wom_ri
Do you have a sample complaint for backdating GC? And would it also be filed in the federal court?
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
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wom_ri
Do you have a sample complaint for backdating GC? And would it also be filed in the federal court?
N400-Misery
Registered Users (C)
Lazycis - What's the latest with Judge Baylson ?
Lazycis,
Any updates on Judge Baylson’s case ? .. What happened with the argument that the NC program is or might be unconstitutional?
I think this would be the best and strongest argument if other courts picked up on it..
Thanks for your time.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
N400 @ TSC
PD: 11/??/2006
FP: 12/??/2006
ID: ????????
OD: ???????
Lazycis,
Any updates on Judge Baylson’s case ? .. What happened with the argument that the NC program is or might be unconstitutional?
I think this would be the best and strongest argument if other courts picked up on it..
Thanks for your time.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
N400 @ TSC
PD: 11/??/2006
FP: 12/??/2006
ID: ????????
OD: ???????
Feb28 order by baylson
MEMORANDUM AND ORDER
Defendants filed an Emergency Motion for Stay Pending Appeal of this Court's Order, dated February 8, 2008, and the Plaintiffs have filed a response. The Court held a hearing on February 27, [*3] 2008 in open court.
Although Defendants' counsel presented many arguments as to why a stay should be granted, no appeal has been filed. They advise that the issue of whether to appeal is under review by the Solicitor General's Office and, therefore, the Court should grant a stay to allow more time to consider whether an appeal will actually be filed. Without necessarily agreeing that the matter is an emergency or otherwise ripe for decision, the Court will consider the merits of the Motion.
Defendants assert most vigorously that they have satisfied the requisites for a stay, that the Court erred in its legal conclusions and in the relief granted, and the United States Citizenship and Immigration Services ("USCIS") will suffer irreparable harm unless a stay is granted pending an appeal. Plaintiffs dispute the Defendants' contentions.
One of the points of contention is the interpretation of paragraph 7 in the Court's Order of February 8, 2008. Defendants assert that the phrasing of the Order has prevented USCIS from adjudicating any of these Plaintiffs' petitions because it could not consider the result of the Federal Bureau of Investigation ("FBI") name check without instituting the notice [*4] and comment procedure, leading to new regulations, which USCIS is apparently unwilling to do without exercising its appellate rights.
Counsel for USCIS then advised the Court that although USCIS recently received the results of the FBI name check for these four Plaintiffs, because of the phrasing of paragraph 7 of the February 8, 2008 Order, USCIS took the position it could not review those results, and did not know what the results were. Upon learning this fact, Plaintiffs' counsel agreed that it would be in their clients' interest for the Court to rephrase paragraph 7 and to give the Defendants some reasonable time to review the results of the FBI name check. If the name check did not reveal any derogatory information, the Plaintiffs presumably would be promptly interviewed, and assuming all requisites for naturalization have been met, their petitions would be adjudicated and the Plaintiffs would be naturalized, thus arguably making these cases moot. The record will reflect that the Defendants' counsel did not make any commitments or promises as to any specific action in any specific case.
Nonetheless, all counsel and parties agreed that the Order of February 8, 2008 should be revised [*5] as follows:
AND NOW, this day of February, 2008, following a hearing in open court and for reasons stated on the record, it is hereby ORDERED that paragraphs 7, 8 and 10 of the Court's Order dated February 8, 2008 shall be revised, with the same numbered paragraphs, and paragraph 11 will be added, as follows:
7. As of March 28, 2008, unless USCIS has initiated a notice and comment procedure pursuant to the Administrative Procedure Act concerning its use of the FBI name check procedure, it shall be enjoined from using the FBI name check program as a factor in the decision making as to these Plaintiffs.
8. The parties shall file reports no later than March 31, 2008 as to their position.
10. The Court will schedule a hearing as may be necessary or appropriate.
11. The Defendants' Emergency Motion for Stay Pending Appeal is DENIED, without prejudice.
MEMORANDUM AND ORDER
Defendants filed an Emergency Motion for Stay Pending Appeal of this Court's Order, dated February 8, 2008, and the Plaintiffs have filed a response. The Court held a hearing on February 27, [*3] 2008 in open court.
Although Defendants' counsel presented many arguments as to why a stay should be granted, no appeal has been filed. They advise that the issue of whether to appeal is under review by the Solicitor General's Office and, therefore, the Court should grant a stay to allow more time to consider whether an appeal will actually be filed. Without necessarily agreeing that the matter is an emergency or otherwise ripe for decision, the Court will consider the merits of the Motion.
Defendants assert most vigorously that they have satisfied the requisites for a stay, that the Court erred in its legal conclusions and in the relief granted, and the United States Citizenship and Immigration Services ("USCIS") will suffer irreparable harm unless a stay is granted pending an appeal. Plaintiffs dispute the Defendants' contentions.
One of the points of contention is the interpretation of paragraph 7 in the Court's Order of February 8, 2008. Defendants assert that the phrasing of the Order has prevented USCIS from adjudicating any of these Plaintiffs' petitions because it could not consider the result of the Federal Bureau of Investigation ("FBI") name check without instituting the notice [*4] and comment procedure, leading to new regulations, which USCIS is apparently unwilling to do without exercising its appellate rights.
Counsel for USCIS then advised the Court that although USCIS recently received the results of the FBI name check for these four Plaintiffs, because of the phrasing of paragraph 7 of the February 8, 2008 Order, USCIS took the position it could not review those results, and did not know what the results were. Upon learning this fact, Plaintiffs' counsel agreed that it would be in their clients' interest for the Court to rephrase paragraph 7 and to give the Defendants some reasonable time to review the results of the FBI name check. If the name check did not reveal any derogatory information, the Plaintiffs presumably would be promptly interviewed, and assuming all requisites for naturalization have been met, their petitions would be adjudicated and the Plaintiffs would be naturalized, thus arguably making these cases moot. The record will reflect that the Defendants' counsel did not make any commitments or promises as to any specific action in any specific case.
Nonetheless, all counsel and parties agreed that the Order of February 8, 2008 should be revised [*5] as follows:
AND NOW, this day of February, 2008, following a hearing in open court and for reasons stated on the record, it is hereby ORDERED that paragraphs 7, 8 and 10 of the Court's Order dated February 8, 2008 shall be revised, with the same numbered paragraphs, and paragraph 11 will be added, as follows:
7. As of March 28, 2008, unless USCIS has initiated a notice and comment procedure pursuant to the Administrative Procedure Act concerning its use of the FBI name check procedure, it shall be enjoined from using the FBI name check program as a factor in the decision making as to these Plaintiffs.
8. The parties shall file reports no later than March 31, 2008 as to their position.
10. The Court will schedule a hearing as may be necessary or appropriate.
11. The Defendants' Emergency Motion for Stay Pending Appeal is DENIED, without prejudice.
amend complaint to add policy change:
INDERJEET SINGH, and KIRANJEET KAUR, Plaintiffs, v. PETER D. KEISLER, MICHAEL CHERTOFF, GERARD HEINAUER, EMILIO T. GONZALEZ, and ROBERT S. MUELLER, III, Defendants.
No. 07-2449-CM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
2008 U.S. Dist. LEXIS 15365
February 27, 2008, Decided
------------------------------------------------------------
Without leave from this court, plaintiffs filed a second surreply regarding defendants' motion (Doc. 19). In this surreply, plaintiffs advise the court that defendants have revised their policy for cases similar to plaintiffs--"The policy now mandates that USCIS grant, otherwise approvable adjustment applications, that have been pending, for name checks, for 180 days or more." Consequently, plaintiffs state that "this Court should remand the matter to the agency with instructions that the case be adjudicated forthwith."
Remanding the case under this policy was not part of the requested relief in plaintiffs' complaint. Adding new requests for relief in a surreply to a motion to dismiss is inappropriate. D. Kan. R. 15.1. If plaintiffs wish to amend their complaint in light of the change in policy, they must file an appropriate motion within thirty days [*3] of this order.
Additionally, it appears that the inclusion of a new policy could affect the court's analysis of the pending motion to dismiss. As a component of their argument for why this court lacks jurisdiction to hear plaintiffs' complaint, defendants argue that there are no binding time frames within which defendants must act. The new policy may challenge that argument. As a result, the court finds that it would be presently imprudent to make substantive rulings on defendants' motion to dismiss. The court denies the motion without prejudice. However, if plaintiffs fail to file a motion to amend their complaint within thirty days of this order, defendants will be granted leave to refile their motion to dismiss.
IT IS THEREFORE ORDERED that defendants' "Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, for Failure to State a Claim upon which Relief can be Granted" (Doc. 8) is denied without prejudice.
IT IS FURTHER ORDERED that if plaintiffs want this court to consider any USCIS policy change, they must file a motion to amend their complaint within thirty days of this order.
IT IS FURTHER ORDERED that if plaintiffs do not file a motion to amend their [*4] complaint within thirty days of this order, defendants will be granted leave to refile their motion to dismiss.
INDERJEET SINGH, and KIRANJEET KAUR, Plaintiffs, v. PETER D. KEISLER, MICHAEL CHERTOFF, GERARD HEINAUER, EMILIO T. GONZALEZ, and ROBERT S. MUELLER, III, Defendants.
No. 07-2449-CM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
2008 U.S. Dist. LEXIS 15365
February 27, 2008, Decided
------------------------------------------------------------
Without leave from this court, plaintiffs filed a second surreply regarding defendants' motion (Doc. 19). In this surreply, plaintiffs advise the court that defendants have revised their policy for cases similar to plaintiffs--"The policy now mandates that USCIS grant, otherwise approvable adjustment applications, that have been pending, for name checks, for 180 days or more." Consequently, plaintiffs state that "this Court should remand the matter to the agency with instructions that the case be adjudicated forthwith."
Remanding the case under this policy was not part of the requested relief in plaintiffs' complaint. Adding new requests for relief in a surreply to a motion to dismiss is inappropriate. D. Kan. R. 15.1. If plaintiffs wish to amend their complaint in light of the change in policy, they must file an appropriate motion within thirty days [*3] of this order.
Additionally, it appears that the inclusion of a new policy could affect the court's analysis of the pending motion to dismiss. As a component of their argument for why this court lacks jurisdiction to hear plaintiffs' complaint, defendants argue that there are no binding time frames within which defendants must act. The new policy may challenge that argument. As a result, the court finds that it would be presently imprudent to make substantive rulings on defendants' motion to dismiss. The court denies the motion without prejudice. However, if plaintiffs fail to file a motion to amend their complaint within thirty days of this order, defendants will be granted leave to refile their motion to dismiss.
IT IS THEREFORE ORDERED that defendants' "Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, for Failure to State a Claim upon which Relief can be Granted" (Doc. 8) is denied without prejudice.
IT IS FURTHER ORDERED that if plaintiffs want this court to consider any USCIS policy change, they must file a motion to amend their complaint within thirty days of this order.
IT IS FURTHER ORDERED that if plaintiffs do not file a motion to amend their [*4] complaint within thirty days of this order, defendants will be granted leave to refile their motion to dismiss.
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Thanks for the update. For those who would like to read the background leading up to memorandum posted by wom_ri, AILF has posted following docs at http://www.ailf.org/lac/natz_delay0806.shtml but not the most recent one that you quote yet.
- February 8, 2008 Memorandum Re: Cross Motions for Summary Judgment
- Defendant's Motion for an Emergency Stay
- Plaintiffs' Opposition to Motion for Stay
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Can somebody please comment on the possible outcome of the revisions made on 02/28/2008 to 02/08/2008 Court Order? Doesn't it look like USCIS might finally want to settle this case with Plaintiff's as they used to do before in similar cases? I was puzzled to see that much of the resistance to settle from USCIS on this case... thought it had a potential to set a precident. Anyone willing to comment?
I've seen the order over the weekend and I am puzzled by it. Does not the USCIS explicitly say that the new policy does not apply to naturalization cases?
Bibdaily EAJA fees victory
Now we know why USCIS hiked application fees..
Enhanced rate of $250/hr. "Attorneys' fees and expenses in the amount of $54,933.20 are awarded in favor of appellant Carla Freeman and against appellee Michael B. Mukasey." Freeman v. Mukasey, Feb. 26, 2008. [Hats off to Brent Renison.]
http://bibdaily.com/pdfs/Freeman EAJA 9 2-26-08.pdf
Now we know why USCIS hiked application fees..
Enhanced rate of $250/hr. "Attorneys' fees and expenses in the amount of $54,933.20 are awarded in favor of appellant Carla Freeman and against appellee Michael B. Mukasey." Freeman v. Mukasey, Feb. 26, 2008. [Hats off to Brent Renison.]
http://bibdaily.com/pdfs/Freeman EAJA 9 2-26-08.pdf
You need to watch out for the current state of the case. If MTD is pending & you haven't replied, then judge will rule against you and set a bad precedent for future womers. In that case, maybe rule 41 of FRCP applies:
Rule 41. Dismissal of Actions
(a) VOLUNTARY DISMISSAL: EFFECT THEREOF.
(1) By Plaintiff; by Stipulation. Subject to the provisions of
Rule 23(e), of Rule 66, and of any statute of the United States,
an action may be dismissed by the plaintiff without order of
court (i) by filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation
of dismissal signed by all parties who have appeared in
the action. Unless otherwise stated in the notice of dismissal
or stipulation, the dismissal is without prejudice, except that
a notice of dismissal operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in any
court of the United States or of any state an action based on
or including the same claim.
Rule 41. Dismissal of Actions
(a) VOLUNTARY DISMISSAL: EFFECT THEREOF.
(1) By Plaintiff; by Stipulation. Subject to the provisions of
Rule 23(e), of Rule 66, and of any statute of the United States,
an action may be dismissed by the plaintiff without order of
court (i) by filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation
of dismissal signed by all parties who have appeared in
the action. Unless otherwise stated in the notice of dismissal
or stipulation, the dismissal is without prejudice, except that
a notice of dismissal operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in any
court of the United States or of any state an action based on
or including the same claim.
N400-Misery
Registered Users (C)
Attn: Experts and Gurus on the NC delays
Please forgive my ignorance in these legal matters, I have pouple of questions and I would appreciate some answeres..
(Believe me Guys, I have come a long ways when it comes to legal system and federal courts, and it's all because of the great and dedicated indviduals who go out of their ways to collect information and keep us all informed... It's funny how this forum breaks the news before most Immigration lawyers even hear about it.. ).
Here you go ..
1- If judge Baylson issued his opinion and said that the NC Program is unauthorized by Congress and CIS should apply for a public comment to introduce the NC and start utilizing it, could this opinion be used else where especially in states like Texas where federal judges are in bed with this current administration (Hard core conservative).
2- a: Will people outside California benefit from the outcome of this class action suit (http://www.ailf.org/lac/Bavi-Complaint.pdf ) Assuming that the court will decide in favor of Plaintiffs.
b- What are the latest developments in this case ?
Greatly appreciate your input.
Thanks
Please forgive my ignorance in these legal matters, I have pouple of questions and I would appreciate some answeres..
(Believe me Guys, I have come a long ways when it comes to legal system and federal courts, and it's all because of the great and dedicated indviduals who go out of their ways to collect information and keep us all informed... It's funny how this forum breaks the news before most Immigration lawyers even hear about it.. ).
Here you go ..
1- If judge Baylson issued his opinion and said that the NC Program is unauthorized by Congress and CIS should apply for a public comment to introduce the NC and start utilizing it, could this opinion be used else where especially in states like Texas where federal judges are in bed with this current administration (Hard core conservative).
2- a: Will people outside California benefit from the outcome of this class action suit (http://www.ailf.org/lac/Bavi-Complaint.pdf ) Assuming that the court will decide in favor of Plaintiffs.
b- What are the latest developments in this case ?
Greatly appreciate your input.
Thanks
Response to SR from NSC
Received response to an SR opened after the memo, this time it didn't say that security/background check is pending rather like the first SR I opened before the memo in 2007. It says the this case is actively being processed but the additional review has caused longer processing time. If I don't receive decision or other notice of action within six months, call back etc.
Now I'm not naive but wanted to share that their standard line has changed now after the memo. Anyone else received similar response to their SR?
Could it be actually going under extended review(whatever that means)?
Received response to an SR opened after the memo, this time it didn't say that security/background check is pending rather like the first SR I opened before the memo in 2007. It says the this case is actively being processed but the additional review has caused longer processing time. If I don't receive decision or other notice of action within six months, call back etc.
Now I'm not naive but wanted to share that their standard line has changed now after the memo. Anyone else received similar response to their SR?
Could it be actually going under extended review(whatever that means)?
This was in response to an SR that was opened by CSR(Customer Service Representative) on the phone on 02/05 and response was dated 02/19. I still haven't heard from USCIS in regards to my inquiry through Ombudsman's office, the their 45 days run out around 04/07, hopefully I will hear something similar to yours before then.
Don't scare me mmlulin
Don't scare me mmlulin
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I just got the approval mail today. I got email notice last week. Last week after knowing I was approved, I called AUSA. She said she is going to confirm with USCIS and then fax a stipulate to dismissal. I haven't heard from her yet.
3/5 is the deadline for me to respond the MTD. I think no matter what I have to do it by that date.
3/5 is the deadline for me to respond the MTD. I think no matter what I have to do it by that date.
I am trying to build a case for compelling USCIS to grant a backdated GC.
The argument holds for EB (& family based) GC's.
There are statutes that clearly state how visa numbers are to be requested for EB cases. They cannot issue to applicants with much later Priority dates when earlier applicants are left languishing in FBI namechecks.
The weak link of the argument is 8 USC 1255 which gives Attorney General some discretion in adjudication. The above citation is clarification from circuit courts about the extent of that discretion. Apparently 8th circuit does not agree with the other circuits on this issue.
The argument holds for EB (& family based) GC's.
There are statutes that clearly state how visa numbers are to be requested for EB cases. They cannot issue to applicants with much later Priority dates when earlier applicants are left languishing in FBI namechecks.
The weak link of the argument is 8 USC 1255 which gives Attorney General some discretion in adjudication. The above citation is clarification from circuit courts about the extent of that discretion. Apparently 8th circuit does not agree with the other circuits on this issue.
1. Of course, the Mocanu opinion can and should be used in other court cases. BTW, judge Baylson was appointed by Bush.
2. It depends on the ruling. The class includes those who filed applications in Los Angeles so you may not benefit directly from it. Last time I checked, the court partially denied government motion to dismiss, but the court ruled that name check program was NOT instituted in violation of APA.
Update
As some of you know, the briefing on my appeals has completed on early Feb.
On late Feb government filed motion to hold my appeal in abeyance. Following the new memo, they told the court that my case will become moot in 60 days.
On the same day the court granted the motion to hold without even waiting for my response.
The next day I filed motion to vacate, arguing why the court should not have held the case in abeyance. The motion to vacate has been pending for about a week now.
On March 3rd, I got automatic email update from USCIS indicating they sent me an RFE. (do not know what they are requesting till I get the actual letter). It seems that they are now working on my case and will try to moot it out.
To save all of our effort, it is critical to find argument to prevent USCIS to moot lawsuits in the last minute. So far, I have found one case in the Sixth circuit and Lazy sent me a case in his circuit (1st) but we need to strengthen our argument. If we can get an opinion from a circuit, on the remand, I will have a much stronger momentum to argue for backdating green cards. So far, I have found that mootness argument is an uphill battle for us and I need help from experienced members of the forum in preparing strong mootness counterargument.
As some of you know, the briefing on my appeals has completed on early Feb.
On late Feb government filed motion to hold my appeal in abeyance. Following the new memo, they told the court that my case will become moot in 60 days.
On the same day the court granted the motion to hold without even waiting for my response.
The next day I filed motion to vacate, arguing why the court should not have held the case in abeyance. The motion to vacate has been pending for about a week now.
On March 3rd, I got automatic email update from USCIS indicating they sent me an RFE. (do not know what they are requesting till I get the actual letter). It seems that they are now working on my case and will try to moot it out.
To save all of our effort, it is critical to find argument to prevent USCIS to moot lawsuits in the last minute. So far, I have found one case in the Sixth circuit and Lazy sent me a case in his circuit (1st) but we need to strengthen our argument. If we can get an opinion from a circuit, on the remand, I will have a much stronger momentum to argue for backdating green cards. So far, I have found that mootness argument is an uphill battle for us and I need help from experienced members of the forum in preparing strong mootness counterargument.
I-140
I Have huge problem about the i-140 not being filed within 180 days according to the new rules. labor cert was approved on 08-20-07 but i did not know about the new rules. has anybody had a problem like that. please any input will be helpfull. i don't know if i am posting in the right spot.
I Have huge problem about the i-140 not being filed within 180 days according to the new rules. labor cert was approved on 08-20-07 but i did not know about the new rules. has anybody had a problem like that. please any input will be helpfull. i don't know if i am posting in the right spot.
In re Zenith Electronics Corp., 329 F.3d 338, 50 Collier Bankr.Cas.2d 440, 41 Bankr.Ct.Dec. 97, Bankr. L. Rep. P 78,853 3rd Cir.(Del.) May 21, 2003
We have determined that an appeal is constitutionally moot “only if events have taken place that make it ‘impossible for the court to grant any effectual relief whatever.’ ” In re United Artists Theatre Co. v. Walton, 315 F.3d 217, 226 (3d Cir. 2003) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)).