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

[shvili]

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

Lotechguy,

It's my bad luck!-I have saved so many files in one folder, now I only found two petitions with WOM+1447 for you. The NJ complaint is old but the main points with 1447+WOM are there. Also pretty good pro se argument in WA WOM complaint. And Ibrahim response to MTD, too (but again, it's WOM in AOS case).

I'll try to find more later today, as now I have to run.

Good luck,

Shvili

 

[shvili]

Hi Paz and Kerifa and others,

I filed WOM 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.

Birdie and Kefira,
these are more cases posted by other members before. The responce to MTD#2 is good.

Also, Lotechguy, check them out too!

Kefira,
You might look at the congress opinion for what meant to be the timeframe for immigration benefits, in your responce to AUSA MTD:

Congress has stated that applications for immigration benefits should be processed within 180 days from the time application was filed, in 8 U.S.C. § 1571(b):
“It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application,..”

Good luck!

 

[786riz]

Hi team,
Spoke to two attorneys (Mr. Hyman and Mr. Biroch) both are agreed to take the case but they also said that 7 days are not enough to come up with very good arguments, more time is always better. Both are charging $2500.00 for initial 10 hours (means $250/hr). My issue is whenever you hire an attorney you are on mercy of him, you like the motion or not you can not say no because you hired them to file this motion. In my case I have one shot, so I want to try my best and put down very strong arguments for reconsider. An attorney may have stronger arguments but I do not know.
I am not very comfortable of hiring an attorney at this time. I will be going Pro Se and filing my Motion to Reconsider. I have already gathered all the material for this motion. As paz mentioned that the motion would be based on opposing motions, where it discussed “if remand then have specific instruction”. Following are the points that I am going to discuss, if I missed something please mention:
1. Intent of Congress by setting a time line.
2. Hardship on plaintiff due to these delays
3. Critique on USCIS name check process
4. Citing of all the available cases that have specific instruction
5. Why remanding with out specific instruction is not sufficient
6. Discussion on judge’s arguments for remanding with out specific instruction

Per local rule I can not go more than 20 pages, most probably I will post my Motion on Wednesday for you folks to review it.
I know that the probability for the judge to change her decision in about none but I will still try my best.
Thank you so much for your help and support

 

[kefira]

Birdie and Kefira,
these are more cases posted by other members before. The responce to MTD#2 is good.

Also, Lotechguy, check them out too!

Kefira,
You might look at the congress opinion for what meant to be the timeframe for immigration benefits, in your responce to AUSA MTD:

Congress has stated that applications for immigration benefits should be processed within 180 days from the time application was filed, in 8 U.S.C. § 1571(b):
“It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application,..”

Good luck!

Shvili,
Thank u for your input. I already filed my opposition 3 weeks ago and already had a hearing. Trust me, I put this "180 days" in my opposition, but AUSA replied to my oposition with their memorandum in support to their MTD that I am an idiot and deserve only to wait, otherwise national security will suffer. Now I am waiting for the judge order to make a decision regarding dismissing the case. When he asked AUSA how long it will take to process, she said that she has no idea, may be additional 6 month, but she cannot garantee. Also, at the beginning she told me that my NC was expedited and then 1 month ago she changed her story and said that expedite NC only for the naturalization cases. When I brought her the memo from Jan 2005 with 5 reasons for expedition (1 page sheet), she said that "it does not say that it is for AOS".. but it also does not say that it is for naturalization.. so again who is right? the one who has more rights.

 

[lotechguy]

Hi team,
Spoke to two attorneys (Mr. Hyman and Mr. Biroch) both are agreed to take the case but they also said that 7 days are not enough to come up with very good arguments, more time is always better. Both are charging $2500.00 for initial 10 hours (means $250/hr). My issue is whenever you hire an attorney you are on mercy of him, you like the motion or not you can not say no because you hired them to file this motion. In my case I have one shot, so I want to try my best and put down very strong arguments for reconsider. An attorney may have stronger arguments but I do not know.
I am not very comfortable of hiring an attorney at this time. I will be going Pro Se and filing my Motion to Reconsider. I have already gathered all the material for this motion. As paz mentioned that the motion would be based on opposing motions, where it discussed “if remand then have specific instruction”. Following are the points that I am going to discuss, if I missed something please mention:
1. Intent of Congress by setting a time line.
2. Hardship on plaintiff due to these delays
3. Critique on USCIS name check process
4. Citing of all the available cases that have specific instruction
5. Why remanding with out specific instruction is not sufficient
6. Discussion on judge’s arguments for remanding with out specific instruction

Per local rule I can not go more than 20 pages, most probably I will post my Motion on Wednesday for you folks to review it.
I know that the probability for the judge to change her decision in about none but I will still try my best.
Thank you so much for your help and support

Riz,
I will work on a version too and touch base with you

 

[kefira]

Hi team,
Spoke to two attorneys (Mr. Hyman and Mr. Biroch) both are agreed to take the case but they also said that 7 days are not enough to come up with very good arguments, more time is always better. Both are charging $2500.00 for initial 10 hours (means $250/hr). My issue is whenever you hire an attorney you are on mercy of him, you like the motion or not you can not say no because you hired them to file this motion. In my case I have one shot, so I want to try my best and put down very strong arguments for reconsider. An attorney may have stronger arguments but I do not know.
I am not very comfortable of hiring an attorney at this time. I will be going Pro Se and filing my Motion to Reconsider. I have already gathered all the material for this motion. As paz mentioned that the motion would be based on opposing motions, where it discussed “if remand then have specific instruction”. Following are the points that I am going to discuss, if I missed something please mention:
1. Intent of Congress by setting a time line.
2. Hardship on plaintiff due to these delays
3. Critique on USCIS name check process
4. Citing of all the available cases that have specific instruction
5. Why remanding with out specific instruction is not sufficient
6. Discussion on judge’s arguments for remanding with out specific instruction

Per local rule I can not go more than 20 pages, most probably I will post my Motion on Wednesday for you folks to review it.
I know that the probability for the judge to change her decision in about none but I will still try my best.
Thank you so much for your help and support

Do u have some specifics when INS ordered NC from FBI? In my MTD they put testimony that my NC was ordered twice and also if u remember I posted here additional document that explained NC process in details. So in my Opp I questioned why NC was ordered twice? What was the outcome of the first one? Then I citated the process and it said that second NC would be ordered if the first one comes with no data or error. So I questioned, if my file came with nodata/error, why INS did not act on my behalf for all these 2 years...
Also mention that FBI was not interested in u personally for all these years, so come now u r the person of additional interest... something like this. If u would be under investigation, u would not be able to flight.. u name would be on most wanted list.. I know that it is crap, but personally all these logical crap is our only option for fighting specially if we r PerSe.

 

[birdie]

Shivili,

Thanks you so much for your quick response, i appreciate it!

I forgot to mention that my case if for Adjustment of Status, not naturalization. Do you have some sample cases on AOS?

Thanks,

 

[paz1960]

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....

If there is indeed a pattern that cases represented by lawyers are closed faster than the Pro Se cases (I didn't check this, so I assume this observation of yours correct), I have a possible explanation for this (besides the likelyness that a professional lawyer knows more about these things than we do). If a case represented by a lawyer is won by Plaintiff, the government has to pay a hefty attorney's fee, which can be in the range of tens of thousands of $. If a Pro Se wins, the governement has to pay $350 + the mailing expenses, say $50, approx. $400. If you would be the USCIS general counsel who is in charge with these lawsuits and with the budget you can spend on these litigations, where would you put your limited resourses to solve the pending cases in court?

 

[kefira]

If there is indeed a pattern that cases represented by lawyers are closed faster than the Pro Se cases (I didn't check this, so I assume this observation of yours correct), I have a possible explanation for this (besides the likelyness that a professional lawyer knows more about these things than we do). If a case represented by a lawyer is won by Plaintiff, the government has to pay a hefty attorney's fee, which can be in the range of tens of thousands of $. If a Pro Se wins, the governement has to pay $350 + the mailing expenses, say $50, approx. $400. If you would be the USCIS general counsel who is in charge with these lawsuits and with the budget you can spend on these litigations, where would you put your limited resourses to solve the pending cases in court?

Paz,
I agree with you 100% and actually I mentioned it already in my earliest posts today. BTW, nobody put any attention to the case that I posted here 2 or 3 weeks ago, when case was represented by attorney in my lovely NCa, INS resolved the case (finished the NC) and offered to dismiss the case, that plaintiff of course agreed. BUT ANYWAY judge granted to reimburse the plaintiff with the attorney fees, although not 45K as he asked, but 17K. Of course AUSA argued about it, but at the end had to pay. This case was very recently, I believe feb or beg of march AOS.
But I do not agree with u regarding $350 return. What do u call victory? If case would not be dismissed and will go to hearing? It is a grey area... U want INS/FBI do their work and it is adjustment of status (in case of I485), but judge cannot rule on giving u adjustment of status. The only thing that he can rule (and as we see now it is not always the case) is to give some timeline to INS. So, is it a victory? I doubt it. Anyway, it just my thoughts and I remember pretty well that somebody already discussed it on this forum about reimbursement of the filing fees.

 

[yvesliu]

Case dimissed but name check is expedited

Just say if my name check is expedited, but then AUSA dismissed the case, will the name check still be expedited?

 

[kefira]

Just say if my name check is expedited, but then AUSA dismissed the case, will the name check still be expedited?

yvesliu,
What is the point to AUSA to dismiss your case if they know that your NC was expedited and very soon would be resolved. Do not u think it will be easier for them just to file for an extension? Just thoughts.

 

[lotechguy]

Hi team,
Spoke to two attorneys (Mr. Hyman and Mr. Biroch) both are agreed to take the case but they also said that 7 days are not enough to come up with very good arguments, more time is always better. Both are charging $2500.00 for initial 10 hours (means $250/hr). My issue is whenever you hire an attorney you are on mercy of him, you like the motion or not you can not say no because you hired them to file this motion. In my case I have one shot, so I want to try my best and put down very strong arguments for reconsider. An attorney may have stronger arguments but I do not know.
I am not very comfortable of hiring an attorney at this time. I will be going Pro Se and filing my Motion to Reconsider. I have already gathered all the material for this motion. As paz mentioned that the motion would be based on opposing motions, where it discussed “if remand then have specific instruction”. Following are the points that I am going to discuss, if I missed something please mention:
1. Intent of Congress by setting a time line.
2. Hardship on plaintiff due to these delays
3. Critique on USCIS name check process
4. Citing of all the available cases that have specific instruction
5. Why remanding with out specific instruction is not sufficient
6. Discussion on judge’s arguments for remanding with out specific instruction

Per local rule I can not go more than 20 pages, most probably I will post my Motion on Wednesday for you folks to review it.
I know that the probability for the judge to change her decision in about none but I will still try my best.
Thank you so much for your help and support

Here is my initial summary, Guys please comment:

In the motion you have too keep in mind this:

(1) The movant must not only demonstrate a
palpable defect by which the court and the parties have been misled

Defect #1: CIS changed rules that trigger "expidite" rquiring now a "compelling reason" to expedite a stalled case. This in effect means that CIS will not act on a case unless the court provides instruction for it do so.

Here we have to show that the defect is that congress intends for some action to happen to expedite the processing of a N400 case delayed beyond 120days of interview. CIS has a mechanism to achive this by expiditing the processing of such a application. CIS expedite process used to be triggered earlier by simply filing WOM but has recently be changed to be triggered by "compelling reasons". This is a recent development. Consequently whereas in earlier cases CIS actively expidited a N400 case where the code ordered prompt resolution, today it does not do this unless the court explicitly instructs CIS to expedite the processing of the case as a whole

Defect #2: The FBI name check is the source of the main delay in this case. The FBI will expedite the name check on CIS request. Consequently to achive prompt processing of this case court should instruct CIS to request expidited processing from FBI so that a prompt resolution to the case may be obtained.

Defect3# ???

(2) but also show that correcting the defect will result in a different
disposition of the case.

Correcting Defect#1#2 will lead to a different disposition. The current order does nothing to instruct CIS on expediting the main cause of the delay ie FBI name check. an instruction to expedite or in the alterbative set a timeline for the case will have the effect of triggering the CIS expedite process which will result in a prompt resolution of the case.

 

[yvesliu]

yvesliu,
What is the point to AUSA to dismiss your case if they know that your NC was expedited and very soon would be resolved. Do not u think it will be easier for them just to file for an extension? Just thoughts.

That is a very good point. I worked with two AUSAs, the first one told me back in Dec. that my case is expedited, he mentioned in his e-mail that my case is in the last batch of names CIS will ask FBI to expedite the name check. Then he retired, so, I worked with this new AUSA. She is not as nice as the first one, and she does not really want to tell me anything. So, at the beginning of March, she asked for another 4 months and the judge granted it. Then I talked to her that the previous AUSA told me that my case should be expedited and she said He is not supposed to tell me those information, but my case was expedited. She said I should not have my hopes up even if my name check is expedited. Then a week ago, she sent me an e-mail saying she will file MTD because of lack of Jurisdiction. I talked to a lawyer but I don't think I can afford him. So, I thought if I still go with Pro Se, my case might be dismissed eventually. But if case dismissed will not affect the name check expedition, then I can just fight by myself instead of hiring a lawyer.

 

[colonel]

Here is my news.... Guys please comment:

I filed WOM in Jan, today I got a letter from the Section Chief from Name Check Program Section..

" A review of the FBI's Name Check Progarm database revealed that your request was received from the USCIS on April ,2004. This submission was processed and finalized on March 8,2007. The results were forwarded to the uscis Headquarters, Washington D. C. sincerely .. Michael Cannon. Section Chief NC record managment division.


thanks

 

[desiusa]

That's good news colonel

Colonel,
If the FBI sent you a letter saying they have completed the namecheck that is good news. If your PD is current you should expect an approval in 30 to 60 days I think. Congrats.
Question for you: Where did you file the WoM, was it for GC or naturalization and did you file through an attorney or Pro Se? Also, who all did you name as defendants - did you name the FBI? One last question, what all happened after you first filed the WoM (MTD, etc etc)?
Thanks so much.

Desi

 

[yvesliu]

Hi Colonel,

This is a very good news. Just one quick quesiton for you, since you are the only one I know of that FBI sent you an letter regarding the NC result. What did you do differently? Did you file Pro Se or you have a lawyer? This is through mail, not E-mail, right?

Here is my news.... Guys please comment:

I filed WOM in Jan, today I got a letter from the Section Chief from Name Check Program Section..

" A review of the FBI's Name Check Progarm database revealed that your request was received from the USCIS on April ,2004. This submission was processed and finalized on March 8,2007. The results were forwarded to the uscis Headquarters, Washington D. C. sincerely .. Michael Cannon. Section Chief NC record managment division.


thanks

 

[shvili]

Shvili,
Thank u for your input. I already filed my opposition 3 weeks ago and already had a hearing. Trust me, I put this "180 days" in my opposition, but AUSA replied to my oposition with their memorandum in support to their MTD that I am an idiot and deserve only to wait, otherwise national security will suffer. Now I am waiting for the judge order to make a decision regarding dismissing the case. When he asked AUSA how long it will take to process, she said that she has no idea, may be additional 6 month, but she cannot garantee. Also, at the beginning she told me that my NC was expedited and then 1 month ago she changed her story and said that expedite NC only for the naturalization cases. When I brought her the memo from Jan 2005 with 5 reasons for expedition (1 page sheet), she said that "it does not say that it is for AOS".. but it also does not say that it is for naturalization.. so again who is right? the one who has more rights.

Kefira and VCS victim,

first, Kefira, don't be so hard on yourself, on the opposite, praise yourself for doing an attorney's work without their law education! Also, I agree with your logic re. expedite nc memo: if it doesn't specifically say that it onlly applies to naturalization, then it SHOULD also apply to AOS. (I think, if a judge is reasonable, s/he would agree). Have you checked this judge's previous rulings? May be s/he is fair. Since you're in CA, we're luckier than most because they seem to be more favourable to immigrants, based on what's been posted.

Also, Kefira and VCS Victim, if MTD again cites discretion-based lack of jurisdiction, they purposefully confuse DISCRETION TO GRANT AOS/N-400 with non-discretionary duty to PROCESS the application. Like one of CA orders (either in Singh or Razaq) said, if congress intended that this process could last indefinitely or decision happen at a whimp of the agency, there should be no 180-day clause and no "reasonable time" clause. To grant is discretion, but to decide is not. And, like snorlax said before, once you paid $$ for processing your AOS, it stops being a discretion. So such MTD actually leads to this logical conclusion which is an absurd from any stand point:

"The applicant for AOS/naturalization should file application and pay $$. The USCIS will or will not respond to this application, depending on its discretion. If the application does not receive a response, it simply means CIS decided not to process it, and applicant should not burden USCIS by submitting another application."

So cite as many cases as you can find to support non-discretionary duty (In MTD-1, I re-posted on last page, it has good similar reasoning in conclusion.)
And the rest really depends on the judge.

Just don't give up!

 

[vmedikon]

AUSA sent ADR papers to sign for 1447b in N.Cal

Update on my status in N. Cal -- > AUSA called me and asked me to sign ADR papers that they will fax me. AUSA secretary faxed me ADR papers within 10 min, I will sign those and fax it back to her. Probably will have a telephone conference just like kefira had (but this case was AOS) but mine is 1447b. Wondering if anyone else on 1447b had to go thru ADR in N. Cal?


----------------------
N-400 filed on --> Feb 2006
Fingerprint on -->Mar 2006
N-400 Interview --> June 13th 2006
1447(b) filed on -->Jan 17th 2007
Answer due from AUSA --> March 20th 2007
Last date to file Joint Case Management stmt --> April 6th 2007
Date of initial case mgt. conference--> April 13th 2007

 

[paz1960]

Just say if my name check is expedited, but then AUSA dismissed the case, will the name check still be expedited?

Please, do not make confusions. AUSA CAN'T dismiss your case. S/he can motion the court for this, but only the judge can dismiss your case. AUSA is representing the other party in these cases, just like you represent yourself.

 

[kefira]

So cite as many cases as you can find to support non-discretionary duty (In MTD-1, I re-posted on last page, it has good similar reasoning in conclusion.)
And the rest really depends on the judge.

Just don't give up!

Shvili,
Thank you for your support and honestly I think that I did a good job, although judge already twice asked me if I have an attorney to represent myself and then asked if I am an attorney by myself. It pissed me off, but of course I kept quite on the hearing, but it clearly says that judge did not bother to read at least FIRST page of the WOM or my Opposition, where I clearly specified my occupation.
Anyway, based on my analysis of recent NCA cases (very recent ones from beg March), two different judges ruled in honor of Plaintiffs for AOS with "unreasonable time" wording. What will do this judge-no idea. When I asked him if I can submit additional paperwork showing that 2 separate cases in this court were ruled in favor of plaintiffs, he said-it is enough and I already missed my opportunity for opposition and he won't accept anything from me.
If he is honest and fair and in addition he communicates with other judges or if they at least have similar forum as we have (kidding), then he should rule in my favor and give them timeframe 30 days as I asked. If he just wants to be nice, then he will rule to keep my case, but will give another 6 month to INS to finish it, if he wants to be an evil, then I am back to square one with more confindence, that only rich and famous rule this country.
BTW I mentioned in my opposition, that if I loose, then I will oppose it and will complain to the higher court, but already with the attorney (then I mentioned cases where AOS with attorneys were resolved in 2 weeks period in NCA district), so it is in best interest of the government to save taxpayers money and resolve my case. You can laugh, but I have nothing to loose already...