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

[hopeforall2]

paz and frinends Please help

Today was supposed to be the day the USCIS answers to the lawsuit, but no answer is filed.

My lawyer told me to wait at least one week and he will call the AUSA to check.

Why do I have to wait, isn't the judge supposed to do a default judgment.

Please help me understand this, and whether the lawyer is doing the correct thing or not.

Can I call the court and tell them that no answer is filed and request the court to take action?

I am not familiar with the law in this kind of situation, What are my options?

Thank you.

 

[mgzh]

Is FBI the only one agency that USCIS can use for security check?

I do not agree with you. The main point of our case (mine at least AOS) that I want to force USCIS to work on my application. What does it mean? I do not really care who and what they ask to do, or whatever needs to be done (they can contact FBI, my neighbors, etc.), BUT they should control time and output from this people/organizations. It should be some guideline if they send a request to FBI, then they should check periodically what is going on with these requests. And this part is missing.
I will try explain in simple example. I/We submitted some kind of application to another organization and WE (through infopass, congressmans, etc.) checking what is going on with our application. If it was received, accepted, checks were cleared...
And what did do USCIS during last 2 years(again in my case) after sending a request to FBI and not receiving an answer - basically nothing - but just ignored our requests with standard answer "pending NC".
It means that USCIS did nothing and that is why we ask court to force them to do something.

I agree with you. USCIS should work effectively to hand all the case. I have another question that is the FBI the only agency that USCIS can use for security check???

My current job need drug test and security check too. They also check my employment history before they hire me. I don't know which agency they used, but to my suprise, they finished everything within 40 days, including some job i did in other country. after they hired me, i was thinking that FBI HAS most powerful tool most comprehensive information and their agency all over the world. But my name check has been pending in their system for 4 years. what a shame. If i was a risk to the country, i could have done so much damage during they investigate my background. If they really want pick out the person who may pose a national security risk, they really should speed up.

 

[akram88]

AUSA first contact

Hi all,

I finally got to speak to the AUSA today. I left her a message and she called back in one hour.
She said there is nothing new on my case and that everything looks fine so far.
Then she started telling me that there is backlog on these checks etc etc and that CIS stopped expediting cases automatically etc etc... she said that there is 10 other cases like this filed in the Newark court at this moment.
we chatted a bit and she asked me at one point if I have a visa that is going to expire or anything like that, I said no but I've been waiting for 3 years for the name check to clear and that this is getting ridiculous and this is the reason I filed the complaint. I think, if I remember correctly, that she said that filling a complaint is the right move at this moment for my case.

At the end I asked her for her email so I use it for contact from now on. The format turned out to be first.last@usdoj.gov.
She sounded very nice and wanting to help but I felt that she couldn't give me a definitive answer on any of the questions I asked. Maybe she's not sure since she's not getting straight instructions from CIS.
I'll contact her again next week and see how things go. I'll keep you guys updated.

 

[paz1960]

Today was supposed to be the day the USCIS answers to the lawsuit, but no answer is filed.

My lawyer told me to wait at least one week and he will call the AUSA to check.

Why do I have to wait, isn't the judge supposed to do a default judgment.

Please help me understand this, and whether the lawyer is doing the correct thing or not.

Can I call the court and tell them that no answer is filed and request the court to take action?

I am not familiar with the law in this kind of citation, What are my options?

Thank you.

Ruel 55(e) of FRCP states:
Judgment Against the United States.
No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.

This means that you have practically no chance that the judge will enter a default without knowing the government position in your case.

You admitted that "I am not familiar with the law in this kind of citation", this is exactly the reason why you should trust your lawyer and let him do his job. If you lost your confidence in his ability to represent you efficiently and fairly in this case, you should look for another lawyer or your should go Pro Se, but this will require a lot of time and study.

In my opinion you should not take any actions directly (e.g., try to contact the court or AUSA) if you are represented by a lawyer.

 

[paz1960]

I agree with you. USCIS should work effectively to hand all the case. I have another question that is the FBI the only agency that USCIS can use for security check???

My current job need drug test and security check too. They also check my employment history before they hire me. I don't know which agency they used, but to my suprise, they finished everything within 40 days, including some job i did in other country. after they hired me, i was thinking that FBI HAS most powerful tool most comprehensive information and their agency all over the world. But my name check has been pending in their system for 4 years. what a shame. If i was a risk to the country, i could have done so much damage during they investigate my background. If they really want pick out the person who may pose a national security risk, they really should speed up.

Please find attached a Factsheet distributed by USCIS which describes the background checks performed. According to this document, multiple agencies are involved in these background security checks. Only FBI is named, the others are referred without specifically naming them.

 

[hopeforall2]

Ruel 55(e) of FRCP states:
Judgment Against the United States.
No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.

This means that you have practically no chance that the judge will enter a default without knowing the government position in your case.

You admitted that "I am not familiar with the law in this kind of citation", this is exactly the reason why you should trust your lawyer and let him do his job. If you lost your confidence in his ability to represent you efficiently and fairly in this case, you should look for another lawyer or your should go Pro Se, but this will require a lot of time and study.

In my opinion you should not take any actions directly (e.g., try to contact the court or AUSA) if you are represented by a lawyer.

Thanks paz,

I was just looking at the copy sent to me by the lawyer ( Summons in a Civil Action) issued to the defendants which says ;

Quote:

An answer to the complaint which is served on you with this summons, within 60 days after service of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint ... e.t.c

UnQuote

I don't know how strict the Courts are on imposing the law to the 60 days deadline and the options there after.

Just confused and worried.

 

[lotechguy]

"A legally mandated deadline for a task for one government agency applies to other government agency subtasks that are required for that task, regardless of which government entity implements that subtask. ie When a government agency enters into agreement with another govt. agency to completea task with a legally mandated deadline, the third agency is implicitly bound by that deadline as a matter of contract for not doing so would render the original legally mandated deadline meaningless."

We need to check precedents in contractual agreement cases.

The breadcrumbs to go about this should be:

1. Is there any over-arching common-sense legal principle, opinion, declaratory judgement that captures this argument ie

If a legal deadline applies to a task of a government monopoly then that deadline propagates implicitly in any agreements that agency makes with other government monopolies for executing dependent subtasks of the original task, for not doing so would render the original deadline meaningless

keywords: monopoly,contracts,legal deadlines,liability,anti-trust

The key of course is wether anti-trust laws apply to government monopolies. most likely they dont

Or a more simple common sense principle:

If a legal deadline applies to a task of a government agency and that agency is unable to meet the deadline it should
demonstrate good faith effort to meet that deadline. In this case means, expediting name check with FBI

I can think of one case where such argument holds: FCRA, fair credit reporting act. If a consumer denies a derogatory item on his credit report FCRA requires that a credit reporting agency should make a decision in 30 days. This deadline "propagates" to all vendors who report items to the credit bureau. If a vendor is unable to complete the verification in 30 days, credit reporting agencies just go ahead and accept the consumer denial and strike the item off his credit report. now one can argue that this is not same as national security but it comes close, ie a person with bankrupties can wipe out all his backrupties of his credit reports if the original agencies that reported the bankrupties do not act to render a decision in 30 days.

 

[rollingstone]

The part that struck me is:

The FBI is making enhancements to its Dissemination Database that will
promote a paperless process within the next two or three months and
provide a platform for commercial off-the-shelf products to greatly
enhance search capability, improving tracking and workflow management.


The document is dated Nov 30, 2006, and it was supposedly prepared based on responses from Jul 10, 2006. So the "two to three months" timeframe is long over. Is this process in place now?

Some new answers & stats from NNCP to congressional oversight about name check delays. Confirms that as of Nov 2006, backlog is at 302,016 names. Out of these 106011 are over 1 year old, (44000 Naturalization, 50000 AOS, rest others) More answers:

http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/Muellerresponses050206.pdf

 

[Mingjing]

My I485 filed Aug. 03, has been stuck in FBI name check since. Filed in Jan. WOM by lawyer, and got MTD today. Have not gone through the MTD paper yet. I have a few questions like to seek comments:

1. How do I found out the assigned judge's decisions on previous closed I485 WOM cases? I know the judge's name, and I am in bay area. Not sure how to find decisions the judge made before here.

2. Shall I expect my lawyer to ask me for more $ to prepare documents to object MTD? I can't tell this from the one page paper I signed before. Just like to know what to expect before talking to my lawyer tomorrow.

3. Was MTD common last year before USCIS changed policy of routine expedite?

4. Sure will fight till the end. If my case is dismissed by judge, can I appeal to circut court, and if so what is the chance?

5. The judge happened to be an alumn from the same east coast University I graduated 7 years ago. Our university alumni network has quite strong ties. I am able to see his email and address through alumni exclusive online database. Is it harmful to write him a quick email to emphasize my faith in US judiciary system (I do have faith at this point).

I will share more once I read the MTD document.

Thanks,
Mingjing

 

[SLIS]

I think the common link between USCIS and FBI is the Attorney General. I'm looking at using a couple of things in my upcoming opposition to MTD:

1. Citing the whole subchapter II of 8. U.S.C. Chapter 13, that is, citing not only section 1571 but also sections 1572, 1573, and 1574 to make a case that the Attorney General has a statutory mandate to make improvements of the whole process for completing immigration benefits applications as mandated by Congress. Congress specifically require the Attorney General to eliminate the backlog by November 25, 2003. The fact that the backlog still exists only proves that the Attorney General isn't doing doing his job.

2. Citing the judge's discussion in Aboushaban that USCIS needs to be held responsiblle as the name check through FBI is a "fee-for-service" arrangement.

I think these two will hopefully give some teeth in counter the claim of the seemingly unsurmountable backlog issue.... What do you guys think?

 

[paz1960]

I think the common link between USCIS and FBI is the Attorney General.

This is outdated. Since 2003 when INS was abolished and the Department of Homeland Security was created, the service which replaced INS (USCIS) is part of the newly created DHS. FBI is still part of the Department of Justice, who's boss is the Attorney General. Nevertheless, both FBI and USCIS are part of the same Government so your reasoning is valid.

 

[paz1960]

My I485 filed Aug. 03, has been stuck in FBI name check since. Filed in Jan. WOM by lawyer, and got MTD today. Have not gone through the MTD paper yet. I have a few questions like to seek comments:

1. How do I found out the assigned judge's decisions on previous closed I485 WOM cases? I know the judge's name, and I am in bay area. Not sure how to find decisions the judge made before here.

2. Shall I expect my lawyer to ask me for more $ to prepare documents to object MTD? I can't tell this from the one page paper I signed before. Just like to know what to expect before talking to my lawyer tomorrow.

3. Was MTD common last year before USCIS changed policy of routine expedite?

4. Sure will fight till the end. If my case is dismissed by judge, can I appeal to circut court, and if so what is the chance?

5. The judge happened to be an alumn from the same east coast University I graduated 7 years ago. Our university alumni network has quite strong ties. I am able to see his email and address through alumni exclusive online database. Is it harmful to write him a quick email to emphasize my faith in US judiciary system (I do have faith at this point).

I will share more once I read the MTD document.

Thanks,
Mingjing

1. Using PACER, a fee-based electronic court document system.
2. That really depends on your contract with your lawyer. What I heard from other people who used lawyers' service, it is customary to make a contract, which establishes the fees on an incremental basis, i.e., the more the lawsuit is progressing, you have to pay more, based on a commonly agreed schedule.
3. Before USCIS changed their policy not expediting automatically a name check because a lawsuit was filed, the majority of the WOM cases ended before the defendants had to answer the complaint.
4. Any district court decision can be appealed at the Circuit Court of Appeals level and further at the US Supreme Court. You certainly would be one of the very few and the outcome can't be predicted.
5. Like it is unpredictable what would be the judge's reaction to contact him/her through the alumni association path. I would be inclined that if s/he is a professional with high integrity, s/he would be upset, but the judge is also human... I personally wouldn't do it, but this realy depends how is your comfort level tolerating the risks of gambling.

 

[paz1960]

hi, guys, i need some help on this point.

Generally, “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”

Here, Plaintiff has not received a decision on adjustment application because the FBI name check has not been completed. Therefore, Plaintiff should not be considered to have exhausted administrative remedies.

but i really did. all the exhibit show that i v contacted with USCIS,fbi,congress man,4 ead in the past 5 years......lost one ead in mail,lost drive lisence, lost job and health insurance......what else they want?

what is the standard of exhaused? before mentally collapse? is any case for a good example to fight agaist this point?

I am not aware of any clear definition of "prescribed administrative remedy" in your case. I believe that you did everything possible to get a resolution for your case before you filed your lawsuit. Waiting indefinitely is not an administrative remedy. There was no decision on your case which you could appeal administratively with an immigration supervisor inside USCIS. (like in a naturalization case, if your application is denied, you should go first through an administrative appeal inside USCIS and if the denial is upheld, only after that you can sue them based on 8 USC 1421(c)).

You are sueing them exactly for unreasonably delaying any action on your case, so there is no other remedy to force them to act.

 

[Hiram]

Akram88

Thanks Akram for the update!

 

[wenlock]

I have seen few cases on pacer filed around June of last year and it looks like AUSA filed MTD and Plaintiff reponded with opposition and after that it is more then 6 months nothing in the pacer that identifiy what happened to this case.

Does any one know why for about 6 months no further progress

 

[lenscrafterslen]

interview and spouse case

my spouse and i went for interview at local office today (I-485), just one week before our pre-trial conference before the judge. my case (i was the principal applicant based on employment) was approved immediately; however, my spouse's case was still pending as the security check has not been cleared.

anyone has experience how soon the spouse's case will be approved? what if by the pre-trial conference it is still not approved? should i dismiss the lawsuit, or should i insist not dismissing until both cases approved?

many thanks!

 

[paz1960]

my spouse and i went for interview at local office today (I-485), just one week before our pre-trial conference before the judge. my case (i was the principal applicant based on employment) was approved immediately; however, my spouse's case was still pending as the security check has not been cleared.

anyone has experience how soon the spouse's case will be approved? what if by the pre-trial conference it is still not approved? should i dismiss the lawsuit, or should i insist not dismissing until both cases approved?

many thanks!

First of all, congratulations for your approval.

Is your wife also a Plaintiff in the lawsuit? If she is not, you can't withhold the dismissal; worst case she can file a separate lawsuit for her case.

If she is also a Plaintiff in the lawsuit, I certainly would recommend to not agree to dismiss the lawsuit till she is approved too.

 

[lenscrafterslen]

thanks paz.

thanks. yes she is also a plaintiff in the lawsuit. our AUSA even mentioned before that in such cases, he often saw primary applicant got approved before the spouse. so i guess i will just ask them to wait before we dismiss the case.

First of all, congratulations for your approval.

Is your wife also a Plaintiff in the lawsuit? If she is not, you can't withhold the dismissal; worst case she can file a separate lawsuit for her case.

If she is also a Plaintiff in the lawsuit, I certainly would recommend to not agree to dismiss the lawsuit till she is approved too.

 

[8970]

thanks PAZ1960 and the all helpers

Thanks all people at here


my case

2000-7 landing USA and got married with my US citizen husband
2000-8 prolong Visa for 6 months
2000-9 applied for I-130
2001-3 I-130 proved
2001-4 Applied for I-485 and all these papers
2001-5 The first fingerprint (10 fingers)
2002-1 first interview for I-485 and got a I-551 sign on my passport
2003-11 sent the I-751 to CIS
2005-2 No answer to I-751 and applied for N-400
2005-5 Second fingerprint (10 fingers)
2006-7 Second interview for I-751 and N-400
Pending NC from 2003-11 to 2006- 11 for my I-751 and the N-400

2006-11-6 filed lawsuit for N-400
2007-1-6 US attorney field a answer for extending 60 days

2007-3-5 US attorney filed dismissing paper with I was agreed
And I got the oath proved mail from CIS
2007-3-23 took the oath of citizen

 

[lotechguy]

Thanks all people at here


my case

2000-7 landing USA and got married with my US citizen husband
2000-8 prolong Visa for 6 months
2000-9 applied for I-130
2001-3 I-130 proved
2001-4 Applied for I-485 and all these papers
2001-5 The first fingerprint (10 fingers)
2002-1 first interview for I-485 and got a I-551 sign on my passport
2003-11 sent the I-751 to CIS
2005-2 No answer to I-751 and applied for N-400
2005-5 Second fingerprint (10 fingers)
2006-7 Second interview for I-751 and N-400
Pending NC from 2003-11 to 2006- 11 for my I-751 and the N-400

2006-11-6 filed lawsuit for N-400
2007-1-6 US attorney field a answer for extending 60 days

2007-3-5 US attorney filed dismissing paper with I was agreed
And I got the oath proved mail from CIS
2007-3-23 took the oath of citizen

Did you you have two interviews for N400 ? If so when was your first N400 interview and why did they want a second interview ?