because we don't have the magic word of "120-day" in our AOS cases. Again, the best thing that can help us is those successful cases.

The bottomline is that we have to argue professionally. Meanwhile, the result depends on judge's personal viewpoint.

 

[united2007]

It seems that this become a more common argument of AUSA

I am a new comer. I filed a WOM and got a MTD last week. The following is from the AUSA's MTD:

"Although Plaintiff claims that Defendants have caused him damage, he identifies no interest of which he has been deprived that is protected by the Constitution or a federal statute. Plaintiff’s failure to identify any protected interest is not surprising because there is none. An alien seeking lawful permanent resident status cannot show “that [his] interest is one protected by the Constitution or created by statute.”

Almario v. Att’y Gen’l, 872 F.2d 147, 151 (6th Cir. 1989); see also Menezes v. INS, 601 F.2d 1028, 1034 (9th Cir. 1979) (no denial of equal protection when U.S. citizen’s alien spouse was denied adjustment of status); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990)(alien “ha[s no] inherent property interest in an immigrant visa”); Olegario v. United States, 629 F.2d 204, 223-24 (2d Cir. 1980) (naturalization statute did not confer “vested right to citizenship”; “[a]t most, the statute provided . . . an opportunity to become a citizen”), cert. denied, 450 U.S. 980 (1981).


Because Plaintiff identifies no protected interest of which he has been deprived, 28 U.S.C. 1331 does not confer subject matter jurisdiction on the Court. "


Does anyone know how to respond to this type of arguments? Any hint is greatly appreciated!

This argument has been shown in this forum for at least the second time in the past 4 days. It may be one of the new brain-storm results of those attorneies in DHS and DJ. I really feel bad for them. They are spending our tax dollars (and their knowledge in laws) to protect the inefficiency and laziness of the government, and to be againt the "insignificant victims" of this system.

I think we also need to brainstorm some arguments to push this away.

I think it is definitely fine for us to argue that
(1) we have job security issue,
(2) we have promotion issue,
etc.
However, the kep implication in their arguement is that: we are aliens; giving us GC is our benefit, and the Constiution and U.S. laws do not automatically protect us (although we pay so much tax to this country).

I think the most critical part in our defending argument should be to find any law that give us, aliens, some basic human rights protection. Then, we can form all of our following arguments on the base of the protected human rights.

Meanwhile, I noticed that this argument is only againt the 8 USC. 1331. Normally, we use the 8 USC 1331 + APA as the legal base of our APA juridiction right. That is, even if we failed to argue away this point, we only loss the APA juridiction right. We still have the 8 U.S.C. 1361 (WOM) right. Of course, we should never think in this back-up way!! We definitely need to argue each sentense in MTD, because this is a battlefield with no-way to back-up for all of us.

 

[gmlvsk]

I just checked processing time for my district and this is new message.
I think we could use it.
Also they put javascript so i can not select it, i had to disable javascript

Notice: U.S. Citizenship and Immigration Services (USCIS) has improved the reporting procedure for processing times of immigration benefit applications. In the past, USCIS benefit processing reports indicated the specific type of applications or petitions that were being processed and the date the cases were received. However, the date the case was received did not provide a clear indication of when USCIS expected to complete the case, nor did it provide a clear indication of USCIS’ commitment to process cases within a certain cycle time. It also did not align with the processing times and cycle times the agency reports in other contexts.

This improved reporting procedure is an effort to give our customers more accurate information that better reflects current processing time and USCIS service level commitments. Effective immediately, when we are completing applications and petitions within our service level goals we will report that as the processing time. For example, when our service level goal is to process a particular kind of case within six months, and if our processing time is six months or less, we will show a date consistent with our service level goal because that reflects our commitment.

When we are not meeting our service level goal, the date posted will reflect the filing date of cases that are being completed. It should be noted that while in some instances reported processing dates may appear to have regressed due to this change, they do not reflect a lengthening of USCIS processing times, but simply the change in reporting. Our goal is to provide accurate projections and thus give customers clear expectations as to what they can expect as a processing time.

 

[gmlvsk]

It also says that interview is one time event

I just checked processing time for my district and this is new message.
I think we could use it.
Also they put javascript so i can not select it, i had to disable javascript

Notice: U.S. Citizenship and Immigration Services (USCIS) has improved the reporting procedure for processing times of immigration benefit applications. In the past, USCIS benefit processing reports indicated the specific type of applications or petitions that were being processed and the date the cases were received. However, the date the case was received did not provide a clear indication of when USCIS expected to complete the case, nor did it provide a clear indication of USCIS’ commitment to process cases within a certain cycle time. It also did not align with the processing times and cycle times the agency reports in other contexts.

This improved reporting procedure is an effort to give our customers more accurate information that better reflects current processing time and USCIS service level commitments. Effective immediately, when we are completing applications and petitions within our service level goals we will report that as the processing time. For example, when our service level goal is to process a particular kind of case within six months, and if our processing time is six months or less, we will show a date consistent with our service level goal because that reflects our commitment.

When we are not meeting our service level goal, the date posted will reflect the filing date of cases that are being completed. It should be noted that while in some instances reported processing dates may appear to have regressed due to this change, they do not reflect a lengthening of USCIS processing times, but simply the change in reporting. Our goal is to provide accurate projections and thus give customers clear expectations as to what they can expect as a processing time.

 

[shvili]

Comment on case posted by Riz

Hi Team,
Thank you so much for your help and words of encouragements.
In my district most of the cases were remanded back to USCIS with out any specific instruction, so this is not new. Before filing my case I had a fear that may happen but as you know that the choices were either file or wait, so I chose the former.
This is first time I saw that a judge ruled by just looking the complaint. Furthermore, same judge remanded several other cases to USCIS without any specific instruction. In one case, attorney filed for motion to reconsider but the same judge denied the motion, I have attached the judge’s order, motion to reconsider and judge’s final ruling.
I understand that the prospects are not very promising with this judge but I will try all of the available options you folks mentioned and I will not give up. I will start shopping for a good attorney from Monday.
Thank you again.

Riz, and all the team:

the last Amend request Riz posted shows us exactly why I repeat, WOM should be included in our 1447 complaint:

Attoney brought a weak point re. no need to complete nc on plaintiff (-see below why it's weak), and in the end asked to include WOM to compel FBI to act. (-so WOM wasn't included in the original complaint). The judge (I guess) was too lazy to explain her actions and simply too lazy so she just said no to the laywer's weak argument and "too late to bring up WOM". So the laywer (looking at what he wrote) was not too great. Don't use him, Riz (I think you could do better than that, with Paz and others' help).

Here's why the lawyer's argt. is weak: he argued that nc is not a part of a background check and therefore not required by regulations. So the judge should just naturalize without nc completed.This argument is presented as a side argt. in the class action cases but it is against the 335.1, which states:

335.1 Investigation of applicant.
Subsequent to the filing of an application for naturalization, the Service shall conduct an investigation of the applicant. The investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application.

The following paragraph in 335.2 says specifically what should be included in background check, i.e. FBI check. So the law gives the necessary conditions for the interview, but not the sufficient ones (-using the math terminology). This article says "at a minimum" and name check (which was added later) has become a part of FBI background check requirement. So the argument the lawyer gave is not good and the judge is probably simply sloppy as she refuses to explain her actions sufficiently but I guess that's what her logic was in cases posted by Riz.

Unfortunately this doesn't help Riz but Paz (again) gave excellent points to argue, even though with this judge it may not help. So Riz, as you may loose the Amended Motion with this judge anyway, so why not give it a shot and write one yourself? You may just save yourself some $$, as I really doubt someone may reverse this judge's position at this point. Just hire one for the appeal.

 

[snorlax]

Riz, and all the team:

the last Amend request Riz posted shows us exactly why I repeat, WOM should be included in our 1447 complaint:

Here's why the lawyer's argt. is weak: he argued that nc is not a part of a background check and therefore not required by regulations. Unfortunately this doesn't help Riz but Paz (again) gave excellent points to argue, even though with this judge it may not help.

I agree that including WOM into 786riz’s case would have unlikely helped with this particular judge. Who knows, may be USCIS General Council is her close relative? It should not get in the way of law, but the judges are human beings as it was discussed here.

I would also argue that not including WOM in this case was beneficial – as paz1960 suggested, 786riz can have a second shot with a WOM later down the road and, hopefully, with a different judge.

Name Check indeed is not a statutory requirement – it was introduced artificially as part of bureaucratic campaign to superficial demonstration of tightening security. The origin of this Name Check is well explained in the class action lawsuit, information of which Shvili has been sharing with this forum http://www.aclunc.org/news/press_re..._end_to_citizenship_applications_delays.shtml

Best of luck,
snorlax

 

[paz1960]

I agree that including WOM into 786riz’s case would have unlikely helped with this particular judge. Who knows, may be USCIS General Council is her close relative? It should not get in the way of law, but the judges are human beings as it was discussed here.

I would also argue that not including WOM in this case was beneficial – as paz1960 suggested, 786riz can have a second shot with a WOM later down the road and, hopefully, with a different judge.

Name Check indeed is not a statutory requirement – it was introduced artificially as part of bureaucratic campaign to superficial demonstration of tightening security. The origin of this Name Check is well explained in the class action lawsuit, information of which Shvili has been sharing with this forum http://www.aclunc.org/news/press_re..._end_to_citizenship_applications_delays.shtml

Best of luck,
snorlax

As far as I know from Michael Cannon's declaration, the name check was part of the full criminal backround check (which is mandated by Congress since the FY98 budget authorization bill) even before 9/11. The problem begun in November 2002 when USCIS specifically requested a change in this name check procedure. Till that time, the name check was run only on the "main" file system, so you got a hit only if you were arrested/convicted (i.e., FBI had a file about you, with your name on it). This type of name check is essentially identical with the FOIPA request. So, if I understand correctly, if you get a "no record" answer to your FOIPA request, that means that there is no file under your name in the main file system. Your name still can show up in somebody else's file, this is the so called "reference file system" search. After the Nov. 2002 change in the name check procedure, FBI extended the name check to the reference files system, which creates a large number positive hits, most of them turns out to be false. But in order to verify these potential derogatory information, a live person (an FBI agent) has to do manual checks. This program not being funded adequately, they don't have the necessary manpower to perform these manual verifications in a timely manner.

In my opinion, although it is correct that there is no statue, which describes in detail what the "full criminal background check" must contain (so Snorlax is correct when s/he stated that there is no statutory requirement for the name check), it is hopeless to argue in front of any judge that a naturalization should be granted without the name check results. USCIS can always argue that it is the Attorney General's or Secretary of DHS discretion to determine what should the "full criminal background check" contain. And because Congress didn't define precisely what is the "full criminal background check", any judge will agree with USCIS, that a name check is part of it.

 

[lotechguy]

Riz, and all the team:

the last Amend request Riz posted shows us exactly why I repeat, WOM should be included in our 1447 complaint:

Attoney brought a weak point re. no need to complete nc on plaintiff (-see below why it's weak), and in the end asked to include WOM to compel FBI to act. (-so WOM wasn't included in the original complaint). The judge (I guess) was too lazy to explain her actions and simply too lazy so she just said no to the laywer's weak argument and "too late to bring up WOM". So the laywer (looking at what he wrote) was not too great. Don't use him, Riz (I think you could do better than that, with Paz and others' help).

Here's why the lawyer's argt. is weak: he argued that nc is not a part of a background check and therefore not required by regulations. So the judge should just naturalize without nc completed.This argument is presented as a side argt. in the class action cases but it is against the 335.1, which states:

335.1 Investigation of applicant.
Subsequent to the filing of an application for naturalization, the Service shall conduct an investigation of the applicant. The investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application.

The following paragraph in 335.2 says specifically what should be included in background check, i.e. FBI check. So the law gives the necessary conditions for the interview, but not the sufficient ones (-using the math terminology). This article says "at a minimum" and name check (which was added later) has become a part of FBI background check requirement. So the argument the lawyer gave is not good and the judge is probably simply sloppy as she refuses to explain her actions sufficiently but I guess that's what her logic was in cases posted by Riz.

Unfortunately this doesn't help Riz but Paz (again) gave excellent points to argue, even though with this judge it may not help. So Riz, as you may loose the Amended Motion with this judge anyway, so why not give it a shot and write one yourself? You may just save yourself some $$, as I really doubt someone may reverse this judge's position at this point. Just hire one for the appeal.

Unfortunately it looks like this is true. 1447b is good to argue jurisdiction but thats where it stops short. It gives the judge option to naturalize which they wont do or remand with instruction. In order to make that instruction meaningful that judges seem to slip back into the WOM mentality and see if the delays are unreasonable and also see if petetion has anything in it that claims that the delay is unreasonable under some statute ie a WOM argument. If you look closely at 1447b remand judgements with timelines, cases are pending for 2.5 years or more. In brief the 1447b cases filed before the CIS no expedite policy were just plain lucky since their cases ended without judgements and name check expedites.

 

[kefira]

"The adjudication of an adjustment of status application is expressly committed to agency discretion. See 8 USC 1255(a). Moreover, no statutory or regulatory provisions provide a "meaningful standard" against which to measure the time it takes CIS to process an application. .... Without any mandatory time frame, in order to determine that CIS has "unreasonably delayed" adjudication of Plaintiff's application, this Court would have to create a temporal standards from thin air."

I will post the full MTD early next week for the seniors of the forum's review.

vcs_victim,
R u by any chance in N CA district? I had exactly the same verbing on my MTD (I485). At the bottom of my heart I hope that Judge will be pissed off by this sentence, since I read quite a couple of cases, where judges favored Plaintiffs. Also if this is a "thin air" at the same time AUSA does not give any specifics what time is reasonable for processing that it can be a guideline for a "thick" air.

 

[vcs_victim]

MTD - Details Masked

Attached is the full text of the MTD. Please note the dates on the last page. March 16, 2007 and January 31, 2007. Smells like a template

Here is the details of my case and the most recent updates:

• Employement based 485, pending since 04/07/2003 (4th year anniversary is coming)
• Filed WOM on 12/26/2006
• Clerk put 20 days on the summons (clerk's mistake)
• AUSA asked for extension due to clerk's mistake, setting the 60 day deadline to 03/16/2007
• Judge ordered AUSA to show cause as to why my relief should not be granted. Order's deadline is 03/19/2007
• AUSA filed MTD on the deadline, 03/16/2007

MTD is based on FRCP 12(b)1 and FRCP 12(b) 6. AUSA claims that the court lacks jurisdiction and as a plaintiff I failed to state a claim. Looks like this is the standard MTD template nowadays. AUSA used the following in the MTD:

"The adjudication of an adjustment of status application is expressly committed to agency discretion. See 8 USC 1255(a). Moreover, no statutory or regulatory provisions provide a "meaningful standard" against which to measure the time it takes CIS to process an application. .... Without any mandatory time frame, in order to determine that CIS has "unreasonably delayed" adjudication of Plaintiff's application, this Court would have to create a temporal standards from thin air."

I will post the full MTD early next week for the seniors of the forum's review.

Let the fight begin!

vcs_victim

 

[lotechguy]

Shvili, others,
Have you come across MTD for (1447b with WOM) cases ? Can you post some pointers

 

[kefira]

Attached is the full text of the MTD. Please note the dates on the last page. March 16, 2007 and January 31, 2007. Smells like a template

It is SOOOO funny Just compare to my MTD that I posted here: word by word - I am sure they started to use the template. At least in mine they also included some additional testimonies from INS and FBI (unless u stripped them). If u did not have any attachments/testimonies to your case, then u have a good chance to oppoze it. Just mention that the answer from AUSA is generic and give examples where 6 month was considered unreasonable in delay. There was no specifics when they submitted your name to FBI - nothing. Also I would suggest u to check PACER and see how things went for the WOM applicants filed around same day as yours but with attorney, because I am the only one who was fighting without attorney in NCA and that is why only my case is still not yet resolved and also mention it in your oposition. Yes, forum gurus now will argue that I am too pessimistic, etc. but it is true. If u go with attorney, then 100% your case will be resolved max in 2 month, since at least FBI and INS is affraid to pay money to attorneys in case they loose. It is cheaper to pay $8 per expedite Name Check and resolved it peacefully, then to pay at least 10K in litigations. Probably 1 year ago it was very easy to win PerSe WOM case, but not now. imho

 

[vcs_victim]

Kefira,

I am in Connecticut as you would see from the MTD.

For your other question from the later post, I just got the MTD without any exhibits/attachments. I just stripped my personal details, that's it.

vcs_victim,
R u by any chance in N CA district? I had exactly the same verbing on my MTD (I485). At the bottom of my heart I hope that Judge will be pissed off by this sentence, since I read quite a couple of cases, where judges favored Plaintiffs. Also if this is a "thin air" at the same time AUSA does not give any specifics what time is reasonable for processing that it can be a guideline for a "thick" air.

 

[shvili]

Unfortunately it looks like this is true. 1447b is good to argue jurisdiction but thats where it stops short. It gives the judge option to naturalize which they wont do or remand with instruction. In order to make that instruction meaningful that judges seem to slip back into the WOM mentality and see if the delays are unreasonable and also see if petetion has anything in it that claims that the delay is unreasonable under some statute ie a WOM argument. If you look closely at 1447b remand judgements with timelines, cases are pending for 2.5 years or more. In brief the 1447b cases filed before the CIS no expedite policy were just plain lucky since their cases ended without judgements and name check expedites.

Lotechguy,

I agree with you in pointing the timelimit remand was mostly ordered on cases sitting in nc process for 2+yrs. In those cases (where plaintiffs pleaded time was too long one way or another), even if WOM was not brought up, judges ordered timelimit on nc. So although much depends on a judge/circuit interpretation of 'reasonable time', it plays major role in timeline decision. And since it does, why not spend a little more effort and bring a complaint SPECIFICALLY for the compelling FBI to act on nc, i.e., WOM? Unfortunately it may also mean for those who try to file right after 120-days expires, that they have to wait for those 2+ yrs. But I think something will be changjing very soon in regulations as time is ripe for that.

Snorlax, I disagree with you on two points:

"I would also argue that not including WOM in this case was beneficial – as paz1960 suggested, 786riz can have a second shot with a WOM later down the road and, hopefully, with a different judge.
Name Check indeed is not a statutory requirement – it was introduced artificially as part of bureaucratic campaign to superficial demonstration of tightening security. The origin of this Name Check is well explained in the class action lawsuit, information of which Shvili has been sharing with this forum http://www.aclunc.org/news/press_rel...s_delays.shtml"

As Paz brought up yesterday, an as I understand, you may only appeal on the merits of the original complaint and unless you had time to amend your petition like Riz is doing now, you simply can not bring WOM as additional complaint when you appeal. My prior advise to Riz should be also corrected: he could petition to the same judge in 3+ months if no result (-and judge ordered "prompt" as we know), and it will be her discretion to consider if the delay indeed became unreasonable. But if that doesn't work, he should either bring a brand-new complaint which incorporates 1447 and WOM or appeal to the higher court on the ground of his ORIGINAL complaint. (And again, it's up to the higher court to grant it based on ureasonable delay even if he did not specifically cite Mandamus. It's been done before, when the dealy was indeed 2+yrs.)

Secondly, I don't think you can argue how "statutory" name check is if the law only lists appropriate background checks "AT A MINIMUM". As I said above, it means that at any time a new or revised check may be added and in no way it violates this law. What we SHOULD really learn to master is to convincingly argue WHY our delays are indeed unreasonable and try to convince district courts-for our own sake, and for the future petitioners.

 

[lotechguy]

Lotechguy,

I agree with you in pointing the timelimit remand was mostly ordered on cases sitting in nc process for 2+yrs. In those cases (where plaintiffs pleaded time was too long one way or another), even if WOM was not brought up, judges ordered timelimit on nc. So although much depends on a judge/circuit interpretation of 'reasonable time', it plays major role in timeline decision. And since it does, why not spend a little more effort and bring a complaint SPECIFICALLY for the compelling FBI to act on nc, i.e., WOM? Unfortunately it may also mean for those who try to file right after 120-days expires, that they have to wait for those 2+ yrs. But I think something will be changjing very soon in regulations as time is ripe for that.

Snorlax, I disagree with you on two points:

"I would also argue that not including WOM in this case was beneficial – as paz1960 suggested, 786riz can have a second shot with a WOM later down the road and, hopefully, with a different judge.
Name Check indeed is not a statutory requirement – it was introduced artificially as part of bureaucratic campaign to superficial demonstration of tightening security. The origin of this Name Check is well explained in the class action lawsuit, information of which Shvili has been sharing with this forum http://www.aclunc.org/news/press_rel...s_delays.shtml"

As Paz brought up yesterday, an as I understand, you may only appeal on the merits of the original complaint and unless you had time to amend your petition like Riz is doing now, you simply can not bring WOM as additional complaint when you appeal. My prior advise to Riz should be also corrected: he could petition to the same judge in 3+ months if no result (-and judge ordered "prompt" as we know), and it will be her discretion to consider if the delay indeed became unreasonable. But if that doesn't work, he should either bring a brand-new complaint which incorporates 1447 and WOM or appeal to the higher court on the ground of his ORIGINAL complaint. (And again, it's up to the higher court to grant it based on ureasonable delay even if he did not specifically cite Mandamus. It's been done before, when the dealy was indeed 2+yrs.)

Secondly, I don't think you can argue how "statutory" name check is if the law only lists appropriate background checks "AT A MINIMUM". As I said above, it means that at any time a new or revised check may be added and in no way it violates this law. What we SHOULD really learn to master is to convincingly argue WHY our delays are indeed unreasonable and try to convince district courts-for our own sake, and for the future petitioners.

Its not the end of options for remand cases with no instructions. Remand means that technically the court still has the option of asking the agency progress on the case at any time. Here is case (not CIS related) of a remand to an agency and the petetioner went back to the court after 7 months of no progress on his case to ask for a status from the agency.

http://dont.stanford.edu/cases/turner/turner.p.r.statusconf.pdf

So given this we need to research more on what mandmus options exists for remand cases.

 

[ncblackhole]

It is a template

Attached is the full text of the MTD. Please note the dates on the last page. March 16, 2007 and January 31, 2007. Smells like a template

Yes, its definitely a template, we must find a solid argument to defeat it. One thing I do agree with Kefira even in my district Philadelphia. All the cases with attorneys have been closed in 2-3 months, I am yet to see a case where it took more than 3 months and generally all that is AUSA asking for extensions and then nothing more.. so they are picking on Pro Se ones now.

But what does that mean, we should keep fighting till then end.. even if we lose, it is not going to be worse situation than where we are right now.

Lets try to make our own template for AOS type cases.. do you think we can do better than AUSA? May be..Don't lose hope vcs_victum.. you are very close of finishing this off.


I will start doing some research on my end....

 

[wannabe_citizen]

Birth Certificate

Hi,

Apparently from the posts, people are submitting birth certificates. When are you required to submit birth certificate and in what situation? I don't think N-400 application asked for birth certificate. Please shed some light.

I don't have a birth certificate but USCIS/INS accepted a record from a regional office at the place of my birth that stated no record was found for me, in conjunction with my passport. This was for Green card. I wonder if they would ask for something else for Natz. Please share the information on this.

thanks!

Kefira - This is great, the info in the attached pdf is armory for my
case. It clearly states that Name variations do not require
a separate check. My initial name check got cleared last month
and I am being subjected to a second name check for a name
variation. My name in birth certificate is without initials and the name
in passport is with initials expanded.

Name 1: Axxxx Bxxxx Cxxxx Dxxxx (name cleared)
Name 2: Cxxxx Dxxxx (second name check initiated)

Per the attached PDF the second name check in my case is not required.

Where did you find this document. Is this public information, would
you know?

Paz and others, can I take this pdf to the IO supervisor in arguing that
my second name check is totally unwarranted. Please reply....

Thanks.

 

[birdie]

Hi Paz and Kerifa and others,

I filed WOM for AOS in Jan in Nor Cal following the forum pro se, and recieved the "standard" MTD for lack of jurisdiction, etc. Do you have some sample oposition to dimiss that you used or are aware of that I can follow?

I have been followed this forum, and most of the samples for oposition for MTD are for naturalization cases, your help is greated appreciated!! And I appologize if I miss any of your previous postings related to the sample cases/writings.