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

Thank's for your response guys, I guess I got an incompetent infopass officer. I hate going to that place. I've been there more than 5 times and I've only met one person who has been helpful and treat me with respect. The others are just plain lazy or rude. One of the security guys even think himself like a hotshot.
Btw, I wondered since this is my application to change status from asylum to GC and mine got stuck on name check, will I expect to get this problem again when I'm eligible to apply for citizenship. If it is, it will sucks big time.
 
I might go for the appeal.

gmlvsk said:
Your case was decided by MAGISTRATE JUDGE, right?
I think you can request that regular judge review that decision
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My case was dismissed by the District judge. I don't have much faith in motion to reconsider.

Can anyone describe the appeal process? Does the appeal process have motions/trials etc? Any rough time lines that you have seen/known before?
Also what is the likelyhood of winning an appeal? What happens if the appeal doesn't work?
Is it possible for the appeals court to say it lacks jurisdiction?

Thanks.
 
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ipoh said:
My case was dismissed by the District judge. I don't have much faith in motion to reconsider.

Can anyone describe the appeal process? Does the appeal process have motions/trials etc? Any rough time lines that you have seen/known before?
Also what is the likelyhood of winning an appeal? What happens if the appeal doesn't work?
Is it possible for the appeals court to say it lacks jurisdiction?

Thanks.
Click to expand...

To the best of my knowledge, none of these type of lawsuits (i.e., N-400 or AOS stuck because the name check) went to the Circuit Court level, at least none of the recent (last 2 years) cases. Because of this, I don't believe that we, collectively as the forum members, have much knowledge about the appeal process. But according to an ancient chinese saying: even a five thousand mile journey begins with the first step. You should not be deterred that you will be the first case going to the circuit court.

In theory, there is one more level where you can appeal, if you are not satisfied with the Circuit Court ruling, this is the US Supreme Court.
 
paz1960 said:
To the best of my knowledge, none of these type of lawsuits (i.e., N-400 or AOS stuck because the name check) went to the Circuit Court level, at least none of the recent (last 2 years) cases. Because of this, I don't believe that we, collectively as the forum members, have much knowledge about the appeal process. But according to an ancient chinese saying: even a five thousand mile journey begins with the first step. You should not be deterred that you will be the first case going to the circuit court.

In theory, there is one more level where you can appeal, if you are not satisfied with the Circuit Court ruling, this is the US Supreme Court.
Click to expand...

Thanks Paz,
I will see this till the end, will update the forum.
 
ipoh said:
My case was dismissed by the District judge. I don't have much faith in motion to reconsider.

Can anyone describe the appeal process? Does the appeal process have motions/trials etc? Any rough time lines that you have seen/known before?
Also what is the likelyhood of winning an appeal? What happens if the appeal doesn't work?
Is it possible for the appeals court to say it lacks jurisdiction?

Thanks.
Click to expand...

Appeal court cannot reject your appeal for lack of jurisdiction because you appeal an order from district court (so called final judgement). Appeal courts were created for that purpose (among others).
If appeal court will find that your case was dismissed incorrectly, more likely it will send your case back to district court, it will be a huge victory for all WoMs in your circuit. If you lose, it will be a huge setback. You can then appeal to SC, but SC does not have to consider your case.

Paz is right that there are no precedents yet regarding our situation. However, there are plenty of cases in Supreme Court and Courts of Appeals were they deal with similar situations. For example, Succar v Chertoff (1st circuit) were the court found that AG has discretion regarding final decision on AOS application, but AG does not have a discretion to determine who is eligible for AOS. I did not find any single ruling against our point of view (does not mean it does not exist).

Appeal process is different from civil case in district court. You will submit your brief, government will respond, then court will make a decision. Sometimes court schedule oral arguments, but not always. Definitely, brief is the most important part of your appeal. There is no trial.
 
lazycis said:
To file notice of appeal is $450+5=455. I have no idea about legal fees. Copies/mail are extra, but that's minor. What was the reason for dismissal?
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lack of jurisdiction. It is in NJ court, since we had recently a senior judge dismissed the WOM case (in April), my judge followed lead. I485 WOM case.
 
Mingjing said:
Birdie,

What do you mean it is still an uphill battle for you? Judge's acknowledgement about split opinion on jurisdiction was only relevant before the MTD in your case was denied. Once that MTD was denied, court already assumes jurisdiction. Can you elaborate?
Click to expand...
Mine is I-485, I filed pro se. I did not see judge's order to deny defendants' MTD, as it was decided at the hearing, not on paper. I will let you know if there is a judge order so you can list it as a favorable WOM for I-485, I will also let you guys know if I win :) for now, I'd like to remain anonomous :)

Court assumes jurisdiction does not mean that I can prove the delay is unreasonable. The reason I said it is a up hill battle is because it took the judge some time to deny the MTD, although I felt that I was a clear winner based on the case law.

The burden now is on me to show the delay is unreasonable....
 
xil96 said:
lack of jurisdiction. It is in NJ court, since we had recently a senior judge dismissed the WOM case (in April), my judge followed lead. I485 WOM case.
Click to expand...

xil96,
If your attorney is willing to pick up the tab for legal fees, I'd go for appeal. Worst case scenario - you lose ~$500 and continue waiting. I am not sure how long you've been waiting, but for me every extra day is hard to bear if I do nothing. One successfull appeal will be huge for the whole situation with name checks. Definitely worth spending $500.
I wish you to get your GC this month.
 
Recieved Motion for Time Extension

Hi all,
For my I485 case, the defendants response was due today but I just received motion for extension of time (instead of motion to dismiss). I have included the text here. How do you guys interpret the response? Is it a standard response to buy time or does it mean USCIS is really taking some action?
Also, I notice that the judge granted defendants' motion for extension of time before I get a chance to oppose it. Is it normal?

Here is the text of my motion for extension of time:
****************
Defendants, by their undersigned counsel, submits this motion to extend the time by which their initial response to Plaintiffs’ Complaint shall be due. In support whereof, Defendants state:
1. This is an immigration case in which Plaintiffs seeks a writ of mandamus requiring United States Citizenship and Immigration Services (“USCIS”) to adjudicate Plaintiff’s application for an adjustment of status which has been pending since November 20, 2004. See
generally Docket No. 1.
2. The United States Attorney’s Office was served on or about March 8, 2007,
rendering Defendants’ initial response due on or about May 7, 2007.
3. Undersigned counsel has been advised by USCIS and FBI that the process of reviewing Plaintiff’s application (including the performance of required background checks) is continuing, but has yet to be completed. Indeed, counsel was advised that updated fingerprinting has been requested within the past 30 days and that a response had been received regarding an
inquiry to a Department of Homeland Security-managed information system on April 19, 2007.
4. Defendants and their counsel require additional time to prepare their initial
response. Defendants expect to be able to file their initial response by July 6, 2007. Defendants will continue to process the application during the pendency of this action, and, since an adjudication will render this mandamus action moot, Defendants believe that it is also in the
interests of judicial economy and efficiency to defer filing the motion for this brief period of time.
WHEREFORE, Defendants respectfully request that they be given until July 6, 2007 to respond to the Complaint in this action. A proposed Order is being filed herewith.
 
GC-Pending said:
Hi all,
For my I485 case, the defendants response was due today but I just received motion for extension of time (instead of motion to dismiss). I have included the text here. How do you guys interpret the response? Is it a standard response to buy time or does it mean USCIS is really taking some action?
Also, I notice that the judge granted defendants' motion for extension of time before I get a chance to oppose it. Is it normal?

Here is the text of my motion for extension of time:
****************
Defendants, by their undersigned counsel, submits this motion to extend the time by which their initial response to Plaintiffs’ Complaint shall be due. In support whereof, Defendants state:
1. This is an immigration case in which Plaintiffs seeks a writ of mandamus requiring United States Citizenship and Immigration Services (“USCIS”) to adjudicate Plaintiff’s application for an adjustment of status which has been pending since November 20, 2004. See
generally Docket No. 1.
2. The United States Attorney’s Office was served on or about March 8, 2007,
rendering Defendants’ initial response due on or about May 7, 2007.
3. Undersigned counsel has been advised by USCIS and FBI that the process of reviewing Plaintiff’s application (including the performance of required background checks) is continuing, but has yet to be completed. Indeed, counsel was advised that updated fingerprinting has been requested within the past 30 days and that a response had been received regarding an
inquiry to a Department of Homeland Security-managed information system on April 19, 2007.
4. Defendants and their counsel require additional time to prepare their initial
response. Defendants expect to be able to file their initial response by July 6, 2007. Defendants will continue to process the application during the pendency of this action, and, since an adjudication will render this mandamus action moot, Defendants believe that it is also in the
interests of judicial economy and efficiency to defer filing the motion for this brief period of time.
WHEREFORE, Defendants respectfully request that they be given until July 6, 2007 to respond to the Complaint in this action. A proposed Order is being filed herewith.
Click to expand...

It is normal for judge to grant the extension. What u can do now is that u can check all the similar cases that have been assinged to your AUSA and check what is he/she actually doing in most of those cases after or before the extension. 1) Answer or 2) MTD. In this way, u will be ready ahead of his response of your cimplaint. Good luck!
 
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lazycis said:
Appeal court cannot reject your appeal for lack of jurisdiction because you appeal an order from district court (so called final judgement). Appeal courts were created for that purpose (among others).
If appeal court will find that your case was dismissed incorrectly, more likely it will send your case back to district court, it will be a huge victory for all WoMs in your circuit. If you lose, it will be a huge setback. You can then appeal to SC, but SC does not have to consider your case.

Paz is right that there are no precedents yet regarding our situation. However, there are plenty of cases in Supreme Court and Courts of Appeals were they deal with similar situations. For example, Succar v Chertoff (1st circuit) were the court found that AG has discretion regarding final decision on AOS application, but AG does not have a discretion to determine who is eligible for AOS. I did not find any single ruling against our point of view (does not mean it does not exist).

Appeal process is different from civil case in district court. You will submit your brief, government will respond, then court will make a decision. Sometimes court schedule oral arguments, but not always. Definitely, brief is the most important part of your appeal. There is no trial.
Click to expand...

ipoh said:
My case was dismissed by the District judge. I don't have much faith in motion to reconsider.

Can anyone describe the appeal process? Does the appeal process have motions/trials etc? Any rough time lines that you have seen/known before?
Also what is the likelyhood of winning an appeal? What happens if the appeal doesn't work?
Is it possible for the appeals court to say it lacks jurisdiction?

Thanks.
Click to expand...

Even though there aren't recent AOS WOM cases going to the appellate courts that can serve as samples/templates to follow, you can still look at some similar immigration cases and see how the plaintiffs structured their argument in their briefs. Here's a case from the 9th Circurt Court that you can study and see if there's anything you can use. You'll then need to log into PACER to get the specific files, of course.
 
I-485 pending lawsuit

Hello friends, I have just filed WOM Pro Se with the Northern Georgia District court. Anybody dealt with this court? A friend of mine has got email from his lawer where he says that he will not file WOM for my friend because USCIS is not considering WOM as a reason to expedite FBI namechecks anymore. Anybody can tell me what does it mean?
Thanks, Oskar

--------------------
I-140;I-485 07/16/2003
FBI namecheck pending since 10/02/2003
WOM filed 05/07/2007
 
Please help organize cases

Guys,

We need to organize cases that have been posted in this forum (for our own benefit and to help newcomers). I found this wikibook on FBI Name Check at http://en.wikibooks.org/wiki/FBI_name_check
I added section "3.2.4 Successful Court Orders" under "Adjustment of Status" and added links and information on 9 successful AOS court orders I found in this forum. Anyone can create account and edit the wiki book. Please contribute to this wiki book and add more links to favorable cases. Here is the list of favorable cases I could fine in this forum which I put in the wikibook:
* Alsharqawi vs. Gonzales (see court order. Also available on Wikibooks [1])
* He vs. Chertoff (see court order)
* Wang v Chertoff (see court order)
* Duan vs. Zamberry (see court order)
* Haidari v. Frazier (see court order), Civil No. 06-3215 (DWF/AJB), 2006 U.S. Dist. LEXIS 89177 (D. Minn. December 2006)
* Elkhatib v. Bulter (see court order), Case No: 04-22407, (S. D. Fla. June 2005)
* Aboushaban v. Mueller (see court order), No. 06-1280, 2006 U.S. Dist. LEXIS 81076 or in WestLaw: 2006 WL 3041086, (N.D. Cal. 2006)
* Singh v. Still (see court order), No. 06-2458, 2007 U.S. Dist. LEXIS 16334 (N.D. Cal. 2007)
* Razaq v. Poulos (see court order), Case No. 06-2461-WDB, (N.D. Cal 2006)


Mingjing said:
Folks,

Attached is the updated list for favorable/useful I485 WOM cases against MTD. I have added a few cases after last update (up to case #22).

We need to find more favorable and useful I485 WOM cases. If you have found any, esp. the most recent ones (this year), please post here ASAP and I will research and add them to the list.

Note that not all cases have judge order yet. Some only have plaintiffs' opposition to MTD.
Click to expand...
 
Hello everyone;

I went to court today to see if I can file a request for hearing since the AUSA set the court hearing date to June 25th in his MTD, and the court clerk told me that I have to wait till then although I've responded to the MTD.

Does any one know if this is the normal proceedure? Has antone successfully changed the hearing to an earlier date?

parsfalcon
 
excellent idea and great work!

GC-Pending said:
Guys,

We need to organize cases that have been posted in this forum (for our own benefit and to help newcomers). I found this wikibook on FBI Name Check at http://en.wikibooks.org/wiki/FBI_name_check
I added section "3.2.4 Successful Court Orders" under "Adjustment of Status" and added links and information on 9 successful AOS court orders I found in this forum. Anyone can create account and edit the wiki book. Please contribute to this wiki book and add more links to favorable cases. Here is the list of favorable cases I could fine in this forum which I put in the wikibook:
* Alsharqawi vs. Gonzales (see court order. Also available on Wikibooks [1])
* He vs. Chertoff (see court order)
* Wang v Chertoff (see court order)
* Duan vs. Zamberry (see court order)
* Haidari v. Frazier (see court order), Civil No. 06-3215 (DWF/AJB), 2006 U.S. Dist. LEXIS 89177 (D. Minn. December 2006)
* Elkhatib v. Bulter (see court order), Case No: 04-22407, (S. D. Fla. June 2005)
* Aboushaban v. Mueller (see court order), No. 06-1280, 2006 U.S. Dist. LEXIS 81076 or in WestLaw: 2006 WL 3041086, (N.D. Cal. 2006)
* Singh v. Still (see court order), No. 06-2458, 2007 U.S. Dist. LEXIS 16334 (N.D. Cal. 2007)
* Razaq v. Poulos (see court order), Case No. 06-2461-WDB, (N.D. Cal 2006)
Click to expand...
 
GC-Pending, In my original list, there are more than 20 I485 WOM cases. Why you listed only these 9? Are you only listing the ones with judge orders and removed others? I thought there should be more than 9 cases from my list where judge issued favorable orders.

GC-Pending said:
Guys,

We need to organize cases that have been posted in this forum (for our own benefit and to help newcomers). I found this wikibook on FBI Name Check at http://en.wikibooks.org/wiki/FBI_name_check
I added section "3.2.4 Successful Court Orders" under "Adjustment of Status" and added links and information on 9 successful AOS court orders I found in this forum. Anyone can create account and edit the wiki book. Please contribute to this wiki book and add more links to favorable cases. Here is the list of favorable cases I could fine in this forum which I put in the wikibook:
* Alsharqawi vs. Gonzales (see court order. Also available on Wikibooks [1])
* He vs. Chertoff (see court order)
* Wang v Chertoff (see court order)
* Duan vs. Zamberry (see court order)
* Haidari v. Frazier (see court order), Civil No. 06-3215 (DWF/AJB), 2006 U.S. Dist. LEXIS 89177 (D. Minn. December 2006)
* Elkhatib v. Bulter (see court order), Case No: 04-22407, (S. D. Fla. June 2005)
* Aboushaban v. Mueller (see court order), No. 06-1280, 2006 U.S. Dist. LEXIS 81076 or in WestLaw: 2006 WL 3041086, (N.D. Cal. 2006)
* Singh v. Still (see court order), No. 06-2458, 2007 U.S. Dist. LEXIS 16334 (N.D. Cal. 2007)
* Razaq v. Poulos (see court order), Case No. 06-2461-WDB, (N.D. Cal 2006)
Click to expand...
 
We need everyone's help to organize cases

Mingjing said:
GC-Pending, In my original list, there are more than 20 I485 WOM cases. Why you listed only these 9? Are you only listing the ones with judge orders and removed others? I thought there should be more than 9 cases from my list where judge issued favorable orders.
Click to expand...

Hi Mingjing,

You did a great job in documenting those cases in the word file you shared with us. I meant to plant the seed so that all of us use the wikibook tool to organize these cases instead of sending the word file around. It is more centralized and easier to share (you don't need to keep updating the file and sending out to everyone). It is also easier for newcomers who otherwise would have to search the whole forum to find the material.

Those 9 cases that I put the links in the wikibook are the ones I was able to find in this forum. If other cases have been posted that I didn't include, you can either edit the wikibook to include them or send me the link so that I update the wikibook. I haven't been able to figure out how a file can be directly loaded to the wikibook. So, what I did was to find the files that have been posted in the forum and put the links in the wikibook. It seems to work. Also, I put the link in my signature to spread the words. It will be a great tool if everyone helps to update and complete it.
 
Yes, I like the idea to use the wikibook as an vehicle. And let's continue to do that.

I asked the question in my previous post only because I am curious why you chose the 9 cases instead of using all of the 22+ cases in my list. Not all 22+ cases have judge orders - some (only a few) only have good opposition to MTD, and others have orders denying MTD but no order about adjudication within a specified timeline. The remaining cases have adjudication with specified timeline. Sounds like you only picked the cases where you can find judge orders?

GC-Pending said:
Hi Mingjing,

You did a great job in documenting those cases in the word file you shared with us. I meant to plant the seed so that all of us use the wikibook tool to organize these cases instead of sending the word file around. It is more centralized and easier to share (you don't need to keep updating the file and sending out to everyone). It is also easier for newcomers who otherwise would have to search the whole forum to find the material.

Those 9 cases that I put the links in the wikibook are the ones I was able to find in this forum. If other cases have been posted that I didn't include, you can either edit the wikibook to include them or send me the link so that I update the wikibook. I haven't been able to figure out how a file can be directly loaded to the wikibook. So, what I did was to find the files that have been posted in the forum and put the links in the wikibook. It seems to work. Also, I put the link in my signature to spread the words. It will be a great tool if everyone helps to update and complete it.
Click to expand...
 
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