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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Friends,
As promised, I am posting the final version of my appelate brief. Not that I wish somebody else to go thru the appeal process, but I think it has some good points and it can be used for other motions/responses during district court action. And if somebody has to appeal, it will be a good starting point as the brief conforms to the rules of appelate procedure. If you use it, please apply your sound judgment as I do not pretend to be always right.
The best wishes to all of you!
Lazycis,
I read through it and it looks good to me. I hope things go well for you!
Couple questions:
1- Can you do this Pro se, or do you have to do it with an attorney?
2- Are there any resources that can help Pro se people prepare these appeals and so on, and explain the whole procedure of how to go about the appeal procedure?
Thanks shvili.... I looked at my case on pacer and there is no other documents after the Judge's Order 2 weeks ago....I am not aware of the Judge giving permission to the AUSA to file a 'reconsideration motion'...However, in the Motion, the AUSA is arguing that " ...in issuing its Order, the Court may have overlooked facts and authorities that, had they been considered, may have influenced, and possibly changed, the Court's decision' and then it goes into details of 'examination' 'lack of jurisdiction',
and this is also very important regarding 'examination': there is a point in the Motion that says the ONLY Court of Appeals to have considered the question of 'examination' was a recent one in the 5th cir. June 19, 2007 Walji vs. Gonzales, where the Plaintiff apparently lost...
I am preparing my motion and as of now, I am calling it ' Plaintiff's Memorandum of Law in Support of Court's Order dated .../.../...'
IMHO, you may (you do not have to) file "Objection to Defendants' Motion for Reconsideration". You oppose the main motion, not the supporting memorandum. Look for cases that rejected Walji reasoning.
Thanks shvili.... I looked at my case on pacer and there is no other documents after the Judge's Order 2 weeks ago....I am not aware of the Judge giving permission to the AUSA to file a 'reconsideration motion'...However, in the Motion, the AUSA is arguing that " ...in issuing its Order, the Court may have overlooked facts and authorities that, had they been considered, may have influenced, and possibly changed, the Court's decision' and then it goes into details of 'examination' 'lack of jurisdiction',
and this is also very important regarding 'examination': there is a point in the Motion that says the ONLY Court of Appeals to have considered the question of 'examination' was a recent one in the 5th cir. June 19, 2007 Walji vs. Gonzales, where the Plaintiff apparently lost...
I am preparing my motion and as of now, I am calling it ' Plaintiff's Memorandum of Law in Support of Court's Order dated .../.../...'
Naos v Swacina rejected Walji argument.
Lazycis (or anyone else with experience),
We filed the response to AUSA's MTD last week.
1- What is the benefit of motion for summary judgment? Does it just put somewhat of an extra pressure on the judge to decide in our favor? I have heard/seen in the past those getting denied; if that happens, is it a bad sign?
2- I have been reading stuff about "joint stipulation" to remand the case back to CIS for them to decide in 30 days of whatever. I am assuming it means that plaintiff and AUSA decide together to file this request. Is that correct? Also, is this something that is initiated by the AUSA or is it a good idea for me to do it?
Finally, which of the two should be done first? Or both one after the other?
Thanks
imhrb,
1. MSJ may lead to a quick resolution of your case (it can go either way). If you file MSJ, opposing party usually files cross-motion for summary judgment. So there are different scenarios (your MSJ granted, their MSJ denied - you won; your MSJ denied, their MSJ granted - you lost; both MSJ denied - the process continues; sometimes MSJ can be granted in part, so there are a few variables).
2. You are correct, it's a mutual motion and can be initiated by either side. It does not hurt to try. It's always good to establish a good working relationship with AUSA. Try to do it first, if it does not work out, you may file for MSJ, but my advice is to wait until MTD is denied.
Lazycis,
I read through it and it looks good to me. I hope things go well for you!
Couple questions:
1- Can you do this Pro se, or do you have to do it with an attorney?
2- Are there any resources that can help Pro se people prepare these appeals and so on, and explain the whole procedure of how to go about the appeal procedure?
Thanks for the good wishes!
1. I am doing it Pro Se so you can do it too. The total cost is about $700.
2. I've got all the necessary info from my Court of Appeals web site. When I had questions, I just called court clerk. The appellate process is somewhat easier than the process in district court.
Could you tell me the name of AUSA?
Hi KK,
Could you tell me the name of AUSA? I filed WOM at the same court.
Hi KK,
Could you tell me the name of AUSA? I filed WOM at the same court.
Thanks shvili.... I looked at my case on pacer and there is no other documents after the Judge's Order 2 weeks ago....I am
I am preparing my motion and as of now, I am calling it ' Plaintiff's Memorandum of Law in Support of Court's Order dated .../.../...'
Hi KK,
Could you tell me the name of AUSA? I filed WOM at the same court.
Check your PM....
imhrb,
1. MSJ may lead to a quick resolution of your case (it can go either way). If you file MSJ, opposing party usually files cross-motion for summary judgment. So there are different scenarios (your MSJ granted, their MSJ denied - you won; your MSJ denied, their MSJ granted - you lost; both MSJ denied - the process continues; sometimes MSJ can be granted in part, so there are a few variables).
2. You are correct, it's a mutual motion and can be initiated by either side. It does not hurt to try. It's always good to establish a good working relationship with AUSA. Try to do it first, if it does not work out, you may file for MSJ, but my advice is to wait until MTD is denied.
What is the benefit of joint stipulation? Is it just that the case is NOT dismissed (so the court still has it in active state), and then the CIS has 30 more days? And would the AUSA really go for it if he is focused on getting the case dismissed?
What is the benefit of joint stipulation? Is it just that the case is NOT dismissed (so the court still has it in active state), and then the CIS has 30 more days? And would the AUSA really go for it if he is focused on getting the case dismissed?
The benefit is that both you and AUSA have an opportunity to get rid of the case with minimal effort. So it really depends on AUSA. If AUSA has sympathy to your situation and does not like to work hard to defend a difficult case, s/he may go for it.
Hi KK,
Do you have the order for dismiss AUSA's MTD in southern district court? Could you post it?
Thanks.
There was never an MTD in my case....it's a slightly different tactic that my AUSA has used...he has been trying to delay the case as long as possible by doing basically nothing...the first conference with the judge, he didn't show up in court...so the judge ordered another conference a month later...he didin't show up again, but this time he sent onw of his associates...the judge got upset and told his associate that by the next conference, she wans to see some progress on the case and wants to know excatly what it is that the AUSA has done in the prior 4 months...at the next conference (by phone), the AUSA told the magistrate judge about the other cases in SDNY and also said that he doesn't know why the name check has taken so long...after which the magistrate judge said, she does not have the power to issue an Order, but will ask the District Judge assigned to the case...after 2 weeks, the District Judge issued the Order, compelling the FBI to complete the check in 45 days, and USCIS 45 days thereafter....
halotinman
Registered Users (C)
Wait for all return receipts, than fill the second pages using information from the return receipts. Or you can just attach receipt to the second pages of the summons. Then file both pages with the district court. If you do not have a copy of the first page, do not worry, prepare a document titled "Proof of service", state that you are filing this as the proof that you've served the defendants and attach all the return receipts.
Hi lazycis, I read in the first topic of this thread when I file the return receipts (from the summons) to the court, I should also send the copy to the US attorney. Is this correct? So basically I should send the exact copy of what I will be filing with the court to the US attorney?
Thanks!
The benefit is that both you and AUSA have an opportunity to get rid of the case with minimal effort. So it really depends on AUSA. If AUSA has sympathy to your situation and does not like to work hard to defend a difficult case, s/he may go for it.
Thank you so much for all the help! I truly appreciate it!
Hopefully the MTD would get denied in our case (though we are not in a very friendly district), but if it gets granted, then I may request for more help from you in getting the appeal done.
Thanks again!
Lazycis (or anyone else with experience),
We filed the response to AUSA's MTD last week.
1- What is the benefit of motion for summary judgment? Does it just put somewhat of an extra pressure on the judge to decide in our favor? I have heard/seen in the past those getting denied; if that happens, is it a bad sign?
2- I have been reading stuff about "joint stipulation" to remand the case back to CIS for them to decide in 30 days of whatever. I am assuming it means that plaintiff and AUSA decide together to file this request. Is that correct? Also, is this something that is initiated by the AUSA or is it a good idea for me to do it?
Finally, which of the two should be done first? Or both one after the other?
Thanks
About the joint stipulation to remand the case back to CIS.
Remember that AUSA is not making these decisions. S/he is just an executant whatever the Office of General Counsel from USCIS ask him/her to file. Of course, AUSA may be helpful by putting some extra pressure on the defendants, but it is not up to him/her to make you an offer or accept your offer to submit a joint stipulation. This can be done only when USCIS knows that they can adjudicate your case in the prescribed timeframe. All the joint stipulations to remand back the case to USCIS I saw where cases practically solved; USCIS needed back the jurisdiction to adjudicate the case. In some circuit courts USCIS acts as they maintain concurrent jurisdiction and they adjudicate the application even when the case is pending in court, in some other jurisdictions (mainly 9th Circuit Court, because of the US v. Hovsepian) they need a remand order before they can adjudicate the case.
Bottom line: these joint stipulations to remand always happened (at least to the best of my knowledge) when the FBI completed already the name check and USCIS was ready to adjudicate the case. In such cases there is no prevailing party, so Plaintiff has to bite the bullet and support the cost and eventually his/her attorney's fee.
Thanks shvili.... I looked at my case on pacer and there is no other documents after the Judge's Order 2 weeks ago....I am not aware of the Judge giving permission to the AUSA to file a 'reconsideration motion'...However, in the Motion, the AUSA is arguing that " ...in issuing its Order, the Court may have overlooked facts and authorities that, had they been considered, may have influenced, and possibly changed, the Court's decision' and then it goes into details of 'examination' 'lack of jurisdiction',
and this is also very important regarding 'examination': there is a point in the Motion that says the ONLY Court of Appeals to have considered the question of 'examination' was a recent one in the 5th cir. June 19, 2007 Walji vs. Gonzales, where the Plaintiff apparently lost...
I am preparing my motion and as of now, I am calling it ' Plaintiff's Memorandum of Law in Support of Court's Order dated .../.../...'
kk405,
Even though you're not from CA, the laws are federal and the rule for a formal permission from the judge to file motion for reconsideration should apply in your district. Depending on how good a relationship is between your judge and your AUSA, rules are bent oftentimes, but I think the judge should still formally allow it before AUSA can file. Now, since you're not from the 5th district, their recent ruling should not be weighted heavier than an older, but heavily relied upon 9th Cir. ruling in Hovsepian case. Hopefully you can look it up- it's quoted in many posted 1447 decisions. In Hovsepian, even though CIS said they adjudicated plaintiff's petition, the judge threw out that adjudication because it was done AFTER plaintiff filed 1447 law suit which automatically transferred jurisdiction to court. The judge said that under 1447jurisdiction lies in court from the date petition is filed, so CIS had no right to act afterwards. Although I don't remember if that judge specifically argued "examination" as an event not a process (-Danilov's argument). the fact that judge admitted jurisdiction under 1447 implies he agreed with this logic. You should pull up Hovsepian ruling (from members or simply search it on Pacer), and rely on it when you prepare your brief to answer AUSA motion to reconsider. Also, use very good argument in Paz' draft of Opp to MTD on examinationvs investigation (re-posted by him last week, I think), and many rulings on this by district courts.
Again, at this point your judge may not even allow AUSA to file, but it's good you're working on your Memo brief anyway. Also, since you're in NY, you may call NY Pro se Office (I posted their number several times, the last time before July4th) Even if you're from a another NY district, they should hopefully talk to you since they even talked to me (and I said I'm from CA). See if they give any more insight.
I haven't thought about opposing that 5th dist. ruling, but overwhelming number of courts ruled in plaintiffs' favor, and just a handful in defendants'. Even TX dist courts ruled for Plaintiffs on this before. This should be your main line of defense (against AUSA's that judge overlooked "facts and authorities").
But I really think you should still get CIS/FBI approval. Your case is very strong after judge's ruling.
Good luck!
kk405,
Even though you're not from CA, the laws are federal and the rule for a formal permission from the judge to file motion for reconsideration should apply in your district. Depending on how good a relationship is between your judge and your AUSA, rules are bent oftentimes, but I think the judge should still formally allow it before AUSA can file. Now, since you're not from the 5th district, their recent ruling should not be weighted heavier than an older, but heavily relied upon 9th Cir. ruling in Hovsepian case. Hopefully you can look it up- it's quoted in many posted 1447 decisions. In Hovsepian, even though CIS said they adjudicated plaintiff's petition, the judge threw out that adjudication because it was done AFTER plaintiff filed 1447 law suit which automatically transferred jurisdiction to court. The judge said that under 1447jurisdiction lies in court from the date petition is filed, so CIS had no right to act afterwards. Although I don't remember if that judge specifically argued "examination" as an event not a process (-Danilov's argument). the fact that judge admitted jurisdiction under 1447 implies he agreed with this logic. You should pull up Hovsepian ruling (from members or simply search it on Pacer), and rely on it when you prepare your brief to answer AUSA motion to reconsider. Also, use very good argument in Paz' draft of Opp to MTD on examinationvs investigation (re-posted by him last week, I think), and many rulings on this by district courts.
Again, at this point your judge may not even allow AUSA to file, but it's good you're working on your Memo brief anyway. Also, since you're in NY, you may call NY Pro se Office (I posted their number several times, the last time before July4th) Even if you're from a another NY district, they should hopefully talk to you since they even talked to me (and I said I'm from CA). See if they give any more insight.
I haven't thought about opposing that 5th dist. ruling, but overwhelming number of courts ruled in plaintiffs' favor, and just a handful in defendants'. Even TX dist courts ruled for Plaintiffs on this before. This should be your main line of defense (against AUSA's that judge overlooked "facts and authorities").
But I really think you should still get CIS/FBI approval. Your case is very strong after judge's ruling.
Good luck!
Thanks Shvili... Luckily, I live 2 blocks away from the courthouse, so I can pop-in and ask any questions i have, and I will do so tomorrow... Also, the another strange thing is that the AUSA in his filing says that the only Court of Appeals to have considered tis issue is that of 5th Circuit with the recent decision on Walji vs. Gonzales, which is clearly not accurate as Hovsepian is another case considered by the Appeals Court and ruled in favor of the Plaintiff. I do have a copy of all these cases, as well as Paz's incredible OMTD document which I will be using in my motion...i just hope the judge doesn't change her mind and changes the order, as it will be disasterous and leave me in limbo....
Appealing Your Case To Court Of Appeal
HELLO.
My friends i will like to let you know that if you loose your case base on jurisdication, do not be afraid to appeal the case, Everybody remember ME when I lost the case at District Court in Los Angeles, California in March, 19, 2007. most of you send a lot of encouragement and i do appreciate that because your go getter attitude real motivated me to fight harder than before, and to day i have a good news. USA ATTORNEY CALLED ME AND ASK ME TO VOLUNTARY DISMISS THE CASE FROM 9TH COURT OF APPEAL BECAUSE CIS HAVE APPROVED MY CASE AND MY CEREMONY WILL BE JULY 26
I want everyone to know, you do not need a lawyer to appeal, it is very simple process, that need littel bit of patient, that is all. I will try to post everything i had to do to to win my case.
But there some simple rules I want everyone to know,
PHASE 1
1) You have 30days to appeal the case with appeal court in civil case.
2) You can not introduce new evidence in a Apppel Court, your case will be dismiss. ---
3) You must file "Notice of Appeal" and send the copy to USA certified mail letting them know you are Appealing the case to higher court,
3) You must request the Transcipts from the Court Reporter. you can find out this by calling the court and ask who was court reporter for judege so and so because you want to get your transcripts.
4) Wait for the court of appeal to send you a DOCKET NUMBER, without docket number you can not write the brief -- you need it, once you get the docket number the court of appeal will send you timeble of the things you need to do, and how to appeal pro-se. and where to send your brief. this is a best part , because it means court of appeal have offical accepted your case and ready to listen to your arguement.
PHASE 2
1) Write brief, send two copies to USA ATTORNEY AND SEVEN COPIES TO COURT OF APPEAL. with all exhibits, from the district courts.
2)YOU must attached TRANSCRIPTS AND JUGDEMENT WITH YOUR BRIEFS.
this means you must make seven copies ot jugdement. and one copy only of the transcript and send to COURT OF APPEAL. AND USA ATTORNERY.
3) MAKE SURE YOU SERVE USA WITH CERTIFIED MAIL AND SEND THE PROOF OF SERVICE TO COURT OF APPEAL.
PHASE 3
HOW TO WRITE AN APPEAL TO COURT OF APPEAL.
1) you must include certain page on your brief, otherwise they will send it back and ask you to correct it. this will take more time for your case to be heard, so first you must
1. write cover page according to the rule, i will post the cover page here so you can see , very simple.
2. second, you must include Table of Contents
3. you must include Table of Authorities
4. you must state the jurisdication issue.
5. you must state the ISSUES COURT MUST CONSIDER THE DISTRICT DID NOT CONSIDER OR ABUSE DISCRINARY DUTY AND ABUSE THE ITS POWER.
6. Then you write your brief. remember your complain must be directed toward violation of your constututions, this is the only way you can make court of appeal to listen to your case, remember citizenship is constitution issue, so you must bring this issue over and over again on your complain.
At the end you must tell the court you have exhausted all the venues to get your case resolve include the district court-- and this court should determine your case and give your oath of citizenship. This way the court may considered not to remand the case back to district court or CIS and may actually force the defends to determine the case while it is still in en banc. This is what USA ATTORNEY DO NOT WANT --SO THEY WILL CALL YOU AND ASK YOU TO DISSMISS THE CASE, AND COME UP WITH SOME SORT OF AGREEMENT TO APPROVE YOUR CASE, - THEY DID IT TO MY CASE THEY WILL DO IT TO YOUR CASE, --
I WILL POST THE BRIEF AND YOU GUYS CAN MODIFY IT, USE IT IN ANY COURT IF YOUR CASE IS DISSMISS BASED ON JURISDICTION, I ENCOURAGE ALL OF YOU DO NOT BE AFRIAD TO APPEAL YOUR CASE INCASE IS DISSMISS. IF YOU DO NOT YOUR CASE CAN TAKE VERY LONG TIME TO BE DETERMINE. BECAUSE NOW THE USA ATTORNEY HAS THE ADVERNTAGES TO DELAY AS LONG AS HE WANTS. AND THEY IS NOTHING YOU CAN DO. SO APPEAL THE CASE.
THANK YOU EVERYONE AND BEST REGARDS TO ALL OF YOU. I WISH ALL THE BEST. AND POSITIVE DAYS AHEAD OF YOU. LET GOD WITH HIS INFINITIVE MECRY BLESS ALL OF YOU THAT EACH DAY WILL BE A VICTOROUS DAY, WITH NEW WISDOM TO DO RIGHT AND REACH OUT TO THOSE DESIRES IN OUR LIFE SOMETIMES SEEMS IMPRACTICAL IMMPOSSIBLE.
NIFTY97
HELLO.
My friends i will like to let you know that if you loose your case base on jurisdication, do not be afraid to appeal the case, Everybody remember ME when I lost the case at District Court in Los Angeles, California in March, 19, 2007. most of you send a lot of encouragement and i do appreciate that because your go getter attitude real motivated me to fight harder than before, and to day i have a good news. USA ATTORNEY CALLED ME AND ASK ME TO VOLUNTARY DISMISS THE CASE FROM 9TH COURT OF APPEAL BECAUSE CIS HAVE APPROVED MY CASE AND MY CEREMONY WILL BE JULY 26
I want everyone to know, you do not need a lawyer to appeal, it is very simple process, that need littel bit of patient, that is all. I will try to post everything i had to do to to win my case.
But there some simple rules I want everyone to know,
PHASE 1
1) You have 30days to appeal the case with appeal court in civil case.
2) You can not introduce new evidence in a Apppel Court, your case will be dismiss. ---
3) You must file "Notice of Appeal" and send the copy to USA certified mail letting them know you are Appealing the case to higher court,
3) You must request the Transcipts from the Court Reporter. you can find out this by calling the court and ask who was court reporter for judege so and so because you want to get your transcripts.
4) Wait for the court of appeal to send you a DOCKET NUMBER, without docket number you can not write the brief -- you need it, once you get the docket number the court of appeal will send you timeble of the things you need to do, and how to appeal pro-se. and where to send your brief. this is a best part , because it means court of appeal have offical accepted your case and ready to listen to your arguement.
PHASE 2
1) Write brief, send two copies to USA ATTORNEY AND SEVEN COPIES TO COURT OF APPEAL. with all exhibits, from the district courts.
2)YOU must attached TRANSCRIPTS AND JUGDEMENT WITH YOUR BRIEFS.
this means you must make seven copies ot jugdement. and one copy only of the transcript and send to COURT OF APPEAL. AND USA ATTORNERY.
3) MAKE SURE YOU SERVE USA WITH CERTIFIED MAIL AND SEND THE PROOF OF SERVICE TO COURT OF APPEAL.
PHASE 3
HOW TO WRITE AN APPEAL TO COURT OF APPEAL.
1) you must include certain page on your brief, otherwise they will send it back and ask you to correct it. this will take more time for your case to be heard, so first you must
1. write cover page according to the rule, i will post the cover page here so you can see , very simple.
2. second, you must include Table of Contents
3. you must include Table of Authorities
4. you must state the jurisdication issue.
5. you must state the ISSUES COURT MUST CONSIDER THE DISTRICT DID NOT CONSIDER OR ABUSE DISCRINARY DUTY AND ABUSE THE ITS POWER.
6. Then you write your brief. remember your complain must be directed toward violation of your constututions, this is the only way you can make court of appeal to listen to your case, remember citizenship is constitution issue, so you must bring this issue over and over again on your complain.
At the end you must tell the court you have exhausted all the venues to get your case resolve include the district court-- and this court should determine your case and give your oath of citizenship. This way the court may considered not to remand the case back to district court or CIS and may actually force the defends to determine the case while it is still in en banc. This is what USA ATTORNEY DO NOT WANT --SO THEY WILL CALL YOU AND ASK YOU TO DISSMISS THE CASE, AND COME UP WITH SOME SORT OF AGREEMENT TO APPROVE YOUR CASE, - THEY DID IT TO MY CASE THEY WILL DO IT TO YOUR CASE, --
I WILL POST THE BRIEF AND YOU GUYS CAN MODIFY IT, USE IT IN ANY COURT IF YOUR CASE IS DISSMISS BASED ON JURISDICTION, I ENCOURAGE ALL OF YOU DO NOT BE AFRIAD TO APPEAL YOUR CASE INCASE IS DISSMISS. IF YOU DO NOT YOUR CASE CAN TAKE VERY LONG TIME TO BE DETERMINE. BECAUSE NOW THE USA ATTORNEY HAS THE ADVERNTAGES TO DELAY AS LONG AS HE WANTS. AND THEY IS NOTHING YOU CAN DO. SO APPEAL THE CASE.
THANK YOU EVERYONE AND BEST REGARDS TO ALL OF YOU. I WISH ALL THE BEST. AND POSITIVE DAYS AHEAD OF YOU. LET GOD WITH HIS INFINITIVE MECRY BLESS ALL OF YOU THAT EACH DAY WILL BE A VICTOROUS DAY, WITH NEW WISDOM TO DO RIGHT AND REACH OUT TO THOSE DESIRES IN OUR LIFE SOMETIMES SEEMS IMPRACTICAL IMMPOSSIBLE.
NIFTY97
Last edited by a moderator:
Hello, Guys
I Am Trying To Attached The Sample Of Appeal That I Used To Send To 9th Court Of Appeal So You Guys Can See And Modify It And Use It To Fit Your Case. But Do Not See The Attachment Link Here
Send Me Instruction And I Will Attached The BRIEF OF APPEAL TO THE 9TH CIRCUIT COURT.
Thanks
Congratulations! I am in process of appeal myself. Click on "Manage Attachments" button (look down) to attach a document.
Hi lazycis, I read in the first topic of this thread when I file the return receipts (from the summons) to the court, I should also send the copy to the US attorney. Is this correct? So basically I should send the exact copy of what I will be filing with the court to the US attorney?
Thanks!
Hi halotinman,
That's right, you need to send a copy of the complaint and summons to your district US Attorney. After that, send him a copy of everything you file with the court.