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

[GC_09_2003]

Need Advise please.....

Hi Guys,

I am also in very ugly situation like you guys. My case is pending I485 approval since last 4 years!!! Here is my case details.

1) Filed I-485 application in SEP 2003 with PD Oct 2001 and EB3 category.

2) Came to know that Name check is pending and got cleared after many phone calls to FBI in FEB 2005. I have email sent by FBI saying results have been forwarded to USCIS.

3) Between FEB and JUNE of 2005 my PD was current but nothing happened. When I contacted VSC through congrassman, they said the case is in the adjudicating area and any time soon I can expect the approval. But nothing happend.

4) Between JULY 2005 and MAY 2007, my PD was not current and hence was not able to do any thing.

5) In Jan 2007, my case got tranferred from VSC to Boston Local office and had interview in Mar 2007. At the end of the interview the officer informed me, I will hear something with in 60 days.

6) After 60 days I went to Boston office through Infopass on June 11,2007 to enquire about the case. The office said every thing looks OK except the finger printing is expired. It is just a matter of time and I can expect the finger print notice shortly and after that decision on the case.

7) Again in the same week I contacted congressman's office to push my case. I got shocking news saying that the "background check" is still pending. I told congressman's office that Boston Office said few days back that every thing looks OK. The lady at congressman's again called Boston office (in front of me) to double check the status and informed them about the FBI name Name Check Completion. But the Boston office is saying, Name check is just a part of over all "Background" Check and hence it is possible that something else is pending. They are not saying what exactly with in "Back groung" check is holding.


So based upon these facts I am confused with the following questions.

a. My best knowledge is that Name Check is the most time consuming step in the back ground check and other checks are straight forward. If name check is cleared what else could be the problem?

b. Is it possible that my name has been forwarded to FBI Name check again as my case got transferred from VSC to Boston?

c. What best I can do to know which exact check with in over all "Back Ground check is pending?

d. In general what are all other options are there for me to push my case as long pending (4 years)?

I appreciate your suggestions.

 

[Ninyte]

GC 09 2003,

Did you go to fingerprinting yet? Finger prints are part of name check, so that could be the only thing that's holding up.

 

[lazycis]

So based upon these facts I am confused with the following questions.

a. My best knowledge is that Name Check is the most time consuming step in the back ground check and other checks are straight forward. If name check is cleared what else could be the problem?

b. Is it possible that my name has been forwarded to FBI Name check again as my case got transferred from VSC to Boston?

c. What best I can do to know which exact check with in over all "Back Ground check is pending?

d. In general what are all other options are there for me to push my case as long pending (4 years)?

I appreciate your suggestions.

a. Probably the other checks (fingerprint and IBIS name check) are expired and they are performing new checks. Fingerprints are valid for 16 months, IBIS check - for 90 days.

b. Everything is possible when you are dealing with USCIS, but it is unlikely.

c. Try senator and Infopass, but there is no sure way to find out (again, mysterious USCIS is involved)

d. Your case seems to be close to resolution. Go to Infopass and push them to send you a fingerprinting notice. Even if your PD is not current, you want it to be done beforehand. Use senator's office, if it's helpful. If nothing happens when your PD is current, file a lawsuit.

 

[GC_09_2003]

Thanks for the response

Thanks for the quick response Ninyte,

I am waiting for the second finger printing notice. During my last visit, the immigration office said the adjudicating office has to suggest for the finger printing.

If you say name check is the part of finger printing, doe sthat mean they go for name check ech time you do finger printing? I don't think so. One more thing is since my second finger printing is yet to happen, dealy due to biomatric is ruled out.

GC 09 2003,

Did you go to fingerprinting yet? Finger prints are part of name check, so that could be the only thing that's holding up.

 

[lazycis]

another 1447b victory

An interesting opinion discussing "examination" and "interview", rejecting Walji (district court case).

http://bibdaily.com/pdfs/Al-Mohammed 7-9-07.pdf

BTW, I wonder if current N-652 form has a reference to 1447b (Section 336) at the bottom. Anyone?

 

[GC_09_2003]

Appreciate your response lazycis,

a. According to my knowledge (got from this board), IBIS is a quick one and Finger Printing is yet to happen.

c. Do you think going through a senator's office is more productive than congressman?

d. Is it Ok asking congressman or senator to push for sending out finger printing notice?

a. Probably the other checks (fingerprint and IBIS name check) are expired and they are performing new checks. Fingerprints are valid for 16 months, IBIS check - for 90 days.

b. Everything is possible when you are dealing with USCIS, but it is unlikely.

c. Try senator and Infopass, but there is no sure way to find out (again, mysterious USCIS is involved)

d. Your case seems to be close to resolution. Go to Infopass and push them to send you a fingerprinting notice. Even if your PD is not current, you want it to be done beforehand. Use senator's office, if it's helpful. If nothing happens when your PD is current, file a lawsuit.

 

[kk405]

Small Help with Paz's OMTD

I am using parts of Paz's brilliant OMTD in my case...there is one part that I need help with...for those of you who have read it, there is a paragraph that reads as such:

'It is the law of the Sixth Circuit Court that “where a statute both requires the agency to act within a certain time period and specifies a consequence if that requirement is not met, the agency will lose jurisdiction to act.” See Friends of the Crystal River v. EPA, 35 F.3d 1073, 1080 (6th Cir. 1994).'

I am in the Southern District of New York, which is 2nd Circuit Court..where would I be able to find a similar passage that he has used, but one that is for the 2nd Circuit Court?

 

[Kishore_l]

Dear Friends,

I am approved today. I think, mine should be the shortest period that was approved within 3 weeks of filing AOS WOM.

My case was pending APril 2004, for no apparent reasons (our Name Check / Background check was completed in 2004, have all the copied of the worksheet and how and when they approved it, when they updated in the USCIS database. If you file FOIA with DHS, you will get these information but its a very long process and for me it took 9 months to get all the papers. They sent me 850 pages of details, certain things were blocked for privacy reason like Adjudicating officer user id, some discretionary comments etc)

Filed AOS WOM Pro Se in NJ June 2007 and served summons on the same day and updated with certificate of service. Until July 5th my case never had an officer or visa alloted, however later that afternoon received call from Congreman / Senator that I should hear within 30 day most probably in a week.

Called TSC same day and verified that my case was assigned to an officer and visa was alloted. July 7th, my AP was approved. July 11th 485 is approved and I received an email today that my case is approved.

My theory is , I believe after USCIS received the summons, would have just checked my case and seems everything is good, assigned to an officer.

Kishore

 

[halotinman]

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.

Hi Lazycis,

Why is it necessary to send a copy of the Certificate of Service (for the served summons) to the AUSA? I called the clerk at the US District Court and was told that i only need to send the Certificate of Service to the court. I also could not find anywhere in the "Handbook For Litigants Without A Lawyer" from the US District Court for the Northern District of California that mention the need to send a copy of the Certificate of Service to the AUSA.

What is the reason for sending it to the AUSA? To make him/her aware that all the summons have been served?

Thank again!

 

[shvili]

An interesting opinion discussing "examination" and "interview", rejecting Walji (district court case).

http://bibdaily.com/pdfs/Al-Mohammed 7-9-07.pdf

BTW, I wonder if current N-652 form has a reference to 1447b (Section 336) at the bottom. Anyone?

Thank you for bringing it up! I assume it's still there as I never heard it was removed. The last year form definitely had it. This is another point that I think kk405 should use in his brief: I used this form and the memo in my 1447+WOM this way:

"On January 14, 2005 USCIS issued an interoffice Memorandum, which instructed field adjudication officers to use only a new version of the interview form N-652 for naturalization interviews and also to notify applicants of their right to request a hearing in district court. This new version of the form explicitly states that applicants have a right “under section 336 of the Immigration and Nationality Act to request a hearing before… the U.S. district court if USCIS has not made a determination on your application within 120 days of the date of your examination.” According to this memorandum, USCIS clearly recognizes and accepts its responsibility to adjudicate naturalization applications within 120 days from the date of naturalization interview. (Exhibit 12 –copies of USCIS Interoffice Memorandum and new N-652 Naturalization Interview Results Form)."

kk405, pm me with your e-mail address if you want me to send you the copy of this memo and N-652 form. (-But if you had your interview in 2005 you probably got new form yourself)

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....

I can't remember of another NY members who mentioned 2nd Cir. decisions, but I'll let you know if I find anything. Your AUSA is pulling your leg if she said there's only a single decision in Walji case from an Appeals court. There definitely were other decisions in other districts and at least one on Appeals level (in addition to Hovsepian)- read the rulings for more quotes.

 

[lazycis]

Hi Lazycis,

Why is it necessary to send a copy of the Certificate of Service (for the served summons) to the AUSA? I called the clerk at the US District Court and was told that i only need to send the Certificate of Service to the court. I also could not find anywhere in the "Handbook For Litigants Without A Lawyer" from the US District Court for the Northern District of California that mention the need to send a copy of the Certificate of Service to the AUSA.

What is the reason for sending it to the AUSA? To make him/her aware that all the summons have been served?

Thank again!

I did not realize you were talking about the Certificate of Service. You do not need to send a copy of it to AUSA. That may be the only exception of the rule.

 

[vicky2006]

speak to the US Attorney

Since I live in chicago,and not far from the US attorney's office. I haven't found out who is the attorney designated to my case. I am wondering if I can go talk to them in person instead of calling. Do you think that is a good idea?

Thanks,
Vicky

 

[shvili]

Dear Friends,

I am approved today. I think, mine should be the shortest period that was approved within 3 weeks of filing AOS WOM.

My case was pending APril 2004, for no apparent reasons (our Name Check / Background check was completed in 2004, have all the copied of the worksheet and how and when they approved it, when they updated in the USCIS database. If you file FOIA with DHS, you will get these information but its a very long process and for me it took 9 months to get all the papers. They sent me 850 pages of details, certain things were blocked for privacy reason like Adjudicating officer user id, some discretionary comments etc)

Filed AOS WOM Pro Se in NJ June 2007 and served summons on the same day and updated with certificate of service. Until July 5th my case never had an officer or visa alloted, however later that afternoon received call from Congreman / Senator that I should hear within 30 day most probably in a week.

Called TSC same day and verified that my case was assigned to an officer and visa was alloted. July 7th, my AP was approved. July 11th 485 is approved and I received an email today that my case is approved.

My theory is , I believe after USCIS received the summons, would have just checked my case and seems everything is good, assigned to an officer.

Kishore

Congratulations, Kishore !!!
You had such a short delay thanks to the fact you had your decisions in NC and Background checks. This is a main source of delay for most of us here. Good that your filing helped to resolve your CIS delay!

Enjoy your status!

 

[Ninyte]

Thanks for the quick response Ninyte,

I am waiting for the second finger printing notice. During my last visit, the immigration office said the adjudicating office has to suggest for the finger printing.

If you say name check is the part of finger printing, doe sthat mean they go for name check ech time you do finger printing? I don't think so.
No. I'm saying Fingerprinting is part of the name check.

One more thing is since my second finger printing is yet to happen, dealy due to biomatric is ruled out.

Since your fingerprints have expired a while ago, they cannot adjudicate your case before they have your new fingerprints. And that COULD be the delay.

 

[kk405]

Thank you for bringing it up! I assume it's still there as I never heard it was removed. The last year form definitely had it. This is another point that I think kk405 should use in his brief: I used this form and the memo in my 1447+WOM this way:

"On January 14, 2005 USCIS issued an interoffice Memorandum, which instructed field adjudication officers to use only a new version of the interview form N-652 for naturalization interviews and also to notify applicants of their right to request a hearing in district court. This new version of the form explicitly states that applicants have a right “under section 336 of the Immigration and Nationality Act to request a hearing before… the U.S. district court if USCIS has not made a determination on your application within 120 days of the date of your examination.” According to this memorandum, USCIS clearly recognizes and accepts its responsibility to adjudicate naturalization applications within 120 days from the date of naturalization interview. (Exhibit 12 –copies of USCIS Interoffice Memorandum and new N-652 Naturalization Interview Results Form)."

kk405, pm me with your e-mail address if you want me to send you the copy of this memo and N-652 form. (-But if you had your interview in 2005 you probably got new form yourself)



I can't remember of another NY members who mentioned 2nd Cir. decisions, but I'll let you know if I find anything. Your AUSA is pulling your leg if she said there's only a single decision in Walji case from an Appeals court. There definitely were other decisions in other districts and at least one on Appeals level (in addition to Hovsepian)- read the rulings for more quotes.

Shvili...yet again, thank you for your responses...i greatly appreciate the quote that you put in there and I will be using it in my filing...I do have a copy of the N-652 and the memo, and will be using it as well...and the strange thing is that despite the fact that my interview was AFTER this memo was issued, I was stillgiven an OLD N-652 that does NOT include the phrase at the bottom of the page regarding the right to take action in the U.S. District Court!!!! and this happened in NY office where it is supposedly one of their biggest and busiest centers!!!!

 

[Ninyte]

BTW, I wonder if current N-652 form has a reference to 1447b (Section 336) at the bottom. Anyone?

I am not sure, but I don't think they really need it now, since they don't call you for interview without your name check completed.

Recently one of my friends went to the interview (06/20) and came home with naturalization certificate. GO FIGURE!!! My husband and me couldn't talk all night. Even though you are happy for your friend, you just keep wondering what was it that YOU did wrong.

 

[ddwalker]

Do I want to accept this Stipluation to Dismiss?

Thanks Kishore and lazycis,

I took an Infopass today and talked to a CIS officer. I was told that the (lack of) visa number thing applies to everyone, including new applications as well as existing cases. However there is a chance that my case can be adjudicated before October if the Service Center already acquired a visa number for me. And he doesn't know (or can't tell) if that's the case. Of cause that's just for the normal case, and we are talking about WOM here.

In WOM, as lazycis pointed out, the judge might rule that my case be adjudicated right away. No matter what, here is something I'd like to know you guy's opinion. My AUSA called me the other day and talked to me about the visa number situation. She presented me an option that she'll put in a stipulation that the defendants promise to adjudicate my case within 30 days when the visa numbers are available. There are two catches, first this is just her idea and she needs to talk to the defendants to get the promise. So it's not formal yet. Second, I didn't ask her in what form she'll put the stipulation in. Will it be in the form of ADR, MTD or Summary Judgement, I dont' know.

So my questions are, can you tell in what form she present it to me? Shall I accept something like that? If I got something like that, is there anything I need to watch out for?

Thanks a lot.

Today I got the following Stipulation to Dismiss. I asked the AUSA if a Stipulation to Remand is possible. She told me that since it's not a naturalization case, the court doesn't have the jurisdiction. And the jurisdiction is with the USCIS in my case. Also she added the term "without prejudice" so that I can re-open the case after the 30day deadline. (I don't have to file a new case.)

So the question is shall I accept it? If so, what do I want to add/change in the stipulation? I really need the collective wisdom here. Thanks!

Title: PARTIES’ CONSENT TO MAGISTRATE JUDGE JURISDICTION; STIPULATION TO DISMISS; AND [PROPOSED] ORDER

In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, Plaintiff and Defendants in this case hereby voluntarily consent to have a United States Magistrate Judge conduct any and all further proceedings in the case, including trial, and order the entry of a final judgment.
Further, Plaintiff, appearing pro se, and Defendants, by and through their attorneys of record, hereby stipulate, subject to the approval of the Court, to dismissal of the above-entitled actionwithout prejudice because the United States Citizenship and Immigration Services is now prepared to adjudicate Plaintiff’s adjustment of status application and agrees to adjudicate such application within 30 days of the Department of State making the necessary employment visas available.
Each of the parties shall bear their own costs and fees.

 

[lazycis]

Shvili...yet again, thank you for your responses...i greatly appreciate the quote that you put in there and I will be using it in my filing...I do have a copy of the N-652 and the memo, and will be using it as well...and the strange thing is that despite the fact that my interview was AFTER this memo was issued, I was stillgiven an OLD N-652 that does NOT include the phrase at the bottom of the page regarding the right to take action in the U.S. District Court!!!! and this happened in NY office where it is supposedly one of their biggest and busiest centers!!!!

In addition to the N-652 memo, I am attaching another memo from the old INS. If you check pages 4-5, it is clear that they never treated examination as a process, it is an event when a person is being interviewed by INS officer.

 

[paz1960]

Shvili...yet again, thank you for your responses...i greatly appreciate the quote that you put in there and I will be using it in my filing...I do have a copy of the N-652 and the memo, and will be using it as well...and the strange thing is that despite the fact that my interview was AFTER this memo was issued, I was stillgiven an OLD N-652 that does NOT include the phrase at the bottom of the page regarding the right to take action in the U.S. District Court!!!! and this happened in NY office where it is supposedly one of their biggest and busiest centers!!!!

As shvili posted, the memo about the new N-652 forms was issued on Jan. 14, 2005. I was interviewed on Jan. 27, 2005, and I also received the old form, without the warning about the 120 day rule.

BTW, this was added to the form not because USCIS became suddenly generous and they were trying to tell applicants about their rights provided by the statue; USCIS lost a class action lawsuit somewhere in the 9th Circuit - if I remember correctly in Seattle - and the court ordered USCIS to add the message about the 120 day rule at each N-652 form. If I had one of these new forms, I certainly would not wait for almost two years before I sued them...

 

[paz1960]

Today I got the following Stipulation to Dismiss. I asked the AUSA if a Stipulation to Remand is possible. She told me that since it's not a naturalization case, the court doesn't have the jurisdiction. And the jurisdiction is with the USCIS in my case. Also she added the term "without prejudice" so that I can re-open the case after the 30day deadline. (I don't have to file a new case.)

So the question is shall I accept it? If so, what do I want to add/change in the stipulation? I really need the collective wisdom here. Thanks!

Congratulations, ddwalker! You got what you could realistically hope for. I would sign this joint stipulation with no problem. AUSA was right about the jurisdiction and implicitely, remand. USCIS loses jurisdiction only in the naturalization cases when an applicant files a complaint based on 1447(b) (even this is disputed in most of the districts, but is certainly true in the 9th Cir., see US v. Hovsepian)