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

Second draft of I-485 Complaint for Employment Based (EB) Adjustment of Status

Hi everyone,

I have attached the second draft of my Complaint for I-485 based on your comments. First draft can be found here for your reference. Please put on your legal hats and find what's wrong with it. I do have some questions:

  1. What should be the title of the Complaint? I am using COMPLAINT FOR MANDAMUS & DECLARATORY JUDGEMENT? I have seen Injunctive Relief also part of the title?
  2. Is it ok to have just myself as the Plaintiff and say that I'm appearing before the court on behalf of my wife as well? See para # 1 in Complaint. The reason I'm not including her is that her AOS application has been pending for 14 months while mine for more than 20 months. Also it gets confusing when saying Plaintiff did this or did that who am I referring to? myself or wife?
  3. In the prayer for relief, should I explicitly ask, in addition to my I-485, to adjudicate my wife's I-485? I know if my I-485 gets adjudicated, hers should be adjudicated along with it.
  4. I have to revise the para # 46, to remove the Yu v. Brown (delay was 2 and half year) to include precedents where delay was less than 2 years. I don't know how much was the delay in Elkhatib v. Bulger? I have got a list of cases from Lazycis which I plan to use.
  5. Should Count II and Count III be merged?
Thanks in advance and appreciate your help.
 
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Cases delay less than 24 months

Update: Added Wiki links to Paunescu v. INS and Galvez v. Howerton. Thanks to Lazycis!
I would appreciate if you can post these opinions and if possible other related files(Complaint, MTD, Response to MTD etc) to following cases? Thanks in advance.

  1. Galvez v. Howerton, 503 F.Supp. 35 at 39 (C.D.Cal.1980) (delay of six months unreasonable). Court Order
  2. Paunescu v. INS, 76 F.Supp.2d 896 at 901 and 902 (N.D.Ill.1999) (delay of 10 months unreasonable).Court Order
  3. Jefrey v. INS, 710 F.Supp. 486 (S.D.N.Y.1989) (delay of 16 months unreasonable). Court Order
  4. Dabone, 734 F.Supp. at 202 (delay of 20 months unreasonable).
  5. Agbemaple v. I.N.S., 1998 U.S. Dist. LEXIS 7953, 1998 WL 292441 *2(20 month delay).
  6. Li Duan v. Zamberry, No. 06-1351, 2007 U.S. Dist. LEXIS 12697 (W.D. Pa. 2007) (I-485 pending 16 months) Court Order
  7. Alsaleh v. Gonzalez, Civil Action No. 3:06-CV-2162-N, Order on Mot. to Dismiss (N.D. Tx. June 6, 2007) (I-485 - 18 months) http://bibdaily.com/pdfs/Alsaleh 485 mandamus 6-6-07 NDTXDal.pdf
  8. Hoyoung Song v. Klapakas, No. 06-05589, 2007 U.S. Dist. LEXIS 27203 (E.D. Pa. April 12, 2007) , I-485 was pending little over 19 months http://www.paed.uscourts.gov/documents/opinions/07D0467P.pdf
  9. Totonchi v. Gonzales, No. 1:07-256, 2007 WL 2331937 (N.D. Ohio Aug. 13, 2007); In this case, I-485 was pending less than a year when the complaint was filed, http://boards.immigrationportal.com/attachment.php?attachmentid=17456&d=1211535430
 
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In this case, I-485 was pending less than a year when the complaint was filed
Totonchi v. Gonzales, No. 1:07-256, 2007 WL 2331937 (N.D. Ohio Aug. 13, 2007);
 
lazycis said:
Replace
"While the duty is often mandatory or ministerial, the duty may also be in the exercise of discretion. Although an officer may have discretion to adjudicate an application, it has a non-discretionary duty to process the application. Failure to perform such duties can be contrary to law for mandamus to lie. Davis v. Shultz, 453, F.2d 497, 502 (3rd Cir. 1971), Naporano Metal and Iron Company v. Secretary of Labor, 529 F.2d 537 (3d Cir. 1976). Jurisdiction exists to challenge a U.S. official's authority to "take or fail to taken an action as opposed to a decision taken within discretion." Patel v. Reno, 134 F.3d 929 (9th Cir. 1997)."

with
"Naturalization is not discretionary. The agency’s regulations provide that “ubsequent to the filing of an application for naturalization, the Service shall conduct an investigation of the applicant.” 8 C.F.R. § 335.1. Following an examination of the applicant, see id. § 335.2, “[t]he Service officer shall grant the application if the applicant has complied with all requirements for naturalization.” Id. § 335.3(a). Once a decision is made, “[t]he applicant shall be notified that the application has been granted or denied . . . .” Id. (emphasis added). When a statute or regulation uses the word “shall,” a mandatory duty is imposed upon the subject of the command. See e.g. United States v. Monsanto, 491 U.S. 600, 607 (1989). Although there may be no particular statutory deadline presently applicable to the processing of Plaintiff’s application, the agency has no discretion over whether to render a decision on the application. The agency’s regulations unequivocally and specifically command the agency to adjudicate naturalization applications: “Defendants have an implied duty to adjudicate naturalization applications … within a ‘reasonable time.’" Lazli v. US Citizenship and Immigration Services 2007 U.S. Dist. LEXIS 10713 (D. Or. Feb 12, 2007). “[N]umerous courts have held that the USCIS is the primary agency responsible for processing naturalization applications and that its duty to process a naturalization application is mandatory”. Moretazpour v. Chertoff, 2007 WL 4287363 (N.D.Cal. Dec 05, 2007) See also Shaat v. Klapakis, 2007 U.S. Dist. LEXIS 703338, at *8-9 (E.D. Pa. Sept. 21, 2007). Failure to perform mandatory duties can be contrary to law for mandamus to lie. Davis v. Shultz, 453, F.2d 497, 502 (3rd Cir. 1971), Naporano Metal and Iron Company v. Secretary of Labor, 529 F.2d 537 (3d Cir. 1976). Jurisdiction exists to challenge a U.S. official's authority to "take or fail to taken an action as opposed to a decision taken within discretion." Patel v. Reno, 134 F.3d 929 (9th Cir. 1997)."

I would also cite Jiang case in support. The more cases from your district/circuit, the better
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Thanks, Lazycis. I made the changes according to your recommendation. I also cite Jiang case in my MSJ.

The attached is my second draft. could you take a look again? :)

BTW, For Jiang case, an MSJ was filed on 5/28. Do you think the decision on that case will have a big impact on my case? Also wondering if my judge will discuss the issue with the judge for jiang case. :)

I was also looking at Wang v. Mukasey case(5:07-cv-06266-RMW, N.D. CAL), the case was dismissed on 5/30 by both plaintiff and defendants since an interview has been scheduled. But the case dragged for too long. An MSJ should have been filed to expedite the process. Am I correct on this?
 
an interesting case at northern Illinois district

This is an interesting case at Northern Ill. district about 1447(b). It looks like USCIS was getting really desperate in this case. :)
 
Thanks, I am updating my original message with links and examples so it would be easy to look for this group of cases.
lazycis said:
In this case, I-485 was pending less than a year when the complaint was filed
Totonchi v. Gonzales, No. 1:07-256, 2007 WL 2331937 (N.D. Ohio Aug. 13, 2007);
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Jefkorn,

I think you should add your wife as one of the plaintiffs. Otherwise, you will have to file another suit later if they only issue green card to you. You can mention specifically Plaintiff AAA and Plaintiff BBB rather than Plaintiffs if you need to distinguish you and your wife in this case. I explained some of the injuries seperately for me and my husband.
In Basova case, the court grant relief to some of the plaintiffs and denied relief for the others. Although there is a risk that the judge may rule that your wife's case is not unreasonably delayed. But I would take that risk rather than waiting to file another suit later on. And some cases take longer time than the others. So it is possible that by the time Judge make a ruling on your case, your wife's I485 application has been pending for 18 months or longer.

jefkorn said:
Hi everyone,

I have attached the second draft of my Complaint for I-485 based on your comments. First draft can be found here for your reference. Please put on your legal hats and find what's wrong with it. I do have some questions:

  1. What should be the title of the Complaint? I am using COMPLAINT FOR MANDAMUS & DECLARATORY JUDGEMENT? I have seen Injunctive Relief also part of the title?
  2. Is it ok to have just myself as the Plaintiff and say that I'm appearing before the court on behalf of my wife as well? See para # 1 in Complaint. The reason I'm not including her is that her AOS application has been pending for 14 months while mine for more than 20 months. Also it gets confusing when saying Plaintiff did this or did that who am I referring to? myself or wife?
  3. In the prayer for relief, should I explicitly ask, in addition to my I-485, to adjudicate my wife's I-485? I know if my I-485 gets adjudicated, hers should be adjudicated along with it.
  4. I have to revise the para # 46, to remove the Yu v. Brown (delay was 2 and half year) to include precedents where delay was less than 2 years. I don't know how much was the delay in Elkhatib v. Bulger? I have got a list of cases from Lazycis which I plan to use.
  5. Should Count II and Count III be merged?
Thanks in advance and appreciate your help.
Click to expand...
 
jefkorn said:
What should be the title of the Complaint? I am using COMPLAINT FOR MANDAMUS & DECLARATORY JUDGEMENT? I have seen Injunctive Relief also part of the title?
Click to expand...

Original Complaint

Is it ok to have just myself as the Plaintiff and say that I'm appearing before the court on behalf of my wife as well? See para # 1 in Complaint. The reason I'm not including her is that her AOS application has been pending for 14 months while mine for more than 20 months. Also it gets confusing when saying Plaintiff did this or did that who am I referring to? myself or wife?
Click to expand...

You cannot do that. Either include her as Plaintiff or remove references to her from the complaint (I'd go solo to simplify things). You can mention in "Injury" section that your wife's application is stalled because your is stuck, but that's about it. If you want to be on the safe side, include your wife as a plaintiff. It should not be that much work.

In the prayer for relief, should I explicitly ask, in addition to my I-485, to adjudicate my wife's I-485? I know if my I-485 gets adjudicated, hers should be adjudicated along with it.
Click to expand...

See above.

I have to revise the para # 46, to remove the Yu v. Brown (delay was 2 and half year) to include precedents where delay was less than 2 years. I don't know how much was the delay in Elkhatib v. Bulger? I have got a list of cases from Lazycis which I plan to use.
Click to expand...

You do not have to remove a case only because the delay was longer than yours. The commonality is important.

Should Count II and Count III be merged?
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No, they are very distict. Count II is ureasonable delay. Count III is unlawful delay
 
Thanks, esp. lazycis and wommei

Thanks to all who are analyzing and reviewing my second draft of my Complaint for I-485 WOM. Esp. lazycis and wommei. You made good points. I will include them.

Don't consider anything a small mistake, anything goes. So be brutally honest and let me know if you notice something that could be improved/removed or is missing.
 
2nd Finger prints Notice

I have been stuck in FBI Name check for almost 2 yrs. Yesterday I received letter of 2nd finger prints appointment on 6-12-08. Does that mean my FBI Name check cleared?:confused:

PD: 6-1-06
FP: 6-30-06
No interview
Sent letters many officials

Any comments will be appreciated
 
Most likely; atleast it happened in my case...

daghdaff said:
I have been stuck in FBI Name check for almost 2 yrs. Yesterday I received letter of 2nd finger prints appointment on 6-12-08. Does that mean my FBI Name check cleared?:confused:

PD: 6-1-06
FP: 6-30-06
No interview
Sent letters many officials

Any comments will be appreciated
Click to expand...
 
thanks Lazycis for making the final corrections to my MSJ draft. I finally filed my MSJ today. My court hearing date has been rescheduled to 7/11/08. Hope I can hear something positive before then.

Have my fingers crossed.
 
meteor8 said:
thanks Lazycis for making the final corrections to my MSJ draft. I finally filed my MSJ today. My court hearing date has been rescheduled to 7/11/08. Hope I can hear something positive before then.

Have my fingers crossed.
Click to expand...

Hi, Lazycis and other gurus,

I filed MSJ today, my court hearing date is still a month away(7/11). Is it possible that the judge will make a ruling before that or they usually wait until after the hearing?

Thanks a lot!
 
meteor8 said:
Hi, Lazycis and other gurus,

I filed MSJ today, my court hearing date is still a month away(7/11). Is it possible that the judge will make a ruling before that or they usually wait until after the hearing?

Thanks a lot!
Click to expand...

usually the defendants will file cross-motion for summary judgment, the sides will file oppositions to MSJ/cross-MSJ, then the court will decide. By the time you reply to government MSJ, it will be July.
 
about the timeline for the case

Hey, lazycis,

I filed 2 oppositions to MTD (one on 4/24 and one on 6/4) and filed one MSJ on 6/4. I will also have a status hearing on 6/19/08. Do you think the judge will wait for the defendants to file cross motion for summary judgment? Or he may make a decision before then?
I want to mention to the judge that the defendants refuse to let magistrate judge to preside over my case. They filed extension for deadline for 4 times. And they fail to cite any authority in the first MTD. And that is a strong evidence that the defendants try to use legistation as a tool for further delaying processing my I485 applications. That won't be offensive to the judge or seems to be pushy, right?

Another thing is: Does AUSA have a 2-week deadline to file Cross_MSJ by law? Or they can file Cross-MSJ at anytime they want? Thanks a lot.
 
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wommei said:
Hey, lazycis,

I filed 2 oppositions to MTD (one on 4/24 and one on 6/4) and filed one MSJ on 6/4. I will also have a status hearing on 6/19/08. Do you think the judge will wait for the defendants to file cross motion for summary judgment? Or he may make a decision before then?
I want to mention to the judge that the defendants refuse to let magistrate judge to preside over my case. They filed extension for deadline for 4 times. And they fail to cite any authority in the first MTD. And that is a strong evidence that the defendants try to use legistation as a tool for further delaying processing my I485 applications. That won't be offensive to the judge or seems to be pushy, right?

Another thing is: Does AUSA have a 2-week deadline to file Cross_MSJ by law? Or they can file Cross-MSJ at anytime they want? Thanks a lot.
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In your case I doubt they will file another motion as they have two MTD pending already :) It's OK to push the issue re extensions at the hearing.
 
hey, how do you call USCIS and get in touch with immigration officer in california? Does anyone know the code for the california service center.
 
thanks, lazy!

Lazycis,

Thanks a lot for your advice! Maybe I should tell the AUSA that I only collect stamps from time to time. I don't want to collect something as disgusting as MTDs. :)
Considering the fact that I have to spend a few hours to commute to and from the Court, I should make very good use of those 1 or 2 minutes that I can speak in the Court. Sometimes I become very prosecution-oriented (like last time) because I watched too much Law and Order.


lazycis said:
In your case I doubt they will file another motion as they have two MTD pending already :) It's OK to push the issue re extensions at the hearing.
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