Look like you do need to amend your complaint.
4- compel the USCIS to issue a decision on plaintiffs naturalization application no later then 120 days after the interview.
If you can take your lawyer, to the interview, go for it.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Look like you do need to amend your complaint.
4- compel the USCIS to issue a decision on plaintiffs naturalization application no later then 120 days after the interview.
If you can take your lawyer, to the interview, go for it.
More questions regarding to Judge set dates
Thanks to you both AGC4ME and lazycis! It seems that I need to file both an amended complaint and a response to the MTD? Does it matter which one I file first?
Also, I have another question regarding to the dates set by the Judge in his last order. I have a family emergency and need to go back in January and part of Feburary. I think I'll get my I-131 in the next few days. What should I / can I do with the dates before I leave the country? Thanks!
Below is a copy of portion of the Judge's order per to the dates:
-----------------Judge's Order----------------------------------------
BENCH TRIAL DATE APRIL 8, 2008
Length of Trial 1 day
Deadline for joining additional parties 11/16/2007
Deadline for amending pleadings 10/11/2007
Disclosure of expert testimony under FRCP 26(a)(2) 10/11/2007
All motions related to discovery must be filed by
and noted on the motion calendar no
later than the third Friday thereafter
(see CR7(d))
11/13/2007
Discovery completed by 12/10/2007
All dispositive motions must be filed by
and noted on the motion calendar no
later than the fourth Friday thereafter
(see CR7(d))
01/09/2008
Settlement conference per CR 39.1(c)(2) held
no later than 02/08/2008
Mediation per CR 39.1(c)(3) held no later than 03/10/2008
All motions in limine must be filed by
and noted on the motion calendar no
later than the second Friday thereafter
03/11/2008
Agreed pretrial order due 03/20/2008
Pretrial conference to be held at 03:00 PM on MARCH 24, 2008
Trial briefs and proposed findings of fact and
conclusions of law, and designations
of deposition testimony pursuant
to CR 32(e) 03/31/2008
Thanks to you both AGC4ME and lazycis! It seems that I need to file both an amended complaint and a response to the MTD? Does it matter which one I file first?
Also, I have another question regarding to the dates set by the Judge in his last order. I have a family emergency and need to go back in January and part of Feburary. I think I'll get my I-131 in the next few days. What should I / can I do with the dates before I leave the country? Thanks!
Below is a copy of portion of the Judge's order per to the dates:
-----------------Judge's Order----------------------------------------
BENCH TRIAL DATE APRIL 8, 2008
Length of Trial 1 day
Deadline for joining additional parties 11/16/2007
Deadline for amending pleadings 10/11/2007
Disclosure of expert testimony under FRCP 26(a)(2) 10/11/2007
All motions related to discovery must be filed by
and noted on the motion calendar no
later than the third Friday thereafter
(see CR7(d))
11/13/2007
Discovery completed by 12/10/2007
All dispositive motions must be filed by
and noted on the motion calendar no
later than the fourth Friday thereafter
(see CR7(d))
01/09/2008
Settlement conference per CR 39.1(c)(2) held
no later than 02/08/2008
Mediation per CR 39.1(c)(3) held no later than 03/10/2008
All motions in limine must be filed by
and noted on the motion calendar no
later than the second Friday thereafter
03/11/2008
Agreed pretrial order due 03/20/2008
Pretrial conference to be held at 03:00 PM on MARCH 24, 2008
Trial briefs and proposed findings of fact and
conclusions of law, and designations
of deposition testimony pursuant
to CR 32(e) 03/31/2008
another argument strategy
Under § 706 of the Administrative Procedure Act (APA), a court may set aside any agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). USCIS's decision that Plaintiff is statutorily ineligible for adjustment of status was not based on the legal interpretation of the INA. The namechecks are not statutorily required.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), the Supreme Court established a two-pronged framework for judicial review of an administrative agency's interpretation of the statutes and regulations that it administers:
If congressional intent is clear, both the court and the agency must give effect to the unambiguously expressed intent of Congress. If, however, Congress has not directly addressed the exact issue in question, a reviewing court must defer to the agency's construction of the statute so long as it is reasonable.
In this case, congressional intent is clear in 8 USC 1153.
USCIS action in adjudicating applications with a priority date later than that of plaintiff was indeed arbitrary, capricious and an abuse of discretion.
Now the question is, if plaintiff wins WOM, will they revoke other GC's and get thier visa numbers
Under § 706 of the Administrative Procedure Act (APA), a court may set aside any agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). USCIS's decision that Plaintiff is statutorily ineligible for adjustment of status was not based on the legal interpretation of the INA. The namechecks are not statutorily required.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), the Supreme Court established a two-pronged framework for judicial review of an administrative agency's interpretation of the statutes and regulations that it administers:
If congressional intent is clear, both the court and the agency must give effect to the unambiguously expressed intent of Congress. If, however, Congress has not directly addressed the exact issue in question, a reviewing court must defer to the agency's construction of the statute so long as it is reasonable.
In this case, congressional intent is clear in 8 USC 1153.
USCIS action in adjudicating applications with a priority date later than that of plaintiff was indeed arbitrary, capricious and an abuse of discretion.
Now the question is, if plaintiff wins WOM, will they revoke other GC's and get thier visa numbers
I think AUSA can e-file by 11.59PM
should I grant another extension?
Hi, All
I filed WOM(485 NC pending 2 years and 4 months) back in Sept, 2007. I granted the AUSA a 60 day extension at the end of Nov, 2007. Now the extension is ending, and the AUSA is requesting another extension since there is no movement in my NC. I was told that my name is common and may have multiple hits. The AUSA threatened to file MTD if no extension is granted.
I am thinking not to grant another extension and let the AUSA file MTD.
Is this a good choice or should I grant the extension?
Many thanks in advance
w8ing4gc
Hi, All
I filed WOM(485 NC pending 2 years and 4 months) back in Sept, 2007. I granted the AUSA a 60 day extension at the end of Nov, 2007. Now the extension is ending, and the AUSA is requesting another extension since there is no movement in my NC. I was told that my name is common and may have multiple hits. The AUSA threatened to file MTD if no extension is granted.
I am thinking not to grant another extension and let the AUSA file MTD.
Is this a good choice or should I grant the extension?
Many thanks in advance
w8ing4gc
Correction to my case situation and questions
AGC4ME and lazycis,
Correction to my situation: I actually did not get MTD, but instead a MSJ that asks the Judge to dismiss the case. So I guess it doesn't make sense for me to file a response to MTD since it is not there! So what should I do? File my MSJ? The judge said that "All dispositive motion must be filed and noted on the motion calendar no later than the fourth Friday thereafter" that is 1/09/2008.
AGC4ME and lazycis,
Correction to my situation: I actually did not get MTD, but instead a MSJ that asks the Judge to dismiss the case. So I guess it doesn't make sense for me to file a response to MTD since it is not there! So what should I do? File my MSJ? The judge said that "All dispositive motion must be filed and noted on the motion calendar no later than the fourth Friday thereafter" that is 1/09/2008.
File your opposition to MSJ and your own cross-motion to MSJ asap
At least file an opposition to government MSJ.
Ask him if he has written the check for expedited name check. Also ask him what he expects to happen in the next 60 days ? Whether to extend or not depends on your district. If its friendlier I wouldn't if it not friendly then I probably would just to give him time. Is ur I-485 ? Do you have a visa number ?
If you have visa number available now then don't give extension. Tell him that every day he waits you run the risk of losing the visas.
Amending and federal rules of civil procedure
Rule 15 (a) of Fed rules of civil procedure says you need a written permision from the opposing party to file a amended complaint. Am I reading this wrong lazycis? Has anyone amended their WOMs by adding or Dept of State? Did you have to seek written ok from the AUSA or the courts leave?
http://judiciary.house.gov/media/pdfs/printers/109th/31308.pdf
See pg 19
(2) Other Amendments.
In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Rule 15 (a) of Fed rules of civil procedure says you need a written permision from the opposing party to file a amended complaint. Am I reading this wrong lazycis? Has anyone amended their WOMs by adding or Dept of State? Did you have to seek written ok from the AUSA or the courts leave?
http://judiciary.house.gov/media/pdfs/printers/109th/31308.pdf
See pg 19
(2) Other Amendments.
In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
My 485 PD is current.
My district (MA) is a friendly one.
Since I did not get any indication from AUSA that she has requested expedited NC, I do not expect that there will be any improvement in the next 30 days.
Her argument to me so far is that my name is a multiple-hits name, so the 2.3 years I have waited has not been a delay. I wonder if this is a valid argument before the judge. Can anyone provide some experience with this type of situation?
Thanks a lot.
Don't wait. ask him to file MTD.
waitinfori130
Registered Users (C)
Lazycis, my timeline shows I've waited since August,2006 since I submitted my I-130 petition. I think USCIS might have argument that I have only been in namecheck for less than one year. I don't think they stated I was in name check until about April 2007.
Do you think this fact would affect my filing WoM ? Does this just give the AUSA, a good reason to file MTD ?
Do you think this fact would affect my filing WoM ? Does this just give the AUSA, a good reason to file MTD ?
Last edited by a moderator:
Read the rule more closely. "(a) AMENDMENTS. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served". Did you get an answer from the AUSA? MTD is not an answer. If not, you do not need consent or leave of court to amend the first time.
AUSA will file MTD anyway so you should not worry about it. If the USCIS did not send NC to FBI until April 07, your case only becomes stronger.
Lazycis, friends,
Time has come to say goodbye. As of yesterday, I am proud to say that I am an American.
I was getting ready to file a reconsider, when I received a call from the INS. I was told to show up at the INS office in VA on Friday January 11, 2008 to take the oath of allegiance, which I did.
Although the judge dismissed my case, I am a firm believer that the law suit had something to do with what happened. I am glad I did it and I thank each and everyone of you, especially Lazycis for your advice and guidance. I would never be able to do it without you. I will never forget you.
God bless you all and good luck
Agreed! The AUSA has filed their response. No MSJ yet.
Lazycis, whats your thought on motion for default judgement against the FBI. I have to talk to the AUSA on this but in my case there is no statement or reasoning from the FBI and more importantly they are not mentioned in the response (i.e. left out from list of defendants in the response). What would you suggest?
Thanks AGC4ME and lazycis below. I'll do that and post my opposition for MSJ and cross motio to MSJ asap for both of your advice later.
Thanks!
NYS_June2002
Registered Users (C)
Can anyone here suggest a lawyer to file WOM for 485 in California Central Dristrict?
Thanks for the help.
Thanks for the help.