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

Well done lvla! Thank you for recounting your experience in detail.
There are lot of little details that one had to keep track of but you did great. It would be good idea to file a motion to efile with the court which if granted(and most likely it will be) will allow you to electronically file subsequent motions etc. The beauty of efiling is that all parties are notified via email of any filing in the case and you won't have to deliver copies to the defendants (in this case only AUSA represents all of the defendants).
See here for a sample motion to efile. Also if defendants/AUSA files any docuemnts with the court, you will have instant access (free for first access) to pdfs version of the doc.

Regarding US attorney, he/she is not a named defendants but when Govt. gets sued US Attorney needs to be served and the summon should hav US attorney's name on it. Usually "Attn: Civil Process Clerk" is added after the US Attorney's name because they may not treat it as served if this is not included in the address.

If you got case number, that's good enough. I didn't get any copy with court's stamp on it. The clerk stamped court's copy of the complaint and exhibits and filed it. I hand-wrote case number on other copies and sent them to named defendants by mail and to AUSA by hand.
 
jefkorn, thank you for the suggestion regarding Motion to efile - I will do it Monday.

Thanks for clarifying the US attorney serving issue for me. I thought a summon was not needed for them. I hand-wrote the summon there in a hurry, so I only put US Attorney title and address on it, without his name. And I didn't write "Attn: Civil Process Clerk" either. The clerk looked at the summon but didn't say anything and took the documents. Will it be considered as properly served as long as he accepted the files?

Thanks!
 
Although US Attorney is not a named defendant, the summons sent to him should be addressed to him/her. See PART II:WHOM TO SERVE A.1 and A.2 in this useful document from AILF: WHOM TO SUE AND WHOM TO SERVE IN IMMIGRATION-RELATED DISTRICT COURT LITIGATION . I think you should be fine as the summons were accepted by the clerk. In your case, if you forgot to enter US Attorney's name, it's fine. When you file Certificate of Service with the court after you receive the delivery confirmation from named defendants, the docket clerk will make an entry into your docket sheet saying something like:

"AFFIDAVIT OF SERVICE Executed by <<Plaintiff>>" Micheal Chertoff served on mm/dd/yyyy, answer due mm/dd/yyyy, Jonathan Scharfen answer due mm/dd/yyyy" etc

The answer due date will be sixty days from the date your served AUSA. Just a note on delivery confirmations from defendants' offices: online confirmation is quicker but it will take little longer to receive the delivery confirmation card (the USPS card in green color) and they will come in at different dates.

I vaguely remember reading in the forum (can't find the message now) that if the summons were not properly addressed to US Attorney, he/she was not considered served. I don't know who was making that determination in that case, was the US Attorney's office who told the plaintiff when plaintiff was serving US Attorney or whether US Attorney raised this as an issue when filing an answer to the Complaint??
lvla said:
Thanks for clarifying the US attorney serving issue for me. I thought a summon was not needed for them. I hand-wrote the summon there in a hurry, so I only put US Attorney title and address on it, without his name. And I didn't write "Attn: Civil Process Clerk" either. The clerk looked at the summon but didn't say anything and took the documents. Will it be considered as properly served as long as he accepted the files?

Thanks!
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Case Adjudication with Non-current PD?

As my sleeping pattern in the past week was already messed up, I spent the past 3 hours researching in PACER the WOM cases (likely AOS or Naturalization cases with Chertoff as defendant) with the Judge whom the clerks said my case would go to, trying to find case timelines and some patterns.

I searched cases in 2007 and 2008 and found only 2 rulings from this Judge, both on Naturalization cases. First one in Aug 2007 granted gov. MTD but second one in Nov 2007 granted WOM (due to the Firth Circuit opinion change in Sept 2007 that the 120-day wait period start after interview rather than FBI name check).

The rest that I found are:
(seems the Judge always granted the extension of time)

Pending cases:
(seems they are dragging on...)
Kaur, 02/01/2008, pending, summons issued 08/2008
Zamurad 03/20/2008, pending, Naturalization, Request for Default Judgment 06/2008 - denied 08/2008, Notice of Attorney Appearance 09/10
Menes 06/2008, pending, Naturalization, conference call and status report 09/19
Waiganjo 06/2008, pending, granting Motion for Extension of Time 08/25 until 10/24
Blank, 06/20/2008, pending, Naturalization, 08/19/08 MTD, granting Motion for Extension of Time for Plaintiff to oppose MTD until 10/05/08
Singh, WOM 08/28/2008, pending, no updates since 08/29/08 yet

Resolved cases without court order:
Smirnov, 06/18/2008, granting Motion for Extension of Time for Defendants on 08/21/08 until 08/29/08, Plantiff voluntary dismiss on 08/28/08
Abdulaziz 03/19/2008, granting Motion for Extension of Time for Defendants on 05/19/08 until 07/18/08, Plantiff voluntary dismiss on 06/19/08
Aktar 02/19/2008, no status update until case settled on 06/24/08
Kogan, 02/08/2008, granting Motion for Extension of Time for Defendants on 04/17/08 until 06/05/08, Plantiff voluntary dismiss on 04/23/08
Bhaskar, 02/07/2008, Plantiff voluntary dismiss on 03/24/08
Salloum, 02/01/2008, case terminated 04/02/08
Tiv, 11/12/2007, got GC 02/08/08
Zhai (Chinese EB2 NIW), 09/24/2007, Plantiff voluntary dismiss on 11/06/07

I found another favorable case in this court with another Judge. The fight lasted for a year though. Also a Chinese EB-2 NIW, WOM filed 12/2006 (with current PD) after AOS pending since 09/2004. MTD in 02/2007, MTD denied 04/2007, Complaint amended in 04/2007, MSJ in 05/2007, MTD in 06/2007, MSJ in 07/2007, Plaintiff status request in 10/2007, Order on 12/04/2007 - 3+ year wait by then.

Judge said in the Order, "Were it a few months, or even a year, the Court could understand this to be simply a delay in processing Wie’s particular application. However, this vast difference in processing time leads the Court to believe this is one factor that may indicate USCIS is not processing Wie’s application at all." -- Wish I had found this case before and quoted this in my Complaint.

The Court ordered "Defendants are directed to adjudicate Plaintiff’s application by January 15, 2008, or
notify the court in writing why they are unable to do so." However, VB for Chinese EB-2 retrogressed to Jan 01, 2003 on Dec 01, 2007. So at the time of the Order (Dec 04, 2007), Plaintiff's PD is NOT CURRENT anymore as the I-140 was filed in Sept 2003. The suit lasted for a year and Plaintiff's PD was current at the time of filing. There is nothing in the Docket Report after this Order, does that indicate that USCIS actually gave the Plaintiff GC despite the visa retrogression?!!
 
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I assume the case was adjudicated because defendants did not inform court that they are unable to adjudicate. Overall, you are in a very good position - there are several cases were WOM was granted because PD was current when complaint was filed.
 
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If you need to find out whether the case was adjudicated or not, you can always look at the original complaint to find out the receipt number and then check the status from the USCIS web site.

I'm assuming AUSA hasn't filed Notice of representation in your case yet, when he/she does you could also look AUSA's record to satisfy your curiosity about how he/she may handle your case.
 
Thanks, jeffkorn. I found Plaintiff's I-485 receipt# and checked on USCIS website. It was approved on March 3, 2008 - when PD became current again. :(

The VB for my category is April 1 2004, starting Oct 01 2008. It may take quite a while (at least multiple months) to move to my PD (Sept 29, 2005), based on the speed that VB moved forward in FY 2007 and 2008 (very little movement in the 1st half of the year). I should have filed the WOM in July or August. Now I have missed the best timing. Or at least I should have requested a hearing date earlier than Sept 30 in the TRO petition. :( Will the Court only grant the TRO after the hearing? If so, should I amend the TRO petition to set an earlier date to this week by Sept 26?

lazycis, could you please let me know what are the several cases you mentioned? thanks.
 
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lvla, I'm sorry I'm not too sure about if the court would need to hold hearing on Sep. 30 before it can grant TRO. I think in cases filed by Murthy's law firm, CIS adjudicated cases before the hearing but then VB starts right after the deadline for hearing and I wonder if it's cutting too close.

In the case posted at http://boards.immigration.com/showpost.php?p=1876734&postcount=16061 , the plaintiff requested hearing on 12/31/2007 and on the last day, CIS adjudicated the AOS. See here for time lines. It could work similarly in your case.

Lazycis and others please chime in if lvla needs to request an earlier date so there are still few days left before the PD retrogresses in October VB.
 
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Temporary Restraining Order and Hearing

I checked the case processing history for those WOM cases with petition Preliminary Injunction and/or TRO that I know of.

+ The hearing for the Kovuri case and the Srinivasan case handled by Murphy firm (Kovuri affected by retrogression Jan 01, 08) was held on Jan 02 2008 together, despite that they requested by Dec 31 2007. As jefkorn noted, Kovuri's GC was approved last day in December right before the retrogression. Kovuri's attorney submitted a Pre-hearing Brief Memo on 12/28/07. (Attachment 1)

+ In the Tang case, hearing was held on 08/27 while petition was filed 08/17

+ In wom_ri's case, TRO petition filed 03/24, GC approved 04/01. Then hearing was not scheduled and TRO petition was withdrawn.

+ In wommei's case, TRO petition filed 07/24, according to Docket Report, hearing was same day! Plaintiff submitted a Statement of Fact 07/31. GC approved in beginning of Aug.

I found this "emergency procedures" from the district court website. It says (under Section I - Filers Requesting Immediate Review), "If you have a document, such as a motion for a temporary restraining order, that must be seen by a judge immediately, call the divisional office where your case is pending. If you call during business hours and the telephone system for the divisional office is not working, then contact the deputy in charge for an alternate divisional office pursuant to the succession list of divisional offices at the end of these instructions." (Attachment 2)

On wiki, it says "a temporary restraining order (TRO) may be issued for short term. A temporary restraining order usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction." and "A temporary restraining order may be granted ex parte, that is, without informing in advance the party to whom the temporary restraining order is directed. "

Also here it discussed "What is the difference between a temporary restraining order and a restraining order after hearing?". It says "Temporary Restraining Orders usually can be issued the same day they are requested and remain in effect until the scheduled hearing on the Order to Show Cause....Once the Temporary Restraining Order and Order to Show Cause have been served on the person to be restrained, a hearing can be held to determine whether there is sufficient cause for a court to issue a more "permanent" restraining order.",
and "A Temporary Restraining Order becomes effective only once it has been served on the restrained person (so s/he has notice and can seek an opportunity to be heard)."
http://family-law.freeadvice.com/domestic_violence/restraining_order04.htm

It sounds like TRO could be issued before the hearing for preliminary injunction. And I can appear ex parte for TRO. I hope this is the case.

My case hasn't appeared in Docket Report yet. Most cases I researched were entered same day.
I think I could try to call on Monday to see when the hearing could possibly happen and if a TRO could be issued before the hearing. It would depend on if the Judge would grant the TRO. Is it a good idea to submit a Memo like the Kovuri case to request an expedited hearing?

Also I found that I made a mistake in the TRO by requesting the hearing to be on "Monday, September 30, 2008" while it is a Tuesday. :eek: Do I need to submit something to fix this?

lazycis, jefkorn and others, your advice is greatly appreciated!
 
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lvla,

What you are saying regarding TRO is correct. TRO is a short-term (up to 10 days usually) order which can be entered without hearing the opposite party (!!!). You need TRO to reserve a visa number before court is able to consider your motion for preliminary injunction. So you may want to talk to clerk and ask him to convey to the judge the emergency nature of your situation.
 
lvla,
You would want to talk to Judge's clerk who directly deals with the judge. The general Pro Se clerk may not be of much help here. Judge's clerk can put certain motion in front of the judge and get his attention if it's an urgent matter. See here how it worked out for me, although mine was not an urgent matter per se like yours and I wasn't under a deadline.

lazycis said:
lvla,

What you are saying regarding TRO is correct. TRO is a short-term (up to 10 days usually) order which can be entered without hearing the opposite party (!!!). You need TRO to reserve a visa number before court is able to consider your motion for preliminary injunction. So you may want to talk to clerk and ask him to convey to the judge the emergency nature of your situation.
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Update

Friends, thank you for your advice. I spoke with the law clerk. She told me that the Judge did not grant the TRO but issued an order to have the government respond by Friday Sept 26. The order is not in the docket yet, probably will go out this afternoon. After getting the government response, the Judge will decide how he will deal with my application for preliminary injunction/TRO and if he will hold a hearing - if so, he will do the hearing before Sept 30. (I should have requested an earlier hearing date, then the Judge would probably have the hearing by this week instead of giving AUSA one week to respond...)

I told the clerk I am not sure if this leaves enough time for USCIS to process my case if my petition was granted, and if there is anything I can still do to expedite it. She said this is as fast as the court could do now.

Friends, what do you think about this? Is there still anything I could do about this? I am thinking about contacting the AUSA as soon as I found out who he/she is, and see when they would respond. Please advise. Thanks so much!!

BTW, thanks to jefkorn's advice. I registered for E-file which would be effective in 24 to 48 hours. My case still hasn't appeared in PACER. The ECF clerk said they would enter today.
 
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cases where visa number was not available

lvla,

These cases should be helpful to you:

Galvez v. Howerton, 503 F.Supp. 35 (C.D.Cal.1980)
http://boards.immigrationportal.com/attachment.php?attachmentid=17193

Basova v Ashcroft, 03-CV-4929, 2005 U.S. Dist. LEXIS 12150 (E.D.N.Y 2005)
http://boards.immigration.com/showpost.php?p=1844732&postcount=15032

Przhebelskaya v. U.S. Bureau of Citizenship and Immigration
Services, 338 F.Supp.2d 399 (E.D.N.Y. 2004)
http://boards.immigration.com/attachment.php?attachmentid=17196&d=1198761812

You already have Alibeik case, I believe
http://boards.immigration.com/showpost.php?p=1958524&postcount=17485
 
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I-140 Approved

My I-140 was approved sometime in Dec 2006.

Actually, My employer screwed it up when i had chance to file in June 2007, when EB3-India was current until June 2003 in the June 2007 VB.

Unfortunately, iam here still waiting after 5 years.

What are my options here. Just bite the bullet or proceed with the lawsuit.

Thanks for your reply, you are doing an awesome job man

Vijay
jefkorn said:
You raise an interesting scenario. Even though you have been in the overall process starting labor for almost 5 years, this may not be counted towards delay in your AOS. The delay in your I-485 will only be looked at from the filing/receipt date.

Is your I-140 approved?

I'm not sure if you can allege that I-140 was unreasonably delayed in addition to your I-485. There's nothing that stops you from filing a lawsuit even if it seems that it won't get you the desired relief. Of course you want to explore different sides of the argument first and give it a shot. In the legal arena, the lawyers are not always sure of the feasibility of a given lawsuit but proceed to try their legal theory and some times it works and other times it doesn't. In short, you won't know until you try.
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lvla said:
Thank you so much, lazycis! You are invaluable!
What do you think about the latest update I got?
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It's a good development. The chances are slim to get a TRO against the government for pro se plaintiff. But the judge ordered gov-t to respond, which means AUSA will contact USCIS and, hopefully, ask to adjudicate your case. AUSA usually responds right before the deadline, so just monitor you case in pacer and look for appearance entry for defendants (to find out who is assigned to your case).
 
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lazycis said:
It's a good development. The chances are slim to get a TRO against the government for pro se plaintiff. But the judge ordered gov-t to respond, which means AUSA will contact USCIS and, hopefully, ask to adjudicate your case. AUSA usually responds right before the deadline, so just monitor you case in pacer and look for appearance entry for defendants (to find out who is assigned to your case).
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Thank you, lazycis. Do you think it'll be good to contact the AUSA before the deadline to find out what he/she intends to do?

I will start preparing now and I will fight till the end.
 
My case information is in PACER now and the Judge's order is also in the system.

ORDER
Before the court is Plaintiff’s Application for Preliminary Injunction and Temporary Restraining Order, filed September 19, 2008. Plaintiff seeks a hearing on her application on or before September 30, 2008. The court will expedite the government’s response. If it determines that a hearing is necessary, a hearing will be set on or before September 30, 2008. If not, the court will decide the application on the parties’ written submissions. Defendants’ response to Plaintiff’s application must be filed by 5:00 p.m. on September 29, 2008. The court directs the clerk of the court to place a copy of this order in the United States Attorney’s box in the clerk’s office. It is so ordered this 22nd day of September, 2008.

The government response is actually due on September 29. If the AUSA wouldn't respond until last minute, and then if the Judge set a hearing next day, there is really not much time...
 
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IMHO, what's important is the Receive date of I-485 and not the PD for the purpose of determining the delay in the context of mandamus suits for delayed AOS cases. If you are asking that if 8 days are enough to file for TRO like lvla did. May be yes, but it's going to be on quite a short notice. You could certainly follow lvla's example.
Do have a good record of efforts that you have done to resolve the delay(was it name check?) in your AOS?
raju_vijay said:
Lazycis and Jeff

Mine is EB2 Dec 2004. I-485 Notice date October 11th 2007. It is current now till end of this month. Do i have enough time to go for a lawsuit, if yes please let me know. I am ready to go for it.
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