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

Thanks Ninyte and lazycis.
But I really doubt that would be the case. First, it would be very hard to oppose MTD, (if they file MTD, that is.) Second if the judge rules in favor of me and the USCIS adjudicate my application when there is no visa number, it will basically invite more litigation all over the country on top of what AILF is doing. So I don't think they'll do so.
But I'll keep my fingers crossed.
BTW, my PD is not current anymore because the Visa Bulletin fiasco.
Thanks.

I saw at least two cases (DV-lottery) where the court ordered USCIS to issue GC even though the matter was resolved after the fiscal year end (DV-lottery visas can be issued only during a single fiscal year). The lawsuits were filed, however, before the fiscal year end.
One of the cases is Basova et al v. Bureau of Citizenship and Immigration Services et al, Eastern District of New York, Case #: 1:03-cv-04929). I do not recall the second case, I might have it somewhere.
Also, if you check DOS to USCIS fax, you can see that USCIS used only 66,425 visa numbers during the first 8 months of the FY 2007. Even though they requested additional 60,000 during June, there is no way they were able to use all requested visa numbers.
I see the whole visa bulletin situation as abuse of power by USCIS for its own profit (they used all visa numbers so nobody could file AOS until new fees go into effect). I thought something like this is not possible in the USA.
 
Today, I received a letter from FBI regarding the letter I wrote to First Lady. There is nothing new and my name check is not cleared either.
 
I-485 approvals without NC clearance

All,

A few days ago I posted an article on nytimes.com reporting that USCIS in the June rush to exhaust visa numbers might have approved cases without obtaining NC clearance. Interestingly, this topic is being discussed on another thread and those interested might want to take a look.

http://boards.immigrationportal.com/showthread.php?t=256298

Could this be the beginning of the time when USCIS adpots a policy shift and starts clearing old cases under the assumption that their incomplete name checks will not prevent approval? In my opinion, that would be the most sensible policy becuase they can still let the checks run their courses and rescind approval if any derogatory information shows up later.

If so, I imagine those with early receipt dates (2004 and earlier) should expect decisions soon.
 
I saw at least two cases (DV-lottery) where the court ordered USCIS to issue GC even though the matter was resolved after the fiscal year end (DV-lottery visas can be issued only during a single fiscal year). The lawsuits were filed, however, before the fiscal year end.
One of the cases is Basova et al v. Bureau of Citizenship and Immigration Services et al, Eastern District of New York, Case #: 1:03-cv-04929). I do not recall the second case, I might have it somewhere.
Also, if you check DOS to USCIS fax, you can see that USCIS used only 66,425 visa numbers during the first 8 months of the FY 2007. Even though they requested additional 60,000 during June, there is no way they were able to use all requested visa numbers.
I see the whole visa bulletin situation as abuse of power by USCIS for its own profit (they used all visa numbers so nobody could file AOS until new fees go into effect). I thought something like this is not possible in the USA.

The DV-lottery case would be an excellent example. Appreciate if you can dig the other one up. As Plaintiff's we cannot double guess what USCIS and DOS are going to do. As long as the case was filed when the priority date was current we should be okay. I'm glad I filed it on June 29th even though I am amending it for the second time now. In just 1 month DoS moved PD from May 2001 to June 2003 for EB3-IND when there are scores of 2001 filers waiting for adjudication. It's irresponsible on the part of USCIS and DOS to move the priority dates so far when there are cases pending. I hope AILF wins their lawsuit.

Also would Aytes memo in Jan 2005, where MANDAMUS was one of criteria for expedited namecheck help in bolstering our case that the court has jurisdiction and that USCIS itself recognizes this ?
 
i live in detroit

Hello worried2007,
Although my case ended with a joint motion to dismiss (USCIS adjudicated my N400 appication during the first 30 days unopposed extendion requested fromt he court), I got fairly familiar with the lawsuits based on 1447(b). There were couple of successful cases in Michigan, mainly in the Detroit based Eastern Distict. I was in the Grand Rapids based Western District.

I perfectly understand your concerns, but you should know that most of this forum members also had no trouble with the law or USCIS and they still got stuck in this name check. Unfortunately the name check process gives too many false positive hits and the number of people suffering due to this is ever increasing.

Considering that there is a policy in effect that USCIS will not interview applicants till the name check is not complete (since May 2006), I assume that your name check was complete. If this is true, I think that you have a fairly good chance to avoid filing a lawsuit and if you have to go on that road, a good chance to win your case.

paz

please tell me can i file this lawsuit myself or should i hire an attorney , im so scared , my name check did clear and i did pass my test however they never sent me my oath and i dont know why . im going tommorow for an info pass , i called my senator and congressperson to no avail , everyday they give me a new answer , i feel like im stuck at a dead end.

they said if my A-file is lost because of their error they will never adjucate my application do u think thats right .

plz help me plz
 
Hi Paz and Other Experts - Please Help. Following is the summary of my case.

My Greencard and My Wife's application was in USCIS Philadelphia District office. My application was approved on April 20, 2007 and My wife did not get her approval. So we went to USCIS district office on April 30, 2007 and asked the USCIS supervisor about my wife's application. The officer checked her physical file and said She was also approved and stamped her passport also. They took away our EAD cards, Advance parole etc.

On July 3rd, I received a email message from USCIS that my card is mailed but My wifes application status did not change. So we went to the USCIS and inquired about it. They said that the Computers show that my wife's case is not "Approved" and the status shows "Under Officer Review". We were surprised as they had already stamped her passport and took away EAD cards, Advance Parole etc. We showed the passport stamping to the officer for which the officer was surprised and went to look for my wife's file and the officer came back and said that she could not find the file. Now I dont know what her legal Status is. As we have already giver her EAD cards and AP to the officer on the day of the Stamping, she is not on EAD card status but a Permanent resident as per her passport stamping. But the USCIS computer shows that she is not a permanent resident as they have not updated their computer and also seems like the Philadelphia office has lost her File.

When we call Vermont center they are saying that the file is in Philadelphia office. But the Philadelphia office seems to have lost her file.

Please let me know what are my options to find out where the file is? I am really getting very anxious about her legal status given the sensitive times nowadays. My immigration attorney has adviced her not to travel because at port of entry he indicated that they will verify their computer and can make it very painful for her to enter back into U.S.

Is WOM an option to force USCIS to locate her file and update their computers.

Please help.

Annamalai

I totally agree with Ninyte's answer. Your wife has a stamp in her passport, this was put there by an USCIS officer. But I also agree with your immigration attorney; leaving the country is dangerous considering this unfortunate circumstance. When coming back, at the port of entry they definitely check the computer database and if there shows "Unapproved" it can create potentially a big mess.

However, I think that a lawsuit is premature and I hope that you will be able to sort this out amicably. It will take couple of trips to the USCIS DO and you may need to insist to see some supervisor, but again, Ninyte's suggestion to try to locate the officer who stamped your wife's passport and took her EAD etc. papers seems a reasonable way to go.
 
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paz

please tell me can i file this lawsuit myself or should i hire an attorney , im so scared , my name check did clear and i did pass my test however they never sent me my oath and i dont know why . im going tommorow for an info pass , i called my senator and congressperson to no avail , everyday they give me a new answer , i feel like im stuck at a dead end.

they said if my A-file is lost because of their error they will never adjucate my application do u think thats right .

plz help me plz

First you should not panick. That definitely doesn't help. You are in a much better situation than many of the forum members, who are still waiting for the FBI name check result. Your interview was less than a month ago, USCIS has legally 120 days to adjudicate your case after the interview. You don't face deportation, you can freely work and travel so there is no imminent danger. Of course, it is nerve wrecking this waiting game, and it is taking a toll on many of us, but I still belive that you will be able to sort this out without filing a lawsuit. This case is a very good candidate, in my opinion, where a polite letter thretening them that you will file a lawsuit if no decision is made on your application after the legal period passed, most likely will have an effect. USCIS knows that they most likely will lose such a lawsuit, they can't even blame FBI for not completing your name check.

It is difficult to answer your question about filing a lawsuit by yourself vs. hiring an attorney. This really depends how much time are you willing to dedicate for the preparations to educate yourself in these legal issues. There are many forum members who did this process by themselves, and won their cases, so it is certainly possible. You "just" need enough time and patience to sit down in front of your computer monitor and start reading the postings on this forum. Practically all the info necessary to fight successfully your case was already posted and there are several very knowledgable active forum members, willing to answer questions you may have. Again, because your name check was already completed, your case is much simpler than most of the other stuck cases, where we had to argue that examinaton=interview, and the 120 days from 1447(b) was triggered by the interview and should not be counted only after the name check is completed.

If they really lost your A file, it is certainly their mistake not yours, you can't be penalized for this. I have really serious doubts that any AUSA would have the guts to tell to a federal judge that "your Honor, USCIS lost the Plaintiff's A file and because of this decided to not adjudicate her case forever". If the judge would not make a stoke at the spot, s/he certainly would become really angry and decide the case in your favor.

Bottom line: start reading and prepare yourself for a fight, but keep pressure on the USCIS by going once a week or once every two weeks to an Infopass and ask about your case. When the 120 days passed and still didn't receive your oath letter, you should write a nice letter to your interviewing officer or to Mrs. Carol Jenifer (the Detroit DO director), explaining your situation, your desire to solve this case peacefully but also your firm determination that as a last resort you will file a complaint in the federal district court based on the 8 U.S.C. 1447(b) if you don't receive your oath letter in 30 days from the date of the letter of intent to sue.

If you don't feel comfortable at all with the idea to go Pro Se, we can recomend you some immigration attorneys who will represent you. Lowtechguy (one of the forum members) is using the services of one of them, he is in your district.
 
First you should not panick. That definitely doesn't help. You are in a much better situation than many of the forum members, who are still waiting for the FBI name check result. Your interview was less than a month ago, USCIS has legally 120 days to adjudicate your case after the interview. You don't face deportation, you can freely work and travel so there is no imminent danger. Of course, it is nerve wrecking this waiting game, and it is taking a toll on many of us, but I still belive that you will be able to sort this out without filing a lawsuit. This case is a very good candidate, in my opinion, where a polite letter thretening them that you will file a lawsuit if no decision is made on your application after the legal period passed, most likely will have an effect. USCIS knows that they most likely will lose such a lawsuit, they can't even blame FBI for not completing your name check.

It is difficult to answer your question about filing a lawsuit by yourself vs. hiring an attorney. This really depends how much time are you willing to dedicate for the preparations to educate yourself in these legal issues. There are many forum members who did this process by themselves, and won their cases, so it is certainly possible. You "just" need enough time and patience to sit down in front of your computer monitor and start reading the postings on this forum. Practically all the info necessary to fight successfully your case was already posted and there are several very knowledgable active forum members, willing to answer questions you may have. Again, because your name check was already completed, your case is much simpler than most of the other stuck cases, where we had to argue that examinaton=interview, and the 120 days from 1447(b) was triggered by the interview and should not be counted only after the name check is completed.

If they really lost your A file, it is certainly their mistake not yours, you can't be penalized for this. I have really serious doubts that any AUSA would have the guts to tell to a federal judge that "your Honor, USCIS lost the Plaintiff's A file and because of this decided to not adjudicate her case forever". If the judge would not make a stoke at the spot, s/he certainly would become really angry and decide the case in your favor.

Bottom line: start reading and prepare yourself for a fight, but keep pressure on the USCIS by going once a week or once every two weeks to an Infopass and ask about your case. When the 120 days passed and still didn't receive your oath letter, you should write a nice letter to your interviewing officer or to Mrs. Carol Jenifer (the Detroit DO director), explaining your situation, your desire to solve this case peacefully but also your firm determination that as a last resort you will file a complaint in the federal district court based on the 8 U.S.C. 1447(b) if you don't receive your oath letter in 30 days from the date of the letter of intent to sue.

If you don't feel comfortable at all with the idea to go Pro Se, we can recomend you some immigration attorneys who will represent you. Lowtechguy (one of the forum members) is using the services of one of them, he is in your district.

Worried, I sent you a PM. Since my case is ongoing I cannot say how good my attorney is, but I put in some names/contact info in my PM.
 
Paz /All friends , Case update , I need your kind help

wenlock, thanks for the advise ,

When the AUSA requested to adjourn the conference/discovery date he added following lines in the request:-

Quote

" I have been advised that government officers are taking action to resolve the security check issue that is preventing adjudication of Plaintiff’s Application.

Unquote

1) What do you make of this kind of answer.

2) I noticed you also have a discovery initiated , Can you please tell me in what format you received the order of discovery.

The reason I am asking is , because I am kind of confused between whether the order my judge orderd is a conference or a discovery , here is what the order says :

Quote

UNITED STATES DISTRICT COURT
--------------------------------------------------------------X
My Name ,
Individually,
--------------------- -----ORDER
Plaintiff,
ALBERTO GONZALES,
Officially as United States Attorney
General, et al.,
Defendants.
---------------------------------------------------------------X

An initial conference will be held in this case on July 18, 2007 at 3:00 p.m. before Magistrate Judge. All participants are directed to report to Court.

All counsel must be present.

All requests for adjournments must be made in writing on notice to all parties and no request will be considered unless made at least forty-eight (48) hours before the scheduled conference. Requests must disclose whether or not all parties consent to the adjournment.

The parties are reminded of their obligations under Rule 26(f) of the Federal Rules of Civil Procedure, and all parties are directed to make the disclosures required by Rule 26(a)(1) of the Federal Rules of Civil Procedure no later than five days before the above scheduled conference.

Failure to make the required disclosures may result in the imposition of sanctions pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.

SO ORDERED.

Judge Name
United States Magistrate Judge
May 17, 2007


NOTE: PLAINTIFF’S COUNSEL IS DIRECTED TO CONFIRM WITH ALL
OTHER COUNSEL THAT ALL NECESSARY PARTIES ARE AWARE OF
THIS CONFERENCE.

Unquote



Thanks.


Today I received a response letter from the FBI that my Name check was completed and sent to USCIS in Washington D.C May 2006, ( Almost one year and two months ago ).

Here is my question , Please help me on this one:-

Since the AUSA mentioned in his conference adjournment request to the Judge that " government officers are taking action to resolve the security check issue preventing adjudicating the case " and now that I have this response from FBI that my Name Check Was completed almost a year ago, " CAN I ASK THE JUDGE FOR DEFAULT JUDGMENT " based on the fact that USCIS has no ground to delay my case beyond the 120days of the examination date and beyond the date my name check was completed...

1. What is the risk involved in requesting a default judgment before a conference date?
2. Is it advisable to wait till the conference date and bring this fact to the judge ?

All friends please share your experience and your thoughts .

Thank you
 
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Reply to "Opposition to SJ".

Shvili,

Unfortunately my case is still not resolved.
I filed MSJ, then AUSA filed Opposition and Cross-MJ.
Now I need to file Reply to the "Opposition and Cross-MJ", do you have any good sample papers and I can reference?

When I check PACER, it seems that a lot of folks (who filed WOM around the same time as I did) got dismissed. This is encouraging, hopefully mine can be resolved in next one or two months.

Thanks
 
Today I received a response letter from the FBI that my Name check was completed and sent to USCIS in Washington D.C May 2006, ( Almost one year and two months ago ).

Here is my question , Please help me on this one:-

Since the AUSA mentioned in his conference adjournment request to the Judge that " government officers are taking action to resolve the security check issue preventing adjudicating the case " and now that I have this response from FBI that my Name Check Was completed almost a year ago, " CAN I ASK THE JUDGE FOR DEFAULT JUDGMENT " based on the fact that USCIS has no ground to delay my case beyond the 120days of the examination date and beyond the date my name check was completed...

1. What is the risk involved in requesting a default judgment before a conference date?
2. Is it advisable to wait till the conference date and bring this fact to the judge ?

All friends please share your experience and your thoughts .

Thank you

The default judgment is rarely granted and only applies when defendant did not respond at all to the complaint.

You can file a motion for summary judgment right away. Why wait? This is the case where you can ask court to make you a citizen in the court room using 1447b.
 
Poll - stuck in name check ?- grouped by age group

guys

I have posted a poll to find out if age group is something that is used to snare people in the name check quagmire. I will later add other polls for country of origin etc. For now please do vote in this ANONYMOUS poll where your screen name will not show up.
thanks

http://boards.immigration.com/showthread.php?t=256823
 
I totally agree with Ninyte's answer. Your wife has a stamp in her passport, this was put there by an USCIS officer. But I also agree with your immigration attorney; leaving the country is dangerous considering this unfortunate circumstance. When coming back, at the port of entry they definitely check the computer database and if there shows "Unapproved" it can create potentially a big mess.

However, I think that a lawsuit is premature and I hope that you will be able to sort this out amicably. It will take couple of trips to the USCIS DO and you may need to insist to see some supervisor, but again, Ninyte's suggestion to try to locate the officer who stamped your wife's passport and took her EAD etc. papers seems a reasonable way to go.

Thanks Paz, Ninyte. I will do the same as suggested by you.

Regards

Annamalai
 
Today I received a response letter from the FBI that my Name check was completed and sent to USCIS in Washington D.C May 2006, ( Almost one year and two months ago ).

Here is my question , Please help me on this one:-

Since the AUSA mentioned in his conference adjournment request to the Judge that " government officers are taking action to resolve the security check issue preventing adjudicating the case " and now that I have this response from FBI that my Name Check Was completed almost a year ago, " CAN I ASK THE JUDGE FOR DEFAULT JUDGMENT " based on the fact that USCIS has no ground to delay my case beyond the 120days of the examination date and beyond the date my name check was completed...

1. What is the risk involved in requesting a default judgment before a conference date?
2. Is it advisable to wait till the conference date and bring this fact to the judge ?

All friends please share your experience and your thoughts .

Thank you


Hopeful,
when was the last time you were fingerprinted ? FPs expire in 15 months
 
All,

A few days ago I posted an article on nytimes.com reporting that USCIS in the June rush to exhaust visa numbers might have approved cases without obtaining NC clearance. Interestingly, this topic is being discussed on another thread and those interested might want to take a look.

http://boards.immigrationportal.com/showthread.php?t=256298

Could this be the beginning of the time when USCIS adpots a policy shift and starts clearing old cases under the assumption that their incomplete name checks will not prevent approval? In my opinion, that would be the most sensible policy becuase they can still let the checks run their courses and rescind approval if any derogatory information shows up later.

If so, I imagine those with early receipt dates (2004 and earlier) should expect decisions soon.

While researching 8 CFR, I did not find any reference that full criminal background check is required to approve employment-based or family-based AOS. In contrast, the completion of the check is required for asylum ( 8 CFR 240.67(a) ) and naturalization ( 8 CFR 335.2(b) ). So I do have a slim hope that USCIS will indeed approve long-pending AOS without FBI name check response.
 
While researching 8 CFR, I did not find any reference that full criminal background check is required to approve employment-based or family-based AOS. In contrast, the completion of the check is required for asylum ( 8 CFR 240.67(a) ) and naturalization ( 8 CFR 335.2(b) ). So I do have a slim hope that USCIS will indeed approve long-pending AOS without FBI name check response.

It's not a statute but FBI name check is probably covered by "in his discretion and under such regulations as he may prescribe" part of 8 U.S.C. § 1255(a). Hence using AG's discretion USCIS can decide that name check for certain individual may not be necessary. So USCIS is doing nothing illegal by approving petitions without name check.
 
Guys, I got reply from FBI to my first lady letter saying Name check was finalised May 2007, and sent to USCIS Head Qtrs in Washington DC. The confusing thing is 1.5 months after this "finalise" date, the AUSA filed a motion to dismiss on June 16,2007 where defendants claim name check results have not yet been obtained by CIS. So I am confused what is going on ? anybody had this experience ?
 
Need help!

I filed WOM pro se on June 28, and seved the summons on the same day. I have 6 defendants, so far I just got 3 return receipt back. But to my surprise, today I got a letter from the court.( a Notification of docket entry).The contents is like follows.

'MINUTE entry before Judge Joan B. Gottschall : Status hearing set for 8/15/2007 at 9:30 AM. Plaintill is directed to advise the defendants of the status hearing forthwith. Parties are directed to discuss settlement of case, consent to proceed before the Magistrate Judge and a proposed discovery plan. Mailed notice(rj,)

Can any of you with experience give me some advice what this means? Do I need to prepare something? In my understanding, the U.S. attorney may have reponded to the court? and want to settle this thing?

Thank you very much for any idea!

Vicky
 
Vicky2006

this is standard stuff. The judge wants you to contact the AUSA handling your case and let him know that by 8/15/2007 both of you are supposed to submit discovery plan. If your AUSA agrees to work on such a plan, most likely he won't, natsena had uploaded a sample discovery document. Use it and ask the right questions that will help your case.

In all possibility AUSA will decline discovery and will let u know that he will file an answer together with or seperately a Motion-to-dismiss. Then you'll have to inform the judge that discovery is not possible.

Discovery is a phase where plaintiff and defendant can exchange information that'll help them decide the case without a trial. If discovery doesn't happen the case goes to trial automatically.

other experienced Wormers correct me if I'm wrong.
 
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