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

SD Texas Win

Thanks so much for the tireless contributors to this thread and the AILA.

Today received the best possible news from one of the more immigrant unfriendly District Courts and a judge that has previously dismissed scores of the WOM cases:

(Cliff notes)

Based on the foregoing the Court ORDERS as follows:

"The Defendants Motion to Dismiss is Denied

Defendants are ORDERED to show in cause why this case should not be remanded to USCIS to complete name check and I-485 "

The tidal wave is coming and I love it.

I will post more after later. Enjoying the euphoria now!.
 
OK-Boy said:
Once you got the permanent GC; you don't have to stick with your spouse in order to become US Citizen, Period...Go ahead and fight for it....
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Now the problem is after waiting for such a long time, I have to start over again - file a new N400 under regular condition (5 yr GC), the old N400 as a spouse of citizen will be denied or withdrawn.
 
davidwyu said:
Now the problem is after waiting for such a long time, I have to start over again - file a new N400 under regular condition (5 yr GC), the old N400 as a spouse of citizen will be denied or withdrawn.
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I think you may have a chance. Check Robinson v. Chertoff, 2007 WL 1412284 (D.N.J. 2007) (No. 06-5702).
And Taing v. Chertoff 2007 U.S. Dist. LEXIS 91411 (D. Mass. 2007)
http://ssad.org/images/Taing_v_Chertoff.pdf
You can argue that after 2 years marriage becomes permanent for immigration purposes. You can argue that you would be naturalized if not for the government delay (estoppel)
 
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good arguments

I saw fe good points to argue about arbitrary policies regarding FBI namecheck & expedite criteria in
GENNADI MIKHAILIK, Plaintiff, v. JOHN ASHCROFT,:
No. C 04-0904 FMS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 20379
October 1, 2004, Decided
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In INS v. Yang, 519 U.S. 26, 136 L. Ed. 2d 288, 117 S. Ct. 350 (1996), (HN16) the Supreme Court set forth the circumstances in which decisions that are left by statute to agency discretion may still be reviewed under the APA:

Though the agency's discretion is unfettered at the outset, if it announces and follows -- by rule or by settled course of adjudication -- a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Yang, supra, at 32. [*14]

The Ninth Circuit also explicitly acknowledged this potential for jurisdiction under the APA in Spencer. As the court stated, "Even where statutory language grants an agency unfettered discretion,' its decision may nonetheless be reviewed if regulations or agency practice provide a meaningful standard' by which this court may review its exercise of discretion." Spencer, supra, at 688, quoting Socop-Gonzalez v. INS, 208 F.3d 838, 844 (9th Cir. 2000) (internal quotation marks omitted).

HN16: The United States Supreme Court has set forth the circumstances in which decisions that are left by statute to agency discretion may still be reviewed under the Administrative Procedure Act (APA), 5 U.S.C.S. § 701 et seq.: Though the agency's discretion is unfettered at the outset, if it announces and follows -- by rule or by settled course of adjudication -- a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, or an abuse of discretion" within the meaning of 5 U.S.C.S. § 706(2)(A) of the APA. The United States Court of Appeals for the Ninth Circuit has also explicitly acknowledged this potential for jurisdiction under the APA. Even where statutory language grants an agency unfettered discretion, its decision may nonetheless be reviewed if regulations or agency practice provide a meaningful standard by which the court may review its exercise of discretion.
 
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chertoff testimony

485 Womer's, you should file memo with court with Chertoffs latest testimony to congress. It totally negates their position that national security mandates
completion of namecheck before adjudication.


http://www.dhs.gov/xnews/testimony/testimony_1204746985090.shtm
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In addition, USCIS has updated its guidance for adjudicating Green Card cases that have pending FBI name checks to make it consistent with the procedures used by ICE. Under this new guidance, USCIS will continue to require that a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check be obtained and resolved before granting a Green Card. USCIS will also continue to require initiation of the FBI name checks, but it will approve an adjustment of status application if the individual is otherwise eligible and no actionable derogatory or adverse information has been returned by the FBI within 180 days. At that point, the name check will continue, and if actionable information emerges as a result, the Department may revoke the adjustment of status. This change will help reduce the backlog of adjustment of status applications without compromising our commitment to national security or the integrity of the immigration system.
 
District U.S. Attorney

It has been said that the district (local) U.S. attorney should be served as a defendant in a WOM. If this is in fact true(please clarify or dispute), how would the local US Attorney be described in the PARTIES section of the WOM ?
 
finally one visa number decision

I finally managed to dig up one visa number (favorable) decision:
SHAHRAM ABDOLLAHI ALIBEIK, Plaintiff, v. MICHAEL CHERTOFF, et al.,
No. C-07-01938 EDL
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. LEXIS 86289
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In addition, Defendant's declarant Gerard Heinauer, Director of Nebraska Service Center, provides information about the background and fingerprint check required for I-485 applications. Mr. Heinauer also testified that:

Plaintiff has a background and security check that has not been completed by the Federal Bureau of Investigation, and there are no more employment-based visa numbers available for adjustment adjudications during fiscal year 2007. When the fiscal year 2008 visa numbers become available on October 1, 2007, and Plaintiff's background check is completed, Plaintiff's case can be adjudicated.

Heinauer [*17] Decl. P 9. The visa numbers ran out as of July 2, 2007. Heinauer Decl. P 8. The responsibility for the lack of visa numbers, however, is not attributable to Plaintiff. In this case, Defendants are entirely responsible for the delay in processing Plaintiff's application.
 
must_read

N400 filed under mandamus & judge say FBI duty is mandatory.
Attached is magistrate judge's R&R upheld by main judge
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2008 U.S. Dist. LEXIS 16641
 
I filed for N-400 on Feb 20,07 and got fingerprinted on May 07. Can I do mandamus? Name check is going for about 10 months now? Lawyer says better to wait another 6 months, but I am sure case won't be solved for next 6 months.
 
You should wait for 1.5 times than the normal time; I believe about 18 months as your normal processing time would be 1 year. Also, it depends upon your district, is it favorable to WOM or not. What's your district?

salman501 said:
I filed for N-400 on Feb 20,07 and got fingerprinted on May 07. Can I do mandamus? Name check is going for about 10 months now? Lawyer says better to wait another 6 months, but I am sure case won't be solved for next 6 months.
Click to expand...
 
OK-Boy said:
You should wait for 1.5 times than the normal time; I believe about 18 months as your normal processing time would be 1 year. Also, it depends upon your district, is it favorable to WOM or not. What's your district?
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I am in San Diego, CA
 
Update:
Today I got my(grey+green card) in the mail. It was mailed from MSC on 03/03/08. It was a giant relief after a long wait and the lawsuit. But I still miss you folks here in this forum. I wish you all get your card or oath letter soon. I am proud of you guys fighting for freedom and justice, the justice that you deserve it. Good luck everone!
~~~> One piece of my green card was made by Lazycis
Thank you again for your help Lazycis!
 
WOM experience of DV lottery winner - http://dv.semper-ante.com/

Found a site setup by a DV lottery winner who successfully won WOM and has well documented the highs and lows of the process along with templates and very interesting and useful information. Thought I would share it, I don't think it has fresh or current developments but still relevant and an interesting read for "WOM students".
It does mention immigrationportal as the best source!

http://dv.semper-ante.com/
 
can i oppose judge granting motion before I file objection

I filed 3rd amended complaint on Feb 27. Defendants answer was due in 10 days(March 8). My AUSA filed for extension of time until April 30(54 additional days) to file answer to my amended complaint on Feb 29.The docket report showed I have time until Mar 17 to file a response. I was planning to file opposition to extension. However, the judge granted motion yesterday. Can I file opposition now ? how can he grant motion before the deadline ?
 
District Office I-485 Processing Under Revised Name-Check Procedures

"
District Office I-485 Processing Under Revised Name-Check Procedures

MurthyDotCom and MurthyBulletin readers were informed earlier of a significant revision in USCIS procedures for I-485, Application for Adjustment of Status, cases delayed due to name checks. These changes most recently were covered in our February 22, 2008 MurthyBulletin article, Adjustment Cases Delayed by Name Checks-February 2008, which provided some information on the implementation of the changes at the USCIS service centers, as set out in the February 4, 2008 Aytes Memo. However, just how the similar delayed cases will be handled by the USCIS district offices is still unknown. The various district offices have cases for which interviews have been conducted and processing completed, but final action has been delayed due to the name-check problem. Information regarding the Baltimore, MD and Washington DC district offices has reached the Murthy Law Firm that may be helpful and reflective of what is likely to occur at other local USCIS district offices around the U.S.

Baltimore, MD District Office

The Baltimore District Office reports approximately 400 I-485 cases involving name-check delays in excess of six months. They arranged for the re-fingerprinting of applicants with expired fingerprints in those cases. The case adjudications began on Saturday, March 1, 2008. They estimate that it will take a few weeks to complete this process. The Baltimore District Office warns that, while many cases may be eligible for approval, some may have issues that require further documentation or other steps.

Washington DC District Office

The Washington District Office in Arlington, VA has also identified cases that are covered by the Aytes Memo on security checks, although they do not indicate how many cases are pending at their office. They are taking steps to schedule any new fingerprinting appointments that are needed. They have also started working on adjudicating eligible cases.

As indicated in previous MurthyDotCom and MurthyBulletin articles, the local office for the Washington DC area notes that the Aytes Memo only applies to cases in which the name check is the sole issue keeping the case from approval. Additionally, it is necessary that a full 180 days have elapsed from a valid, complete name-check request. Thus, if there was any error in the name-check request (such as a data-entry error), then the time would be counted from the correct name-check request. The same is true for cases involving alias names, which were not identified at the time of the initial data entry. It would seem that "other names used," mentioned in the I-485 filing, would have been part of the standard data entry process. This was not clarified specifically, however.

It seems that the USCIS service centers and district offices are moving quickly to identify eligible cases for I-485 processing. Individuals who have been waiting, in some cases for years, on name check issues, will start to see the fruits of these efforts outlined in the Aytes Memo.
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Source:http://www.murthy.com/bulletin.html
 
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