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

paz1960 said:
Although my comment has only theoretical value (the fact is consumed) but I have serious doubts about the likeliness that the judge would remand your case to USCIS and rule that you are the prevailing party and entitled for cost reimbursement. Because USCIS (through AUSA) signaled that they are ready now to adjudicate your husband's case (and they did this BEFORE the court ruled anything, and this is the key), you certainly would not qualify as a prevailing party. In other circuits, USCIS would simply adjudicate your case (even with a pending lawsuit)and notify the court that the case is moot.

I posted a while ago an opinion and order where the judge explains in great details how Plaintiff would qualify as prevailing party; if I didn't miss something, in a situation like yours, you would not qualify.

And USCIS (through AUSA) was right when they wrote in the joint stipulation that they are ready to adjudicate and they didn't use the word approve. You could not sue them why they didn't approve your case. See the exact wording of 1447(b).

I proposed to AUSA when he sent me a draft of the joint stipulation, to include one more sentence which gives me some extra protection (the original proposal contained a statement that USCIS approved my application and there was a copy of the first page of my N-400 form attached, with the big APPROVED stamp on it) "USCIS will schedule the oath ceremony as soon as possible but not later that 30 days after the date of the order".

In your case this sentence could be "USCIS will adjudicate the Planitiff's application as soon as possible but not later than 30 days after the order and in the case of approval, it will schedule the oath ceremony as soon as possible but not later than 30 days after the adjudication date". Remember, approval is a necessary but not sufficient step to become citizen. The process ends only when you have your oath ceremony and sign your citizenship certificate. My wife waited 5 months from approval till the oath ceremony, which was exactly two weeks after our daugther turned 18, so she didn't become automatically US citizen, she needs to apply by herself as an adult.

But these remarks are most likely only theoretical. Your husband will get his case approved as soon as USCIS gets the judge's order to dismiss the case and the oath letter will come soon.
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Paz,
Thank you for your comment- due to my own inclinations I often appreciate theoretical advice even more than a practical one :)

Yes, I remember reading your attached text of the prevailing party arg-t in a case of fees reimbursement. So in this case, because there was no ruling, I can't be considered a prevailing party, you are right. (and even if I could be, the probability that I'll spend another XXX hours to try to get back less than $400 is very slim, judging my current mood) The reason I felt bad was due to a missed opportunity- I didn't do all in my power to know that I attempted all that I could possibly have.

In terms of "adjudication"- I totally agree that I couldn't ask them to change the word to approval, -my whole 1447 argument is based on the fact that we're asking them to act, not to issue an approval in this case. My thoughts in the post were related to another thing: like you mentioned it happened in your case (they said they "approved" your applic-n,) I saw several stipulations in our district where AUSA said "in light of the fact that CIS naturalized plaintiff". Although it doesn't make sense in CA-CIS lost jurisdiction to act while case is pending in court, so majority of cases are written the same way as my husband's, but in a few with "naturalized" language plaintiffs (obviously) did not object (and judges did not fuss about the jurisdiction violation).

I was in a rush (taking daughter to class) when I had to decide on signing and also I know that time is an issue as next Tuesday is our "meet and confer" deadline and we need to get it signed by the judge this week. So after I talked to teh paralegal (who assured me everything will be done as stated and they approved as far as she knew) I said "OK, let's sign and get it over with. I had a thought on the back of my mind that there'll be unknown time between approval and oath, but I also remember many cases in CA where they sworn almost immediately plus our regular naturalization ceremonies occur on a monthly basis. Also they way paralegal talked made it sound like CIS will send us the oath letter as soon as they get the order signed by the judge and will schedule the oath ceremony within 30 days.

But now I have that missed opportunity feeling again-yesterday it happened so fast, I had to rush, and so I didn't consider all my options. (I am very bad with multitasking even though I have to practice it all the time :eek: ) I wish I had your advice yesterday (about oath timeline)- even though paralegal would probably say that scheduling oath is out of their control at this point and that CIS will schedule very soon any way. Yes, it probably won't change anything -it's just instead of doing it perfectly I just did it OK.

That's a shame that your daughter lost her chance of getting citizenship through your wife! (I assume your wife was naturalized before yourself). Was she also stuck in the process? Also-why such a huge wait for the ceremony? (Even in TX where I got mine it was just a couple of months).

Although I read your advice too late, I'm really glad to hear form you. Please keep posting!
 
halotinman said:
Has anyone heard of any recent successes in 1447(b) cases filed at the US District Court in the Western District of Washington? I have recently filed my civil action and received a notice on 7/16/2007 that they have assigned an assistant US attorney to deal with my case.

Thanks!
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Halotinman,

I can't find N-400 cases, only AOS in WA (maybe Lazycis has some?) But I suggest you go to Justia to your district court:
http://dockets.justia.com/search?qu...ear=2006&max-day=20&max-month=7&max-year=2007
It may not show orders (in CA I couldn't find any) because all cases were dismissed due to adjudication, but at least you'll see what happens in your district (especially look under your AUSA- how s/he replies, what they do in these cases).

You need Pacer subscription and downloads (except for court orders) will cost $.08/pg., but it's worth it!

Good luck!
 
Need your help!!!

I have a family based AOS pending for 3.5 years. I am in chicago. I filed wom on 06/14/2007, and served summons on 06/28/07. On 07/09/07, I got a letter from the court:

'Status hearing set for 8/15/2007 at 9:30 am. Plaintiff 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.'

So I called the US Attorney, and left a message to let him know of the status hearing, and would like to talk with him.

Then he called me back and told me as he checked, my name check is still pending. And he would like to proceed before the Magistrate Judge. He explained that that means we will go to another judge instead of the current one. But that is in the case if I agree. I can recommend to do somthing else. Whatever we do is based on both our agreement. And he said if i want to go with the Magistrate Judge, I need to file something, and let him sign it ,then file it to the court.

Here comes with my questions. Should i agree with him? Or should i recommend something else. Which one is best for me? Or if i want to go with Magistrate judge, what should I file to the court?

Please if anyone have any idea, please let me know. Thank you very much in advance.

Vicky
 
question

Does anyone know how can I add my wife into list of plaintiffs (perhaps, case examples)? The bottleneck is in my namecheck - hers was cleared. But if it doesn't cost much I thought I would include her as well..

Thanks!
 
ams_sim said:
Here is my update,
I did the oath on july 18,2007. After the AUSA told me name check cleared, I signed the stip to dismiss the same day. thanks all for the help and guidance.

N-400 interview 7/15/2006
1447 filed in San jose 5/14/2007
AUSA said namecheck cleared 6/26/2007
case dismissed: 7/03/2007
oath letter received 7/03/2007
oath 7/18/2007
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ams-sim,

Congratulations! Was your oath letter for a public oath ceremony? We're in San Jose also, and I understand the ceremonies here are very frequent. In our case FP repeat delayed the thing. Now waiting for the oath letter...
 
setmefree said:
All,

This has been a profoundly edifying thread. I'm going to ask a lot of basic questions and if there are threads or posts that have already explained this do point me to those instead:

I just started the AOS process in June, but it is clear that I am not one of the lucky people whose name check cleared in the 72hrs Cannon, Garrity et al mention. Given that the Ombudsman's report says that out of people who are stuck 32% are stuck for more than 1 year, I figured I might as well learn how the WOM process works right away instead of hoping against hope for years before doing anything.

(1) In the AOS cases you have seen -- what was the lowest delay before filing WOM? Many of the AOS cases I saw on Pacer have delays of 2, 3 even 4 yrs before filing WOM.

(2) This is also related to the issue of "unreasonable delay."

8 USC 1571 states that "It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application." ​

(a) Have the courts accepted this argument? (I have not yet seen cases where this issue was raised).
(b) Are you aware of any other cases in which the courts have ruled that the delay was not "unreasonable" because only x months or z years had passed?​

[I did read the delicious ruling in the 5th circuit Yon Tang case, but that application was pending for almost 4 years, and the judge basically says that whatever fine line might exist between reasonable and unreasonable, this case clearly beyond the pale and clearly unreasonable.]

(3) Has the Feb 2007 memo changing the rules on expediting name checks had an effect on the govt's arguments and behavior in WOM cases?

I see a lot of cases filed in the Northern District of CA even in the months after that.

Thanks!!!

Setmefree
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Setmefree,

1),2)Check Alkenani (1447, TX) order where judge said, he doesn't consider a delay of 15 mo. unreasonable but might consider 2 years unreasonable. He quoted delays of 2 + years as unreasonable, see Yu, Paunescu, Agbemaple. But the Alghamdi order (also 1447, FL) judge said since 120 days passed the delay is unlawful. If you're in CA chances are you case will be solved before getting a judge to rule, no matter how long the wait. I think here I saw cases filed after 12 mo. and resolved. (In AOS)
2) the argument is used an many Oppositions to MTD and less in decisions. It supports other arguments but alone is not a heavy weight- it is "a sense of Congress", not a statutory deadline.
3) I saw this "no more expedites in WOMs" as an argument in some WOM MTDs but it looks like (based in "miraculous" nc-clearances in many AOS WOM cases), this rule is not heavily used by CIS-they bring it up it in just a few cases. In N-400 cases they (apparently expedite most of teh times) even though when we asked the AO to expedite nc before filing he said my husband doesn't fit eligible category. SO depending on your district it may work.

Good luck!
 
Green Card, at last

:D Dear All,

Yesterday I got USCIS email notification informing me that my and my wife's I-485 applications were finally approved! and the cards ordered and will arrive shortly. This happened about 1 week after my name check was cleared (see my previous message bellow). After 5 years since we started our GC application, with numerous calls to USCIS customer service, writing to FBI for FOIPA, writing to congressmen and senators, first lady and the president, and filing WOM to seek justice, this result came within a time which could merely make me feel over joyed. However I am glad it is getting to the end, with a happy ending at last. :D I thank the people who had initiated this thread, through which I started to learn and file a lawsuit, which I would never think of doingby myself before. Thanks to people who involved in this thread, from them I got a lot courage and learnt to have hope. Thanks my lawyer who did an excellent repreasation for my case. Keep going, and do not step back, this is what I learnt from my experience, and you will succeed. I wish all of you good luck in your cases!
angtus said:
Yesterday I learnt from the Infopass that my security name check was at last cleared! I filed my WOM this Feb 26, at Boston District. The AUSA filed MTD. I found a lawyer and filed response to MTD. The court ordered defedants to provide statement revealing how my case had been handled, after the AUSA filed the statement my lawyer also filed response to the court. On July 26 the court denied the MTD and ordered the defedants to adjudicate my case within 40 days. The life of I-485 application has been a long heavy testing to me and my family, however at last here comes good news.
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1447b In Michigan

lazycis said:
Check this out:
http://www.usdoj.gov/oig/special/0007/bappendix.htm#adjudication

The relevant piece is:
"Reduction in Wait-Time for A-file Requests

Under current procedures, an Adjudications Officer waits for 6 months from the time the applicant's A-file was requested to conduct an interview without the applicant's file. This procedure, however, unnecessarily delays the processing of naturalization applications and, for the majority of applicants, the entire record is not necessary in order to review the events of the last five or three years (residency requirement for naturalization). Many recent events or actions can be gleaned from records checks and applications review.

As a result, this process is being changed to permit district offices to wait only 30 days for a requested file before proceeding with the interview and adjudicating the applicant's N-400 based on a temporary file. On February 21,1996, the Office of Records sent a cable (HQRECIRPB 70144.2-C) to all field offices outlining the procedures to be followed for requesting and transferring A-files, including procedures for files that cannot be requested through the Central Index System (CIS). These new procedures speed up the A-file transfer process and ultimately, the amount of time it takes to schedule an applicant for an interview.

Effective with this memorandum, an office is allowed to create a T-file after the A-file request has been pending for 30 days."

The memo was issued in 1996.

So they supposed to wait only 30 days and then they can proceed with T-file.
30 days has already passed so you can go to local office and insist that they follow procedures. Explain that you have an urgent need.
Do not say that you are going to sue just yet but be prepared to file a lawsuit on the 121st day.
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lazycis

can you please send me any links to any winning 1447b cases in detroit michigna i live in the esatern district?

are you aware of any winning cases here in michigan for 1447 b?

do the court have jurisdiction over the application or is still USCIS has that when u file 1447b
 
shvili said:
Setmefree,

1),2)Check Alkenani (1447, TX) order where judge said, he doesn't consider a delay of 15 mo. unreasonable but might consider 2 years unreasonable. He quoted delays of 2 + years as unreasonable, see Yu, Paunescu, Agbemaple. But the Alghamdi order (also 1447, FL) judge said since 120 days passed the delay is unlawful. If you're in CA chances are you case will be solved before getting a judge to rule, no matter how long the wait. I think here I saw cases filed after 12 mo. and resolved. (In AOS)
2) the argument is used an many Oppositions to MTD and less in decisions. It supports other arguments but alone is not a heavy weight- it is "a sense of Congress", not a statutory deadline.
3) I saw this "no more expedites in WOMs" as an argument in some WOM MTDs but it looks like (based in "miraculous" nc-clearances in many AOS WOM cases), this rule is not heavily used by CIS-they bring it up it in just a few cases. In N-400 cases they (apparently expedite most of teh times) even though when we asked the AO to expedite nc before filing he said my husband doesn't fit eligible category. SO depending on your district it may work.

Good luck!
Click to expand...
Shvili,

Thanks so much for taking the time to write a detailed reply. I'll look up the cases you suggest.

Btw, I'm in the Northern District of CA. I haven't done a comprehensive analysis of the AOS WM cases in this district, so interested to hear of any cases that were WOMs filed after 12 months or thereabouts.

Thanks again.

Setmefree
 
setmefree said:
Shvili,

Thanks so much for taking the time to write a detailed reply. I'll look up the cases you suggest.

Btw, I'm in the Northern District of CA. I haven't done a comprehensive analysis of the AOS WM cases in this district, so interested to hear of any cases that were WOMs filed after 12 months or thereabouts.

Thanks again.

Setmefree
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setmefree,

you are in a pretty friendly district. I would suggest to go ahead and open up a pacer account and search for cases. This website also has quite a few examples of favorable cases in CA in general.

http://en.wikibooks.org/wiki/FBI_name_check
 
worried2007 said:
lazycis

can you please send me any links to any winning 1447b cases in detroit michigna i live in the esatern district?

are you aware of any winning cases here in michigan for 1447 b?

do the court have jurisdiction over the application or is still USCIS has that when u file 1447b
Click to expand...

Here are several winning cases for you, I think there are more:
Khelifa v. Chertoff, 433 F. Supp. 2d 836 (E.D. Mich. 2006)
Zhang v. Chertoff, No. 05-72121, 2006 U.S Dist. LEXIS 45313 (E.D. Mich. 2006)
Saidi v. Jenifer, No. 05-71832, 2005 U.S. Dist. LEXIS 35466 (E.D. Mich. 2005)

According to the 9th Circuit decision (Hovsepian), USCIS loses jurisdiction (cannot deny your app) when you file 1447b lawsuit.
 
wom said:
Does anyone know how can I add my wife into list of plaintiffs (perhaps, case examples)? The bottleneck is in my namecheck - hers was cleared. But if it doesn't cost much I thought I would include her as well..

Thanks!
Click to expand...

Use rule 15(a) FRCP and file your first amended complaint with all necessary changes (there is no fee for that). You both will have to sign it as Pro Se.
Check this attachment
http://boards.immigration.com/attachment.php?attachmentid=16611&d=1183331395
and this post
http://boards.immigration.com/showpost.php?p=1715504&postcount=11831
 
Recommand WoM lawyer in Chicago?

I and my spouse filed WoM Pro Se for I-485 in October 2006, due to pending name check since April 2004. I got greencard by the end of last year (I am the primary) but my spouse's name check is still pending.

Our AUSA came up with a "clever" idea to argue that my spouse (as beneficiary)'s case was NOT pending UNTIL my case was approved. Anyway, we had status hearings several times, still no sign of progress on my spouse's name check. Judge arranged an in-court hearing (something pretty formal I think, lasting half a day) in September.

Since our lawsuit has been dragged for so long, and I am not confident to argue by ourselves on the in-court hearing, I would like to look for a good lawyer in Chicago. Any recommendation will be greatly appreciated!
 
Help!!!! Need gurus advice about my filed Mandamus

I filed I-485 about 6-years ago. FBI completed my name check in July 2004. After that my file fell into a black hole after being transferred to USCIS HQ (Washington DC).

I got a lawyer about 7-weeks ago. While he seemed friendly enough - he now appears to be either very lazy or very incompetent or both. But I am stuck with him.

He filed my Mandamus (Central California district court) about 2-weeks ago. In this document which I obtained after it was filed - he just spells out the bare bones. The whole protion that details my situation specifiaclly amounts to about one page.

He does not document the numerous number of times I contacted USCIS to follow up on my case. He does not mention any hardship I have encountered as a result of not having a GC (specifically the fact that I have been refused Advance Parole for the last 2 years and have been unable to visit my sick father in London). He does not include a single document as an attachment to the Mandamus.

Finally - he requests in the Mandamus that the judge order USCIS to APPROVE my application for Permanent Residency.

From the little I have read - that sounds like a mistake. I thought that you can only request that your case be adjudicated promtply but that you can not request (via a Mandamus) that your case ben decided favorably.

Can somebody PLEASE advise me if what I have listed are errors or if they may impact my case unfavorably?

Is there a procedure for ammending a Mandamus after it has been filed?

Any words of advise would be appreciated. I really don't want my Mandamus to be denied because of incompetence.
 
imhrb said:
setmefree,

you are in a pretty friendly district. I would suggest to go ahead and open up a pacer account and search for cases. This website also has quite a few examples of favorable cases in CA in general.

http://en.wikibooks.org/wiki/FBI_name_check
Click to expand...

Imhrb,

I do have access to a pacer account and I see a lot of WOM cases in the Northern CA district and as you say there are many favorable rulings in the this district. I was wondering if anyone has already researched this issue of the minimum delay before filing. Amongst the cases I reviewed 2 yrs was the shortest wait time.

I am interested in hearing about delays of 12 months or so in any district. So if anyone knows about such cases, please do post.

Thanks!
Setmefree
 
shvili said:
Paz,
Thank you for your comment- due to my own inclinations I often appreciate theoretical advice even more than a practical one :)
Click to expand...
Dear Shvili, congratulations! You are very close, it looks like!

For some reason I could not see the forum website for last 4-5 days, although could ping the forum address.

It is now theoretical, but through some haggling with AUSA I managed to get my joint stipulation formulated in the following manner:

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 action without prejudice in light of the fact that the United States Citizenship and Immigration Services is now prepared to grant Plaintiffs application for naturalization and issue an oath ceremony notice, and agrees to do so within 30 days of the dismissal of this action.

I do not think it matters in your case – I hope you will be receiving your oath notice soon!

All the best,
snorlax
 
Last edited by a moderator:
shvili said:
Halotinman,

I can't find N-400 cases, only AOS in WA (maybe Lazycis has some?) But I suggest you go to Justia to your district court:
http://dockets.justia.com/search?qu...ear=2006&max-day=20&max-month=7&max-year=2007
It may not show orders (in CA I couldn't find any) because all cases were dismissed due to adjudication, but at least you'll see what happens in your district (especially look under your AUSA- how s/he replies, what they do in these cases).

You need Pacer subscription and downloads (except for court orders) will cost $.08/pg., but it's worth it!

Good luck!
Click to expand...

Thank you so much Shvili. This justia site is great!
 
Majman said:
I filed I-485 about 6-years ago. FBI completed my name check in July 2004. After that my file fell into a black hole after being transferred to USCIS HQ (Washington DC).

I got a lawyer about 7-weeks ago. While he seemed friendly enough - he now appears to be either very lazy or very incompetent or both. But I am stuck with him.

He filed my Mandamus (Central California district court) about 2-weeks ago. In this document which I obtained after it was filed - he just spells out the bare bones. The whole protion that details my situation specifiaclly amounts to about one page.

He does not document the numerous number of times I contacted USCIS to follow up on my case. He does not mention any hardship I have encountered as a result of not having a GC (specifically the fact that I have been refused Advance Parole for the last 2 years and have been unable to visit my sick father in London). He does not include a single document as an attachment to the Mandamus.

Finally - he requests in the Mandamus that the judge order USCIS to APPROVE my application for Permanent Residency.

From the little I have read - that sounds like a mistake. I thought that you can only request that your case be adjudicated promtply but that you can not request (via a Mandamus) that your case ben decided favorably.

Can somebody PLEASE advise me if what I have listed are errors or if they may impact my case unfavorably?

Is there a procedure for ammending a Mandamus after it has been filed?

Any words of advise would be appreciated. I really don't want my Mandamus to be denied because of incompetence.
Click to expand...

Hey Majman,

You are right in your conclusions. You cannot ask for approval. Also, it's necessary to include the description of your hardships and as much supporting documents as possible. You can check a 485-template lawsuit template posted here
http://boards.immigration.com/attachment.php?attachmentid=16571&d=1182786004

Also, you can check Quan v Chertoff case in NDCal on pacer, it was done by professionals.
 
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