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

[wenlock]

hello all;
I'm a long time reader for this forum since it started in 05.
my case is in a twist now, I filed my N400 7/05, FP 8/05, passed the interview on 6/06, second FP 3/07, filed my WOM on 11/06 (using a lawyer) in centeral IL, all the motions was done on 4/24/07 and the judge didn't say a word since then, I was scheduled for pre-trial conf on 6/30 and a bench trial on 7/30, first I dont know why the judge didnt rule on this case all this time!! also I though the judge will rule without a bench trial!!!
the US attorney tried all his tricks to delay my case and never cooperated with my lawyer and never bother to call the FBI to work it out.
The twist is this week is that the US attorney in my case filed for a 14 days to submit another motion based on a new appellate case from Texas was just decided. Attached case. This case found the exact opposite of what other common cases have found and, in essence, found that the person could not sue yet because, until the FBI has completed its exam, the 120 day time has not yet started, so what they say passing the interview is not the start of the 120 days.
This poor guy in the case (Shabir Hussein Walji) is being a lawful perm resident since 1980, and applied his N400 since 2003, and he got denied and now my US attorney wants to use his case against me.
so what do I expect !!!!
I'm in a shock cuz i guess the judge will find a good reason to deny my case now.
my lawyer is upset and he said he'll do his best but wanted to know if there's any other appellate case one of us has won.
any advice will be appreciated

thanks folks
melbashir

This is sad news here is the Ninth Circuit decision below. Now for all the applicants for Fifth Circuit 1447(b) seems to be not a viable solution. I guess its better to use on Mandamus in this district.

U.S.A. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)

 

[GC-Pending]

New favorable court orders for AOS

See the attached court orders for mandamus cases in Adjust of Status. I will soon update the wikibook with more details.

 

[melbashir]

thanks Lazycis, wenlock

thanks much Lazycis for the valuable information, No I don't have the FBI as one of the defendant, I'll talk to my lawyer and see if he can requist a discovery even though my lawyer and US attorney agreed earlier in the case that no discovery is needed.

thanks wenlock and congratulation on your victory.

I hope there's not alot of people here get harmed by the Fifth Circuit ruling.

 

[birdie]

The "famous" Ila Deiss is my AUSA, she is very professional. I got the card in the mail within a week. I filed opposition to MTD, and was about to file the opposition to their Summary Judgement. And mine is a Magistrate Judge, not the same one as yours though, but I saw lot of cases referred to her in Ninth District while doing my PACER research.

 

[shvili]

Friends,

I am trying to go through all the posts in this thread before suing. Since there are 700 pages, it is taking long time.

Do you folks think I can go ahead with filing pro se package? I am planning to go through the other posts within 2-3 weeks. I am planning to use PUBLICUS's first post in this thread. This way the clock can start ticking. Do you folks have any recent sample which needs to be used?

I see references to reading about other cases somewhere online. Where do you guys research? I am looking for cases (where the delay is because of USCIS bureacracy not becos of background or name check).

This is a great thread. My sincere thanks for everyone in this thread.

Thank you

LM2006,

Lazycis already posted a very helpful link to cases (provided by the member of this forum on Wikipedia. In addition to it and the sample Lazycis also posted, please go to p.743 and it's whereabouts for a huge number of case decisions organized by Mingjing here:
http://boards.immigrationportal.com/showthread.php?t=194681&page=743:

In addition, (not sure if it's on Wiki+Publicus) attached is a guide to madamus action. If you need more cases please pm and I can send them to you (short on time now). Also- a very useful legal advisory doc on non-discretionary argmt in mandamus complaints. Please read it and see how it's analyzed in judges' orders Mingjing (and GC forum member on Wiki) provided.

Good luck!

 

[vkholunov]

Reasonable Time

I am thinking about filling WOM to adjudicate AOS that has been pending in name check for 12 months. Is 12 months too early to file? If so can you tell me what courts considered to be unreasonable time for AOS petition.

Background: CIS approved by I-140 about 12 months ago. I filled my I-485 soon there after. I went for FP in Oct 2006. After CIS missed the processing time I inquired (via 1-800 number) and was sent a standard letter stating that they are performing security check. Called FBI and was told that they returned my FP to CIS within 48 hours. So ruling everything out it has to be the name check. Since then I went on info pass and received the same answer.

In advance, thanks for your help.

 

[SLIS]

Congratulations! A job well done!

WOM still works!

Filed WOM for I-485 in Jan 07, Northern District of California, pro se
Went to Court for MTD in April, MTD denied by judge
Filed motion for summary judgement in May
Got approval on the date that AUSA had to file opposition to my motion

Good luck to everyone!

Congratulations for a job well done! You can now relax a little now.

This is like a breath of fresh air to those of us who are still in the midst of this legal battle. I myself have just filed motion for summary judgment. I'm waiting to see if anything happens or if USCIS would rather wait for the court to rule on the summary judgment. In the meantime, I'm getting ready to file for my reply to their cross-motion....

 

[snorlax]

Wenlock,

thank you for the advise. At this point, though, I am wondering wehether this typo even warrants amending a complaint. Suppose I don't amend it. The worst case is, AUSA notices it . But he can't MTD on the ground of a wrong venue because I explained in complaint that the venue is proper because "most facts giving rise to the complaint occured in this district, Plaintiff and defendant reside in this district", etc. So legally speaking, I did not even have to quote the statue, according to many sampled docs and the pro se hanbook. So the fact I quoted it wrong is not very relevant. If AUSA complains, I reply to court: "yes, Your Honor, there is a typo. The correct statue is #28." So that is probably not going to make a judge too mad and it will be the end of it. right? I'll have to think of it a little more before deciding...

What are your thoughts on not amending it at all? Also, if other seniors have time/ ideas please comment.

Thank you!

From my experience with SJ court, I doubt that your complaint will be even looked at any time earlier than your first CMC (if your case ever reaches that point). It looks like AUSAs from SF office start pushing USCIS/FBI once they have a case on their hands. If security check gets cleared without difficulties – they start negotiating joint dismissal. If security check gets stuck - they start extending/fighting plaintiffs in court, like it probably happened in Kefira’s case.

I would not worry about amending your complaint. If AUSA starts filing for extensions and you get into CMCs – you will have plenty of time amending your complaint. I can not believe that a case such as ours can be dismissed based on citing a wrong statue, especially pro se in our circuit.

I have gotten second FP notice two weeks after filing my summonses. A week after FP the AUSA started negotiate joint stipulation to dismiss. I think your FP notice is a good sign. Just do not forget to call FBI customer service to verify that FP went well.

Best of luck,
snorlax

 

[lazycis]

I am thinking about filling WOM to adjudicate AOS that has been pending in name check for 12 months. Is 12 months too early to file? If so can you tell me what courts considered to be unreasonable time for AOS petition.

Background: CIS approved by I-140 about 12 months ago. I filled my I-485 soon there after. I went for FP in Oct 2006. After CIS missed the processing time I inquired (via 1-800 number) and was sent a standard letter stating that they are performing security check. Called FBI and was told that they returned my FP to CIS within 48 hours. So ruling everything out it has to be the name check. Since then I went on info pass and received the same answer.

In advance, thanks for your help.

The courts ruled that passage of time by itself does not make the delay unreasonable. They also ruled that the delay does not have to be unusual to be ureasonable. Therefore, it is hard to advice in any particular case. It depends on the circumstances. A couple cases for you:
See Galvez v Howerton, 503 F. Supp. 35, 39 (C.D.Cal. 1980) (holding a six-month delay unreasonable); Paunescu v. INS, 76F. Supp. 2d 896, 901-902 (N.D.Ill. 1999) (holding a ten-month delay unreasonable);

 

[missingpa]

Unreasonable time

Hi all,

The 2 cases lazycis mentioned both happened before the USCIS adopted the new security check policy to check the FBI "reference files." Thus they may be attacked by AUSAs as unfit for guidelines. I think the following case should be cited in addition.

Song v. Klapakas, No. 06-05589, 2007 U.S. Dist. LEXIS 27203 (E.D. Pa. April 12, 2007) (finding a nearly two-year delay unreasonable and ordered adjudication within 30 days)​

If anyone knows of any other cases where the judge specifically determined certain delays as unreasonable, I would be happy to hear them as well.

The courts ruled that passage of time by itself does not make the delay unreasonable. They also ruled that the delay does not have to be unusual to be ureasonable. Therefore, it is hard to advice in any particular case. It depends on the circumstances. A couple cases for you:
See Galvez v Howerton, 503 F. Supp. 35, 39 (C.D.Cal. 1980) (holding a six-month delay unreasonable); Paunescu v. INS, 76F. Supp. 2d 896, 901-902 (N.D.Ill. 1999) (holding a ten-month delay unreasonable);

 

[shvili]

Hi all,

The 2 cases lazycis mentioned both happened before the USCIS adopted the new security check policy to check the FBI "reference files." Thus they may be attacked by AUSAs as unfit for guidelines. I think the following case should be cited in addition.

Song v. Klapakas, No. 06-05589, 2007 U.S. Dist. LEXIS 27203 (E.D. Pa. April 12, 2007) (finding a nearly two-year delay unreasonable and ordered adjudication within 30 days)​

If anyone knows of any other cases where the judge specifically determined certain delays as unreasonable, I would be happy to hear them as well.

I think couple of them are pretty old but here they are anyway:
AOS cases: Abdel Razik (holding 2-yr delay unreasonable),
Aboushaban (4-yr nc delay unreasonable);Haidari (4 yrs unreasonable)
Alkenani (N-400 case, holding that 15 mo. delay is reasonable but 20 mo. delay may be unreasonable)

I can't find Razik case, the others are attached here. Also, I'd refer you back to Mingjing downloads on p. 743, for more cases.

 

[shvili]

From my experience with SJ court, I doubt that your complaint will be even looked at any time earlier than your first CMC (if your case ever reaches that point). It looks like AUSAs from SF office start pushing USCIS/FBI once they have a case on their hands. If security check gets cleared without difficulties – they start negotiating joint dismissal. If security check gets stuck - they start extending/fighting plaintiffs in court, like it probably happened in Kefira’s case.

I would not worry about amending your complaint. If AUSA starts filing for extensions and you get into CMCs – you will have plenty of time amending your complaint. I can not believe that a case such as ours can be dismissed based on citing a wrong statue, especially pro se in our circuit.

I have gotten second FP notice two weeks after filing my summonses. A week after FP the AUSA started negotiate joint stipulation to dismiss. I think your FP notice is a good sign. Just do not forget to call FBI customer service to verify that FP went well.

Best of luck,
snorlax

Snorlax,

Thank you for your input! It's great to have my thoughts supported by a person who went trough this ordeal (and won), especially from the same district! I hope that FP notice is a good sign and glad to see you had the same experience here. It may not mean much if somehow they still find something after repeating FP but we hope...

At this point I'm too busy to undertake amending, however easy it is. But your and several other members opinions put my mind at ease on this issue.

Thank you again and glad to see you on the forum!

 

[shvili]

The "famous" Ila Deiss is my AUSA, she is very professional. I got the card in the mail within a week. I filed opposition to MTD, and was about to file the opposition to their Summary Judgement. And mine is a Magistrate Judge, not the same one as yours though, but I saw lot of cases referred to her in Ninth District while doing my PACER research.

Birdie,

thank you for the answer. We are going to see how much worse our AUSA is. I'm glad for you, you got a really good one.

 

[shvili]

Let me clarify. I think you are understanding like plaintiff is never entitled for summary judgement that is not what I am saying. Once Defandents answer your complaint you are entitled to file summary judgement.

I am saying that in case Defandants (US agencies) does not respond to your complaint in 60 days legally you are entitled to file summary judgement but Judge will never grant it if Govt fails to respond.

(see Rule 55(e) of the
Federal Rules of Civil Procedure);

Wenlock,
yes, wihtin the context of filing MSJ when defendants failed to answer I agree with you, I misunderstood your previous post.

 

[always.wired]

Can you please explain?

Congratulations! It's so encouraging to hear good news on the forum. I believe all our efforts are already paying off as we can see Congress is trying to do something regarding the USCIS_FBI Name Check mess. It's good for the country when people are acting instead of just sitting, waiting and doing nothing.

Lazycis,

Can you please explain what you meant by "Congress is trying to do something regarding the USCIS_FBI Name Check mess" ? Are you referring to the Immigration Bill? Can you please post the specific piece of news you are referring to?

 

[yvesliu]

AGC4ME and everyone else, I just want to update my case. My lawyer filed the counter motion and motion of Judgement. Still waiting for the result.

 

[AGC4ME]

Thanks.

I'm also following your case through PACER.

 

[lazycis]

Lazycis,

Can you please explain what you meant by "Congress is trying to do something regarding the USCIS_FBI Name Check mess" ? Are you referring to the Immigration Bill? Can you please post the specific piece of news you are referring to?

Immigration Bill, Obama's bill, I also exchanged e-mails with John Kerry's ofice.
I do not really follow it closely, to be honest.

 

[bobsunzi]

How long the Judge will make a judgement

Hi, Everyone,

I've been dealing with my AUSA for the past five months---I filed WOM pro se on late January, 2007. The AUSA filed MTD and I filed Opposition to MTD. Then he filed a reply regarding my opposition to MTD on 6/1/07. So we've already had two rounds of fight. And now I've been waiting for almost a month for the Judge to rule on my case

My question is: Do you guys have any idea normally how long does it take for the judge to make a decision? I think the decision might either be a hearing or final rule. I called the court many times since 6/1/07 and told the Judge was busy and hasn't have a chance to look at my case.

Any idea will be appreciated.

Thanks,
Bobsunzi

 

[purlban]

FBI Customer Service number to check finger printing status

Snorlax,
Can you please list here the fbi customer service number for fingerprinting? This is for my wife's second finger printing status. It has been almost 2 months since the second fingerprinting but no commiunication from USCIS.

Thanks,
prulban

From my experience with SJ court, I doubt that your complaint will be even looked at any time earlier than your first CMC (if your case ever reaches that point). It looks like AUSAs from SF office start pushing USCIS/FBI once they have a case on their hands. If security check gets cleared without difficulties – they start negotiating joint dismissal. If security check gets stuck - they start extending/fighting plaintiffs in court, like it probably happened in Kefira’s case.

I would not worry about amending your complaint. If AUSA starts filing for extensions and you get into CMCs – you will have plenty of time amending your complaint. I can not believe that a case such as ours can be dismissed based on citing a wrong statue, especially pro se in our circuit.

I have gotten second FP notice two weeks after filing my summonses. A week after FP the AUSA started negotiate joint stipulation to dismiss. I think your FP notice is a good sign. Just do not forget to call FBI customer service to verify that FP went well.
Best of luck,
snorlax