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

[lazycis]

veryfree

Was your PD current when the court issued the order?

 

[veryfree]

The order was just a few days late

Was your PD current when the court issued the order?

Sadly, it was not. The judge made the order on 12/4/07. At the same month, EB2 based visas for chinese applicants have regressed.

 

[lazycis]

Sadly, it was not. The judge made the order on 12/4/07. At the same month, EB2 based visas for chinese applicants have regressed.

At least it was current when you filed your complaint. Check page 504 for arguments.

 

[yiliuer]

Opposition to AUSA's opposition to MSJ?

Hi Lazycis, AGC4ME and others,

Today I received AUSA's opposition to my original MSJ. Basically she is arguing that there is no visa number available.

Can I file my Opposition to her opposition to MSJ? Is there such a thing?
If not, is it true that I have to amend my opposition by filing a motion to leave first? My hearing date is Feb. 20, 2008. Is there a deadline for such a motion to leave?

sorry for so many questions and thanks for your reply.

Great find by wom_ri.
Ask court's permission to amend your Opposition (file a motion for leave to file amended opposition).

 

[yiliuer]

That was very annoying news. We are kind of on the same boat. But at least you got your name check cleared. I am awaiting for MSJ yet.

Last month, the Court granted my MSJ and ordered USCIS to adjudicate my case before Jan 15th, 2008. On Jan 10th, USCIS sent a declaration to the Court arguing why they can not adjudicate my case. Basically they argued that there are no visa numbers available. These are the arguments:

USCIS permits an individual to apply for adjustment of status only if the applicant’s priority date is current. However, an USCIS does not actually request a visa from DOS until the application for adjustment of status is ready for approval.

Because the Visa Bulletin is just an estimate of the number of visas that are likely to be available, there are times when date of projected availability of visa actually goes backward. This could be the result of a surge in applications at particular time or when USCIS adjudicates a usually high number of applications. Accordingly some applicants for adjustment who appeared to be eligible for a visa when they applied for adjustment don’t actually have a visa available when USCIS is ready to approve the application.

It is USCIS’s policy to hold these case in abeyance until a visa number does become available. If USCIS were forced to adjudicate such an application, it would have to deny.

USCIS closely monitors cases such as plaintiffs’, and adjudicates such cases as soon as the visa numbers become current.


Good news is that FBI has finished my name check on 12/28/07, however I will schedule an Infopass appointment to confirm that.

Should I send a response asking USCIS to request a visa number for me? Does anyone have an example case on how to argue about the visa number issues? USCIS claimed they will adjudicate my case as soon as the visa numbers become current. But without a clear deadline such as “adjudicate the case in 14 days after the visa numbers become current”, the USCIS' promise would not be accountable. How can I convince the judge to add such a sentence in the order?

 

[duck008]

Motion to Temporary Staying the Case

Due to emergency family matter, I need to leave the US for about one month. For that reason, I worked with my AUSA to file a joint stipulation to temporarily stay the case. Below is the stipulation. Lazycis, AGC4ME and others, I'd appreciate if you could review this and tell me whether you see any potential problems.

Thanks.

---------------------------------------------------------------------------
STIPULATION

Petitioners have requested, and Respondents do not oppose, a temporary stay of this case. The parties therefore STIPULATE AND AGREE, and JOINTLY REQUEST, that this case be stayed from the date of this order until March 11, 2008, with Respondents’ pending Motion for Summary Judgment re-noted for consideration on March 28, 2008, and Petitioners’ response, if any, due March 24, 2008.
DATED this 14th day of January, 2008.
---------------------------------------------------------------------------
Oh yes, the current "Note on motion calendar" is Feb. 1, 2008, and here are the dates that the Judge had set in October last year:

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

 

[paz1960]

Hi all,

I've applied for citizenship in Feb 2004 and my application went under name check. I've had 2 fingerprints and an interview since then. Recently, I received another letter for USCIS requesting another fingerprints last week. On the same day, I received a letter which had a check mark next to " Appointment to :UPDATE INFORMATION SINCE LAST INTERVIEW"

I had my interview in May 2006 (which I passed)..gave my fingerprints for the 3rd time last week, and now this. Anyone here who has had same letters/experience since name check is pending?? if so, please share.

I was working on my complaint to file the lawsuit, but I think I should wait a little. Any advice?

Thanks in advance!

Since you applied for your citizenship almost 4 years ago, I would wait couple of more days till that second interview before I file the lawsuit. Lazycis is correct that strictly speaking, USCIS lost their right to interview you for the second time since they didn't do it in the 120 day interval after your first interview. But if you don't have anything to hide you should not fear this second interview.

In my opinion, when there is a strong indication that your case will be solved peacefully (I believe that the recent FP and this interview request are both signs for that) in the near future (I mean in max. 2 weeks), there is no point to file a lawsuit and spend $350+mailing expenses and many hours of your precious time. If they don't adjudicate your application at the end of this second interview, you should file that lawsuit. When is this second interview scheduled?

Of course, if you have any serious reason why you prefer to skip that second interview, you should proceed and refuse it and file the lawsuit right away.

 

[ashlie23]

Almost there....

Thanks a lot PAZ1960..

My second interview is scheduled on Feb. 28th. The strange thing is that they did NOT put a check mark next to the blank for re-examination; instead a checkmark next to the one that states "INFORMATION UPDATE SINCE LAST INTERVIEW"

I don't know if it means re-interviewing or what. They didnt put check mark next to any language tests either..so I am not sure. But I will call USCIS first thing in the morning, and see what this is about.

My dilemma was to whether appear for an re-interview or not and that has become clear after reading your post.

Thanks a lot for your time! I really appreciate it.

~ashlie23

Since you applied for your citizenship almost 4 years ago, I would wait couple of more days till that second interview before I file the lawsuit. Lazycis is correct that strictly speaking, USCIS lost their right to interview you for the second time since they didn't do it in the 120 day interval after your first interview. But if you don't have anything to hide you should not fear this second interview.

In my opinion, when there is a strong indication that your case will be solved peacefully (I believe that the recent FP and this interview request are both signs for that) in the near future (I mean in max. 2 weeks), there is no point to file a lawsuit and spend $350+mailing expenses and many hours of your precious time. If they don't adjudicate your application at the end of this second interview, you should file that lawsuit. When is this second interview scheduled?

Of course, if you have any serious reason why you prefer to skip that second interview, you should proceed and refuse it and file the lawsuit right away.

 

[ashlie23]

Thanks LAZYCIS....

LAZYCIS,

Thanks a lot for your reply. I was wondering what my next step should be! As much as I would like to file 1447(b) like you mentioned, I think the wise thing would be to wait a month to see if it moves forward or not..if not, then I will have my complaint written up by then.

Thanks once again for all your help!

ashlie23

Keep in mind that you do not have to go to the second interview. Check this post
http://www.immigrationportal.com/showpost.php?p=1834089&postcount=14710

It's up to you to decide, you can write back and say that it's against regulations to request the second interview after 120 days has been passed since the first interview. I am not sure what's the best way to proceed. I'd file 1447b just in case.

 

[wom_ri]

another classic case of estoppel against USCIS

Look at Mauting v. INS, No. 99-70088,
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
16 Fed. Appx. 788; 2001 U.S. App. LEXIS 18632

Here is how I would draft my argument:
The 9th circuit court in Mauting v INS opined that Estoppel may be applied against the INS where it engages in some "affirmative misconduct" beyond mere negligence. In instant complaint, Estoppel against the government applies because the USCIS wrongful act of issuing Green Cards to applicants with a priority date later than the plaintiffs(on the sole basis that plaintiff in instant complaint has a long-pending namecheck due to FBI inaction) is in violation of 8 U.S.C. 1153. This contitutes serious injustice. Plaintiff further notes that public's interest will not suffer undue damage by imposition of the liability of obtaining a visa number for the plaintiffs. Unlike diversity visa applicants, employment based applicants can claim visa numbers from any fiscal year and defendants failure to adjudicate their application is the sole reason for them not obtaining a visa number from multiple fiscal years that their application has been pending with USCIS.
The Mauting court noted that the [Plaintiffs] have alleged and preserved a colorable claim of equitable estoppel. "To be colorable in this context, the alleged violation need not be substantial, but the claim "must have some possible validity."
In instant case, Plaintiffs demonstrate with record support, that the USCIS unreasonably delayed processing their I-485 applications to preclude the valid claims to a visa number that was available during most times since the plaintiff filed the I-485 application across multiple fiscal years; that the USCIS recklessly issued visa numbers to applicants with later priority date and witheld adjudication in Plaintiffs case, in violation to it's own regulations. Defendants in claiming that national security requires that plaintiffs namechecks be complete, notwithstanding the fact that the FBI was unable to identify any national threats due to Plaintiffs for the past thirty six months; seem to engage in a deliberate pattern of deception; and that, as a result, the Plaintiffs were forever prevented from obtaining visa numbers for the fiscal years 2005-2008. These claims have enough "possible validity" to constitute a colorable cause of action for equitable estoppel.

 

[lazycis]

estoppel

Another document of interest regarding estoppel doctrine.

 

[Feb2005]

Thank you very much for the pro bono lawyer information.

I just sent a letter to Laura Bush and about a week ago I sent the form to Ombudsman. I haven't heard anything from Omb yet. I am wondering if anyone sent anything to tht dept and heard back from them. I'm right now basically waiting to hear something from tht dept or Bush's dept, which probably won't happen.

How long should I wait to start working on WOM process since I just sent those letters? My name check is pending since 11/30/2004 and my case is for I-485, everything else is done.

Another question- I know this is long thread and most likely it was mentioned somewhere but is there any link of federal court in ny or any link where I can get the Pro se pack? I'm very new to all these and most likely I will contact lawyer but also wanted to see for myslef if I can even understand those forms!!

Thanks a bunch!!

 

[waitinfori130]

I received the following from my FOIPA request from the FBI. Please tell me what it means and whether it will be helpful to my WOM when I file.


Dear Requestor, this is in response to your FOIPA request.
To promply respond to requests, we concentrate on identifying main files un the central record system at the FBI Atlanta Field office. No records responsive to your FOIPA request were located by a search if the automated and manuaks indices.

You may file an admistrative appeal by writing to the director, Office of information and privacy, US dept of justice, 1425 new york ave,m nw, suite 11050, washington,dc 20530, within 60 days from the date of this letter.

 

[lazycis]

waitinfori130

Yes, you should include it as a proof that the delay is unreasonable.

 

[MDwatch]

I received the following from my FOIPA request from the FBI. Please tell me what it means and whether it will be helpful to my WOM when I file.


Dear Requestor, this is in response to your FOIPA request.
To promply respond to requests, we concentrate on identifying main files un the central record system at the FBI Atlanta Field office. No records responsive to your FOIPA request were located by a search if the automated and manuaks indices.

You may file an admistrative appeal by writing to the director, Office of information and privacy, US dept of justice, 1425 new york ave,m nw, suite 11050, washington,dc 20530, within 60 days from the date of this letter.

It means that you have never been the subject of an FBI investigation. It also mean that your namecheck if not complete will take forever as there is nothing against you

 

[wom_ri]

Procedural Due Process for retrogression

Lazycis, other experienced womers.. please help..

The affirmative misconduct part of estoppel has me worried.
What is the misrepresentation on this issue by USCIS ?

However, I like the procedural due process claim as exhibited by Singh v. Reno, 182 F.3d 504 (7th Cir. 1999).
So basically retrogression guys(who's namecheck is complete and now are unable to claim visa numbers) can say:
USCIS could have adjudicated their cases from <filing_date> to <date_retrogression_started>. However they did not do so bcos of incomplete FBI namechecks.
When FBI namechecks were indeed completed(in some cases by court order)... retrogression became active..
Plaintiff blames the USCIS for this Kafkaesque turn of events.
So Plaintiff can state a valid constitutional due process claim that USCIS failure to adjudicate I-485 applications in a timely manner(a mandatory duty) resulted in Plaintiff's current plight- unable to obtain a visa number.
The fifth amendment due process claim protects individuals(including aliens) against federal government deprivation without fair and adequate procedures.
Am I correct in this interpretation ?

Another document of interest regarding estoppel doctrine.

 

[lazycis]

We cannot raise due process claim as GC is a discretionary relief.

 

[rp1234]

We cannot raise due process claim as GC is a discretionary relief.

I agree! The judge may not buy the due process and 5th amendment violation although it can definitely stated as an argument. Another angle that you can consider is looking at the intent of congress around the visa number issues. “Deference to the [agency’s] interpretation of the immigration laws is only appropriate if Congress’ intent is
unclear.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Hernandez)
I think one can build an argument opposing the agencies interpretation of the statutes surrounding the visa number processing.

 

[wom_ri]

Thanks!!

I agree! The judge may not buy the due process and 5th amendment violation although it can definitely stated as an argument. Another angle that you can consider is looking at the intent of congress around the visa number issues. “Deference to the [agency’s] interpretation of the immigration laws is only appropriate if Congress’ intent is
unclear.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Hernandez)
I think one can build an argument opposing the agencies interpretation of the statutes surrounding the visa number processing.

 

[wom_ri]

3rd amended complaint

Iam filing my 3rd amended complaint(to add DOS as defendant). Can I refer to defendants MTD in it ?
like "*3 in Defendants Motion to Dismiss".
(My 3rd amended complaint is a complete document with all previous exhibits).