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

[yellowmango]

I do not see the requirement to be married until naturalization in Section 319(a) of the INA. As long as three year requirement is fulfilled, the USCIS cannot deny N400. The regulation is invalid and contrary to Congress intention. On top of that, the agency unreasonably delayed the adjudication.

Actually, now that I look at INA 319(a) in light of the case referenced by Bobsmyth, it seems to me that perhaps I am required to remain married up until being sworn in as a US Citizen.

http://bulk.resource.org/courts.gov/c/F2/480/480.F2d.673.72-2351.654.html

In INA 319 (a), the statute starts with the phrase " (a) Any person whose spouse is a citizen of the United States, ....., may be naturalized upon compliance with all the requirements of this title ...."

Yellowmango,
You need to file N-336 before going back to district court. You can apply for fee waiver if you cannot afford the fee. It will be denied again based on the regulations so if fee waiver is denied, you are probably better of filing new N400.

It seems to me that at this point, I am likely to get denied again relying solely upon INA 319(a) for my eligibility. However, by now, I am eligible and meet the requirements under INA 316(a), using the regular five year residency requirement. The only grounds under which I am interested in proceeding with the appeals process or a judicial de novo review is if they would look at me as being eligible under INA 316(a), and consider my application under that rule, even though I filed under 319(a). Is this something that is likely to happen?

I am willing to file a new N400 application if that is the best option left for me. My main concern with this is what if I get stuck in the FBI name check hell again! Because my FBI name check finally came back completed (I believe due to me having filed a lawsuit in the first place), is it safe to assume that the second time around there won't be any delays like there were the first time? Or because there was a delay the first time, is it more likely that there will be a delay again? If there is a delay due to FBI name check again, would they also indefinitely delay interviewing me?

Thank you so much lazycis and Bobsmyth for your informative comments!

 

[yellowmango]

The language of INA319(a) and regulation of 8 CFR 319.1 (b) (2) make it clear that the marriage must be valid up until naturalization when filing under 3 year rule, even if your case may be delayed by name check for several years. Regulations (CFR) enforce the laws (USC), not the other way around.
If there is an absence or contradiction between USC and CFR, CFR usually prevails.

I disagree with you about CFR having precedence over USC. USC is the law whereas CFR are the regulations by which the law is implemented. The agencies may use CFR in determining their actions and therefore CFR may prevail when it concerns agency actions, but if CFR contradicts or goes beyond what USC states, then such action can in theory be challenged in a federal court, which is likely to look at USC trumping CFR.

 

[Bobsmyth]

I disagree with you about CFR having precedence over USC. USC is the law whereas CFR are the regulations by which the law is implemented. The agencies may use CFR in determining their actions and therefore CFR may prevail when it concerns agency actions, but if CFR contradicts or goes beyond what USC states, then such action can in theory be challenged in a federal court, which is likely to look at USC trumping CFR.

In the past, courts have upheld what the CFR says by denying cases where divorce has occurred before the final interview (oath).
If you want to contest what the CFR says then by all means challenge it in court, but be prepared for a lengthy battle.

 

[yellowmango]

In the past, courts have upheld what the CFR says by denying cases where divorce has occurred before the final interview (oath).
If you want to contest what the CFR says then by all means challenge it in court, but be prepared for a lengthy battle.

Oh no, I'm not contesting the CFR anymore, nor do I have the time, money or resources to challenge it in court. In fact, I am no longer certain that the CFR and USC are in contradiction on this issue. See my post above. Just pointing out that legally USC has a higher standing than CFR, in cases where there really is a discrepancy.

That the courts have denied cases where divorce has occurred before the oath was not known to me, and if I had known that, I would most likely have withdrawn my application when I had gotten divorced.

Do you have more case references of courts denying naturalization applications where the divorce happened before the oath?

Are there any cases at all in which a court has granted naturalization even though the applicant has gotten divorced? I'm guessing not...

 

[Bobsmyth]

Oh no, I'm not contesting the CFR anymore, nor do I have the time, money or resources to challenge it in court. In fact, I am no longer certain that the CFR and USC are in contradiction on this issue. See my post above. Just pointing out that legally USC has a higher standing than CFR, in cases where there really is a discrepancy.

That the courts have denied cases where divorce has occurred before the oath was not known to me, and if I had known that, I would most likely have withdrawn my application when I had gotten divorced.

Do you have more case references of courts denying naturalization applications where the divorce happened before the oath?

Are there any cases at all in which a court has granted naturalization even though the applicant has gotten divorced? I'm guessing not...

The earlier link I posted was a court ruling which stated the clear intention of the INA 319

First, the legislative history of Section 319(a) provides absolutely no support to petitioner's view, since it is entirely devoid of any reference to the intention of Congress in enacting this section. See 1952 U.S.Code Cong. & Ad.News, p. 1737; In re Petition of Zimmerman, 52 Misc.2d 502, 276 N.Y.S. 2d 46 (Sup.Ct. 1966). Second, the statutory language itself, contrary to petitioner's contention, quite plainly requires marriage to a citizen spouse not only for three years prior to filing the petition, but also at the time of naturalization. See In re Naturalization of Noland, 185 F.Supp. 948 (D.Neb.1960); In re Petition of Zimmerman, supra

Also, JohnnyCash has written about his experiences on the subject in numerous posts that support the courts view.

Another court case discusses a case that was denied when the applicant claimed to be married (which he legally was), but it was found that he wasn't living together with his spouse:
http://64.233.167.104/search?q=cache:fJ6JKDHbN10J:caselaw.lp.findlaw.com/cgi-bin/getcase.pl%3Fcourt%3D11th%26navby%3Dcase%26no%3D939429opa+immediately+preceding+the+date+of+filing+his+application+for+naturalization+%2Bdivorce&hl=en&ct=clnk&cd=5&gl=us


Finally, the USCIS adjudicator's field manual describes how divorce shall render an applicant ineligible for naturalization:

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=8b52b94bf9c8ee82faaf6458da673dd5

 

[lazycis]

Should I fill the second page in MA summons after I have the confirmation of delivery of summons to Defendants and file it with court?

I have seen different formats for Certificate of Service for actions filed in MA? I'm assuming I could pick any of those since there probably isn't a form available from the court? It's probably not a big deal anyway.

Also the Certificate of Service attached as PDF was part of the Complaint (see Boston_Complaint.pdf). I'm not sure how that must have happened or possible?

You can either fill the second page of summons or file other proof of service (return receipt), but I do believe filing the second page is a proper way. FRCP are not particulary strict regarding service. You can serve a motion before you actually file it with the court. As for serving complaint and summons, I do not think you can get summons before actually filing the complaint.

 

[mish]

Dear friends,
I have placed a call on Monday to the US attorney and left him a message. I never received a respond. I called him again on Wednesday and spoke with him. He said the USCIS should be sending the interview letter be tomorrow. I asked him what I need to prepare for the appointment. He said that the INS will include the info. In the letter. Today, I received the letter and what I don’t understand is that the INS is asking for all the document as if I’m applying for the first time such as (ID, GC, Marriage Certificate, Income Tax for the last 5 years, passport and any court documents), and they state the reason for the appointment as (complete Application, In regards to your N-400 application, personal interview and it could be audio- video recorded. Here is the question, I have been told the reason of the delay is FBI name check since August 2003 and never been asked to submit any other documents or as I have visited the USCIS office fifty times and spoke with all levels of supervisors up to the chief of the USCIS and all of them have the same answer “FBI back ground check” and now they changed all that?
Please advice, thanks for all your help.

 

[meteor8]

Thanks, so when local US Attorney, Michael J. Sullivan receives the Summons, the 60 day clock starts?
Do I send Complaint+Exhibits to Defendants and Local US Attorney?
Did you take soft copy (PDF files of the Complaint and Exhibits) to the court clerk along with the paper copy? I have PDFs and plan to file motion to efile when I initial submit my paper Complaint.

lazycis already answered the first two questions.

For the third question, I don't believe you need to bring soft copy of the complaint and exhibits to the court clerk. Your initially filing has to be on paper. Also I believe you cannot start efiling until it's approved by the court and after you have received your ECF login.

 

[anxious1]

repeat of some old news

http://www.dailynewstribune.com/news/x875596293/Aspiring-citizens-will-soon-have-shorter-wait

As for me I am hanging on to straws waiting for my name check to be cleared

N400 PD/ND Jan 2007
FP Mar 2007
Still stuck in name check

 

[jefkorn]

Hi everyone,
I'm about to file on Tuesday and needed to add some final points. Who knows as part of the court order, judge may even grant my wish of counting time towards citizenship from some time in the past when my I-485 could be approved if not for NC? Please give your suggestions about the following.

1. I want to add one item to Injury to Plaintiff, what do you think? Something to the effect of following(the wording needs to be more appealing/persuasive to the judge of course):

The inordinate delay and uncertainty regarding Plaintiff's AOS application makes it harder for him and his wife to plan for their young daughter who is a US citizen and want to raise her in US to protect her welfare and provide for better future.

2. Also in case of I-485 approval, how can I ask the court to give me retroactive approval from the date my I-485 was considered approvable but was not approved because of NC requirement which is not even authorized as per Mocanu and was never required by law?

 

[mish]

Hi lazycis,
Could you please advise me what you think of that interview and if they could cause me any issue. Thanks for your help again
Happy 4th of July

Dear friends,
I have placed a call on Monday to the US attorney and left him a message. I never received a respond. I called him again on Wednesday and spoke with him. He said the USCIS should be sending the interview letter be tomorrow. I asked him what I need to prepare for the appointment. He said that the INS will include the info. In the letter. Today, I received the letter and what I don’t understand is that the INS is asking for all the document as if I’m applying for the first time such as (ID, GC, Marriage Certificate, Income Tax for the last 5 years, passport and any court documents), and they state the reason for the appointment as (complete Application, In regards to your N-400 application, personal interview and it could be audio- video recorded. Here is the question, I have been told the reason of the delay is FBI name check since August 2003 and never been asked to submit any other documents or as I have visited the USCIS office fifty times and spoke with all levels of supervisors up to the chief of the USCIS and all of them have the same answer “FBI back ground check” and now they changed all that?
Please advice, thanks for all your help.

 

[jefkorn]

Thanks lazycis and meteor9. I will be filing Motion to Efile along with my Complaint. I already have PACER account so I guess all I need is permission from the court to use that for filing subsequent documents?

lazycis already answered the first two questions.

For the third question, I don't believe you need to bring soft copy of the complaint and exhibits to the court clerk. Your initially filing has to be on paper. Also I believe you cannot start efiling until it's approved by the court and after you have received your ECF login.

 

[yourfirstname]

meteor8 , Any update on your case? I am eagerly waiting to see outcome of your case before file WOM. My district is same as yours and dates are close to yours.

Thanks

 

[meteor8]

Thanks lazycis and meteor9. I will be filing Motion to Efile along with my Complaint. I already have PACER account so I guess all I need is permission from the court to use that for filing subsequent documents?

For my district, I had to apply for a separate ECF account besides my PACER account after I got court approval to efile. So check your district's rules regarding efiling to see what you need to do after the approval.

 

[meteor8]

meteor8 , Any update on your case? I am eagerly waiting to see outcome of your case before file WOM. My district is same as yours and dates are close to yours.

Thanks

No update yet. The court just vacated the previous 7/11 hearing and set a date(7/25) for case management meeting. Somehow I have a feeling that the judge is not interested in making a ruling quickly, it's so frustrating.

The hearing date I requested for my MSJ is 8/15. So even if the judge makes a favorable ruling then on 8/15, it will be almost no chance for me to become a citizen before 10/15 in order to register to vote in Nov. I am seriously thinking to request the court to make a ruling on my MSJ without a hearing. I might file something next week. Need to do some research first.

 

[lazycis]

Hi lazycis,
Could you please advise me what you think of that interview and if they could cause me any issue. Thanks for your help again
Happy 4th of July

Is your N-400 marriage-based? Again, you do not have to agree to the second interview because it should've been conducted within 120 days of the first one.

8 CFR 335.3(b)
"The applicant shall not be required to appear for a reexamination earlier than 60 days after the first examination. However, the reexamination on the continued case shall be scheduled within the 120-day period after the initial examination, except as otherwise provided under Sec. 312.5(b) of this chapter." (sec 312.5(b) is applicable only if an applicant did not appear for the second examination which, in turn, had been scheduled within 120 days after the first one).

So you can discuss this with AUSA and insist that the USCIS does not have legal authority to do the second examination in your case. If you decide to fight it, you will need to write a letter to the USCIS and explain why you refuse to attend the illegal re-examination.
I would also inform the court of the development, cited regulations and asked court to issue an order to show case why second examination was not scheduled on time and why it is necessary.

You can also ask the USCIS to issue subpoenas for all documents they requested. They have to explain why they need all that.

See this opinion from Mass:
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=wolf/pdf/hussain publish.pdf

 

[daghdaff]

I finally received my interview letter after waiting for more than 2 yrs. I got the IL July 3rd and the interview date is August 1st.

I need to prepare for the interview, I was arrested in 1997 and charged with simple assault. The charges were dropped by the court in 1997 and I had this arrest expunged from my record.

In the N400 declared that I was arrested and provided a letter from the court saying the changes were dismissed and the record expunged.

I am sure that the IO will ask about this arrest. Does anyone have any experience in this matter? Do I need to get any additional paper work from the court? And since this is an old arrest and it was expunged from my record, I could not get a copy of the disposition from the system because this arrest is not in the system and the records of expungement were archived and the boxes in storage. But I was able to get a letter from DC court saying that is arrest was dismissed and expunged. Is this letter enough?

Thanks

 

[jefkorn]

Filing Questions

Folks,
Could you please answer following questions? Thanks

Local rules[ LR 7.1(B)(4)] at MA states:
"(4) Length of Memoranda. Memoranda supporting or opposing allowance of motions shall not,without leave of court, exceed twenty (20) pages, double-spaced."

My exhibits are 40 pages long, does the rule above apply to attachments as well?

In the summons , there's space to enter address for Plaintiff's attorney, I guess for pro se I will enter my name followed by PRO SE and the mailing address, phone number and email address?

 

[lazycis]

Folks,
Could you please answer following questions? Thanks

Local rules[ LR 7.1(B)(4)] at MA states:
"(4) Length of Memoranda. Memoranda supporting or opposing allowance of motions shall not,without leave of court, exceed twenty (20) pages, double-spaced."

My exhibits are 40 pages long, does the rule above apply to attachments as well?

In the summons , there's space to enter address for Plaintiff's attorney, I guess for pro se I will enter my name followed by PRO SE and the mailing address, phone number and email address?

The rule does not apply to exhibits so you have no need to worry.

You can just leave attorney info blank.

 

[jefkorn]

What threw me off was this section in the MA summon form. Shouldn't I provide my address although most probably the answer will filed electronically in PACER by the AUSA?

"
Within days after service of this summons on you (not counting the day you received it), you must serve
on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The
answer or motion must be served on the plaintiff’s attorney, whose name and address are:
"

Also do I sign the Complaint and then make copies or makes copies first and then sign all of them, for the purpose of sending to Defendants?

The rule does not apply to exhibits so you have no need to worry.

You can just leave attorney info blank.