aryin,
Is it answer or MTD? If answer, prepare motion for summary judgment. If MTD, prepare opposition and motion for summary judgment.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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aryin,
Is it answer or MTD? If answer, prepare motion for summary judgment. If MTD, prepare opposition and motion for summary judgment.
veryfree,
It does not hurt to do it (submit a supplemental memorandum to opposition to MTD). Check my brief. There are substantial differences between Walji and your case: a) full criminal backround check (name check) is not mandatory for AOS;
b) your injury is much more extensive; c) you, I hope, are using APA as the cause of action. Working on a brief, I realized that APA cause of action is much stronger, because court SHALL compell agency to perform action unreasonably delayed, while mandamus is in court discretion.
Use Supreme Court cases to defeat Walji argument: Califano v. Sanders, 430 U.S. 99, 105 (1977) (APA & 1331 always provide jurisdiction for initial review); Accardi v. Shaughnessy, 347 U.S. 260, 266-268 (1954) (you have a right for consideration of your AOS application); Norton v. So. Utah Wilderness Alliance, 542 U.S. 55 (2004) "Of course §706(1) also authorizes courts to “compel agency action … unreasonably delayed”
The brief allso has a good section regarding Safadi v. Howard decision. There are number of other cases were Safadi argument was rejected (Tang v Chertoff; Quan; Duan).
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Hi Friends, I have been watching and learning from this forum for quite a while. I wanted to share with you my WOM experience. Case# 1:2007cv10231 , filed in Boston district. I have been stack in name check for 4 years for my green card application. The judge just ordered the defendents to make decision on my case before Aug 4, 2007.
angtus
angtus
Waiting for lazycis's answer
Thank you!
What is the different between answer and MTD? Should I file motion for summary judgment soon?
Thank you!
What is the different between answer and MTD? Should I file motion for summary judgment soon?
MTD should have be titled "Defendants' Motion to Dismiss". If it's MTD, prepare opposition first, then prepare motion for summary judgment and combine them together in one motion.
LittlePine
New Member
Slis:
The case was filed at Western District of North Carolina. AUSA did not tell me that name check was expedited (yes, I was left in the dark). But, I got a request for one more medical exam in March, only after 1.5 months of my Mandamus filing, so I sensed that they were doing something on my case.
Good luck!
Little Pine
Ask lazycis again
AUSA told me that he sent to me was "answer" not "MTD". I call court today. The clerk told me to wait judge to rule.
AUSA told me that he sent to me was "answer" not "MTD". I call court today. The clerk told me to wait judge to rule.
Dear Friends,
I have filed my WOM (AOS) just a day ago with NJ (Newark) District court. I am curious to find out if there Is anyone in this forum who has filed in the NJ and won or their experience with the whole process.
Meanwhile I just can't thank several members of this forum with mere words for providing and "educating" us with our own rights. I am sure, most of the attorney's doesn't have a clue about the items that has been discussed here.
Kishore
I have filed my WOM (AOS) just a day ago with NJ (Newark) District court. I am curious to find out if there Is anyone in this forum who has filed in the NJ and won or their experience with the whole process.
Meanwhile I just can't thank several members of this forum with mere words for providing and "educating" us with our own rights. I am sure, most of the attorney's doesn't have a clue about the items that has been discussed here.
Kishore
Catching up once more...
Remember Paz said that CIS would not dare to go against the judge's order. Once again, he was right! I also thought you should have your case approved before the deadline, and it is! Congratulations!!! Even if you fought some more against case remanded, CIS probably moved on their own, right? (It doesn't hart though that you fought AUSA any way
That's what I heard, but couple of cases were actually revealing
for a change, so he'd go just in case. Our AUSA won't call at all, I check my mailbox for any communication.
I haven't checked your brief yet, will do it over the weekend. I have a couple of comments:
you said: a) full criminal backround check (name check) is not mandatory for AOS;
-Where on earth did you get that? It may be some obscure statue but I remeber a similar argument in 1447 case, where some attrnys tried to argue that background check doesn't include a name check. That argument didn't fly at all with judges for the following reason: the text of 8CFR 335.1 says (for natural-ns):
The investigation shall consist, at a minimum, of a review of all pertinent
records, police department checks, and a neighborhood investigation in
the vicinities where the applicant has resided and has been employed, or
engaged in business, for at least the five years immediately preceding
the filing of the application.
The words "at minimum" provide necessary, but not sufficient, conditions for adjudication. So nc was added (according to defendants in many cases) around 2000, so what? Unless you can quote a specific statue which prohibits use of any additional background checks (or explicitly states, that only "such and such check can be used in AOS cases"),I don't think you should use this argument at all.
c) On your advice to APA use, I agree that it must be used, but not independently, because quite a few judges refused to consider it as a source of independent jurisdiction. You MUST combine it with Mandamus (§1361) statue for this reason: APA prohibits jurisdiction of cases for which "(2) agency action is committed to agency discretion by law." (APA § 701) In order to apply it (together with "reasoneblenness of delay"), courts must first rule on Mandamus -that govern-t owes a duty to plaintiff. If that's established, APA follows. Couple of cases did rule on APA itself, but I think it was at least a year ago when courts were more friendly to our cases).
Also, thank you for the Supreme court cases. I also attach a link to Supreme ruling (Appeals, 10th Cir) on "shall means shall", which follows my previous point (the case isn't immiration but still useful) It can be used after you argue on non-discretionary duty. See on p. 8:
Even in mandamus cases, which inherently involve court discretion, we have often spoken in strong, and occasionally even absolute, language with regard to the court's duty to enforce agency action mandated by Congress. "If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should compel performance, thus effectuating the congressional purpose." Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984) (emphasis added); see Mt. Emmons Mining Co., 117 F.3d at 1170 ("As a [*1188] reviewing court, we must 'compel agency action unlawfully withheld or unreasonably delayed.'" (emphasis added)); Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991) ("Mandamus relief is an appropriate remedy to compel an administrative agency to act where it has failed to perform a nondiscretionary, ministerial [**25] duty. Administrative agencies do not possess the discretion to avoid discharging the duties that Congress intended them to perform." (citations omitted)); Health Sys. Agency of Oklahoma v. Norman, 589 F.2d 486, 492 (10th Cir. 1978) ("trial court must 'compel'" agency action unlawfully withheld (emphasis added)).:
If you like, I can pm when I read your brief (perhaps over the weekend). I am sure you did a great job, though!
Samhad,
Remember Paz said that CIS would not dare to go against the judge's order. Once again, he was right! I also thought you should have your case approved before the deadline, and it is! Congratulations!!! Even if you fought some more against case remanded, CIS probably moved on their own, right? (It doesn't hart though that you fought AUSA any way
Ams_sim,
That's what I heard, but couple of cases were actually revealing
for a change, so he'd go just in case. Our AUSA won't call at all, I check my mailbox for any communication.LittlePine, Congratulations!
Lazycis,
I haven't checked your brief yet, will do it over the weekend. I have a couple of comments:
you said: a) full criminal backround check (name check) is not mandatory for AOS;
-Where on earth did you get that? It may be some obscure statue but I remeber a similar argument in 1447 case, where some attrnys tried to argue that background check doesn't include a name check. That argument didn't fly at all with judges for the following reason: the text of 8CFR 335.1 says (for natural-ns):
The investigation shall consist, at a minimum, of a review of all pertinent
records, police department checks, and a neighborhood investigation in
the vicinities where the applicant has resided and has been employed, or
engaged in business, for at least the five years immediately preceding
the filing of the application.
The words "at minimum" provide necessary, but not sufficient, conditions for adjudication. So nc was added (according to defendants in many cases) around 2000, so what? Unless you can quote a specific statue which prohibits use of any additional background checks (or explicitly states, that only "such and such check can be used in AOS cases"),I don't think you should use this argument at all.
c) On your advice to APA use, I agree that it must be used, but not independently, because quite a few judges refused to consider it as a source of independent jurisdiction. You MUST combine it with Mandamus (§1361) statue for this reason: APA prohibits jurisdiction of cases for which "(2) agency action is committed to agency discretion by law." (APA § 701) In order to apply it (together with "reasoneblenness of delay"), courts must first rule on Mandamus -that govern-t owes a duty to plaintiff. If that's established, APA follows. Couple of cases did rule on APA itself, but I think it was at least a year ago when courts were more friendly to our cases
).Also, thank you for the Supreme court cases. I also attach a link to Supreme ruling (Appeals, 10th Cir) on "shall means shall", which follows my previous point (the case isn't immiration but still useful) It can be used after you argue on non-discretionary duty. See on p. 8:
Even in mandamus cases, which inherently involve court discretion, we have often spoken in strong, and occasionally even absolute, language with regard to the court's duty to enforce agency action mandated by Congress. "If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should compel performance, thus effectuating the congressional purpose." Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984) (emphasis added); see Mt. Emmons Mining Co., 117 F.3d at 1170 ("As a [*1188] reviewing court, we must 'compel agency action unlawfully withheld or unreasonably delayed.'" (emphasis added)); Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991) ("Mandamus relief is an appropriate remedy to compel an administrative agency to act where it has failed to perform a nondiscretionary, ministerial [**25] duty. Administrative agencies do not possess the discretion to avoid discharging the duties that Congress intended them to perform." (citations omitted)); Health Sys. Agency of Oklahoma v. Norman, 589 F.2d 486, 492 (10th Cir. 1978) ("trial court must 'compel'" agency action unlawfully withheld (emphasis added)).:
If you like, I can pm when I read your brief (perhaps over the weekend). I am sure you did a great job, though!
bad news from 4th circuit court
I am new member of this forum, but have used it to file WOM pro se.
N400 filed March 05
fingerprint Apr 05
No interview
second fingerprint July 06
WOM filed jan 3, 07
60 day extension signed with Ausa Mar 07
second 60 day extension signed with Ausa May 07
status conference scheduled for july 23.
Ausa communicated that my expedite request was not approved and he will file MTD on July 6th. If the judge does not grant it, he will file Motion for Summary judgement. If the judge does not grant it, he will file an appeal in the 9th circuit court.
He emailed me the "Walji decision on 1447b" from 4th circuit which he will be using in the MTD that he will file on July 6th, 2007. He said I have close to no chances of winning this one, as I haven't even had interview. In Walji's case he had interview, but his 1447b and mandamus both were rejected by district and 4th circuit court. Ausa also informed me that he will ask for cancellation of the status conference in his MTD.
Any thoughts??
Any thoughts????
I am new member of this forum, but have used it to file WOM pro se.
N400 filed March 05
fingerprint Apr 05
No interview
second fingerprint July 06
WOM filed jan 3, 07
60 day extension signed with Ausa Mar 07
second 60 day extension signed with Ausa May 07
status conference scheduled for july 23.
Ausa communicated that my expedite request was not approved and he will file MTD on July 6th. If the judge does not grant it, he will file Motion for Summary judgement. If the judge does not grant it, he will file an appeal in the 9th circuit court.
He emailed me the "Walji decision on 1447b" from 4th circuit which he will be using in the MTD that he will file on July 6th, 2007. He said I have close to no chances of winning this one, as I haven't even had interview. In Walji's case he had interview, but his 1447b and mandamus both were rejected by district and 4th circuit court. Ausa also informed me that he will ask for cancellation of the status conference in his MTD.
Any thoughts??
Any thoughts????
Re: bad news from 4th circuit court
Sorry, I kind of wrote that email in a hurry. I didn't read the last couple of pages of this thread, where Walji's case has already been discussed. So it should not be any new info for you. Also a typo mistake (4th circuit court-- it should be 5ht circuit court).
Sorry, I kind of wrote that email in a hurry. I didn't read the last couple of pages of this thread, where Walji's case has already been discussed. So it should not be any new info for you. Also a typo mistake (4th circuit court-- it should be 5ht circuit court).
Thank you lazycis, you are the best.
I will read your brief this week end. Hopefully I can file something to the court next week.
mt100,
Where in the 9th Circuit are you? I remember about a weekor two ago an order was posted here (I think by Lazycis) to deny MTD from CA. It said, there is not a single instance in Northern District where MTD (I think, in WOM case) was granted. Check your district decisions during the last year. If it was close to our district (-N.CA), I really doubt they wiil like to set precedent using a decision from 5th Circuit once we have our Circuit decision in Hovsepian case. (-In the 9th Circuit, and that's precisely for jurisdiction in 1447 (b) case your AUSA wants to quote). In your case, which is different, you can quote that ruling on MTD that I mentioned and hopefully, your own district' rulings.
I may be known for my optimism, but in your case, my gut feeling tells me he's really just bullying you.
In any case, keep fighting and don't despair! Perhaps Wenlock would have some ideas?
infopass
I am wondering how do you find out if name check completed? I filed 1447b WOM on april 2 and AUSA said they requested expedite then AUSA filed MTD on June 20. Today I went to infopass and the IO said your FP has expired and they will set you up for new FP. Till last month the IO use to tell me "name check pending". Just curious: does their system automatically show when FP expire or does someone has to look into file and make that entry ? IO wouldnt tell me anything about name check.
Has anyone with long pending name check taken an infopass and got similar response ?
I am wondering how do you find out if name check completed? I filed 1447b WOM on april 2 and AUSA said they requested expedite then AUSA filed MTD on June 20. Today I went to infopass and the IO said your FP has expired and they will set you up for new FP. Till last month the IO use to tell me "name check pending". Just curious: does their system automatically show when FP expire or does someone has to look into file and make that entry ? IO wouldnt tell me anything about name check.
Has anyone with long pending name check taken an infopass and got similar response ?
I had the same experience back in March/April. I thought that was because of changes in the office following the dismissal of the head of the office Kevin Ryan. I had no idea who my AUSA was until I received an e-mail and a phone call from a paralegal working for Ila Deiss. I do not think that you need to worry contacting your AUSA – this office seems to be pretty good e-mailing plaintiff once they got info regarding one’s case (a fellow I know had exactly the same experience as mine).
Best of luck,
snorlax
Your AUSA is such a creep! I would try to oppose status conference cancellation and push hard for discovery. Request all producible documents from USCIS and FBI. As wenlock suggested (#11157, p. 744 and #111419, p .762) you should try to get court subpoena for local USCIS and FBI offices.
Best of luck,
snorlax
It's difficult to advise without seeing the answer from AUSA. If they are not disputing the fact that the delay is unreasonable, you can file a motion for judgment on the pleadings/summary judgment.
mt100,
Consider hiring a lawyer (to show AUSA his place). If not, you should oppose every move (filing) of that guy. Read the posts and consider amending your complaint (you still have time to do it) if you did not include APA as the cause of action. 2+ years may very well qualifiy for unreasonable delay. I agree with shvili, you have very good chances of winning in your Circuit.