I would not waive ADR (if USCIS approves your I-485, you'll be happy, right?), but it's probably does not matter as AUSA won't agree to ADR.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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I would not waive ADR (if USCIS approves your I-485, you'll be happy, right?), but it's probably does not matter as AUSA won't agree to ADR.
AGC4ME,
Here is w&w's response to one of my question which may not directly answer your question, but I hope it helps you anyways
http://www.immigrationportal.com/showpost.php?p=1735687&postcount=12197
rollingstone
Registered Users (C)
Obtaining namecheck statistics using FOIA
Is it possible to invoke FOIA to get some information about namecheck? Specifically I want to know how many applications are pending for over a year, how much time does a manual check take on an average and how many lawsuits are pending against them. I know some of this information has been made available by the FBI, but I am interested in latest numbers.
Do you think they will provide this information?
Is it possible to invoke FOIA to get some information about namecheck? Specifically I want to know how many applications are pending for over a year, how much time does a manual check take on an average and how many lawsuits are pending against them. I know some of this information has been made available by the FBI, but I am interested in latest numbers.
Do you think they will provide this information?
can I sue USCIS or FBI if no interview was done yet
My name check (for N400) has been pending for over two years, interview was scheduled and then descheduled in May 2005. I know without an interview with USCIS, the 120-day rule does not apply. But, can I file any lawsuit to speedup my name checking process at all? If yes, do I sue FBI directly? Anyone with similar experiences to share? Thanks!
My name check (for N400) has been pending for over two years, interview was scheduled and then descheduled in May 2005. I know without an interview with USCIS, the 120-day rule does not apply. But, can I file any lawsuit to speedup my name checking process at all? If yes, do I sue FBI directly? Anyone with similar experiences to share? Thanks!
shvili
Yes you are correct. Many judges look for all three requirements before even deciding on jurisdiction. I only pointed out that this particular judge did it the right way. :-0). And I do think that as a Plaintiff, one's MTD should be written to show that all three prongs are satisfied.
I was reading 9th Cir opinion on Ana Inc v Way yesterday night that was filed in 2004. In it the 9th Cir has analyzed what Sec 1252 bars and what not. One judge dissented. The opinion had a line that caught my eye
"At a minimum,if the statutory provision granting the Attorney General power
to make a given decision also sets out specific standards governing that decision, the decision is not “in the discretion of the Attorney General.” See Spencer, 345 F.3d at 691 (holding that the standards laid out by 1153(b)(5), which grants the authority to issue certain visas, render that authority nondiscretionary under the meaning of § 1252(a)(2)(B)(ii))."
Is this view still valid or has been trumped by any other recent decisions ? 1153(b)(5) is the investor visa category. It could also be applied to any Employment based or Family based AoS because each one of those categories has such clear standards laid down in the statute itself, which makes the decision not discretionary. When the decision itself is not discretionary, the underlying process will not be. Therefore the courts have jurisdiction and that pace of adjudication is not a discretionary authority granted by statutes to AG.
Even in the dissent note, the judge who dissented wrote
"While the INA does provide extensive eligibility criteria that the agency must consider when initially granting certain visas, see id. at 692 (construing
8 U.S.C. § 1153(b)(5)(A)),... " meaning that the decision to grant visa is not wholly discretionary.
Is this still valid ?
Yes you are correct. Many judges look for all three requirements before even deciding on jurisdiction. I only pointed out that this particular judge did it the right way. :-0). And I do think that as a Plaintiff, one's MTD should be written to show that all three prongs are satisfied.
I was reading 9th Cir opinion on Ana Inc v Way yesterday night that was filed in 2004. In it the 9th Cir has analyzed what Sec 1252 bars and what not. One judge dissented. The opinion had a line that caught my eye
"At a minimum,if the statutory provision granting the Attorney General power
to make a given decision also sets out specific standards governing that decision, the decision is not “in the discretion of the Attorney General.” See Spencer, 345 F.3d at 691 (holding that the standards laid out by 1153(b)(5), which grants the authority to issue certain visas, render that authority nondiscretionary under the meaning of § 1252(a)(2)(B)(ii))."
Is this view still valid or has been trumped by any other recent decisions ? 1153(b)(5) is the investor visa category. It could also be applied to any Employment based or Family based AoS because each one of those categories has such clear standards laid down in the statute itself, which makes the decision not discretionary. When the decision itself is not discretionary, the underlying process will not be. Therefore the courts have jurisdiction and that pace of adjudication is not a discretionary authority granted by statutes to AG.
Even in the dissent note, the judge who dissented wrote
"While the INA does provide extensive eligibility criteria that the agency must consider when initially granting certain visas, see id. at 692 (construing
8 U.S.C. § 1153(b)(5)(A)),... " meaning that the decision to grant visa is not wholly discretionary.
Is this still valid ?
Thanks duck008 and lazycis
This is similar to what my AUSA said. If the only alternate is to adjudicate the case that's not an alternative but rather granting of relief. In his opinion ADR usually refers to mediation or arbitration where a third party can try to arrive at a compromise between the parties in question. But I would rather follow w&w's example and have the court set dates for MSJ's and replies.
AGC4ME,
Here is w&w's response to one of my question which may not directly answer your question, but I hope it helps you anyways
http://www.immigrationportal.com/showpost.php?p=1735687&postcount=12197
This is similar to what my AUSA said. If the only alternate is to adjudicate the case that's not an alternative but rather granting of relief. In his opinion ADR usually refers to mediation or arbitration where a third party can try to arrive at a compromise between the parties in question. But I would rather follow w&w's example and have the court set dates for MSJ's and replies.
Notice of Denial application for PR
Letter from USCIS recieved Aug 3/07
"On May 15, 2007 you were requestd to submit original certified copies of the Court Disposition, Indictment/Information, Judgement and Sentence for all of your arrest. You were given 30 days to respond. On May 30,2007 you mailed a record serch information from California; the court did not certify this document. You also failed to submit the requested documentation for your November 3, 2001 DUI or drug charges.
There is no appeal to this decision"
Marriage I485 filed Feb 09/07
AOS interview successful May 15/07 except Name check awaiting
May 30/07 sent RFE for uncertified court records shows no arrest to USCIS
Three months pass, and couple of Infopass appointment nothing was assured
my case will not be abandon b/c or name check pending
Aug 3/07 never recieve any warning of deficient RFE they issue AOS denial.
Note: Can not refile b/c wife is now unemploy and will not meet financial qualification. Second never was charge with DUI by D.A. but was detained
for suspicion of DUI with BAC .04% below legal limits. Being frank with examiner is a killer.
Questions
should I file WOM to reconsider or file for motion to reopen AOS and pay the $595 fee?
thanks if any one has been denied AoS and filed WOM.
Funny thing I filed for 1447b for my wife naturalzation and won last year
and NOW this ---unbelievable???
Letter from USCIS recieved Aug 3/07
"On May 15, 2007 you were requestd to submit original certified copies of the Court Disposition, Indictment/Information, Judgement and Sentence for all of your arrest. You were given 30 days to respond. On May 30,2007 you mailed a record serch information from California; the court did not certify this document. You also failed to submit the requested documentation for your November 3, 2001 DUI or drug charges.
There is no appeal to this decision"
Marriage I485 filed Feb 09/07
AOS interview successful May 15/07 except Name check awaiting
May 30/07 sent RFE for uncertified court records shows no arrest to USCIS
Three months pass, and couple of Infopass appointment nothing was assured
my case will not be abandon b/c or name check pending
Aug 3/07 never recieve any warning of deficient RFE they issue AOS denial.
Note: Can not refile b/c wife is now unemploy and will not meet financial qualification. Second never was charge with DUI by D.A. but was detained
for suspicion of DUI with BAC .04% below legal limits. Being frank with examiner is a killer.
Questions
should I file WOM to reconsider or file for motion to reopen AOS and pay the $595 fee?
thanks if any one has been denied AoS and filed WOM.
Funny thing I filed for 1447b for my wife naturalzation and won last year
and NOW this ---unbelievable???
Sorry to hear about the denial.
My understanding is that WOM no longer applies here. Also, it looks like the denial letter specifically calls out that "there is no appeal to this decision." However, you can still file motion for reconsideration or reopen with "the office that made the unfavorable decision." Check this official site out for specific actions you need to take for the reconsideraion/reopen (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58e2b9e54cf0e010VgnVCM1000000ecd190aRCRD&vgnextchannel=2411c9ee2f82b010VgnVCM10000045f3d6a1RCRD).
Good luck!
Is FBI namecheck statutory or regulatory or what ?
I don't see any reference to such name check in any statutes, CFRs also don't talk about the namecheck. 8 USC 1154 talks about investigation but nothing else. But many Judges just assume that namecheck clearance as mandatory. So where does the mandatory nature of this namecheck derived ?
I don't see any reference to such name check in any statutes, CFRs also don't talk about the namecheck. 8 USC 1154 talks about investigation but nothing else. But many Judges just assume that namecheck clearance as mandatory. So where does the mandatory nature of this namecheck derived ?
The judge will approve it if you do not write an opposition (diclaimer, the judge may approve it even if you oppose).
You have to write an opposition. Point out that government has 60 days by FRCP, twice as much time to respond than regular defendant. Point out that you are waiting for 4+ year for government to adjudicate your application and that you cannot wait any longer, that's why you filed a complaint with the court. I'd state that instead of studying legal theories, government efforts are better to be spend to expedite the processing of your long-delayed application. State that 45 days is too much, you cannot agree to such a long extension.
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Title your opposition
as "Plaintiffs opposition to Defendants request for Additional time" or "Plaintiffs opposition to Defendants motion for extension of time". Then write down your objections just like how you did your complaint and file with the clerk with a copy for your judge and file another copy with AUSA.
as "Plaintiffs opposition to Defendants request for Additional time" or "Plaintiffs opposition to Defendants motion for extension of time". Then write down your objections just like how you did your complaint and file with the clerk with a copy for your judge and file another copy with AUSA.
No need for court certified copy
There's no court certification involved here except for summons. Every motion you file with the court should also be sent verbatim to the opposing party. The same goes for you. You file your motions with the court and send a copy to AUSA. No need for court certification.
There's no court certification involved here except for summons. Every motion you file with the court should also be sent verbatim to the opposing party. The same goes for you. You file your motions with the court and send a copy to AUSA. No need for court certification.
You touched a very interesting point. I researched a lot this question, I even wrote to the CIS Ombudsman about this but I received only an answer containing generalities.
Here is what I think is the legal basis (?) of the name check (excerpts from the letter I wrote to the CIS Ombudsman):
"Title 8 of the Code of Federal Regulations discusses the Examination on Applications for Naturalization in paragraph § 335. This paragraph was amended on March 10, 1998, after Congress adopted on November 26, 1997 the Appropriations Act for the Department of Justice and other federal departments and agencies, and mandated that
"During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the INS has received confirmation from the FBI that a full criminal background check has been completed". Pub. L. No. 105-199, Title 1, 111 Stat. 2440. 2448-49 (1997).
The amended § 335.2 section now contains a new paragraph:
(b) Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.
(Paragraph (b) added effective 3/29/98; 63 FR 12979)
The 63 FR 12979 doesn’t shed any light on the details of the “full criminal background check” definition.
According to a Declaration of Michael Cannon, section chief of the Federal Bureau of Investigations, National Name Check Program, given on February 28, 2006 for the District Court of New Hampshire:
"(17) In this period of heightened national security concerns, a review of the background check procedures employed by USCIS was conducted in November 2002. It was determined that in order to better protect the people and the interests of the United States, a more detailed, in-depth clearance procedure was required. One of these procedures involved the name check clearance performed by the FBI. At that time only those "main" files that could be positively identified with an individual were considered responsive. The risk of missing a match to possible derogatory record(s) was too great and therefore, the search criteria was changed to access references. From a process standpoint, this meant many more files were required to be reviewed for each individual." (Atabani v. Gonzales et al., case 1:05-cv-00457-SM, document 4-4, District Court of New Hampshire).
Researching all the published statues and Federal Regulations, I could not find a definition for a “full criminal background check”.
I am aware of the Fact Sheet “Immigration Security Checks – How and Why the Process Works” dated April 25, 2006, authored by the Press Office of USCIS. However, besides explaining USCIS’ present policy about these checks, there is no reference at all to any legal basis.
Apparently, before 9/11 the name check process (which is part of the full criminal background check) involved only a search in the FBI “main” file system, the same search, which is performed when an individual submits a FOIPA request to FBI to provide copies of all records about the requestor, indexed to his/her name or to his/her identifying information, maintained in the Central Records System.
After 9/11 USCIS asked FBI to add a “reference” file search to the name check process, which resulted in many false “positive” hits requiring manual checks by an FBI agent to decide if the “hit” is a result of a potentially derogatory information, or it is indeed a false positive “hit” as in most of the cases. Apparently, this added requirement (i.e., researching the “reference” files) was never codified or promulgated, so in many people’s opinion, lacks any legal basis.
.....
My first question to you is: Can you point me to the right legislative authority, which defines the “full criminal background check” as mandated by Congress in the Appropriations Act for FY98 and includes a clear description that the extended name checks, as described in Mr. Cannon’s declaration, are mandatory part of this process? It is very likely that there is some law and/or Federal Regulation, which discusses this process and I just missed it.
If there is no such definition in the codified laws, statues or implementing Federal Regulations, the only logical conclusion that can be inferred is that USCIS is acting illegally withholding thousands of N-400 applications more than 120 days after the examination, claiming that they can not adjudicate the petitions before the name checks are completed by FBI, generating hundreds or maybe thousands of lawsuits against the Government, based on the 8 U.S.C. § 1447(b).
I would like to suggest making a recommendation to USCIS and DHS that this situation should be fixed and the pertinent legislation and implementing Federal Regulations amended.
This amendment should contain a definition of a “full criminal background check”; a description of who is responsible to perform it and a precise timeframe how long can be performed by the mandated agencies. The present situation, with no time limits on how long these security checks can run, causes unnecessary frustration and delay in adjudicating far too many petitions for naturalization and potentially poses a risk to our national security.
I have a feeling that FBI and USCIS frequently cite national security reasons as a wholesale argument to cover their inefficiencies in performing these very important checks for our national security." (from my letter addressed to the CIS Ombudsman)