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

[kefira]

I did a search on http://dockets.justia.com/ for filings under chertoff between Jan 2006 and April 2007 and came up with 1800 for all federal courts.
Assuming some of these are not name check related (very small number possibly) and others may have been missed due to other indexes ie name check cases other than under chertoff, it is a goo estimate that there are around 1500 to 1700 cases filed between Jan 2006 and April 2007 on the name check problem. From Ombudsman page it looks like about 200K+ are stuck in name check, so it is safe to assume 10% of the stuck people out there are filing. If this percentage goes up to say 50% , Federal Courts will be swamped.

Also another number from my AUSA: only 100 cases per week from all country are getting expedited.

 

[lazycis]

I did a search on http://dockets.justia.com/ for filings under chertoff between Jan 2006 and April 2007 and came up with 1800 for all federal courts.
Assuming some of these are not name check related (very small number possibly) and others may have been missed due to other indexes ie name check cases other than under chertoff, it is a goo estimate that there are around 1500 to 1700 cases filed between Jan 2006 and April 2007 on the name check problem. From Ombudsman page it looks like about 200K+ are stuck in name check, so it is safe to assume 10% of the stuck people out there are filing. If this percentage goes up to say 50% , Federal Courts will be swamped.

I was reading somewhere (maybe DOJ report or something) that last fiscal year about 900 lawsuits attributed to name checks were filed. Definitely, it's going to be more this year, but it would be nice if that number be close to 10,000. We should urge everybody who is stuck in name check to go to court, otherwise the problem will only get worse.

 

[lazycis]

Also another number from my AUSA: only 100 cases per week from all country are getting expedited.

"Expedited" means they actually do their job. If they are able to process it in 30 days, how come people are waiting for years? The whole process is broken.

 

[PALANG]

Any Suggestions?

Thanks to all of you for such great thread. I have spent a few months following this thread and hoping that my wifes AOS in Oct 2004 and interview in April 2005 pending name check would be resolved. As you all know, no luck yet. I have gone thru the steps in exhausting my options and getting close to filling WOM. My wife and I have an infopass appt for tommorow for the final check at sub office. I would appreciate any input on:
The best way to present our case to gather more effective evidence to support my WOM, And possibly even get them to take action in prioritizing her name check.
thanks

 

[parsfalcon]

court date for MTD

Hi;

I filed a lawsuit for my N-400 application on Jan 29, 2007 and the AUSA has files a MTD on March 30, 2007 with a court date set for June 25, 2007. I'm filing an Opposition to MTD next week. I have 2 questions:

1- Was the court date set by the AUSA or the court that I filed my lawsuit?
2- Can I ask the court to pull in the court date and set if for an earlier date? I've been waiting for my citizenship for about 4 years already and don't want to wait any longer.

Your response greatly appreciated.

parsfalcon

07/07/1998: U.S. Permanent Resisdent
05/30/2003: Filed N-400
06/03/2003: Priority Date
08/31/2004: Interviewed
01/29/2007: Filed a lawsuit
03/30/2007: AUSA filed MTD
06/25/2007: Court Date by AUSA

 

[paz1960]

Hi;

I filed a lawsuit for my N-400 application on Jan 29, 2007 and the AUSA has files a MTD on March 30, 2007 with a court date set for June 25, 2007. I'm filing an Opposition to MTD next week. I have 2 questions:

1- Was the court date set by the AUSA or the court that I filed my lawsuit?
2- Can I ask the court to pull in the court date and set if for an earlier date? I've been waiting for my citizenship for about 4 years already and don't want to wait any longer.

Your response greatly appreciated.

parsfalcon

07/07/1998: U.S. Permanent Resisdent
05/30/2003: Filed N-400
06/03/2003: Priority Date
08/31/2004: Interviewed
01/29/2007: Filed a lawsuit
03/30/2007: AUSA filed MTD
06/25/2007: Court Date by AUSA

I think that it is more likely that the court date was set by the Court. AUSA definitely could not set it; maybe could suggest a date, but you would have to receive a copy of the document in which s/he did this.

You always can ask an emergency hearing if you can show a real good cause. I don't believe that what you mentioned above is a good enough cause for the court.

I just read your first post, and realized that you already had the answer to your first question. You wrote that in the material sent to you by AUSA, s/he proposed the hearing date, June 25. Is this court date approved by the Judge and posted on PACER?

You certainly can add to your opposition to Defendants' Motion to Dismiss a cross motion for summary judgement, this probably would speed up the whole process and probably would not be a hearing; the Court would decide the motions based on the documents filed. The judge always can deny the Motion for Summary Judgement and order a hearing.

 

[parsfalcon]

opposition to MTD

Hi;

Thanks for your reply. How do I add "summary judgement" to my opposition? in what segment of the opposition, in the conclusion maybe? any suggestions?

How can I fight this more effectively? Please advise after reading the section below. Thanks.


The AUSA has sent me a 2nd document saying:

(Proposed) Order RE: Motion to Dismiss by Defendants

The body of this dic says:

The motion to dismiss by defendants Micheal Chertoff. secretary Department of Homeland Security et al., came on regularly for hearing before this court on June 25, 2007.

After considering the moving and opposition papers, arguments of counsel and all other matters presented to the court, it's hereby ordered that:

(1) Defendants' motion to dismiss is granted pursuant to Fed. R. Civ. Proc., Ruleeee 12(b) (1) for lack of subject matter jurisdiction.

(2) Alternatively, the court remands the matter to citizenship and immigration services (CIS) for administrative adjudication within --- days of completion of the FBI background cherck.

Dated: ----

Presented by: George S. Cardona
Acting United States Attorney

 

[parsfalcon]

opposition to MTD

should I file a new motion for summary judgment as a seperate motion or I can add it to the opposition to MTD that I'm filing? Thanks.

 

[41906]

Thank you so much for your email, snorlax. Unfortunately, I could not find any case management related forms in my district (New Jersey). Maybe I missed?
I have been given deadline to 4/30/07 to response to MTD and motion hearing on 5/14/07. I wonder if I file a motion to extend the time to answer the MTD to 10 days later, the hearing date will be automatically put off to 5/24/07? Any suggestions?

I also have another concern in my mind, when I started my complaint. If I could not win the WOM case for my I-485, will this ever affect my renewal of EAD and AP application? Does anyone know?

By the way, does any one know more good lawyers in New Jersey area, besides the one was posted before ( the one in NewarK)?
I appreciate your help and any advice is great for me now.

 

[paz1960]

should I file a new motion for summary judgment as a seperate motion or I can add it to the opposition to MTD that I'm filing? Thanks.

Please study carefully the following case: Mohamed v. Frazier, case # 0:06-cv-00377-RHK-JSM, in the District Court of Minnesota, order dated May 16, 2006. This case is exactly what you should follow. Defendants filed a Motion to Dismiss, Plaintiff filed an opposition and cross motion for summary judgement. Here is the last paragraph from the order:

"Therefore, it is ORDERED that Defendant’s Motion to Dismiss (Doc. No. 3) is DENIED, Plaintiff’s Motion for Summary Judgment (Doc. No. 7) is GRANTED, and the hearing scheduled for May 22, 2006, is CANCELLED. It is further ORDERED, based upon requests by both parties, that this case is remanded to United States Citizenship and Immigration Services, pursuant to 8 U.S.C. § 1447(b), with instructions to resolve Plaintiff’s naturalization request within 30 days from the date of this Order."

The documents filed by Plaintiff are well written by a professional immigration lawyer.

 

[parsfalcon]

opposition to MTD

Thanks a lot for the response. I'll study that case and will take neccessary action and will update everyone how it goes. Many thanks.

 

[lazycis]

Thanks a lot for the response. I'll study that case and will take neccessary action and will update everyone how it goes. Many thanks.

Totally agree with Paz. You can file a combined "opposition to motion to dismiss and motion for summary judgment" or file opposition and motion separately. I would combine them, it may be easier, there is no need to argue your point twice. In the conclusion, you just ask court to deny motion to dismiss and ask to grant your motion.
If you do so, check local rules for reqirements for motion for summary judgment. usually you have to state that defendants do not dispute any facts and that you are entitled to judgment as a matter of law. Sometimes you have to attach statement of undisputed facts.

 

[lazycis]

Thank you so much for your email, snorlax. Unfortunately, I could not find any case management related forms in my district (New Jersey). Maybe I missed?
I have been given deadline to 4/30/07 to response to MTD and motion hearing on 5/14/07. I wonder if I file a motion to extend the time to answer the MTD to 10 days later, the hearing date will be automatically put off to 5/24/07? Any suggestions?

I also have another concern in my mind, when I started my complaint. If I could not win the WOM case for my I-485, will this ever affect my renewal of EAD and AP application? Does anyone know?

By the way, does any one know more good lawyers in New Jersey area, besides the one was posted before ( the one in NewarK)?
I appreciate your help and any advice is great for me now.

I do not think hearing date will be moved automatically, but it will be affected by your motion for extension.

EAD and AP will not be affected, especially EAD. Remember, if you filed for EAD and did not get an approval in 90 days, you can go to local USCIS office and get a temporary card. If you do not win your case, you will continue to wait, so my advice would be to get an attorney. You can try http://www.findlaw.com/ to find one near you. Check if attorney handled similar cases already.

 

[snorlax]

Unfortunately, I could not find any case management related forms in my district (New Jersey). Maybe I missed?
I have been given deadline to 4/30/07 to response to MTD and motion hearing on 5/14/07. I wonder if I file a motion to extend the time to answer the MTD to 10 days later, the hearing date will be automatically put off to 5/24/07? Any suggestions?

I also have another concern in my mind, when I started my complaint. If I could not win the WOM case for my I-485, will this ever affect my renewal of EAD and AP application? Does anyone know?

I would call the clerk and ask regarding case management forms or the directions to some website where one can download those. As the last resort you can develop a Word document using forms from CA courts as a template.

Most certainly you can file motion to extend – more often than not it is granted, but I would discuss it with the AUSA first and see if s/he agrees. Unfortunately my case is not AOS – so I can comment no further.

Best of luck to you,
snorlax

 

[hopeforall2]

paz / group friends

I know and thanks to you, the 3 steps AUSA will respond to your lawsuit

1. Extension
2. An Answer ( Response )
3. MTD

In what format does 2 and 3 above comes from the AUSA ?

I am kind of confused, because in the response I received on the first page it says " Response to petition e.t.c " and the last statement is a request to dismiss the lawsuit.

Thanks.

 

[Saarlaender]

Extensions vs. Motion to Remand a Case

Please study carefully the following case: Mohamed v. Frazier, case # 0:06-cv-00377-RHK-JSM, in the District Court of Minnesota, order dated May 16, 2006. This case is exactly what you should follow. Defendants filed a Motion to Dismiss, Plaintiff filed an opposition and cross motion for summary judgement. Here is the last paragraph from the order:

"Therefore, it is ORDERED that Defendant’s Motion to Dismiss (Doc. No. 3) is DENIED, Plaintiff’s Motion for Summary Judgment (Doc. No. 7) is GRANTED, and the hearing scheduled for May 22, 2006, is CANCELLED. It is further ORDERED, based upon requests by both parties, that this case is remanded to United States Citizenship and Immigration Services, pursuant to 8 U.S.C. § 1447(b), with instructions to resolve Plaintiff’s naturalization request within 30 days from the date of this Order."

The documents filed by Plaintiff are well written by a professional immigration lawyer.

Paz and group friends,

In my case (WoM 8 U.S.C. § 1447(b)) the second extension is going to expire at the end of this week. After a follow up, I received an email message a message on 03/30/07 from my AUSA which reads

Dr. W.:

I communicated with Mr. K. on March 28, 2007, and he advised that Headquarters has yet to forward the background check. If there had been issues raised from your name check, Headquarters would be required to resolve them before the background check is sent to the field office for adjudication. Mr. K. has been instructed to contact me as soon as there has been an adjudication on your file.

Cordially,
R.R., AUSA


With this in mind and the deadline approaching is it smarter to discuss
a. another extension or
b. a motion of prejudice to remand the case to the USCIS with instructions to resolve the case with a time frame
with the AUSA. In the past, he has given me those options. It is my understanding that in case (a) the very pro-active AUSA here can continue to exert his influence whereas only case (b) I can recover the costs and a final deadline can be drawn, provided the judge grants the motion.
Is that correct?

Thanks so much

Best

D.

 

[paz1960]

Paz and group friends,

In my case (WoM 8 U.S.C. § 1447(b)) the second extension is going to expire at the end of this week. After a follow up, I received an email message a message on 03/30/07 from my AUSA which reads

Dr. W.:

I communicated with Mr. K. on March 28, 2007, and he advised that Headquarters has yet to forward the background check. If there had been issues raised from your name check, Headquarters would be required to resolve them before the background check is sent to the field office for adjudication. Mr. K. has been instructed to contact me as soon as there has been an adjudication on your file.

Cordially,
R.R., AUSA


With this in mind and the deadline approaching is it smarter to discuss
a. another extension or
b. a motion of prejudice to remand the case to the USCIS with instructions to resolve the case with a time frame
with the AUSA. In the past, he has given me those options. It is my understanding that in case (a) the very pro-active AUSA here can continue to exert his influence whereas only case (b) I can recover the costs and a final deadline can be drawn, provided the judge grants the motion.
Is that correct?

Thanks so much

Best

D.

I would go with a motion to remand the case to USCIS with an instruction to adjudicate your application in 30 days. This will force them to finally make a decision and if the judge grants your motion, you become a prevailing party and you can ask to get reimbursed for your costs by the Defendants.

Because your name check is done (as you mentioned before) there is no major issue, which would stop the judge to grant your motion. S/he will see this delay as a proof of the bureacratic inefficiency of USCIS and most likely more willing to impose them a strict deadline than in cases where the security check is still pending.

 

[lazycis]

paz / group friends

I know and thanks to you, the 3 steps AUSA will respond to your lawsuit

1. Extension
2. An Answer ( Response )
3. MTD

In what format does 2 and 3 above comes from the AUSA ?

I am kind of confused, because in the response I received on the first page it says " Response to petition e.t.c " and the last statement is a request to dismiss the lawsuit.

Thanks.

Looks like you've got the answer. Only complaint, answer and motions are valid forms of submission to the court. MTD usually titled as "Motion to dismiss". One can also file a memorandum to support a motion.
A court's order is required to file a memorandum without a motion. Opposition to motion and reply to opposition are also possible, but they are triggered by motion.

Because you did not get MTD, you do not need to file opposition. If AUSA does not dispute any facts laid out in your complaint, you can now move for judgment on the pleadings/summary judgment.

 

[lazycis]

I was reading this article today
http://www.denverpost.com/search/ci_4813326

And I found out that the goverment started to feel a pressure from our civil actions:

U.S. Attorney for Colorado Troy Eid estimated that for the amount of time his staff has devoted this year to defending the FBI, it could be "putting 50 or more bad guys behind bars."

"This problem appears to be getting worse, not better. ... One obvious solution that could be considered would be to increase the resources available to the FBI" for checks, he said. "These background checks need to be done. How they get them done on time is a public-policy issue that needs to be addressed."

 

[zoro3]

Hi parsfalcon,
In what state did you file your suit?
Good luck!

Hi;

I filed a lawsuit for my N-400 application on Jan 29, 2007 and the AUSA has files a MTD on March 30, 2007 with a court date set for June 25, 2007. I'm filing an Opposition to MTD next week. I have 2 questions:

1- Was the court date set by the AUSA or the court that I filed my lawsuit?
2- Can I ask the court to pull in the court date and set if for an earlier date? I've been waiting for my citizenship for about 4 years already and don't want to wait any longer.

Your response greatly appreciated.

parsfalcon

07/07/1998: U.S. Permanent Resisdent
05/30/2003: Filed N-400
06/03/2003: Priority Date
08/31/2004: Interviewed
01/29/2007: Filed a lawsuit
03/30/2007: AUSA filed MTD
06/25/2007: Court Date by AUSA