Filed WOM, FBI wants to dismiss the case. Pls help

K

kefira

Registered Users (C)
I am stuck in name check since March 13, 2005. I had my interview for I485 on May 2, 2005 and was approved, but did not receive the GC due of course to the pending name check. On Oct 30, 2006 I filed WOM with San Francsico court and on Dec 31, 2006 received a letter where FBI ask judge to dismiss my case:

FIRST AFFIRMATIVE DEFENSE
Plaintiff's complaint fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
The court should dismiss the complaint under Fed. R. Civ. P. 12(b)(6) because plaintiff cannot establish tht defendants' duty to act is ministerial, that no other adequate remedy is available, or that plaintiffs have a clear right to the relief sought. See 28 U.S.C. @1361.
WHEREFORE, defendants pray for the relief as follows:
That judgement be entered for defendants and against plaintiffs, dismissing plaintiff's complaint with prejudice; that plaintiff take nothing; and that the Court grant such further relief as it deems and proper under the circumstances.

I used all materials to file my WOM from this forum. I wrote to senator, had couple infopasses, wrote personally to David Still and never received a reply from him. My second FP was cleared on Dec 16, 2006 (FP did on Nov 10, 2006). In my WOM I identified that I was legally in the country with H1B visa prior to my marriage, and they denied it and said that I was with TN visa, that I received on March 19, 2005 -and it is wrong, since my first EAD card was issued on March 4, 2005.

What should I do now? Since I submitted my case PerSe and based on all other people experience I thought that my case will be resolved successfully, but it looks now that I need to continue to fight. I am from russian descent and believe have pretty unique first and last name and of course no criminal/illegal activities in the country.
 
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get a lawyer

kefira said:
I am stuck in name check since March 13, 2005. I had my interview for I485 on May 2, 2005 and was approved, but did not receive the GC due of course to the pending name check. On Oct 30, 2006 I filed WOM with San Francsico court and on Dec 31, 2006 received a letter where FBI ask judge to dismiss my case:

FIRST AFFIRMATIVE DEFENSE
Plaintiff's complaint fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
The court should dismiss the complaint under Fed. R. Civ. P. 12(b)(6) because plaintiff cannot establish tht defendants' duty to act is ministerial, that no other adequate remedy is available, or that plaintiffs have a clear right to the relief sought. See 28 U.S.C. @1361.
WHEREFORE, defendants pray for the relief as follows:
That judgement be entered for defendants and against plaintiffs, dismissing plaintiff's complaint with prejudice; that plaintiff take nothing; and that the Court grant such further relief as it deems and proper under the circumstances.

I used all materials to file my WOM from this forum. I wrote to senator, had couple infopasses, wrote personally to David Still and never received a reply from him. My second FP was cleared on Dec 16, 2006 (FP did on Nov 10, 2006). In my WOM I identified that I was legally in the country with H1B visa prior to my marriage, and they denied it and said that I was with TN visa, that I received on March 19, 2005 -and it is wrong, since my first EAD card was issued on March 4, 2005.

What should I do now? Since I submitted my case PerSe and based on all other people experience I thought that my case will be resolved successfully, but it looks now that I need to continue to fight. I am from russian descent and believe have pretty unique first and last name and of course no criminal/illegal activities in the country.
Click to expand...
 
You may want to check the suing USCIS thread in the citizenship forum. I believe many WoM filers have received this motion to dismiss - particularly if the 60 day deadline to respond is close and the name check is still not done. This doesn't mean the case will be dismissed - I would suggest you read that thread and look for examples on how to respond to this.
 
kefira said:
I am stuck in name check since March 13, 2005. I had my interview for I485 on May 2, 2005 and was approved, but did not receive the GC due of course to the pending name check. On Oct 30, 2006 I filed WOM with San Francsico court and on Dec 31, 2006 received a letter where FBI ask judge to dismiss my case:

FIRST AFFIRMATIVE DEFENSE
Plaintiff's complaint fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
The court should dismiss the complaint under Fed. R. Civ. P. 12(b)(6) because plaintiff cannot establish tht defendants' duty to act is ministerial, that no other adequate remedy is available, or that plaintiffs have a clear right to the relief sought. See 28 U.S.C. @1361.
WHEREFORE, defendants pray for the relief as follows:
That judgement be entered for defendants and against plaintiffs, dismissing plaintiff's complaint with prejudice; that plaintiff take nothing; and that the Court grant such further relief as it deems and proper under the circumstances.

I used all materials to file my WOM from this forum. I wrote to senator, had couple infopasses, wrote personally to David Still and never received a reply from him. My second FP was cleared on Dec 16, 2006 (FP did on Nov 10, 2006). In my WOM I identified that I was legally in the country with H1B visa prior to my marriage, and they denied it and said that I was with TN visa, that I received on March 19, 2005 -and it is wrong, since my first EAD card was issued on March 4, 2005.

What should I do now? Since I submitted my case PerSe and based on all other people experience I thought that my case will be resolved successfully, but it looks now that I need to continue to fight. I am from russian descent and believe have pretty unique first and last name and of course no criminal/illegal activities in the country.
Click to expand...

against who you applied the WOM? FBI or USCIS?

what does a dismissal of the case means exactly? what are its implications?
and why in fbi opinion's it should be dismissed?
 
rduman said:
You may want to check the suing USCIS thread in the citizenship forum. I believe many WoM filers have received this motion to dismiss - particularly if the 60 day deadline to respond is close and the name check is still not done. This doesn't mean the case will be dismissed - I would suggest you read that thread and look for examples on how to respond to this.
Click to expand...

I talked to lawyer and he said at this stage I can do nothing, since in my WOM I stated clearly what was done on my behalf and why I want to get the answer. AUS said that I do not need to do anything, but just wait for conf call on Jan 18, but I just want to be prepared... but again I cannot add much to what I already wrote in WOM.

I read the forum and the info that I found was regarding naturalization name check. GC name check is different and there is no really certain timdeframe to resolve it.
 
antonioa77 said:
against who you applied the WOM? FBI or USCIS?

what does a dismissal of the case means exactly? what are its implications?
and why in fbi opinion's it should be dismissed?
Click to expand...

I applied against FBI and USCIS.

>what does a dismissal of the case means exactly?
In Plain english, it means that my case should be CLOSED.

>what are its implications?
The case will be CLOSED

>why in fbi opinion's it should be dismissed?
I do not have enough reasons to complain and sue the goverment.

I hope I answered your questions.
 
kefira said:
I read the forum and the info that I found was regarding naturalization name check. GC name check is different and there is no really certain timdeframe to resolve it.
Click to expand...

While it is true that most of the law suit cases mentioned on this forum relate to citizenship, there are a few examples of 485 cases as well. While there is no definite timeframe for 485 adjudication legally, most Wom filers seem to mention two things: the AC-21 act in which congress that it expected immigration benefits to be processed in 6 months, and secondly compare your own time line to the current processing dates of the service centers at which you filed. If your application has been pending well above 6 months and well past current processing dates, then you can claim an "unreasonable delay".
 
I filed WOM in san Diego and I got my name check expedited. I wrked through a lawyer.

I suggest that:
a) Get a lawyer to work on teh current case which you filed
b) Or if possible file a new WOM lawsuit via a lawyer.

However, please keep in mind that they are trying to pass a new law which will remove WOM from expedite critesria.

And one more thing. I think my WOM was filed against USCIS. Not FBI (not sure though).

good luck.

Santosh
 
Kefira: What was the outcome of your call?

Kefira,
Please update us on what happened to your case. It will help a lot of others on the forum deciding whether to filea WoM.
Thanks.
Desi
 
Kefira: What was the outcome of your call?

Kefira,
Please update us on what happened to your case. It will help a lot of others on the forum deciding whether to filea WoM.
Thanks.
Desi
 
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