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

I owe my happiness to all of you specially lazycis

Dear lazycis and the others
after a long time full of stress and sadness I got the letter for oath today for 28 in May. Thanks alot for all of your help. I am sure with out your help I couldnt do it and I dont know for how many months I had to wait.

Sep 2005 applying for N400
scheduled interview: April 2006
descheduled interview: Feb 2005
name check was open
filing lawsuit: November 2007
interview:March 2008
oath has been scheduled for 28 in May
 
Victor Mocanu

http://www.bibdaily.com/pdfs/Mocanu 2-8-08 LEXIS.pdf

The deal is, the name check is not illegal unless it creates an unacceptable burden to the applicants. THe problem started in 2002 when the USCIS expanded the name check and failed to provide the FBI with enough money to employ persons for the check. As at 2006, the name check department had 59 persons working exclusively on the request from USCIS although the volume from the USCIS required 180 persons.
When the check was expanded, the APA rules should have been followed and the change opened up for comments (as in the fee increase). THe other option would have been to get congress to enact a law. None of these was done and so no one was given the opportunity to ask about the funding. Of course the director should have known more personnel will be needed for the expanded check. But as you can tell he does not care enough and is too busy trying to "preserve the intergrity of the process". As long as he goes home to his wife and kids who cares.

paz1960 said:
It's been a while since I was on this forum, fortunately, very few people from my time are still around, which means that their cases were solved.

I didn't follow either the evolution of such lawsuits, I am just curious if any court decision clarified the rather vague requirement of "full criminal background check". If there is no clear definition for this, I believe that your argument that "name check" is not required by laws and regulations would not fly with the majority of the judges, at least not in the N400 cases, where there is a law, which explicitely requires the completion of the "full criminal background check". USCIS can always argue, that the name check is part of this, if there is no explicit description what a "full criminal background check" means.

Did you see any court case, where the judge approved a citizenship application or ordered USCIS to adjudicate such case WITHOUT the completion of the name check?
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mailing addresses

Sorry I could not read through all the posts here and found information I need.

I need to get mailing address for Homeland Security headquarter and USCIS headquarter address to serve the deferences.

Many thanks!!
 
My updates to the wiki book are as follows, please visit the page for links. I haven't added any recent mandamus cases. Let's come up with a list of things to update on the site so we have a central place to look for scattered information gems on this forum and what's still in your bright minds!

New Links under Definitions
What is a Motion?
MSJ
Added hyperlink to existing MTD

AILF Legal Action Center

The link was broken, fixed it.

New Links under Other Resources
  1. Federal Rules of Civil Procedure
  2. U.S. Code collection

New links under Other Documents of Interest

  1. Federal Court Litigation to Remedy Agency Delays
  2. Litigation to Challenge Agency Delays: Frequently Asked Questions
  3. DV winner's account of filing lawsuit and interesting documents obtained in response to FOIA requests
  4. On Feb. 04, 2008 USCIS changed its policy and it will not require NC completion for AOS applications
  5. On Apr. 02, 2008 USCIS and FBI released joint plan to eliminate backlog of FBI Name Checks for both AOS and Naturalization applications
  6. AILA Practice Advisory In the light of USCIS Name Check memo issued on 02/04/2008, AILF has updated their practice advisory regarding responding to MTD in mandamus cases.
  7. Waiting in Immigation Limbo: The Federal Court Split over Suits to Compel Action on Stalled Adjustment of Status Applications. It is
jefkorn said:
Lazycis and other forums "elders"!
In the light of recent development regarding USCIS policy regarding FBI Name Check, post-memo court cases, AILF's updated arguments incorporating the 02/04/2008 memo, Mocanu ruling, FBI/USCIS joint plan to eliminate FBI NC delays etc. There have been lot of useful material posted in the forum but it would be nice to have it updated at the WIKI page http://en.wikibooks.org/wiki/FBI_name_check

I posted some backgrounder type of information on WOM in the forum which may be useful for people who want to read the theory and legal practice behind it.

What do you think?
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paz1960 said:
It's been a while since I was on this forum, fortunately, very few people from my time are still around, which means that their cases were solved.

I didn't follow either the evolution of such lawsuits, I am just curious if any court decision clarified the rather vague requirement of "full criminal background check". If there is no clear definition for this, I believe that your argument that "name check" is not required by laws and regulations would not fly with the majority of the judges, at least not in the N400 cases, where there is a law, which explicitely requires the completion of the "full criminal background check". USCIS can always argue, that the name check is part of this, if there is no explicit description what a "full criminal background check" means.

Did you see any court case, where the judge approved a citizenship application or ordered USCIS to adjudicate such case WITHOUT the completion of the name check?
Click to expand...

Nice to see you again, Paz.
Check these two posts:
http://www.immigrationportal.com/showpost.php?p=1896260&postcount=16409
http://www.immigrationportal.com/showpost.php?p=1893862&postcount=16368

“Based on a review of the facts and bedrock principles of administrative agency law, the Court finds that USCIS's name check requirement has (1) never been authorized by Congress; (2) is not mentioned or contemplated by any fair reading of the current USCIS regulations; and (3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions for naturalization" Mocanu v. Mueller, 2008 U.S. Dist. LEXIS 10122 at *32-33 (E.D. Pa, Feb 8, 2008).

See also 8 CFR 335.2(b)
A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.

Which inevitably leads us to a conclusion that "full background check" = "fingerprint check"
 
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What to Do when FP is expired for N400

I did my FP in Nov 2005, interview Feb 2006 N400 and I am still waiting for my name check.

Does anyone know how do I get another FP? Or should wait for a letter from USC or else??
 
n400

hi guys,

i have a couple of questions 1. my n400 has been pending for 14months called uscis several times no valid response. 2. i have done finger prints has yet i honestly beleive they have lost my application. 3 can anyone tell what legal action i can take now.

any responses will be appreciated.
 
platinumovergol said:
hi guys,

i have a couple of questions 1. my n400 has been pending for 14months called uscis several times no valid response. 2. i have done finger prints has yet i honestly beleive they have lost my application. 3 can anyone tell what legal action i can take now.

any responses will be appreciated.
Click to expand...


I am going through the same sh**... and there are many more who are going through this ordeal. Go for Infopass if you haven't... other than that write mails to your representative also fill out FOIPA (FBI) and form 7001 to ombudysman ) think.... if it still doesn't work, you can file for WOM.


However, FBI and USCIS have come up with schedule to clear out people stuck in name check and seems like you are stuck in name check too.
 
GhantaBro,

I believe it's about time for you to file WOM; I have petty much the same case as you do and got the IL letter within weeks when I sent them the copy of WOM with a 30days' deadline. Before you lose 100% of your hairs just file the WOM and you will see the difference.

GhantaBro said:
I am going through the same sh**... and there are many more who are going through this ordeal. Go for Infopass if you haven't... other than that write mails to your representative also fill out FOIPA (FBI) and form 7001 to ombudysman ) think.... if it still doesn't work, you can file for WOM.


However, FBI and USCIS have come up with schedule to clear out people stuck in name check and seems like you are stuck in name check too.
Click to expand...
 
Coincidentally the doc. I added to wiki is being referenced by Judge Colleen McMahon in the 2nd circuit:

"Fortunately, I have been assisted by the thorough scholarship of Lauren Sasser, a second year law student at Fordham University School of Law (and former intern), whose student note exhaustively details the statutory and case law on this very issue. Sasser, Note, Waiting in Immigration Limbo: The Federal Court Split over Suits to Compel Action of Stalled Adjustment of Status Applications, 76 Fordham L. Rev. 2511 (2008)"
....
"The secretary cannot be charged with immigration administration and simultaneously have no duty to administrate. Such a result is irrational." Sasser, supra, 76 Fordham L. Rev. at 2554."

http://www.bibdaily.com/pdfs/Nigmadzhanov 5-1-08.pdf
 
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lazy_cis

Now the time came and AUSA called for stipulation to dismiss the case for mootness. I did not agree and he is going to file for mootness tomorrow. I will have sent my response on Friday.
I was wondering if any of the mandamus cases in appeal courts are still pending or all have agreed to mutually dismiss. I am particularly interested about the 11th circuit case (Grinsburg) and 3rd circuit case of Amy Tehano.

Furthermore, did you come across with any circuit ruling on the mootness when the case came to the appellate court of want of jurisdiction in the lower court? This might be potentially helpful.
Thanks,
 
OK-Boy said:
GhantaBro,

I believe it's about time for you to file WOM; I have petty much the same case as you do and got the IL letter within weeks when I sent them the copy of WOM with a 30days' deadline. Before you lose 100% of your hairs just file the WOM and you will see the difference.
Click to expand...

Thanks for the response... I think I will do that now.
 
Slow_CIS said:
Now the time came and AUSA called for stipulation to dismiss the case for mootness. I did not agree and he is going to file for mootness tomorrow. I will have sent my response on Friday.
I was wondering if any of the mandamus cases in appeal courts are still pending or all have agreed to mutually dismiss. I am particularly interested about the 11th circuit case (Grinsburg) and 3rd circuit case of Amy Tehano.

Furthermore, did you come across with any circuit ruling on the mootness when the case came to the appellate court of want of jurisdiction in the lower court? This might be potentially helpful.
Thanks,
Click to expand...

Grinberg appeal is still pending. Hearing on motion to dismiss as moot is scheduled on May 26, if I remember correctly. Grinberg filed an opposition to MTD, you may want to obtain a copy of it from the circuit court.
3rd cir case Li 07-2990 is still pending a decision, AFAIK.
The only case supporting case from the 1st cir. can be used to at least vacate the judgment of the district court:
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-2859.01A

You need to argue that the controversy still exist. Notwithstanding the adjudication of your I-485, court refused to determine whether the delay in adjudication was reasonable. It is important question as you want to ask lower court to backdate your permanent residency if delay was indeed unreasonable. Federal court has authority under 5 USC 702 to order USCIS to backdate permanent residency. Voluntary dismissal will estop you from backdating GC in the future.
 
The estoppel statement seems a good strategy to counter the mootness argument. Without that, fighting mootness is a big big battle.
Lazy: On a sidenote-- plaintiff can be estopped against a backdated GC claim only if the dismissal is with prejudice; or is it not ?

Just to clarify my WOM(for people on this forum)-- I filed joint stipulation for dismissal(without prejudice) with USCIS. I was not sure about my commitment to continue my WOM for backdated GC.

lazycis said:
Grinberg appeal is still pending. Hearing on motion to dismiss as moot is scheduled on May 26, if I remember correctly. Grinberg filed an opposition to MTD, you may want to obtain a copy of it from the circuit court.
3rd cir case Li 07-2990 is still pending a decision, AFAIK.
The only case supporting case from the 1st cir. can be used to at least vacate the judgment of the district court:
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=05-2859.01A

You need to argue that the controversy still exist. Notwithstanding the adjudication of your I-485, court refused to determine whether the delay in adjudication was reasonable. It is important question as you want to ask lower court to backdate your permanent residency if delay was indeed unreasonable. Federal court has authority under 5 USC 702 to order USCIS to backdate permanent residency. Voluntary dismissal will estop you from backdating GC in the future.
Click to expand...
 
wom_ri said:
Lazy: On a sidenote-- plaintiff can be estopped against a backdated GC claim only if the dismissal is with prejudice; or is it not ?
Click to expand...

There should be an undisputable judgment that the delay is reasonable to estop you from backdating. But AUSA may not know that :) Also, if circuit court issues a different opinion that contradicts lower court's opinion, one can ask for backdating as well. So in Slow_CIS case, I see a good chance of circuit court vacating judgment of the lower court without issuing an opinion on the matter.
 
lawsuit

Hi to all

I will like to get advise from my fellows.

My case with the immigration is 5yrs old for my N-400.
I was interviewed in february 2003 since then my case is pending for fbi name check.
I recently filed a lawsuit in January, on the 59th day of the 60 days, the immigration request for an extention, the extention was granted which will expire May 9th in 3 days, up till today I heard nothing from the immigration and I am assuming they will ask for another extention, in this case what should I do?
Thank you all for your advise
 
awudu said:
Hi to all

I will like to get advise from my fellows.

My case with the immigration is 5yrs old for my N-400.
I was interviewed in february 2003 since then my case is pending for fbi name check.
I recently filed a lawsuit in January, on the 59th day of the 60 days, the immigration request for an extention, the extention was granted which will expire May 9th in 3 days, up till today I heard nothing from the immigration and I am assuming they will ask for another extention, in this case what should I do?
Thank you all for your advise
Click to expand...

Oppose the extension. Prepare a motion for preliminary injunction and ask court to either schedule hearing on your naturalization application or issue an order to show case why you should not be naturalized. Mention that you are opposed to any further extensions and that you have the right for hearing on your application under 8 USC 1447(b).
 
thank you lazycis.
because I never prepare any motion in my life, is there any samples or guide lines of how to file motion? I spoke to the court clerk this morning, they told me the defendant requested for another 60 days extension.

Again thank u
 
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