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

[mogumogu]

I-485 approved

Hi,

Some time ago I asked for recommendation of WoM lawyer in Chicago in this thread. I and my spouse filed I-485 at NSC in March 2004 and stuck in name check. Filed WoM Pro Se in Chicago court last October, my case approved by the end of last year, but not my spouse. We had several status hearing, then finally arranged a (formal) in-court hearing next month -- at that point I wanted to hire an attorney.

Thanks to a friend here who sent me several lawyer's contacts. I contacted several lawyers, and wanted to hire one of them. That attorney, after consideration, told me to hang on a little bit, and he predicted that the AUSA was trying to push FBI/USCIS using the in-court hearing. He was right. AUSA finally succeeded to push through another expedited name check (for un-known reason, the first one didn't go anywhere for my spouse), and my spouse's I-485 was approved a few days ago.

As many member already mentioned many times, AUSA plays a big role. We didn't have a great relationship with our AUSA at the beginning. But then I took suggestions from the forum members here, kept showing him politeness, appreciation, understanding, and reasoning. Finally he helped us (and himself) with this.

Thanks to this forum, and good luck to everyone else who is still fighting!

 

[Stats32]

Just a short FYI note. I went to an infopass appointment yesterday, as my fingerprint is about to expire. The immigration officer told me that since late 2006, USCIS does not schedule routine fingerprints every 15 months. They will only schedule fingerprint appointment once the name check is cleared. (same thing for citizenship interview as we already know).

We were told the exact same thing at my wife's last Infopass (I-485).

 

[xiaocao]

Here u go...

Thank you very much.

 

[lazycis]

reply brief of appellant AOS I-485

Friends,
Here is my reply brief. Feel free to use it but keep in mind that I am not a lawyer so it's not a legal advice, use at your own risk.
Thanks to all for ideas/comments/praises
Lazycis

 

[lazycis]

Investigation covers all three. And if USCIS decides to impose any more checks, the word investigation will cover those too. USCIS which arbitrarily changes its "security screening" should also take care to change the regulations else it is on the hook for not following it.

As for as Cannon's declaration, I really don't care about it. I'm going to follow Totonchi and will file a motion to strike if his declaration ever gets filed.

Now here's a question to learned people. Even after losing so many cases in ND Cal why do the AUSAs try MTD there ? Aren't they wasting the court time and money ?

The main reason AUSA are still fighting in CAND it to buy time. Money is definitely the reason behind name check delays so the best way to make USCIS change is to make them lose money on long-pending name checks.
How to do it?

First, do not file for EAD/AP extensions if you do not need them (i.e. have valid H1 or not going to travel).

Second, file a civil action (filing fee is almost the same as EAD extension and if you have a friend in the same district, you can divide expenses). Most people cannot afford attorney, but it is a good idea to hire one if you can to maximize USCIS potential loss. DHS spends a lot of money fighting lawsuits more than they can get for EAD extension.

Third, fight to the end, i.e. appeal if district court dismisses your case. Again, it's a money issue; USCIS will lose more than it can get from you for EAD/AP extension. Plus, AUSA will not be able to use cases that are pending appeals to fight other cases. Look at NJD. Nobody appealed so eventually it will be of no use to file WoM (unless there are some honest judges left in the district). Look at SDNY. The district is neutral, because adverse decisions are under appeal. A judge will think twice if his/her decision is under appeal. AUSA/USCIS/FBI position does not have a standing on appeal so success rate should be very high.

Fourth, bombard USCIS with status inquiries. They have to pay somebody to write a response. Write to CIS Ombudsman, congressman, it generates another inquiry with minimal expenses on our side.

We need a lot of people involved, the more the better, to make the USCIS feel a substantial loss so spread the word around.

 

[AGC4ME]

lazycis

Overall an excellent brief. You know what someone should attack the AG's discretion in even approving/denying AOS application. For 1154 states that ("Attorney General shall approve if the investigation is satisfactory...)

 

[lazycis]

thnx

Overall an excellent brief. You know what someone should attack the AG's discretion in even approving/denying AOS application. For 1154 states that ("Attorney General shall approve if the investigation is satisfactory...)

I know that I've missed some peices (wanted to go deeper into authority for name checks; insert analysis of Norton case versus mine; review TRAC factors), it was just not enough time (two weeks for a reply brief is insufficient) - I could not spend more than 20-24 hours on it. But I decided that it's better to file something than not to file at all.

 

[AGC4ME]

in yvesliu's case the magistrate judge has issued the findings and recommendations. In it the judge has given until september 17th to file any objections. questions
1. Can we use the findings and recommendations in our motions or should we wait until a district judge accepts this findings and recommendations ?
2. if we can use it should we wait till september 17th or can we use it now.

September 4th AUSA will file answer. I would like to file MSJ september 5th. I'm getting my own affidavit and my wife's affidavit notarized today. If I could quote findings and recommendations in yvesliu's it would be truly great.

 

[AGC4ME]

The main reason AUSA are still fighting in CAND it to buy time. Money is definitely the reason behind name check delays so the best way to make USCIS change is to make them lose money on long-pending name checks.
How to do it?

First, do not file for EAD/AP extensions if you do not need them (i.e. have valid H1 or not going to travel).

Second, file a civil action (filing fee is almost the same as EAD extension and if you have a friend in the same district, you can divide expenses). Most people cannot afford attorney, but it is a good idea to hire one if you can to maximize USCIS potential loss. DHS spends a lot of money fighting lawsuits more than they can get for EAD extension.

Third, fight to the end, i.e. appeal if district court dismisses your case. Again, it's a money issue; USCIS will lose more than it can get from you for EAD/AP extension. Plus, AUSA will not be able to use cases that are pending appeals to fight other cases. Look at NJD. Nobody appealed so eventually it will be of no use to file WoM (unless there are some honest judges left in the district). Look at SDNY. The district is neutral, because adverse decisions are under appeal. A judge will think twice if his/her decision is under appeal. AUSA/USCIS/FBI position does not have a standing on appeal so success rate should be very high.

Fourth, bombard USCIS with status inquiries. They have to pay somebody to write a response. Write to CIS Ombudsman, congressman, it generates another inquiry with minimal expenses on our side.

We need a lot of people involved, the more the better, to make the USCIS feel a substantial loss so spread the word around.

Actually in NJD I did see some MTD denied cases.

 

[lazycis]

AGC4ME,

Here is the opinion that sheds more light on the question about affidavits attached to MTD:
Li v. Chertoff, Slip Copy, 2007 WL 2034289 N.D.Iowa Jul 13, 2007

"Generally, a court reviewing a motion to dismiss only considers the factual allegations in the Complaint. See, e.g., Riley v. St. Louis County of Mo., 153 F.3d 627, 629 (8th Cir. 1998). If the court considers matters outside the Complaint, it will treat the motion to dismiss as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(b). Upon converting a motion to dismiss into a motion for summary judgment, however, the court is required to afford “all parties . . . reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Id.; Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001, 1005 (8th Cir. 2000)."

 

[lazycis]

Hi Lazycis,
I can not thank you enough.
You have done a lot of search for me, and the changes you made are very important, which made my IB much stronger. I will submit it to the court tomorrow.
Thanks again. My family and I very much appreciate your great help.

Xiaocao

Xiaocao,
You are welcome. Here is what you (and other folks from MD) can do for me and for other members - attend IV rally in DC on 9/18. See http://immigrationvoice.org for details.

Regarding the research: you have access to the Appellate Court Library and can make copies as long as your appeal is pending. While more recent cases are available online, some old cases are not.

Regards,
lazycis

 

[lazycis]

legal citations guide

in yvesliu's case the magistrate judge has issued the findings and recommendations. In it the judge has given until september 17th to file any objections. questions
1. Can we use the findings and recommendations in our motions or should we wait until a district judge accepts this findings and recommendations ?
2. if we can use it should we wait till september 17th or can we use it now.

September 4th AUSA will file answer. I would like to file MSJ september 5th. I'm getting my own affidavit and my wife's affidavit notarized today. If I could quote findings and recommendations in yvesliu's it would be truly great.

Sure, you can refer to it in your MSJ, but it will have more weight if you wait for the final order. Of course, you can file MSJ and than file a motion for leave to file a supplement to MSJ and attach an order after 9/17. But in this case you have to hope that the judge will grant leave.
Check the attached guide from the Superior Court of Delaware to find out how to refer to docket entries. I find this guide very useful.

 

[OLKO]

DHS revenue stream from us

Money is definitely the reason behind name check delays so the best way to make USCIS change is to make them lose money on long-pending name checks.
.

Everybody in this forum should understand that system is made to collect money from PAYABLE pool of immigrants (highly educated, skilled, inquisitive minds, active members of this world).

Here is how and why:
According to Mr. Cannon declarations (these are attached in many WoM I-485 cases, typically with MTD), the FBI system collects a lot of information from various branches of their services.
They are in turn collect various information [disjecta membra] from web (as one source).
Anybody who participated in any discussions, blogs, wrote scientific papers,
wrote opinions, emails - are intelligent active people of this world.
If you did not do any of this and did not leave any traces on the web-
you still can be hit because you may have a person with exactly
the same first and last name (especially for Indian and Chinese this is a real tragedy)

They may automatically become "Idents" ("Idents" term definition is taken from Mr. Cannon declaration)even if they lived their lives like Mother Theresa .
If you are educated active person- here we go - you get a lot of hits (certainly you, or your relatives, must belong to a certain national origin in order to be tabled by few years)

Now a simple question: Who does not get any hit in the web?
Computer-illiterate people or people who does not leave any traces on the web or anywhere else AND people with relatively unique first and last names (both conditions must be met).
Very frequently these are the people with low or no income. You certainly can't collect from them - they will go illegal (or ask for free legal help- while transferring to welfare and medicaid at the same time) instead but won't pay.
DHS can't make any revenue stream from them.

Come to think of it.
It really is "smart-management" system to collect money.
Michael Chertoff or whoever invented this is a very smart manager.

In order for people not to be able to question the issue you need to cover it by patriot act. Otherwise if public start seeing what kind of hits in FBI system stop their name checks...well, I do not know what people do.

Just for a start, to get a portion of a good revenue stream, multiply $170-$200 by ~2 million (rotatively delayed immigrants). You approximately get yearly revenue from this. Not bad.

So I won't be surprised if DHS later decide to introduce "one time buy-out fee"
for highly skilled workers in return for expediting thier NNCP.
Both parties will be satisfied.

Problem for this society still remain: irreversible damage has already been done for a lot of people (and some people childrens are citizens). Consequences for this litigous society can be unpredictable.

One smart move the [next] Government could make is to correct the error is to account FBI namecheck time (for people with clean/proven to be clean/not shown to be unclean FBI records) toward 5 year citizenship wait (less 6 month).

 

[aryin]

Hi Lazycis, Do you have MTD denied cases in SDNY?

I have a conference next week in SDNY. Could you give me some suggestions?

Thank a lot!

Look at SDNY. The district is neutral, because adverse decisions are under appeal. A judge will think twice if his/her decision is under appeal. AUSA/USCIS/FBI position does not have a standing on appeal so success rate should be very high.

 

[lazycis]

I have a conference next week in SDNY. Could you give me some suggestions?

Thank a lot!

aryin,
Can you tell me who is your judge? I did not see MTD denied in your district recently in AOS case, but I've seen at least 3 1447(b) (Mostovoi, Alhamedi, Al-Farisi) cases where MTD was denied and FBI was instructed to complete NC in 30 days or so. You can use those cases. Also you can use other cases from your Circuit (i.e. Koren v Chertoff).

 

[nifty97]

Sue them -- it the best way to get end of justice

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.

To tell you the truth, if they are doing all this about name check for over 4years and nothing seems to bring closer to your case. YOU best bet is a nice juicey law Suit. do it your self, once they get the summons, you will see the things are getting moving and most likely they will call you and ask you to dissmiss the case. but untill you show them you are serious about your rights, you have nothing to fear.

 

[tk123]

Motion to extension

Hi Gurus

I have been a silent reader and really want to appreciate all your time and effort you guys put in to educate others.

My wife filed her lawsuit about her pending naturalization case 3 months back. She had her interview during Oct, 2007 and the officer told a decison could not be made at that time. She did not give any specific reason. We got FOIPA report and according to FBi her name check was cleared.

Anyhow, we filed the lawsuit on May 30th and on August 9th, the AUSA requested an extension for 30 days. He also mentioned that they have to do my wife's finger print again. This week, we received the finger print notice and my wife went to the ASC and gave her finger print.

Now I am all confused..Do you guys think that USCIS is just trying to show that they are working on our case and after 30 days, they will request for another extension OR worse, they may tell that we have to do her whole checking process again. I have to be more suspicious with their activities now. Has anyone been through similar situation?

FYI, my wifes case is with Baltimore, MD and we filed the lawsuit through a lawyer.

Appreciate all your input....



TK

 

[lazycis]

TK,

I am confused. You probably meant that your wife had interview in October 2006? If that's the case, when was the last FP done (I mean next to last)? FP's are valid for 15 months.
Anyway, I do not see anything suspicious in your case. If AUSA asks for another extension and promises to adjudicate case within the next 30 days, I'd agree to it. But if AUSA does not promise promt resolution, I'd oppose the extension.

 

[tk123]

TK,

I am confused. You probably meant that your wife had interview in October 2006? If that's the case, when was the last FP done (I mean next to last)? FP's are valid for 15 months.
Anyway, I do not see anything suspicious in your case. If AUSA asks for another extension and promises to adjudicate case within the next 30 days, I'd agree to it. But if AUSA does not promise promt resolution, I'd oppose the extension.

I am sorry, I meant 2006. My understanding is, the finger print expires after 15 months. In my wife's case, it is just a year over after her finger print.

 

[Hiram]

Mtd

I-485 filed in NJ in Oct 2005
Interview May 2006
Name check still pending
WOM April 2007
60 day Extension filed by AUSA in June 2007
MTD filed Aug 2007

4 arguments used in MTD:

1- Lack of jurisdiction
2- Only USCIS has the right/pwer to adjudicate case
3- No where in the law it is mentioned the time by when an adjustment of status must be completed
4- permenent residency is a privilege and not a right

a lot of talking on what happened after sept 11 and that the court must symathize with FBI and USCIS bec they are doing their job to protect the country and lots of "patriotism" talk and that basically even it will take them 10 years to complete the background check, it is in the best interested of the USA bec it is patrt of their duties to protect this country...

made me feel like i was a f*ing terror*st... i mean come on give me a break !
we love this country too... we want the best of this country as well... and we pay taxes, we don't violate laws, we pay soc sec and medicare... we're educated and are adding value as well.. it is really sad...

Anyways, all in all, it looked like a standard MTD... working on my opposition..