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

[Roomi1967]

Update on my case

Hello everyone,

Here is some update on my case and some experienced help from everyone on this board.

I got a second finger printing notice and another paper which basically validating my address and other information. I did the finger printing ASAP and mailed the information as well. This was almost a week ago. I took an info pass and the IM officer told me that everything is good and my name check/ back ground check was cleared on June 12th, 2007. Okay then I asked about the oath letter, he went to back to check with some higher up and came back and told me that I would receive a letter about the decision in mail. He also said since I have used lawyer to sue them everything will come thru that channel.

So what do you guys and gals think now? When should I expect some progress? How will before I get the actual oath letter or agina a long wait ….

Applied Dec 05
Interview Apr 06
Filed case based on 120 day thing in May. In June they told us that my name check has been expedited, but requested 30 days extension which my lawyer granted.

This is northern CA (SFO court)

 

[delta345]

Driving your case after MTD denied

Hello everyone,

First let me say that I’m very grateful to this forum. With your help guys I obtained all legal info and have filed WOM pro se in Jan 2007 in ND CA (San Jose). My case is I485, it’s been pending since Jan 2004 mostly because of name check is not finished.

So far judge denied MTD. Here is a quote from the judge’s order “Although this court appreciates that the name check implicates national security, this fact alone does not excuse Defendants from providing a sufficiently specific explanation for the long delay in processing this application. Moreover, there is nothing on the record to indicate any attempts made by Defendants to expedite the name check. On the record before the court, this three and half year delay is sufficiently unreasonable to establish jurisdiction under the APA.”. By the way the order has “NOT FOR CITATION …” header, which means, I think, that the order is not useful to other plaintiffs.

So the judge stated that the delay is unreasonable, this is good. But at the same time the judge did not rule on the case. It looks like I need to file Motion for summary judgment or work with AUSA on filing cross motion for summary judgment.

Could you recommend me what to do next? Can I just subpoena FBI without asking the court for such permission? Can I file MSJ without any collaborations from AUSA?

Thank you,
Delta345

 

[AGC4ME]

Thank you for digging out this great case!

It's a very helpful ruling to WOM filers, I agree. It's a "must" for wom-filers to quote in Oppositions.

Couple of critical comments re. it:
The language on pp 6-7 is somewhat confusing: first, judge quotes 3 pre-requisites for getting mandamus relief from court. Then he quotes one specific one (duty to petitioner) and finds that according to the duty established, jurisdiction exists. But the preceding paragraph says, in addition to duty petitioner must show 1) a clear right to relief sought and 3) no other remedy available for court's jurisdiction. So judge ignores his own logic when he says the jurisdiction is established based on only one condition (duty). He then describes why petitioner "failed to state a clam", but he should have instead said, that petitioner failed the very first pre-requisite of mandamus,-he did not have a right to the relief sought.. This doesn't contradict his ruling, just his argument would be clearer. He jumps from mandamus conditions to the district court ruling decision after he himself said he should consider this case de novo.

One more interesting detail: attorney was disbarred for sloppy work! Looks like too many lawyers contacted by members deserve the same fate Really, if one counted all the mistakes lawyers made in these cases, it may be safer indeed to go pro se! Or contact really the best lawyer if you absolutely can't do it.

The subtle difference is between jurisdiction and relief. Reading the Mandamus Act "“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”. Now the Govt. accepted that it has a duty to process applications hence Jurisdiction under mandamus exists. But in order to be eligible for granting of relief one has to satisfy the three criteria.

He never stated that you have to satisfy the three conditions for jurisdiction itself. Quoting the opinion "To be eligible for mandamus relief, the petitioner
must establish (1) that he has a clear right to relief, (2) that the respondent’s duty to perform the act in question is plainly defined and peremptory, and (3) that he has no other adequate remedy.". So all he is saying is even though the court has jurisdiction under mandamus, the court cannot grant relief....

 

[SLIS]

So the judge stated that the delay is unreasonable, this is good. But at the same time the judge did not rule on the case. It looks like I need to file Motion for summary judgment or work with AUSA on filing cross motion for summary judgment.

Could you recommend me what to do next? Can I just subpoena FBI without asking the court for such permission? Can I file MSJ without any collaborations from AUSA?

My understanding is that discovery is normally not granted in these cases. I actually have seen a couple of court orders granting AUSA's motion to deny discovery. So, I would suggest not going that route. And plus, what they are doing these days is simply to provide you with your A files from USCIS. That's it.

At this point, you should file MSJ. You do not need any cooperation from AUSA. Once, you've filed your MSJ, your motion noting date dictates the pace for when the AUSA needs to respond. What he/she will do is to file a combined Opposition brief to your MSJ and their cross-motion for summary judgment. When they have filed their opposition/cross-motion, you will need to file your opposition to their cross-motion for summary judgment and reply brief against their oppostion to your MSJ. You can combine these two into one single reply brief. And then, it's their turn to file their reply brief. When all these are done, it's back to the waiting game, waiting for the court to rule on the motion/cross-motion.

Pay attention to the timing. You most likely will only get 4-5 days window to prepare and file your reply brief to their opposition and cross-motion. You'll need to budge time for it. (This is based on my own experience.)

 

[SLIS]

....After her non-cooperation about the discovery, I proceeded with my MSJ and filed it on 7/2/07. I also filed a motion for expedited consideration along with my MSJ. I have not heard anything from the court nor from the AUSA. I checked the docket, and the last documents filed were my motions.

Deadline to file any dispositive motions was last Friday, 7/27/07. Based on my understanding, AUSA cannot file any dispositive motion other than a reply to my MSJ (can anyone verify if this interpretation is correct?).

What I wonder is that how many days does the AUSA have to file an opposition to my MSJ? What are my options at this point in the case? What can be my next step?

Do you mean to say that AUSA has missed the deadline for filing opposition to your MSJ? You should check the relevant Civil Local Rule of your district court to find out the deadline for filing the opposition to MSJ. If AUSA indeed has missed the deadline, I believe you don't have to do anything at this point. The motion noting date on your MSJ sets the timing for the Court to rule. However, if AUSA does file an opposition and/or cross-motion for summary judgment later, at that point, you can file a reply opposing their cross-motion, citing that they're in violation of relevant civil local rule and ask the court to deny their cross-motion based on the technicality (violation of civil local rule). I've seen this done in a CA case in PACER.

 

[delta345]

At this point, you should file MSJ. ...
Pay attention to the timing. ...

SLIS, thank you for the detailed response.

 

[OK-Boy]

Can anyone please give me a link to the FOIPA request form for the FBI? I went on their website but they talk about FOIPA, but the form says FOIA request form - and I was getting all confused. Which one of the following two is it:

http://foia.fbi.gov/foia_request.htm

OR

http://foia.fbi.gov/privacy_request.htm

Also a couple of questions:

1- Do I need to have it notarized?
2- Should I send it via registered mail?
3- When can I expect a response?

Ans: I used both forms and notarized the second and got the reply after one month of NO Record. Anything else, Man

 

[mt100]

who to serve the amended complaint and summons?

My understanding is that I only need to serve the amended complaint and the amended summons to AUSA (as he is the attorney for each of the five defendants listed on the complaint).

Is my understanding correct? Do I need to serve a copy to the AG also?

 

[imhrb]

I am preparing a WOM 1447(b) Pro Se lawsuit. Is the description of the main
steps at
http://boards.immigrationportal.com/...d.php?t=194681
still considered current?
I am not sure how the actual complaint should be phrased. Is
http://boards.immigrationportal.com/...7&d=1134252007
still a good reference?
Should it be typed double spaced, with line numbers on the left, etc.?

I will be filing with US District Court in MD.

Thanks
------------------------------------------------------------------
N-400 Feb. 2005, FP April 2005
Citizenship Interview passed on 6/24/05, "No decision can be made"
Waiting for FBI NameCheck to clear (confirmed by letters
from both MD senators and by a letter from USCIS service center
in Baltimore, all in Spring 2007).
USCIS web site shows last update to my case on 4/30/05
Filed a FOIPA request (May 07), got a "No records" answer, June 07.

aben,

I don't mean to discourage you - but a Maryland judge granted government's MTD this past Friday for a WOM 485 case...See attached. Not a good sign for 4th circuit people, esp after Safadi v. Howard.

 

[shvili]

Hello everyone,

Here is some update on my case and some experienced help from everyone on this board.

I got a second finger printing notice and another paper which basically validating my address and other information. I did the finger printing ASAP and mailed the information as well. This was almost a week ago. I took an info pass and the IM officer told me that everything is good and my name check/ back ground check was cleared on June 12th, 2007. Okay then I asked about the oath letter, he went to back to check with some higher up and came back and told me that I would receive a letter about the decision in mail. He also said since I have used lawyer to sue them everything will come thru that channel.

So what do you guys and gals think now? When should I expect some progress? How will before I get the actual oath letter or agina a long wait ….

Applied Dec 05
Interview Apr 06
Filed case based on 120 day thing in May. In June they told us that my name check has been expedited, but requested 30 days extension which my lawyer granted.

This is northern CA (SFO court)

Roomi1967,

Since you're in CA CIS is correct that you should hear next from the AUSA: technically, CIS lost jurisdiction once you sued them. I suggest you fax/call your AUSA (who do you have?) that CIS told you the main obstacle-your nc is cleared and that they referred you to AUSA for further steps. You could hint that unless there's other obstacles of which you don't know, CIS should be ready to adjudicate your case and you're waiting for the AUSA stipulation to dismiss on these grounds... May be AUSA is just lazy and needs a little push

Good luck!

 

[lazycis]

My understanding is that I only need to serve the amended complaint and the amended summons to AUSA (as he is the attorney for each of the five defendants listed on the complaint).

Is my understanding correct? Do I need to serve a copy to the AG also?

Serve to AUSA only, file a copy with the clerk and keep a copy for yourself. You do not need to serve summons if you did not add/change party.

 

[shvili]

The subtle difference is between jurisdiction and relief. Reading the Mandamus Act "“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”. Now the Govt. accepted that it has a duty to process applications hence Jurisdiction under mandamus exists. But in order to be eligible for granting of relief one has to satisfy the three criteria.

He never stated that you have to satisfy the three conditions for jurisdiction itself. Quoting the opinion "To be eligible for mandamus relief, the petitioner
must establish (1) that he has a clear right to relief, (2) that the respondent’s duty to perform the act in question is plainly defined and peremptory, and (3) that he has no other adequate remedy.". So all he is saying is even though the court has jurisdiction under mandamus, the court cannot grant relief....

Yes, I thought of this reasoning too, but in many cases we saw all 3 pre-requisites for mandamus were used to decide the issue of jurisdiction. Some cases were denied as I remember because petitioner didn't satisfy one of the 3 pre-requisites, i.e., "the duty owed is clear, ministerial". (Again, this is just one of the 3 pre-requisites, according to the same judge).

Also, this judge refers to "mandamus relief" (which should be granted if one meets all 3 pre-requisites). This should mean jurisdiction can be denied if one of the 3 is not met. If all 3 are met, then mandamus jurisdiction is established and then a judge in his/her discretion can grant or deny the complaint. Here judges analyze APA and whether the delay is unreasonable. This judge quoted another case and simply pulled this particular pre-requisite to say that jurisdiction exists. But other judges considered all three pre-requisites in order to decide basis for jurisdiction. I may be incorrect on this, but that's they way I remember the cases...

In any case, again, this case is a great catch for you -all WOM guys! Hope you can use it!

 

[SLIS]

SLIS, it was me who raised this question, but I guess at this point most people are busy with more immediate questions to comment on it.

I still think it would be important to see the actual number of members who got an order from judge to get nc done and/or adjudicate, i.e. the people who got beyond MSJ. And like you said, it would be interesting to see it for all districts (as you suspect it only happens for CA). If this hypothesis is correct, (cases are being resolved after MTD or as soon as it starts to look hopeless to AUSA), it means they initiate nc expedite on this stage for most cases. And the only cases which go beyond the "judge order" phase are the ones where nc expedite request failed or there was another SNOFU on the FBI end.

So members, please comment if you have any info/thoughts!

Thought that was you who made the original observation.

Yeah, it would be great to know what the real trend is across all the district courts and not just in CA. It's kind of hard to know what's going on since people don't necessarily report back to the forum once their cases are resolved....

 

[shvili]

Serve to AUSA only, file a copy with the clerk and keep a copy for yourself. You do not need to serve summons if you did not add/change party.

I agree, except our clerk told us that we are supposed to bring two copies of anything that's to be filed (one goes to the judge, one stays in clerk's office for public viewing). So Mt100, bring two copies to court.

 

[shvili]

It's kind of hard to know what's going on since people don't necessarily report back to the forum once their cases are resolved....

And this forum would be much more useful (there's always a room for improvement ) if all members reported how their cases finished up. Then easy statistics could be collected. Mingjing tried to do it but he no longer posts. Also, do you remember of anyone reporting a totally lost case? Because I don't...

The other improvement needed (which was discussed before) is to group all the necessary info in the beginning of the forum or in a separate file for easy viewing. I'm not a techie but we should address it with the moderators, I think.

 

[lazycis]

Do you mean to say that AUSA has missed the deadline for filing opposition to your MSJ? You should check the relevant Civil Local Rule of your district court to find out the deadline for filing the opposition to MSJ. If AUSA indeed has missed the deadline, I believe you don't have to do anything at this point. The motion noting date on your MSJ sets the timing for the Court to rule. However, if AUSA does file an opposition and/or cross-motion for summary judgment later, at that point, you can file a reply opposing their cross-motion, citing that they're in violation of relevant civil local rule and ask the court to deny their cross-motion based on the technicality (violation of civil local rule). I've seen this done in a CA case in PACER.

I agree. If MSJ goes unopposed, the judgment should be entered on behalf of the moving party. PACER usually shows when the reply is due. I did not find any specific time frame in FRCP.

 

[lazycis]

Yes, I thought of this reasoning too, but in many cases we saw all 3 pre-requisites for mandamus were used to decide the issue of jurisdiction. Some cases were denied as I remember because petitioner didn't satisfy one of the 3 pre-requisites, i.e., "the duty owed is clear, ministerial". (Again, this is just one of the 3 pre-requisites, according to the same judge).

Also, this judge refers to "mandamus relief" (which should be granted if one meets all 3 pre-requisites). This should mean jurisdiction can be denied if one of the 3 is not met. If all 3 are met, then mandamus jurisdiction is established and then a judge in his/her discretion can grant or deny the complaint. Here judges analyze APA and whether the delay is unreasonable. This judge quoted another case and simply pulled this particular pre-requisite to say that jurisdiction exists. But other judges considered all three pre-requisites in order to decide basis for jurisdiction. I may be incorrect on this, but that's they way I remember the cases...

In any case, again, this case is a great catch for you -all WOM guys! Hope you can use it!

Shvili,
I have to side with AGC4ME on this. There is a difference between court jurisdiction and court ability to grant a relief. By dismissing a case for lack of subject matter jurisdiction, the courts says that it does not have a legal basis to review the case. So in mandamus action it's not necessary to show that all 3 factors are satisfied fo jurisdictional purposes, because 1361 refers only to the "duty owed". See also Ahmed v DHS (7th Cir), another appellate case.
The other factors (right to relief, exhaustion of remedies) may require additional fact finding (discovery). I did not see a single ruling on appellate level that would agree with district court reasoning that all 3 factors must be satisfied for jurisdictional purposes.

You have great suggestions about improvements to the forum, it's a great resource, but it needs to be more organized.

 

[SLIS]

Timing is governed by local civil rules

I agree. If MSJ goes unopposed, the judgment should be entered on behalf of the moving party. PACER usually shows when the reply is due. I did not find any specific time frame in FRCP.

The timing is specified in the local rules rather than in the federal rules. The following is verbatim quote from local rules (civil rules) in the Western District of Washington:

CR 7 (d) (3)
....and all dispositive motions shall be noted for consideration no earlier than the fourth Friday after filing and service of the motion. Any opposition papers shall be filed and serviced not later than the Monday before the noting date. If service is by mail, the opposition papers shall be mailed not later than the Friday preceding the notng date. Any reply papers shall be filed and served no later than the noting date.​

Each district court will have it's own local rules, which may or may not be the same as the one quoted above.

 

[lazycis]

another great case

Check this opinion and order on MSJ.
Santillan et. al. v. Gonzales, 388 F.Supp.2d 1065 (N.D.Cal. 2005)

It has a number of good points:

a) we have another cause of action because we can claim that USCIS decision to change name check process in November 2002 was arbitrary and capricious, and not supported by an adequate administrative record, in violation of section 706(2)(A).

b) Delay cannot be justified by national security interests
"...defendants do not adequately consider alternate mechanisms for addressing national security objectives in the immigration process. It is imperative that administrative agencies explain possible alternatives and give adequate reasons for rejecting them. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 48. The DHS has many options for limiting the freedom of individuals determined to present a threat. The DHS exercises substantial control over the EOIR proceedings themselves; the DHS may move to reopen decisions to grant LPR status, appeal an immigration judge’s decision to the Board of Immigration Appeals, or ask to have the case referred to the Attorney General for final review. SUF ¶¶ 8–9. After exhausting any administrative appeals, the DHS may pursue collateral attacks on the administrative decision, such as initiating new removal proceedings or seeking to have
the earlier proceedings reconsidered, reopened, or rescinded. SUF ¶ 11. Finally, the DHS may detain noncitizens who have been identified as a threat.8 U.S.C. § 1226(a)(3)."

c) you can find other usefull info regarding dicovery, JSR conferences, etc. in this docket

 

[AGC4ME]

For I485 applicants

the most crucial factor is to prove that Sec 1252(a)(2)(B)(ii) does not include Pace of Adjudication. I think once the judge is convinced of this then things would flow easily. I saw another judgment as evidence in Abbasfar case where this section was cited prominently.