FP = Finger Print Date
ID = Interview Date
PD = Priority Date as listed in NOA
NOA = notice of Action
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
FP = Finger Print Date
ID = Interview Date
PD = Priority Date as listed in NOA
NOA = notice of Action
Anyone did WOM in Michigan
My name check is pending since 2003 which seriously delayed my emplyoyment-based I-485 approval. I am preparing for WOM. Anyone did WOM before or is doing in Michigan, please guide me through this process in MI. Thanks.
My name check is pending since 2003 which seriously delayed my emplyoyment-based I-485 approval. I am preparing for WOM. Anyone did WOM before or is doing in Michigan, please guide me through this process in MI. Thanks.
It is nice to observe how our successfull cases are used as precendents: this case heavily uses a case of one of our forum members to deny MTD. Also, follow the judges logic: this AUSa did NOT request to deny for failure to STATE A CLAIM; therefore, the judge did NOT consider factual allegations (he presumed, all facts in the case are correct). He considered only facial allegations because AUSA claimed defendants' action to adjudicate I-485 to be discretionary.
So Does it mean if AUSA's MTD asks to dismiss for "failure to state a claim" the judge will consider factual allegations? But most cases (even though some did MTD for "failure to state a claim") still did not rule on factual allegations after a short review. Why? Is it because our facts are "speaking for themselves"? If anyone remebers a particular case (I'm just lazy to browse through the truckload I have) please comment.
Missingpa, thank you for posting the case.
Very interesting case, indeed. I'll definitely use it in my fight. I am in process of appealing judge's order to grant MTD.
Courts do not like to dismiss lawsuit for failure to state a claim, it's very rare because rule 8 FRCP is very general and failure to state a claim can be easily fixed via amendment.
Hearing MTD and pretrial in the same time...
I file WOM Pro Se in February 2007. 60 days later we got MTD and immideatly file the respond. Couple of days later received the notification of hearing for MTD on June 1, right after it we received the letter notifiing aboot Pretrial conference for June 6. Is anybody had a similar experience. Why we got both? If I loose MTD what will happend with pretrial?
Did anybody went for hearing of MTD? How do I need to prepare?
Did anybody went for Pretrial conference? Also, how do I need to prepare? I don't see much info about it anywhere... Please experts help!!!![/QUOTE]
I file WOM Pro Se in February 2007. 60 days later we got MTD and immideatly file the respond. Couple of days later received the notification of hearing for MTD on June 1, right after it we received the letter notifiing aboot Pretrial conference for June 6. Is anybody had a similar experience. Why we got both? If I loose MTD what will happend with pretrial?
Did anybody went for hearing of MTD? How do I need to prepare?
Did anybody went for Pretrial conference? Also, how do I need to prepare? I don't see much info about it anywhere... Please experts help!!!![/QUOTE]
1447(b) refers to pending N-400 applications which were not adjudicated in 120 days after the examination, 1421(c) refers to 'de nuovo' review by a district court of denied N-400 application. You can't use both of these paragraphs.
I am not in Maryland, but if you don't get a name, you can subscribe to PACER and search for similar cases in your district, represented by lawyers. You will be able to find the contact info of the lawyer on the filed documents.
The US Attorney's Office (an AUSA) would look to your case only after s/he gets assigned a court case. Till you don't file a complaint in the federal district court, you don't exist for them. They are not USCIS or FBI, they will only represent these government agencies in a lawsuit.
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If the court grands defendants' motion to dismiss, you lost, case is over, the pretrial hearing will be taken off from the court calendar. If the motion is denied, AUSA still needs to file an answer to your complaint (remember, the MTD is not a substitute for an Answer). At the pretrial conference probably won't happen too much. The judge will instruct AUSA and you about the next move; it is possible that there will be no trial, and the judge will rule based only on the filed documents, but it is also possible that you will be heading to a full trial, which is usually preceded by the discovery phase.
For the hearing on the Motion to Dismiss you should be able to present briefly your case, what do you want, why do you think that you are entitled for what you asked in your prayer, why do you think that the court has jurisdiction over your case. Essentially you need to be very familiar with the two documents you filed before: your complaint and your opposition to defendants' MTD. Be realy professional, dress professional, talk to the judge and AUSA respectfully, but be confident and decisive. Try to present what you want simply, using short sentences and leave for the backup the 'legalese'. At that chapter you certaily can't beat AUSA, s/he is doing this for living, you are only an amateur. But you are right, s/he is wrong and this should give you the moral superiority. Just don't show this too evidently.
Remember, this is not personal, at least not for them. It is 'just' a case what they need to solve in one way or another, they don't hate you or don't like you. The more you manage to leave outside the court room your emotions and bring in your rationale, the higher are the chances that you will prevail.
If the judge denies the AUSA's motion to dismiss, you almost won your case. Even if the judge will not rule immediately on your favor, thsi will be clearly a signal that s/he is not buying the government twisted arguments and now you will need to convince him/her that the delay in adjudicating your case is unreasonable. But this will come in the next move; for now concentrate to learn really well your complaint and opposition to the MTD. If you are done with that hearing and your case is still alive, we can continue from there, depending on the wording of the order.
hopeforall2
Registered Users (C)
paz ,
what are your thoughts on the subject I mentioned above (msg no. 11296), in reference to the bill discussed in congress to strip courts of their jurisdiction .
Thanks.
what are your thoughts on the subject I mentioned above (msg no. 11296), in reference to the bill discussed in congress to strip courts of their jurisdiction .
Thanks.
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medicinemaan
Registered Users (C)
the new immigration bill
it appears that the bill will take away the right to sue the uscis is that correct
SEC. 122. COMPLETION OF BACKGROUND AND SECURITY CHECKS.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(i) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until an IBIS check on the alien has been initiated at a Treasury Enforcement Communications System (TECS) access level of no less than Level 3, results from the check have been returned, and any derogatory information has been obtained and assessed, and until any other such background and security checks have been completed as the Secretary may require.
`(j) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until any suspected or alleged fraud relating to the granting of any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been fully investigated and found to be unsubstantiated.'.
it appears that the bill will take away the right to sue the uscis is that correct
SEC. 122. COMPLETION OF BACKGROUND AND SECURITY CHECKS.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(i) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until an IBIS check on the alien has been initiated at a Treasury Enforcement Communications System (TECS) access level of no less than Level 3, results from the check have been returned, and any derogatory information has been obtained and assessed, and until any other such background and security checks have been completed as the Secretary may require.
`(j) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, and the courts may not--
`(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until any suspected or alleged fraud relating to the granting of any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been fully investigated and found to be unsubstantiated.'.
Immigration reform: Related discussion
Also see this thread for a discussion on this subject:
http://immigrationportal.com/showthread.php?p=1681370
Alex
Also see this thread for a discussion on this subject:
http://immigrationportal.com/showthread.php?p=1681370
Alex
If you do a careful search, you will find that during the past decade or so there were many proposed immigration reform bills, with all kind of proposed changings. This is one of them; introduced in Congress in the previous term (109th Congress, 2005-2006). "This bill was proposed in a previous session of Congress. Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. This bill never became law." (from the website where this bill is described)
I didn't follow very closely the present negotiations (fortunately, I am already a citizen), but from the news reports and watching just a little the debate on C-SPAN, I got the impression that they are not as close to a compromise version as some of the reports were suggesting. Because of this, I wouldn't spend too much time speculating about what if one of the proposed (among many others) would be adopted. I am rather sceptical that we can influence the outcome in any meaningful way (see the large street demonstrations across the country on May 1st). There are much more important interests at stake; in my opinion we have no way to influence the outcome of these negotiations in the Congress and White House.
But assuming that the above mentioned wording of the proposed bill will be adopted in the new Immigration Act, it will become certainly much more difficult to sue the government, although I still would not exclude the WOM type lawsuits. These are not asking the court to grant any immigration benefits; they merely ask the court to compel USCIS and FBI to act on an unreasonably delayed petition/application. Of course, it will be up to the federal courts to interpret the text of the new law and see if the more general Mandamus and APA still applies or it is effectively excluded in immigration cases. I am not an immigration lawyer or federal court judge. Sorry that I could not be more helpful...
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Justification of Venue.
Thanks. I'm in the process of preparing my documents to file a WoM for the adjudication of my I-485. My dates will be current starting June 1st. In my complaint the defendants are
Secretary of Homeland Security
Director of USCIS
Director of USCIS, NSC
Director FBI.
But none of them operate, per se, in Oregon, Washington County where I live. So how do I justify the Venue where I have to declare that one of the Defendant operates within the jurisdiction of US Court for District of Oregon. Your help is much appreciated.
Thanks. I'm in the process of preparing my documents to file a WoM for the adjudication of my I-485. My dates will be current starting June 1st. In my complaint the defendants are
Secretary of Homeland Security
Director of USCIS
Director of USCIS, NSC
Director FBI.
But none of them operate, per se, in Oregon, Washington County where I live. So how do I justify the Venue where I have to declare that one of the Defendant operates within the jurisdiction of US Court for District of Oregon. Your help is much appreciated.
How to find the WOM cases filed by the specific lawyer in PACER
Hi
I am trying to find the good lawyer by searching PACER about the WOM cases. Can someone helps me following questions out.
1) Can I search the PACER wom cases by the lawyer's name?
2) How can I do this kind of search? Should I do it in the District/ United States Party/Case Index ?
Or some other way to search the WOM cases filed by the specific lawyer?
Thank you very much!
Hi
I am trying to find the good lawyer by searching PACER about the WOM cases. Can someone helps me following questions out.
1) Can I search the PACER wom cases by the lawyer's name?
2) How can I do this kind of search? Should I do it in the District/ United States Party/Case Index ?
Or some other way to search the WOM cases filed by the specific lawyer?
Thank you very much!
My case was a stalled N-400 application, where 8 U.S.C. 1447(b) clearly states that applicant can file a complaint in the district where s/he resides.
I am not very familiar with the I-485 cases, but I remember that I saw couple of MTD where AUSA challenged the proper venue, stating that an alien can't claim residence in the US, so the case should be filed in a district where at least one of the defendants operate. However, as far as I know, in most districts I-485 petitioners file their complaint in the district where they live. Maybe somebody who went through this already can enlighten you better than me.
Good Article: USCIS Backlog and Fees
A good article from Washington Post. USCIS Ombudsman is quoted in this article - sounds he understands the issues we are facing but has little influence over USCIS.
http://www.msnbc.msn.com/id/18899687/
A good article from Washington Post. USCIS Ombudsman is quoted in this article - sounds he understands the issues we are facing but has little influence over USCIS.
http://www.msnbc.msn.com/id/18899687/
Desertbird
Registered Users (C)
Good lawyer
I would like to file a WOM for my I-485. I have been waiting for the name check clearance for 3.5 years. Would you recommend a good lawyer in Iowa/Des Moines area? Thank you very much!
I would like to file a WOM for my I-485. I have been waiting for the name check clearance for 3.5 years. Would you recommend a good lawyer in Iowa/Des Moines area? Thank you very much!
Thanks paz1960. I just read through the wikipedia pages and the cases linked there. Looks like almost all the cases with a question on jurisdiction have been countered upon by tackling the question of when a Mandamus can be filed. The 3 requirements are
A mandamus plaintiff must demonstrate that: 1) the plaintiff’s claim is clear and certain; 2) the defendant has a clear duty to perform the act in question; and 3) no other remedy is available.
The way it has been argued is that
1. Plaintiffs are asking for adjudication within reasonable time frame
2. INA says that the Director SHALL let the applicant know if the application is denied and the reason for denial. Therefore the defendant has a duty to perform. The decision to deny or grant the application is discretionary but not the duty to take that decision.
3. Ofcourse for all of us there is no remedy at all....
Paz and Hopeforall2,
That's a great relief this bill never passed as it had another scary piece:
SEC. 609. NATURALIZATION REFORM.
(e) District Court Jurisdiction- Section 336(b) of such Act (8 U.S.C. 1447(b)) is amended to read as follows:
`(b) If there is a failure to render a final administrative decision under section 335 before the end of the 180-day period after the date on which the Secretary of Homeland Security completes all examinations and interviews conducted under such section, as such terms are defined by the Secretary pursuant to regulations, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. Such court shall only have jurisdiction to review the basis for delay and remand the matter to the Secretary for the Secretary's determination on the application.'.
(g) Effective Date- The amendments made by this section shall take effect on the date of the enactment of this Act, shall apply to any act that occurred before, on, or after such date, and shall apply to any application for naturalization or any other case or matter under the immigration laws pending on, or filed on or after, such date.
The red-colored part refers to exam-ns as defined by Secretaty pursuant to regulations. WHAT ARE THE REGULATIONS? Also, the part "to consider application de novo" is changed.
However, as Paz very well presented above, this bill was introduced in 2006 and has not passed.
Paz, is this the bill you were referring to? It does indeed take forever to pass anything (thanks God for bureaucracy in this instance!) so hopefully for those who already filed or just about to file our cases will be resolved before (and if) a new currently proposed bill passes.
My question is, has anyone seen a reference to these same sections in the currently proposed bill? I am pretty sure there must be some provisions about stripping the rights of legal immigrants (although I am hopeful they won't pass again), at the same time putting a time restriction on FBI to complete background checks. We saw restriction parts in the new bill, what about not allowing to sue gov-t until FBI returns results to CIS and other restrictions?
Of course, the sad part is that Paz is (again) right: even if anything like this passes there's not a darn thing we can do... So let's hope our cases are resolved before!