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

POCTOB,

Keep trying, I believe it works. I've got a half dozen of FBI postcards first. Then I got a few letters from FBI NNCP section with real (not electronically printed) signature. Letter basically says please stop bugging us, you are wasting our valuable time. Within two weeks of last letter, I've got another letter (same FBI person signed) saying that my name check has been cleared and that results were forwarded to USCIS headquaters in Washington, DC. Makes me wonder if all it really takes to clear NC is two weeks of their work?

"USCIS headquaters in Washington, DC" part also puzzles me a little bit, I thought they are supposed to send response to the requestor (USCIS Vermont Service Center), but maybe it's indication that after 14 months of delay they finally put me on fast track? We will see.. Just got the last letter in the mail today, I will follow-up on this with USCIS on Monday.
 
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albertr said:
Keep trying, I believe it works. I've got a half dozen of FBI postcards first. Then I got a few letters from FBI NNCP section with real (not electronically printed) signature.
Click to expand...

Keep trying...sending more letters? I thought I was done and now it's time for WOM.
What did you do to get half a dozen postcards? Just keep sending letters?
Any specific mail destination that triggers more postcards and some real letters?
 
I believe the postcard might be generated automatically when they receive an inquiry on your name... To answer the inquiry they need to take a look at your case and then draft and send an answer. That is real human job, not computerized, and real person needs to sign it. All of the above is just my observation, and a pure speculation as such, since I don't have a knowledge on how they work.

From your signature I can see that you have initiated a few inquiries... I did a few dozen. Also, iI think it might be important where your inquiry ends up, i.e. who will be responding on it. So it needs to be targeted to the correct party. If you already filed a WOM, it might not be relevant to you anymore, since now you have chosen to go legal venue.
 
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Motion for Hearing example

Thank you everyone, for all your replies!

I have strong feeling that AUSA will extend the deadline when 60 days end, since it looks like nobody did anything on my case so far. I will contact AUSA earlier next week too. Hope this time they will talk to us about our case. Last time when we called, they said they will not *look* at our case until few weeks before deadline.

lazycis,

The Motion for Hearing example you've posted looks like it has some words missing. In the second paragraph, there is this sentence:

"Wherefore, Petitioner requests the soonest possible date for adjudication of his petition to be respectfully requests that the adjudication be followed forthwith ... "

It looks like there are words missing between "petition to be" and "respectfully requests". My guess is that it should be this:

"Wherefore, Petitioner requests the soonest possible date for adjudication of his petition to be Naturalized. Petitioner respectfully requests that the adjudication be followed forthwith ... "

Does that look right?
 
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When I looked at my copy; it says:

Wherefore, Petitioner requests the soonest possible date for adjudication of his petition to be respectfully requests that the adjudication be followed forthwith by this Court’s Administration of the Oath of Allegiance for Naturalized Citizens.

OK-Boy

waitforsolong said:
Thank you everyone, for all your replies!

I have strong feeling that AUSA will extend the deadline when 60 days end, since it looks like nobody did anything on my case so far. I will contact AUSA earlier next week too. Hope this time they will talk to us about our case. Last time when we called, they said they will not *look* at our case until few weeks before deadline.

lazycis,

The Motion for Hearing example you've posted looks like it has some words missing. In the second paragraph, there is this sentence:

"Wherefore, Petitioner requests the soonest possible date for adjudication of his petition to be respectfully requests that the adjudication be followed forthwith ... "

It looks like there are words missing between "petition to be" and "respectfully requests". My guess is that it should be this:

"Wherefore, Petitioner requests the soonest possible date for adjudication of his petition to be Naturalized. Petitioner respectfully requests that the adjudication be followed forthwith ... "

Does that look right?
Click to expand...
 
Interview will be scheduled within 120 days?

I called today USCIS started asking about namecheck and got transfered to IO, tried to convince her to expedite my namecheck and got response "some people wait for 5 years" :eek:
She also refused to send me fingerprint notice (more than 15 months since original taken)
When she suggested than my only option is to wait, I reminded her of USCIS voice menu option "Due to class action lawsuit, you are eligible to expedite your N-400 case (lost SSI benefits)" and that my other option, besides waiting 5 years is to file WOM. She wished me good luck, bro :)
Now, I forgot to request usual status request "outside of normal processing times" in the mail, so I called back and got transferred to IO again because "another inquiry already open".
So, this nicely spoken IO from the South, tells me that my Interview will be scheduled in July-August-September-October :confused: that local officer at Los Angeles DO is already planning to schedule it and I should study 100 civic questions.
Now, this IO was nicely spoken, alright, but at my last Infopass, another nicely spoken IO told me "see, your I-797 says - should expect interview within 425 days - just wait, just wait" and of course nothing happened.
So I should ignore this "wait for 120 days and miracle will happen" and file WOM, right?
 
POCTOB,

My dear your are dealing with those wonderful people of USCIS; you will get a new story every time you happened to talk to someone. I would suggest you to file WOM asap without wasting your more time. However, the final choice is yours...

OK-Boy
POCTOB said:
I called today USCIS started asking about namecheck and got transfered to IO, tried to convince her to expedite my namecheck and got response "some people wait for 5 years" :eek:
She also refused to send me fingerprint notice (more than 15 months since original taken)
When she suggested than my only option is to wait, I reminded her of USCIS voice menu option "Due to class action lawsuit, you are eligible to expedite your N-400 case (lost SSI benefits)" and that my other option, besides waiting 5 years is to file WOM. She wished me good luck, bro :)
Now, I forgot to request usual status request "outside of normal processing times" in the mail, so I called back and got transferred to IO again because "another inquiry already open".
So, this nicely spoken IO from the South, tells me that my Interview will be scheduled in July-August-September-October :confused: that local officer at Los Angeles DO is already planning to schedule it and I should study 100 civic questions.
Now, this IO was nicely spoken, alright, but at my last Infopass, another nicely spoken IO told me "see, your I-797 says - should expect interview within 425 days - just wait, just wait" and of course nothing happened.
So I should ignore this "wait for 120 days and miracle will happen" and file WOM, right?
Click to expand...
 
First off, I think you need to verify that your NC has been completed, and if so, on what date. Without completion of the name check, your case won't move a bit.
 
Well, that's where it gets interesting - just got off the phone with Congressman office, they _FINALLY_ (45+7days) received reply from USCIS by e-mail, stating my namecheck has been completed... :confused:
Time to schedule Infopass and see what IO will say at DO.
 
motions to transfer?

Hello everyone and lazycis,

I have been following this thread for months with bated breath. My boyfriend has been waiting on his asylum-based AOS application since 1999 (!) In April he finally filed WOM in the District of Columbia. He has pro bono representation from a topflight firm. Yesterday the government filed a motion to transfer arguing that this case should be sent to Eastern District of Virginia because he lives in Arlington, VA (which is basically a suburb of Washington, DC) and "all acts and omissions giving rise to the claim have occurred in EDVA and it is the EDVA office that will conduct adjudication of his case."

His attorneys decided to file an opposing motion. I would like to get people's opinions on how successful motions to transfer/opposing motions usually are. Here is what I have been able to discover looking at every mandamus case filed in WDC district:

- most of them are filed by people (and companies) who are NOT residents in Washington, D.C. The government usually either moves to dismiss, or acts to get the case voluntarily dismissed (I assumed by adjudicating the underlying application). Responding with a motion to transfer to a local district is less common compared to motions to dismiss.

- Liu v. Novak, a famous case where Judge Sullivan of Washington, DC district, asserted jurisdiction over the mandamus case, had a plaintiff that resided somewhere in Virginia.

- the judge assigned to his case (Ellen Huvelle) also happens to be presiding over a similar case (over naturalization, though, not green card) where the plaintiff is from Miami, Fla., and she has just issued a ruling asserting jurisdiction over the case under APA. His lawyers feel that the government is trying to manouver the case from under a judge who is likely to be favorable.

- my boyfriend works and has an office in Washington, DC. So his connection to Washington District is not just that this is where DHS/USCIS happens to be located.

Any ideas on how motions to transfer are usually handled? I could understand transferring the case from Washington, DC to like Southern Texas, but Washington to Virginia is like a cab ride plus his workplace is there. Besides, don't they usually just enclose an affidavit from someone at the local office?

Would appreciate any ideas, and thank you so much in advance.
 
I believe one of the arguments is that an alien who does not have permanent residency is not considered a resident of any district. I think it's a strong argument against the transfer. On the other hand, USCIS, FBI, DHS offices are located in DC. That's another argument against transfer.
 
Shall I file WOM?

Guys,
Need advice.
My N-400 PD is 6/1/07 -- Memphis
FP was done in August 07
IL came in December 07, but then cancelled a day later -- for 3/08.
Since then I have heard nothing. Name check is complete but case not yet sent to Memphis Office. According to the website, they are still processing April 07 cases. And ofcourse they claim that cases are taking 13-15 months these days. So do I have case against USCIS< or I should wait?
Please share some thoughts.

Thanks
 
Court in NH, 1st circuit, Zhou v. FBI, D. N.H., June 12, 2008 disagrees with Touarsi from MA.
"Although it was decided too recently to be reflected in the briefs, Touarsi v. Mueller, 538 F. Supp. 2d 447 (D. Mass. 2008), holds that § 1252(a)(2)(B)(ii) precludes review of the timing of USCIS's processing of adjustment of status
applications."

It addresses the usual arguments from Defendants, failing to state claim. Lack of jurisdiction. It briefly discusses the "line cutting" argument as well although not in detail.

"Although I am sympathetic to USCIS's predicament, nothing before me indicates that advancing the relatively small number of applicants who have experienced multi-year delays to the head of the line would seriously interfere with higher or competing priorities"

It leaves the door open for courts to determine what constitutes an unreasonable delay. In the present case, three years delay was considered unreasonable. I haven't looked at the Complaint in this case but I wonder whether the Plaintiff has referred to USCIS change in NC policy at all. Had he referred to that, the judge would have have alluded to that in his opinion.
 
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That sounds like 12 months or even 14 months may be reasonable.



jefkorn said:
Court in NH, 1st circuit, Zhou v. FBI, D. N.H., June 12, 2008 disagrees with Touarsi from MA.
"Although it was decided too recently to be reflected in the briefs, Touarsi v. Mueller, 538 F. Supp. 2d 447 (D. Mass. 2008), holds that § 1252(a)(2)(B)(ii) precludes review of the timing of USCIS's processing of adjustment of status
applications."

It addresses the usual arguments from Defendants, failing to state claim. Lack of jurisdiction. It briefly discusses the "line cutting" argument as well although not in detail.

"Although I am sympathetic to USCIS's predicament, nothing before me indicates that advancing the relatively small number of applicants who have experienced multi-year delays to the head of the line would seriously interfere with higher or competing priorities"

It leaves the door open for courts to determine what constitutes an unreasonable delay. In the present case, three years delay was considered unreasonable. I haven't looked at the Complaint in this case but I wonder whether the Plaintiff has referred to USCIS change in NC policy at all. Had he referred to that, the judge would have have alluded to that in his opinion.
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The court in Zhou v. FBI takes a cue from 8 C.F.R. § 103.2(b)(18) and states:

"..Taken together, this means that an application may be delayed for up to two years without the approval of anyone above the regional commissioner level. This suggests that a delay of two years or less [*19] is unlikely to be per se unreasonable, but it does not offer much aid in evaluating longer delays like the one in the case at bar."

This doesn't mean that every case less that 3 years delay is going to be shot down by the Court. There are number of cases that are dismissed or rendered moot because AUSA forces USCIS to adjudicate the underlying application in dispute before the 60 days run out for Govt to respond and thus those delays though much shorter than the ones that you see go to the MTD and final court decision stage. Although the delay in those cases may have been less than 18 months or around 12 months but they can't be used as precedents. You may find this blog an interesting read.

pragmatist75 said:
That sounds like 12 months or even 14 months may be reasonable.
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Thinking out loud , in my complaint, I'm stating that I'm only challenging defendant's timeliness and not the granting or denial of I-485. Should I just remove this so the court doesn't get stuck on the idea of timeliness?

Does this give judge a free pass to try to determine if the delay is unreasonable?

Or is it APA that causes the court to look to determine if the delay is unreasonable and the Plaintiff has no choice but to leave it open to the Court to look at the unreasonableness factor?

In other words, the courts have been kind of conservative in marking X months or years as unreasonable delay esp in the lower end of the length of time. If they were to say anything over 6 months' delay is unreasonable, it will open flood gates to lawsuits against USCIS. In the meantime, it's going to depend on AUSA who may force his client (USCIS) to act in cases where the delay may be shorter than what courts have generally held to be unreasonable or the judge who should look at the "Sense of Congress", "long delayed applications " and NC policy, all of which point to 180 days as the expected time an AOS should take.
 
lazycis said:
I believe one of the arguments is that an alien who does not have permanent residency is not considered a resident of any district. I think it's a strong argument against the transfer. On the other hand, USCIS, FBI, DHS offices are located in DC. That's another argument against transfer.
Click to expand...

THank you!
 
lazycis said:
It may be tough to push the case if your PD is later than the one listed on the USCIS website.
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Would it help bringing to light the recently posted (March 15 and April 15 updates) N-400 processing retrogressions to question the validity of the current posted PDs?
 
jefkorn said:
Thinking out loud , in my complaint, I'm stating that I'm only challenging defendant's timeliness and not the granting or denial of I-485. Should I just remove this so the court doesn't get stuck on the idea of timeliness?

Does this give judge a free pass to try to determine if the delay is unreasonable?

Or is it APA that causes the court to look to determine if the delay is unreasonable and the Plaintiff has no choice but to leave it open to the Court to look at the unreasonableness factor?

In other words, the courts have been kind of conservative in marking X months or years as unreasonable delay esp in the lower end of the length of time. If they were to say anything over 6 months' delay is unreasonable, it will open flood gates to lawsuits against USCIS. In the meantime, it's going to depend on AUSA who may force his client (USCIS) to act in cases where the delay may be shorter than what courts have generally held to be unreasonable or the judge who should look at the "Sense of Congress", "long delayed applications " and NC policy, all of which point to 180 days as the expected time an AOS should take.
Click to expand...

The courts have a discretion to determine whether the delay is unreasonable or not. It depends on the facts in each individual case, that's why it's impossible to say "All cases more than 6 month old are unreasonably delayed" or "There is no chance to win a lawsuit unless your app is pending for more than 12 months". In some cases, for example, an applicant was slow responding to RFE or provided incomplete response and an additional RFE was necessary. Court cannot force agency to act quickly in such situation.
 
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