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

[wommei]

Hey, netrin,

Every district court has different local rules about the procedure. I think you should call the clerk's office and find out the procedure. Once you know that, you can customerize the templates posted on this forum and draft your motions. The courts holds pro se plaintiffs to liberal filing requirements. So even if you violate some local rules by accident, I don't think it matters too much. See below from the court order in my district.
"Defendants ask this court to deny plaintiffs’ summary judgment motion because theyfailed to file a statement of uncontested facts as required by L.R. 56.1(a). This court, however, holds pro se plaintiffs to liberal filing requirements (see, e.g., McIntosh v. Illinois Dep’t ofEmployment Sec., 2007 WL 1958577, *5 (N.D. Ill. July 2, 2007)), and the facts in the instantcase are simple and undisputed. The court therefore declines to deny plaintiffs’ motion on this ground."
It seems to me that you need to file two motions :1) Motion to reopen the case 2) Opposition to motion to dismiss. The first one will be a short motion and the second motion will be a bit lengthy because you have to contend why the case should not be dismissed and the court has jurisdiction on it. It is also better to address the issue of visa number availibility.

Thanks for your kind response. The problem is that the court made a decision to close the case and order in favor of defendants' motion to dismiss. But surprisingly, the court did not issue a lengthy order like multiple pages order. Do you know how I can proceed to reopen the case? Thank you.

My priority date was current when I filed the lawsuit.

 

[meteor8]

Lazycis and other gurus,

I filed my MSJ with a hearing date in Aug. N.D. CAL Civil local rule 7-1b has an option to allow a motion to be determined without oral argument.

7-1 motions.
(b) To Whom Motions Made. Motions must be directed to the Judge to whom the action is assigned, except as that Judge may otherwise order. In the Judge’s discretion, or upon request by counsel and with the Judge’s approval, a motion may be determined without oral argument or by telephone conference call.

August is a long wait. Is that possible that I request the judge to determine the motion(I filed previously) without oral argument?

BTW, N.D. CAL issued a General Order No. 61 which is specific to Immigration Mandamus cases. It seems the court wants to get those cases move fast without dragging too long.

http://www.cand.uscourts.gov/CAND/LocalRul.nsf/10ffec4f66aa15db88256d4f005bb710/cd59056bd406c0488825746c0059ff74/$FILE/GO%2061%20final%20adopted%206-17-08.pdf
Thanks a lot!

 

[lazycis]

In light of the court order, you may file a request to cancel hearing and ask court to make a decision without an oral argument. Contact AUSA about it. It would be easier if AUSA agreed. See local rule 6 regarding motion to change time.

 

[meteor8]

In light of the court order, you may file a request to cancel hearing and ask court to make a decision without an oral argument. Contact AUSA about it. It would be easier if AUSA agreed. See local rule 6 regarding motion to change time.

just emailed the AUSA, got out of office auto reply, she won't be back until July 8. :-(

BTW, the court issued an order yesterday. Here are the contents of the order:

"This matter is currently set for a hearing on July 11, 2008, on Plaintiff's Petition for Writ of Mandamus. The Court HEREBY VACATES the show cause hearing. The parties shall appear at the initial case management conference scheduled for July 25, 2008 at 1:30pm. At that conference, the parties shall be prepared to address proceeding under the provisions set forth in Northern District General Order, No. 61, which was adopted on June 17, 2008. A copy of General Order No. 61 is available on the Court's website."

I am kind of frustrated with the canceling of the hearing(it was postponed from June 29 previously).

 

[yourfirstname]

I'm thinking of filing WOM. I'm still waiting for an interview. My wife got 2nd FP appt letter yesterday but none for me. I talked to an IO today, he confirmed that there was no FP notice was sent for me so updated the case with a note requesting to send 2FP notice. I asked him to send case status by mail which will take 15-20 days.

How do I get started? I know this thread is loaded with tons of information but will not be able to go through 560 pages so looking for organized information with samples of complaint. There was a wiki which had all the information very organized, does anyone have URL of the site?

 

[mish]

Hey Team,

I have served the local US Attorney as I was advised, but when I was filling the proof for servicing the clerk said that serving the main office would be enough according to his record, but I thing better not to give them any reason for more delay. Now the 60 days will be up by June 29 if I count on the first filling to all the defenders and if I count from the date I filed the additional then it will be August 20. I don’t know if the court will count on the first filling or the additional? Please advice!

 

[mish]

Second issue.
After 24 days from filling the additional proof of serving, I called the US Attorney office and spoke to the local US attorney Mr. Dave. He asked me if the INS office contacted me and he said they want to interview me again, I asked him but I have been interview before and finished every thing just waiting on my ceremony day. He said its ok they may have other questions they want to ask you. My question here is should I accept that interview or what should I do? Please help.

 

[lazycis]

I'm thinking of filing WOM. I'm still waiting for an interview. My wife got 2nd FP appt letter yesterday but none for me. I talked to an IO today, he confirmed that there was no FP notice was sent for me so updated the case with a note requesting to send 2FP notice. I asked him to send case status by mail which will take 15-20 days.

How do I get started? I know this thread is loaded with tons of information but will not be able to go through 560 pages so looking for organized information with samples of complaint. There was a wiki which had all the information very organized, does anyone have URL of the site?

http://en.wikibooks.org/wiki/FBI_name_check

http://en.wikibooks.org/wiki/FBI_name_check#Lawsuit_steps

 

[lazycis]

Hey Team,

I have served the local US Attorney as I was advised, but when I was filling the proof for servicing the clerk said that serving the main office would be enough according to his record, but I thing better not to give them any reason for more delay. Now the 60 days will be up by June 29 if I count on the first filling to all the defenders and if I count from the date I filed the additional then it will be August 20. I don’t know if the court will count on the first filling or the additional? Please advice!

60 day count starts from the day you local AUSA received the complaint. SO it should be August 20.

As for the second interview, the regulations clearly say that any additional interview should be conducted within 120 days of the first interview. So you may refuse as they cannot require the second interview in your situation. But if you have nothing to hide you may as well go to the interview. It's your choice.

 

[wommei]

good news on my case

hey, lazy and others,

I just found a court order from Pacer system when I was feeling pretty desperate yesterday. The judge ordered the defendants to file a reply to my MSJ before July 10th and a status hearing scheduled on July 24th. But at last hearing, the judge also said that he will write an opinion within 1-2 weeks after they file a reply. So it looks that I may win this case in July.
My biggest fear is that the judge won't make a ruling until my priority date become current. If that happens and i get my gc, my case will be dismissed and all the hard work will turn out to be nothing.

 

[jefkorn]

Good to know that your case is moving along. I checked with Pro Se clerk in MA and apparently I have to get Judge's permission to file electronically so will have to file a motion. So first I will file the complaint, serve Defendants and then file a motion to be allowed filing subsequent motions/documents via ECF/PACER system?

hey, lazy and others,

I just found a court order from Pacer system when I was feeling pretty desperate yesterday. The judge ordered the defendants to file a reply to my MSJ before July 10th and a status hearing scheduled on July 24th. But at last hearing, the judge also said that he will write an opinion within 1-2 weeks after they file a reply. So it looks that I may win this case in July.
My biggest fear is that the judge won't make a ruling until my priority date become current. If that happens and i get my gc, my case will be dismissed and all the hard work will turn out to be nothing.

 

[meteor8]

Good to know that your case is moving along. I checked with Pro Se clerk in MA and apparently I have to get Judge's permission to file electronically so will have to file a motion. So first I will file the complaint, serve Defendants and then file a motion to be allowed filing subsequent motions/documents via ECF/PACER system?

You should be able to file the motion to efile at the same time when you file your complaint. I did that for my case.

I thought I had to file the motion to efile after I filed the complaint(so to get a case number). I gave the motion to the clerk after she stamped my complaint and other documents. The clerk was pretty pissed off.

 

[jefkorn]

Thanks! So I think just type a motion titled: "Request to be permitted to efile" or something like that? I will try when I file the Complaint.

You should be able to file the motion to efile at the same time when you file your complaint. I did that for my case.

I thought I had to file the motion to efile after I filed the complaint(so to get a case number). I gave the motion to the clerk after she stamped my complaint and other documents. The clerk was pretty pissed off.

 

[meteor8]

Here is what I used:

--------------
Motion to efile

Plaintiff Joe Doe, hereby respectfully petition this Honorable Court to grant permission for Plaintiff to efile on his case.


Date:xxxx. Respectfully Submitted,
--------------

BTW, make sure you serve the motion to efile along with your complaint.

 

[lazycis]

hey, lazy and others,

I just found a court order from Pacer system when I was feeling pretty desperate yesterday. The judge ordered the defendants to file a reply to my MSJ before July 10th and a status hearing scheduled on July 24th. But at last hearing, the judge also said that he will write an opinion within 1-2 weeks after they file a reply. So it looks that I may win this case in July.
My biggest fear is that the judge won't make a ruling until my priority date become current. If that happens and i get my gc, my case will be dismissed and all the hard work will turn out to be nothing.

This is good! Do not ever think that your efforts were in vain. What if EB2 will be "U" for the next few months/years?

 

[wommei]

thanks, lazy!

Hey, lazycis,

Thank you for your encouragement. I couldn't have gotten this far without your help.

This is good! Do not ever think that your efforts were in vain. What if EB2 will be "U" for the next few months/years?

 

[mish]

60 day count starts from the day you local AUSA received the complaint. SO it should be August 20.

As for the second interview, the regulations clearly say that any additional interview should be conducted within 120 days of the first interview. So you may refuse as they cannot require the second interview in your situation. But if you have nothing to hide you may as well go to the interview. It's your choice.

Thanks Lazycis,
My only worries that the INS office could play the waiting game again and start counting the120 days all over again after the second interview? I don’t trust them any more; I don’t know what to do please advice.

 

[jefkorn]

PD current at filing, how to account for possible retrogression later in litigation?

This issue has come up in few WOMs for I-485s where the priority date was current at the time of filing the Complaint but retrogressed later during the course of litigation.
I want to include some language in my Complaint that in effect will include the concern that PD may retrogress if the matter is not resolved "expeditiously" or something to that effect. Do you have samples or ideas about it? I know there was a lawsuit (see attached) filed by Murthy's Law Firm in Dec. 07 where the Plaintiff asked for Preliminary Injunction or in the alternative, for expedited Summary Judgment. I'm EB2- rest of the world so does it make sense to go the expedited Summary Judgment route or simply go though the plain vanilla WOM with my concern clearly depicted in the Complaint?

 

[OK-Boy]

I don't think that they will start counting the days from zero after the second interview. But, if I were you I would NOT go for another one and ask the court to adjudicate it.

Thanks Lazycis,
My only worries that the INS office could play the waiting game again and start counting the120 days all over again after the second interview? I don’t trust them any more; I don’t know what to do please advice.

 

[jefkorn]

Adjustment of Status, I-485, GC, Complaint, Writ of Mandamus, WOM

Folks, Here's my final(I think!) draft of Complaint for your perusal. As always comments and feedback are welcome.