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

missingpa said:
Xiaocao,

Did the judge actually say that your claims failed on both grounds: lack of jurisdiction and failure to state a claim? That would be very surprising because most opinions I have seen dismiss cases based on jurisdiction bar and decline to comment on their merits... Giving such unfavorable opinions on both grounds seems a little over the top. Nevertheless, I feel you have a strong case based on the long wait you have suffered, but it might take you a few extra steps to earn the eventual victory.

Meanwhile, have you explored other alternatives, e.g. writing to First Lady Laura Bush, your senators, and congressman? You never know what will work for you so better try everything you can think of. Like the saying goes: knock on every door and one of them will open.
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Thank you very much for you concern.

Yes, the judge said in his Order: “Defendants argue that the Court lacks jurisdiction over this action and, even if there were jurisdiction, Plaintiff fails to state a claim upon which relief may be granted. The Court agrees.” ..." further, even if #1252 did not remove jurisdiction, Plaintiff fails to state a claim upon which relief may be granted because Defendants have no 'clear nondiscretionary duty' to process the I-485 application at any particular pace."

And the Attorney has emphasized again and again in the MTD:"Defendants do not owe Plaintiff a clear duty to adjudicate his application within any particular time frame."

Yes, we have tried every possible way, such as these you have mentioned.
I know the possibility to win the lawsuit is very small if the case would be remanded the District Court.

Any other ideas and suggestions is highly appreciated.
 
xiaocao said:
Thank you very much for you concern.

Yes, the judge said in his Order: “Defendants argue that the Court lacks jurisdiction over this action and, even if there were jurisdiction, Plaintiff fails to state a claim upon which relief may be granted. The Court agrees.” ..." further, even if #1252 did not remove jurisdiction, Plaintiff fails to state a claim upon which relief may be granted because Defendants have no 'clear nondiscretionary duty' to process the I-485 application at any particular pace."

And the Attorney has emphasized again and again in the MTD:"Defendants do not owe Plaintiff a clear duty to adjudicate his application within any particular time frame."

Yes, we have tried every possible way, such as these you have mentioned.
I know the possibility to win the lawsuit is very small if the case would be remanded the District Court.

Any other ideas and suggestions is highly appreciated.
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You have to counter that you are not askng court to compel USCIS to complete the processing at any particular pace rather than "within reasonable time" as required by 5 USC 555(b). Absense of the mandatory timeframe does not free up the USCIS from the APA requirement. As long as the USCIS have a duty to process your application, you can require it to be completed within reasonable time. As MA court noted in Tang v Chertoff:
"I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity."

You should not worry about remand to district court. If the appellate court reverses the district court decision, the district court will not be able to rule differently. That will apply to all cases in your Circuit.
 
update on my case

I've got an e-mail from AUSA yesterday. She says that my brief looks pretty good :) However, she checked with FBI and my NC is still pending :(
Looks like I have to go all the way, which is fine.
 
lazycis said:
You have to counter that you are not askng court to compel USCIS to complete the processing at any particular pace rather than "within reasonable time" as required by 5 USC 555(b). Absense of the mandatory timeframe does not free up the USCIS from the APA requirement. As long as the USCIS have a duty to process your application, you can require it to be completed within reasonable time. As MA court noted in Tang v Chertoff:
"I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity."

You should not worry about remand to district court. If the appellate court reverses the district court decision, the district court will not be able to rule differently. That will apply to all cases in your Circuit.
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Lazycis, thank you very much for your advice. I will add that point in my Brief.

I have also cited the case Tang v Chertoff with the exact same sentences that you pointed here. But AUSA just does not listen to anything.
 
What should I use for the title?

AUSA filed her opposition to my MSJ, and her document's title is here:

Memorandum in Opposition to Motion for Summary Judgment and for a Stay of Al Discovery Pending This Court's Ruling on Government's Motion to Dismiss The Petition For a Writ of Mandamus

As far as I understand, AUSA filed both a MTD and an opposition to my MSJ in this one filing. Am I correct?

What should I pick as my title when I file my reply to this document? Any idea about how many days do I have to file a reply? I called the court clerk they told me to file as soon as possible. When I asked about any regulations governing the duration to reply, they said they cannot answer such questions. Bummer.

vcs_victim
 
vcs_victim

looks like they aleady filed MTD and they want a ruling on it. Depending on how you want to oppose this motion you can word it appropriately. A simple method would be to insert "Plaintiff's reply to" in front of this motion.
 
AGC4ME said:
Thanks for the tip. It works. But some courts don't have written orders available on ECF (Alabama was one...). Let's split the work. Let's tackle this by state. I'll tackle states starting with "A" now.
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I am working from "W" going backwards. I also checked MA, NH, VT, CT, RI before so you can skip those. I also noticed that the search does not work for some districts. Once we catch up, we can just check for most recent rulings once a month.
 
Agc4me

AGC4ME said:
looks like they aleady filed MTD and they want a ruling on it. Depending on how you want to oppose this motion you can word it appropriately. A simple method would be to insert "Plaintiff's reply to" in front of this motion.
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They never filed a motion other than asking for extra time. The first time they filed a document was to ask for time extension to answer to my complaint. I did not oppose it, and they filed an answer, not a MTD. Then I filed my MSJ, and they missed the deadline to answer to it. They filed a nunc pro tunc time extension. I did not oppose to their extension, and they finally filed the document with the title I gave in my previous post. They never moved other than asking for extra time twice.

In AUSA's anwer, she said this case should be dismissed pursuant to 12(b)(1) and/or 12(b)(6). Would you consider a document that does not say "MOTION TO..." a motion?

vcs_victim
 
vcs_victim said:
AUSA filed her opposition to my MSJ, and her document's title is here:

Memorandum in Opposition to Motion for Summary Judgment and for a Stay of Al Discovery Pending This Court's Ruling on Government's Motion to Dismiss The Petition For a Writ of Mandamus

As far as I understand, AUSA filed both a MTD and an opposition to my MSJ in this one filing. Am I correct?

What should I pick as my title when I file my reply to this document? Any idea about how many days do I have to file a reply? I called the court clerk they told me to file as soon as possible. When I asked about any regulations governing the duration to reply, they said they cannot answer such questions. Bummer.

vcs_victim
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vcs_victim,
Listen to AGC4ME advice regarding the title. Usually you have two full weeks to file a reply. It's hard to judge whether it's an opposition+MTD by title alone. Sounds like it. Memorandum usually is a supporting document to motion or opposition. What is the contents/title of the primary document?
 
Ok, now I've got it. They did file an answer. The court, however, does not have to rule on an answer. It's not motion to dismiss. The court has to rule on your MSJ. Probably AUSA did not expect your bold move for summary judgment :)
 
lazycis

lazycis said:
vcs_victim,
Listen to AGC4ME advice regarding the title. Usually you have two full weeks to file a reply. It's hard to judge whether it's an opposition+MTD by title alone. Sounds like it. Memorandum usually is a supporting document to motion or opposition. What is the contents/title of the primary document?
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Lazycis,

That's the main document. Other documents are Exhibit A - Michael Cannon's Declaration, Exhibit B - Eldeeb v. Chertoff Order, Exhibit C - Borisov v. Gonzales Order.

vcs_victim
 
then you can file

You probably took your AUSA by surprise. Can the AUSA file MTD anytime ?

You can file
Plaintiff's reply to defendants opposition to MSJ and opposition to request for Stay pending Motion to dismiss.

this was an actual heading used in one of the WOM cases
"Reply to defendants' response to Plaintiffs' motion for summary judgment"
 
lazycis said:
I am working from "W" going backwards. I also checked MA, NH, VT, CT, RI before so you can skip those. I also noticed that the search does not work for some districts. Once we catch up, we can just check for most recent rulings once a month.
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Did u see my other post. many of the opinions are not free !!!!
 
lazycis said:
vcs_victim,
Listen to AGC4ME advice regarding the title. Usually you have two full weeks to file a reply. It's hard to judge whether it's an opposition+MTD by title alone. Sounds like it. Memorandum usually is a supporting document to motion or opposition. What is the contents/title of the primary document?
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In my district it's 11 days. Now does the 11 days include Sat and Sun ?
 
AGC4ME said:
In my district it's 11 days. Now does the 11 days include Sat and Sun ?
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FRCP have explanations how to compute time. If it's 10 days or less, Sat and Sun do not count toward the limit. Also, if the service was done by mail, you have 3 additional days. So it does add up to two weeks usually.
 
Received letter from US Department of Justice which stated that USCIS would let me take oath on 9/19. That letter is dated on 8/16 and takes 3 days (weekend) from DC to CA.

But USCIS claimed oath letter were sent out 8/10 and I am still waiting for it.

So I just need to wait for oath letter. Once it arrives, I can call court to dismiss the case, right?
 
Sorry to hear that

lazycis said:
I've got an e-mail from AUSA yesterday. She says that my brief looks pretty good :) However, she checked with FBI and my NC is still pending :(
Looks like I have to go all the way, which is fine.
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LazyCIS, Sorry that you have to go the long way, but if that makes you feel better you are not alone. I don't know the details of your case, nevertheless I believe in a good outcome, since you are equipped with strong knowledge.
Is this GC or citizenship you are fighting for ?

Also, thanks for the replies to my posts, I'm waiting and keep on reading this forum :)
lena
 
thanks

snorlax said:
The whole point of sending the warnings (notice of legal action) is to later add those as exhibits to the complaint. Any response from the agencies can be hardly expected. The only use is to demonstrate the plaintiff’s last attempt to settle the case prior to going to court. Judges are believed to be appreciative when plaintiffs truly exhaust all means they have and use litigation as the last resort.

Best of luck,
snorlax
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thanks, Snorlax. I'm waiting till Sept 13, and will file on that thursday afternoon. I've already prepared the civil cover, complaint and work on the summons.
Good luck to all of us !
 
Here's a question

Can we request the courts to order USCIS to reserve a visa number for our application ? I'm afraid USCIS is going to take the usual position of retrogressing come October.
 
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