Is there an example of Motion for Status?
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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Is there an example of Motion for Status?
Toolong2,
per Rule 4(i) of FRCP (also see p. 46-47, CA pro se handbook you must serve Attorney General if you serve Federal Government.
Here's the list of defendants/addresses which I used (except for Still, who is better to use in Bay area than the San Jose head Siciliano I served) and aassume to be correct (I received green reseipt cards and already filed service with court):
Alberto R. Gonzales, Attorney General,
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530-0001
Michael Chertoff, Secretary,
Office of the General Counsel,
US Department of Homeland Security
20 Massachusetts Ave. NW, Suite 4025,
Washington, DC 20528
Emilio T. Gonzalez, Director of USCIS
Office of the General Counsel
US Department of Homeland Security
20 Massachusetts Ave. NW, Suite 4025,
Washington, DC 20528
Robert S. Mueller, III, Director,
Federal Bureau of Investigations
Office of the General Counsel, FBI
935 Pensylvania Ave., NW
Washington, DC 20535-0001
David Still, USCIS Director
San Francisco office of USCIS
630 Sansome St.
San Francisco, CA 94111
to Aryin q-n on how to quote
Aryin, to answer you q-n on How to use Citations, in addition to Lazycis post earlier, read CA Pro SE Handbook, p. 68. Also, not sure if it's the same link Lazycis mentioned or not, here's what I have:
http://www.rbs0.com/lawcite.htm#anchor222222
Aryin, to answer you q-n on How to use Citations, in addition to Lazycis post earlier, read CA Pro SE Handbook, p. 68. Also, not sure if it's the same link Lazycis mentioned or not, here's what I have:
http://www.rbs0.com/lawcite.htm#anchor222222
I have had somewhat similar experience.
I would tell the AUSA that since the matter is the litigation subject you would like to schedule a discovery, in the course of which they will have to produce full disclosure of all the documents relevant to your case for the court’s evaluation. Usually they hate the discovery and try to avoid it by whatever means possible. Mentioning the discovery usually makes them more cooperative. Please see message #11379 on page 759.
Best of luck,
snorlax
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Shviili, lazycis and snorlax, Thank you for your help!
Thank you for your help and I will report my progress.
Thank you for your help and I will report my progress.
always.wired
Registered Users (C)
Update on Amendemnt 1150 of Immigration Bill
There is an assertion by the President that the Immigration Bill will be brought in again soon. Also, the Amendment 1150 that aimed at streamlining Background Checks has been rejected. This means, if the Bill goes into effect, it will be in it's original form where there is no recourse for Courts to expedite Background Checks anymore?
Can somebody please comment on this? This seems concerning.
There is an assertion by the President that the Immigration Bill will be brought in again soon. Also, the Amendment 1150 that aimed at streamlining Background Checks has been rejected. This means, if the Bill goes into effect, it will be in it's original form where there is no recourse for Courts to expedite Background Checks anymore?
Can somebody please comment on this? This seems concerning.
Thanks everyone for sharing your thoughts with me. Especially thanks to Missingpa for sharing his OPP with me. Finally, I decided to hire a lawyer. He will charge me a flat fee $4500 to the end. If we win the case, he will charge me another $2500. If we lose, no more charges. Also, if we get the legal fee back from the government, he will refund the whole charges.
My assumption is that if the judge rules favor of me, I will get the green card, is that right? I will go sign the contract in about an hour.
My assumption is that if the judge rules favor of me, I will get the green card, is that right? I will go sign the contract in about an hour.
status report
I've seen in some cases that defendants presented status reports for the judge... Is there any way to ask them to give a status report, or only judge can request that?
I'm just curious as to what's going on with the case. AUSA asked for extension, but I'm not sure the case is moving at all. I keep asking him if he at least asked to expedite the name check, but he woudn't tell.
I've seen in some cases that defendants presented status reports for the judge... Is there any way to ask them to give a status report, or only judge can request that?
I'm just curious as to what's going on with the case. AUSA asked for extension, but I'm not sure the case is moving at all. I keep asking him if he at least asked to expedite the name check, but he woudn't tell.
I just went in to sign the contract. The lawyer said he will use the legal fee as bargin to AUSA to settle the case before the the ruling.
And also, he mentioned that if I apply for the citizenship after 5 years, I might get stuck in the name check again. Is this true?
And also, he mentioned that if I apply for the citizenship after 5 years, I might get stuck in the name check again. Is this true?
always.wired
Registered Users (C)
Is it too early to file WOM?
Me and my wife filed for N-400 in Dec 2006. Wife got interviewed and adjudicated in April 2007. My application is pending because of FBI name Ceck delay. While it has been only a 7 months since I applied, it appears that Name Checks either get completed in the first 3 months, or will never get completed unless some form of expedited processing is done.
Do you guys think it is time to file a WOM yet, or wait some more time?
What is the consequence of filing a WOM and gettting denied? Can I file a WOM again in a few months?
My apprehension is, it is getting more and more difficult getting USCIS to expedite Name Checks because of WOM's. Waiting might reduce my chances of success. I request the experienced people on this forum to give me some advice?
Me and my wife filed for N-400 in Dec 2006. Wife got interviewed and adjudicated in April 2007. My application is pending because of FBI name Ceck delay. While it has been only a 7 months since I applied, it appears that Name Checks either get completed in the first 3 months, or will never get completed unless some form of expedited processing is done.
Do you guys think it is time to file a WOM yet, or wait some more time?
What is the consequence of filing a WOM and gettting denied? Can I file a WOM again in a few months?
My apprehension is, it is getting more and more difficult getting USCIS to expedite Name Checks because of WOM's. Waiting might reduce my chances of success. I request the experienced people on this forum to give me some advice?
1. In order to have a winning WOM case, you need to demonstrate (among other things) that you case was unreasonably long delayed. I don't think that your application qualifies yet for that. Usually immigration related cases were ruled that unreasonable is when the case was delyed more than 2 years, although there is no specific, explicit rule in most of the cases (1447(b) is more an exception, which states that USCIS has to adjudicate your application in less than 120 days after the examination or you can ask a federal court to review your case and determine the matter or remand the matter with specific instructions to the Service)
2. If you lose, theoretically the government can ask the court to order you to reimburse their costs (however, I don't recall that I saw one singe case where this happened).
3. You can file a new lawsuit in the same matter only if your case was dismissed without prejudice.
4. It is hard to tell if filing a lawsuit later will be harder or not. If the immigration reform bill will become law, it may be impossible. If FBI clears more name checks than the number of new lawsuits filed, it will become easier. I don't believe that anybody form us can predict the future. But considering your application date, I would not file yet.
Atlanta_Brother
Registered Users (C)
Good advice
Yes, listen to paz1960. I agree with paz1960 all the way. It is too soon to think about filing a law suit. I applied for my citizenship in April of 2006 and still waiting for the rescheduled interview date. I was first called in jan of this year but since the file from the TSC did not transfer to my local office they sent me hom asking me to wait few weeks. It's been almost 5 months. I like to give it till end of July. This way it will be 6 months since I was initially called for the interview. I even went to the local immigration office today (by InfoPass) to get the status on my case and was told to wait another couple of months. In my case they tell me that my FP and NC are cleared. There is this last USCIS check which they need to complete and that's what is delaying my interview.
I understand your wife's process went pretty fast compared to yours and I know it gets frustrating but be little patient & give it another few more months. Anytime you call that 800 customer service number make sure your call gets transferred to a proper immigration officer who can specifically look into your case. People who initially answer that 800 number usually don't have any idea what they are talking about.
All the best
Yes, listen to paz1960. I agree with paz1960 all the way. It is too soon to think about filing a law suit. I applied for my citizenship in April of 2006 and still waiting for the rescheduled interview date. I was first called in jan of this year but since the file from the TSC did not transfer to my local office they sent me hom asking me to wait few weeks. It's been almost 5 months. I like to give it till end of July. This way it will be 6 months since I was initially called for the interview. I even went to the local immigration office today (by InfoPass) to get the status on my case and was told to wait another couple of months. In my case they tell me that my FP and NC are cleared. There is this last USCIS check which they need to complete and that's what is delaying my interview.
I understand your wife's process went pretty fast compared to yours and I know it gets frustrating but be little patient & give it another few more months. Anytime you call that 800 customer service number make sure your call gets transferred to a proper immigration officer who can specifically look into your case. People who initially answer that 800 number usually don't have any idea what they are talking about.
All the best
On p. 110, CA Pro Se Handbook lists how you can request documents from the opposing parties. It is a part of Discovery process, (see p. 97 i.d.) and both parties must participate in discovery. According to the seniors on this forum (read Paz's comment a few days back), most of AUSAs hate discovery because they're forced to go after FBI to retract docs which FBI either put in a "long-wait box" or simply misplaced so they try to fight it citing "sensitive" nature. But if you're stuck in the name check, like many members are, "Request for Document Production" seems to be the most reasonable thing to do in your case. As I read, quite a few judges follow the same logic and either hold close hearings or consider "sealed" docs. But to any sensible person (of course, we may only hope our judges are indeed sensible
), requesting docs which would explain to the court why your petition was delayed for XX months is the first thing they need in order to rule in your case. Although CA Pro Se Book doesn't talk of "Status Report" per se, but it's implied in the text linked above. I also remember seeing it requested by judges in members' cases and (again) depending on the reasonableness of your judge, s/he may request docs to update your case status as a part of the discovery process. Also, read FRCP 26 and civil local rules for sources of it.
Great case to counter 8 U.S.C. §1252(a)(2)(B)(ii) in the 9th Cir.
Thank you, shvili, for your encouraging comments! I hope it is a decent OPP that will stand well in court. I started from a very good foundation that lazycis provided and it has also required numerous hours of conscious writing. Although it is still undergoing overhauls before the submission, I will be happy to share the final version once I am done with it.
Your suggestions are very constructive and I have been trying to address them in the past few days. I have modified the "cut in line" paragraph substantially. If you could PM me your e-mail address, I would like to send it to you for further comments.
I would like to finally share with all of us a case that I found during my research, which I think will give those of us in the 9th Cir. a powerful counter punch to AUSA's jurisdiction stripping argument. The case is:
and I am attaching the court's decision. Importantly, this case interpreted 8 U.S.C. §1252(a)(2)(B)(ii) as requring the discretion to be specified in order for it to apply. The processing of discretion is not specified in 8 U.S.C. §1255(a) but many AUSAs argue it is a connotation. Thus I think this case will serve us well in our OPPs.
Thank you, shvili, for your encouraging comments! I hope it is a decent OPP that will stand well in court. I started from a very good foundation that lazycis provided and it has also required numerous hours of conscious writing. Although it is still undergoing overhauls before the submission, I will be happy to share the final version once I am done with it.
Your suggestions are very constructive and I have been trying to address them in the past few days. I have modified the "cut in line" paragraph substantially. If you could PM me your e-mail address, I would like to send it to you for further comments.
I would like to finally share with all of us a case that I found during my research, which I think will give those of us in the 9th Cir. a powerful counter punch to AUSA's jurisdiction stripping argument. The case is:
Spencer Enterprises, Inc. v. U.S.A., 345 F.3d 683, 691 (9th Cir. 2003)
and I am attaching the court's decision. Importantly, this case interpreted 8 U.S.C. §1252(a)(2)(B)(ii) as requring the discretion to be specified in order for it to apply. The processing of discretion is not specified in 8 U.S.C. §1255(a) but many AUSAs argue it is a connotation. Thus I think this case will serve us well in our OPPs.
Missingpa,
for "just another rookie" you did an outstanding job on your MTD Opposition. Who needs a lawyer when we have people like you!!!
Seriously, I think you did an excellent job on your Opposition. Furthermore, I would suggest (of course if you do not object to it) that other people with a similar case should use it as a very good sample. It is very well written, very conscise and easy to follow. Although my husband's case is different (1447+WOM), I really advise other members with AOS cases to follow your opposition.
I also recognize a great input of Lazycis and his wonderful help for this dociment must be tremendous. I suggest (with few minor changes) even to post your Opposition somewhere in the beginning of this thread together with other Publicus advises so that other people can easily access it (again, only if you do not object to it).
I have a few comments (if I'm not too late to post them) on it.
On page 3, you only listed one precedent which says that statues for visa applicants also apply to AOS applicants. Since my husband's case is not in this category, I did not specifically follow the logic of #1154 and all the applicable argument that Lazycis earlier posted, but I think I remember at least two other cases where judges compared visa statues with AOS and given the fact you spend considerable amt. of space to argue this point, perhaps you might add another example. (Again, I am sorry I can't point you the the exact doc-t, -I'd have to search too many so if you can't find it just disregard it).
On p. 7 when you quote part 245 of CFR you also quote subparagraph ii. I would just limit my quote to the i) part. The ii) shows the obligatory language but it is not relevant to your argument. (but again it's pretty small and you might just keep it).
On p.8 you have a flaw in argument which I think you should correct: after you say that the remaining 10% of unresolved hits are delayed by FBI you jump to the conclusion that these 10% should be resolved prior to the processing name checks submitted a year later. FBI only said it delayed 10% but it did not say anywhere (or at least it's not in your text), how long the delay is or that it is less than a year. So your next sentence that VSC sent to FBI requests submitted a year later "which would suggest the vast majority of even the remaining 10% of the name check requests should have been completed" is illogical. Since I'm afraid I'm the one originally responsible for the "jump in line argument" (which you really developed very nicely later on
"assuming that FBI created a separate line for these delayed 10% of the cases (because according to their web site, VSC is currently processing AOS appl-s submitted a year later), it is fair to conclude that many of these 10% of the cases are delayed longer than Plaintiffs' and indeed are waiting for years. In this case Plaintiffs respectfully request FBI to inform them (just like CIS and VSC do), which name checks FBI currently processes so that Plaintiffs would know of their approximate place in this line (for example, FBI now processes name check requests submitted 2 years ago)."
Then you can proceed with your nice argument on "cutting in line": once you don't want to cut in front of people waiting loinger than yourself you plead:
"Defendants should apply criteria of fairness all the way by expediting those 10% of cases delayed longer than the current applicants' cases. In order to avoid the current name checks requests to "cut in front of the line" of these delayed 10% of the cases waitng for years, FBI shall first expedite processing of these delayed cases in the "first in, first out" order, and only then proceed with the currently pending name check requests."
Finally, my last suggestion is, perhaps divide your text into smaller portions for easier reading (like, this "line-cutting arg-t" has a separate chapter, and all other parts, like the next of new type of nc and inefficient processing). Also, there you could also include, it's "illogical to delay nc of potential terrorists for years based on "security concerns"".
I really wish you good luck and after you finish your complaint you should stick to the forum to help others (which number. I'm afraid, will not decrease unless something unexpected and drastic happens in this post-bill political arena
1. Question to all members: It is possible that your name check is cleared and your green card arrives before judge rule on your case. If that happens, AND if you still want to have a chance to get your attorney fee reimbursed by defendants, can one refuse to voluntarily dismiss the case and continue to go to court for hearing? I don't feel it is right that defendants can get away with reimbursing our huge financial burns by clearing stuck name check last min., after plaintiffs have incurred such cost because of defendants' failure to act.
2. I am interested in knowing anybody's thought on if we will be stuck again for sure when applying citizenship 5 years down the road. That being said, that possibility does not change course of action today. Absence of green card creates is more damaging than without a citizenship.
2. I am interested in knowing anybody's thought on if we will be stuck again for sure when applying citizenship 5 years down the road. That being said, that possibility does not change course of action today. Absence of green card creates is more damaging than without a citizenship.
Missingpa, thank you for posting the Spenser case! It's quoted in many favorable decisions and I think we should study it (especially those with AOS WOM). Reading it, I have a few comments comparing the main decision and the dissenting view:
the main decision indeed focuses on the language of 1252 and concludes, after a thorough evaluation of the wording, that "discretion" of AG should not be assumed unless it is specifically mentioned in statues:1252 "refers not to "discretionary decisions"..., but to acts the authority for which is specified under 1252 to be discretionary" (p.9) Judge says, Congress specifically excludes asylum case because in previous laws it is listed as clearly discretionary (p.11): "this exemption demonstrates its recognition that such desisions would otherwise be covered." (under 1252, i.e., he points that unless an "act" is specifically pointed in a statue as in this case, 1252 doesn't apply). So this judge consideres the "necessary" condition to be covered by 1252 is the "act"'s specific mentioning in statues. This opinion is argued by dissenting judge to be "linguistics' gymnastics", also it leads to violate Congress intentions who "purposefully adopted 1252 to strip jurisdiction". But I think the main opininon is really better: it is much more honest in case of uncertainty to follow a statue's language to the letter precisely, and if, as in this case, the action is not cited, to cosider it excluded from the scope of a statue (so visa decision is not discretionary). Yes, this opinion splits from many other circuits' decisions and even from the appeals' decision in Dinh in the 10th Cir. But it refuses to speculate on Congress intentions without explicit mentioning in its language, and it's also good for us
(we can argue, since "refusal to act" by CIS is nowhere cited as a discretionary act, it falls under the provision of Spenser desicion, so it's not discretionary).The dissenting judge, in my opinion, has some problems with logic: on p. 23 (in footnote): "because the IIRIRA transitional rules more specifically, and therefore, more broadly precluded judicial review of "discretionary decisions""(about the main decision). Indeed, like on the p.22 footnote, he says that main judge's reference to APA and 1252 is comparing "fire to ice", he totally misses the main point: the main ruling looks precisely at the stautes' wording to get the exact meaning (i.e. "specific"), and the dissenting guy looks at a "broad" meaning of "discretion", and ignoring the statues differences for the sake of a more simple-minded and primitive interpretation of the law. (Also, how on earth "specifically" may mean "more broadly"???).
What's more important, ambiguity should be avoided at all costs in statues, but once it exists, courts should focus on precise lang-ge and treat not mentioned act to be excluded, not included, when in doubt. (And if Congress did not mean it to be, too bad!)
I'll pm you my e-mail, will be glad to be of help.
Mingjing,
I believe Lazycis posted a case where although it was resolved, judge refused to give up jurisdiction and proceeded to award fees (AUSA claimed, plaintiff wasn't "prevailing party" since CIS decided) That's a CA case, perhaps Lazycis can point it to you?
As for "part 2", I really doubt anyone can accurately speculate on what happens in 5 yrs while we don't even know what will happen in August.
When is Name check initiated?
I have few basic questions regarding Name check?
1. When is Name check requested by USCIS to the FBI ? ( Immediately after receiving I-485 application or every time USCIS requests biometrics/fingerprints)
2. Is there a Validity to the Name check data provided by FBI (Finger prints are valid only for 15 months)
3. Is Name check data requested again when a case is transferred from one service center to the other ( eg: pending I485 transferred from VSC to TSC)
My details:
EB3 India Priority date October 2002 (RIR) approved feb 2004
I 485/I 140 filed April 2004
I 140 approved September 2004
first FP done September 2004
Case transferred from VSC to TSC in March 2007
Second FP done May 2007
My priority date became current in June 2007.
Called USCIS customer service on June 11, 2007. Luckily was able to convince customer rep to transfer to an immigration officer.
Immigration officer informed no AOS because of background check pending. I asked can it be expedited ? His answer was no.
I have setup info pass appointment to get more details.
Any help on above questions will be valuable.
I have few basic questions regarding Name check?
1. When is Name check requested by USCIS to the FBI ? ( Immediately after receiving I-485 application or every time USCIS requests biometrics/fingerprints)
2. Is there a Validity to the Name check data provided by FBI (Finger prints are valid only for 15 months)
3. Is Name check data requested again when a case is transferred from one service center to the other ( eg: pending I485 transferred from VSC to TSC)
My details:
EB3 India Priority date October 2002 (RIR) approved feb 2004
I 485/I 140 filed April 2004
I 140 approved September 2004
first FP done September 2004
Case transferred from VSC to TSC in March 2007
Second FP done May 2007
My priority date became current in June 2007.
Called USCIS customer service on June 11, 2007. Luckily was able to convince customer rep to transfer to an immigration officer.
Immigration officer informed no AOS because of background check pending. I asked can it be expedited ? His answer was no.
I have setup info pass appointment to get more details.
Any help on above questions will be valuable.
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