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

[lazycis]

Yep. Whether you are retrogressed or not when filing a WOM, always have DOS as a defendant. You might retrogress after you file the WoM. lazycis, is there a rule that says that cases need to be adjudicated according to the situation at the time the suit is filed ?

Not sure about the rule, but here is what the 7th Cir. wrote in Ahmed v. DHS (DV-lottery case):
"At that point, unbeknownst to her, she made a fatal mistake by not arranging immediately for a lawsuit to be brought on her behalf in the United
States prior to September 30."

So if Ahmed filed a lawsuit before statutory deadline, she would've received her green card.

 

[wommei]

very good point, Lazycis

Not sure about the rule, but here is what the 7th Cir. wrote in Ahmed v. DHS (DV-lottery case):
"At that point, unbeknownst to her, she made a fatal mistake by not arranging immediately for a lawsuit to be brought on her behalf in the United
States prior to September 30."

So if Ahmed filed a lawsuit before statutory deadline, she would've received her green card.

You've made a good point there, Lazycis!! I think i will probably cite this in my opposition to MTD since I am associated with 7th cir.

 

[futureuscitizen]

Certificate of Service question

I served the copy of the complaint + the Notice (AO 456) from the court to all the defendants + US Attorney

But so far only US Attorney and USCIS director received the package. Should I wait for all the defendats to get the things then file the certiticare of service or ASAP whoever got served?

 

[lotechguy]

I served the copy of the complaint + the Notice (AO 456) from the court to all the defendants + US Attorney

But so far only US Attorney and USCIS director received the package. Should I wait for all the defendats to get the things then file the certiticare of service or ASAP whoever got served?

Future,
just look at the usps site and that will tell you when they received it. For Washington addresses it takes about 5 days to update.

 

[07cantwait]

On page 464 is a sample request for documents. You can also include interrogatories (questions) in it.

Thank you so much!

 

[lazycis]

AOS Appeal Reply brief 7th Cir

TLong,

I am posting my revision for your review. You will need some time to create a table of authorities so plan accordingly, we do not want you to miss the deadline

 

[wom_ri]

Lazycis

I sorry if this posting was intended only for TLong. I went thru it.
Iam wondering why you/TLong did not include following items from your brief:
1. The mandatory adjudication fee creates a duty to adjudicate the application.
2. UNDER THE MANDAMUS STATUTE, AN AGENCY'S DUTY TO ACT DOES NOT DEPEND ON A SPECIFIC STATUTORY OR REGULATORY TIMEFRAME.

I expect opposition to MTD's in future to include these two points as well.

I think these two points are very useful and offer insights to the various issues that can be called upon to further TLongs case.

TLong,

I am posting my revision for your review. You will need some time to create a table of authorities so plan accordingly, we do not want you to miss the deadline

 

[lazycis]

Those are fair points and can be added to reinforce our position. Keep in mind that this is the reply brief so those points may have been discussed earlier. In TLong's case we tried to emphasize existing precedents in Iddir and Ahmed. Should be a cakewalk for TLong
I think it was TLong's intention to get a feedback from all of us so you did the right thing.

 

[wom_ri]

inviting opinions/thoughts on retrogression issues

Lazycis,AGC4ME others:
I am trying to build useful points for WOMers to be affected by retrogression in Jan'08. The following three statutes apply:
§ 1151. Worldwide level of immigration
§ 1152. Numerical limitations on individual foreign states
§ 1153. Allocation of immigrant visas
( I went crazy after reading these three statutes.. NFL rules seem simpler
After my analysis of these two statutes I draw the following conclusion:
1. Visa numbers are computed every calendar quarter
2. Sometimes, visa numbers allocated for employment & family based categories are not used up in a calendar quarter
3. For an application ready for adjudication(but no immigrant visa number available..ie.retrogression), it can be given visa number from 2. subject to maintaining select ratios.
4. There is rollover of unused visa numbers from previous years(rollover only from employment_based to employment_based..etc..)
5. For all these details, if something is still not available, it is unlikely that we can force them to give from unused visa numbers from prior years..
we need to amendments to these statutes..
6. Maybe possible to get visa number in subsequent calendar quarter ?
7. We can atleast force the WOM to complete the namecheck and hope for allocation in the next fiscal year(at the worst)..
8. In that case, DOS might still not be required as a defendant..
9. How can USCIS state visa numbers for a particular country is unavailable in FEB'08 (because numbers seem allocated every quarter) ?
10. If priority date is Jan'00(means visa number is still available).. as opposed to unavailable.. we can argue that USCIS should ask for a visa number for an applicant with later priority date (say Dec'01..) to complete adjudication of the case. The plaintiff was affect by retrogression due to USCIS delays and USCIS is in a position to grant relief
Any opinions.. clarifications

 

[AGC4ME]

1. Visa numbers are computed every calendar quarter

May be, may be not. No one knows how this works.

2. Sometimes, visa numbers allocated for employment & family based categories are not used up in a calendar quarter

Yes. From 2000, DOS/USCIS used up all visa numbers only in 2005.

3. For an application ready for adjudication(but no immigrant visa number available..ie.retrogression), it can be given visa number from 2. subject to maintaining select ratios.

Yes.

4. There is rollover of unused visa numbers from previous years(rollover only from employment_based to employment_based..etc..)

No. Visa numbers unused are unused period.

5. For all these details, if something is still not available, it is unlikely that we can force them to give from unused visa numbers from prior years..
we need to amendments to these statutes..

Yep. Congress has to pass laws to recapture those visa numbers.

6. Maybe possible to get visa number in subsequent calendar quarter ?

I think this is the same as #3 above.

7. We can atleast force the WOM to complete the namecheck and hope for allocation in the next fiscal year(at the worst)..

. Yeah but hope is a very bad thing to have in this instance.

8. In that case, DOS might still not be required as a defendant..

No. By having DOS as your defendant you can order the court to provide you with a visa number. USCIS is hiding behind DOS, DOS moves priority dates based on USCIS demand. So its a chicken and egg. If you want your case to be adjudicated have DOS as defendant but if you just want name check to be cleared then don't have DOS. But filing a lawsuit to just get your namecheck cleared and still subject yourself to this drama from USCIS and DOS doesn't make sense. Fight till the end or just don't fight.

9. How can USCIS state visa numbers for a particular country is unavailable in FEB'08 (because numbers seem allocated every quarter) ?

If subsequent quarter's numbers are also used up in this quarter because DOS had a later priority date then it has to make that category unavailable. PD movement is not a science. It's an art and USCIS/DOS have no idea about how to go about doing it.

10. If priority date is Jan'00(means visa number is still available).. as opposed to unavailable.. we can argue that USCIS should ask for a visa number for an applicant with later priority date (say Dec'01..) to complete adjudication of the case. The plaintiff was affect by retrogression due to USCIS delays and USCIS is in a position to grant relief
Any opinions.. clarifications

That's what we are all trying to do. USCIS will argue saying that it did ask for a visa number and that DOS denied it. If the judge is strict then he will turn around and say "sorry dude since DOS is not a defendant, I cannot order DOS to give you a visa..."

 

[yiliuer]

Update on the case management conference

Thanks to LazyCIS and others for helping me preparing for the CMC. It wasn't that bad, which took only five minutes. Both the judge and the AUSA are pretty nice. I was the only one not wearing suits in the court!!!
According to the judge, both the AUSA and I could file cross motion for summary judgment by Dec. 26. And she asked the AUSA if she will work with the US government as usual to settle the case before the hearing date. That is very encouraging. I know that the AUSA is working on a MSJ. And I am definitely interested in submitting one myself. My question is:

Should I submit my MSJ as "Motion for Summary Judgment" or "Cross Motion for Summary Judgment"? If MSJ from myself and the AUSA arrive the court at the same time, then whose MSJ is considered as Cross Motion, or does it not matter at all?

Thanks very much,

LazyCIS,

Thanks very much for your reply.

I just spoke with ADR officer and the AUSA in the ADR conference. Obviously ADR is not a good way of solving the issue. But the ADR mediator did mention to my AUSA, asking that if she would contact those government agencies, including FBI and USCIS. The AUSA said that she already contacted them and will let me know as soon as she heard anything back.
That was really encouraging. Although I still have to go to the Case Management Conference tomorrow to deal with her and the judge again, I feel excited because for the first time I was made aware that the AUSA is actually doing something to push forward the case, not just waiting doing nothing or counting my petition.
Don't know if USCIS or FBI will cooperate. How is the trend recently?

MY WOM was submitted in Sept 6, 2007, 9th District Northern CA

 

[lazycis]

Lazycis,AGC4ME others:
I am trying to build useful points for WOMers to be affected by retrogression in Jan'08. The following three statutes apply:
§ 1151. Worldwide level of immigration
§ 1152. Numerical limitations on individual foreign states
§ 1153. Allocation of immigrant visas
( I went crazy after reading these three statutes.. NFL rules seem simpler

Any opinions.. clarifications

No wonder they call it "maze" of immigration laws. I have a simple solution - assign a visa number at the time petition for immigrant visa is filed. If application is denied, the visa number goes back to the pool. This way there will be no retrogression and no wasted numbers (unless the demand is low). Train DOS personnel that produces forecasts of visa number usage to do name checks as they will have nothing else to do. Any congressmen/USCIS officials on the forum?

 

[Slow_CIS]

TLong,
I think you should reduce citation to the Subhan case in 7th cir, particularly with regard to 1252(a)(2)(B). I suppose that the 7th circuit has informally withdrawn its holding in Subhan by issuing it's new opinion on Ali v. Gonzalez. Therefore, citing Subhan may not positively resonate with the seventh circuit.

Lzay, Correct me if I am wrong.

 

[suethem]

Lazycis,
Thank you so much for your time!

 

[phuzzypeach]

timeline

CONGRATS!!!!!!

Could you post your timeline?

Thanks
Future

Here's the timeline of my citizenship application and 1447b case progress
1/06: filed N400
2/06: fingerprints taken
6/06: passed interview
numerous phones and letters
9/07: filed 1447b case
11/07: received a phone call from the AUSA assigned to my case telling me that i didn't serve the US attorney of my district properly (i didn't put attention to "civil process clerk"). he instructed me to re-serve them and he'll push the FBI on the name check
12/07: fingerprints Re-taken TWICE (yes, twice, 1 week apart)
12/18/07: got a phone call from AUSA telling me the name check cleared.
12/19/07: got the stipulation document the AUSA. It says we agree to dismiss the case without prejudice and CIS will adjudicate my application within 10 days upon the case dismissal. I will sign on it and send it out tomorrow. I hope the swear-in notice will sit in my mailbox by mid or late january 08.

I do have a small worry though. What if the CIS doesn't send me the swear-in notice by the timeline they promised? Anyone has any idea?

Thanks!

phuzzypeach

 

[lotechguy]

Order for Initialconference and disclosure

Paz,lazycis,AGC4me,suthem others,

an aquaintaince of mine filed for nat. delay and now got a Order for Initial conference and disclosure. The order states : "Counsel shall file with the clerk a certificate listing all the persons, firms, partnerships,otherentities that are financially interested in this litigation."

When I did my 1447b I did not get anything like this, anybody have any experience with a certificate like this ? Can you please post a sample if you have seen this ?

 

[lazycis]

lotechguy

Here is a link to corporate disclosure form for civil cases. Some courts require it (local rule). Nothing to worry about.
http://www.mdd.uscourts.gov/WebDataPages1/forms/DisclosureCorpFees.doc

 

[OK-Boy]

Everyone help is needed

Hi All,

After waiting for about 14 months for N-400 interview because of Namecheck problem I wrote letters to almost everyone and worked very hard to make my WOM case strong. I was planning to file it within next couple of months or so. I got a letter yesterday from Homeland Security (my District USCIS Office) stating:

“Thanks for your inquiry. Your N-400 application is being scheduled for interview. The interview notices are sent out from the different office, so you should expect to receive your appointment notice with a date and time soon.

I was wondering to know is this true or another catch from them? How soon should I expect to get it because I’m going out side of country for 3 weeks’ vacations and don’t want to miss my interview? Everyone’s help is appreciated. Thanks,

 

[lazycis]

TLong,
I think you should reduce citation to the Subhan case in 7th cir, particularly with regard to 1252(a)(2)(B). I suppose that the 7th circuit has informally withdrawn its holding in Subhan by issuing it's new opinion on Ali v. Gonzalez. Therefore, citing Subhan may not positively resonate with the seventh circuit.

Lzay, Correct me if I am wrong.

From Ali
"We also hold that Ali’s case does not fall within the exception to the jurisdictional bar recognized in Subhan".

So I think it is safe to leave the citation, especially because we use it in the context that the USCIS action (or inaction) effectively nullifies alien right to adjust status and frustrates Congressional intent. Agree?

 

[kcguy2004]

2nd fp!

Folks,

after filing wom I got a request for 2nd FP (code 3).
I'm not sure if they are related.
Anyway, another USCIS snafu.. my FP notice was for pending I485 but had a receipt number that was for a recently approved EAD application. Go figure!
After a bit of song and dance with IO I hope they link the FP to my I485 {prays}