Lawsuit / Litigation against USCIS
I seriously considered federal court and did some groundwork. Here are some things I found out, that I didn't see elsewhere. Remember, this is all my groundwork and I'm not an attorney, and no one has validated below, so they may NOT be correct.
- Only attorneys admitted to practice in a court can file a lawsuit on your behalf there. So before you mentally decide on an attorney, make sure they are admitted to practice in your local district court
- Not all attorneys practice litigation (as a matter of choice). Attorneys who will get into litigation is a subset of immigration attorneys. Often times, the only way to even start a dialog would be to schedule a consultation.
- The other side of fight will be US Attorney General representing USCIS (I think). That office is not same as USCIS. They will try to get USCIS to finish up the case so that they don't need to defend USCIS unnecessarily. Your best bet would be for your attorney to negotiate to make this happen. This would probably be the most desirable and cost effective option.
- Filing a mandamus action will not guarantee adjudication. USCIS can simply show that they are still validly working on your case and depending on the judge, that may be the end. You may need to use other things like Administrative Procedures Act.
- In case with strong legal basis against delay (like EAD delayed far beyond 90 days, where regulations set a limit on time to adjudicate), and the course of action to pursue would probably be for a declarative judgment
- Expect to spend about $3-$10k if you hire a very good attorney and do the first set of filings. And if the case gets into a protracted lawsuit, it will cost even more. Good attorneys are very very expensive, and very hard to get hold of.
- In cases where there's no mandatory time limit (like AOS), you can still use a section of Administrative Procedures Act. USCIS has a non-discretionary duty to adjudicate AOS in reasonable time. But such cases where there's no clear time limit gets LOT more complex and subjective.
- USCIS will likely not initially argue on the case strength. Instead, they will first simply try to get your case dismissed on basis of jurisdiction or standing or subject matter expertise. They do this everyday, and so will have got very good at it. At this point, you'll need an experienced lawyer at immigration litigation to convince the court to continue hearing.
- See Rajiv's class action filings closely. If you file, the legal basis (Administrative Procedures Act, Mandamus etc) will be similar to the points mentioned in Rajiv's filings. Indeed Rajiv's filing seems to be quite a definitive case, if only the court will get past the class action issue and take up the content..
- There is a section called EAJA. You can recover attorney fees from USCIS using this, if you go to court AND win. However, it is typical to give up EAJA fees during negotiation phase, so don't count on EAJA to cover attorney fees.
- You will hear lawsuits of people suing McDonalds for coffee being too hot. But suing government is different matter. There is a principle that basically shields government agencies from former type lawsuits. USCIS is even harder. The legal basis for suing USCIS is quite flimsy and complex.
- Go to your biggest local library. You may find a huge set of volumes showing various court opinions and summaries over the years. These can be informative, if you manage to locate a relevant case. Also, if you have a specific case code, you can try finding it in these books.
- There is a court system called PACER that apparently has some more information about historic filings (has a per page view charge). I don't know if this is accessible to public and never got around to finding out. Just search for pacer on google.
Remember, I never actually filed a case. This is information I gathered while thinking of filing a case. Hope this helps somebody else.
~T
I seriously considered federal court and did some groundwork. Here are some things I found out, that I didn't see elsewhere. Remember, this is all my groundwork and I'm not an attorney, and no one has validated below, so they may NOT be correct.
- Only attorneys admitted to practice in a court can file a lawsuit on your behalf there. So before you mentally decide on an attorney, make sure they are admitted to practice in your local district court
- Not all attorneys practice litigation (as a matter of choice). Attorneys who will get into litigation is a subset of immigration attorneys. Often times, the only way to even start a dialog would be to schedule a consultation.
- The other side of fight will be US Attorney General representing USCIS (I think). That office is not same as USCIS. They will try to get USCIS to finish up the case so that they don't need to defend USCIS unnecessarily. Your best bet would be for your attorney to negotiate to make this happen. This would probably be the most desirable and cost effective option.
- Filing a mandamus action will not guarantee adjudication. USCIS can simply show that they are still validly working on your case and depending on the judge, that may be the end. You may need to use other things like Administrative Procedures Act.
- In case with strong legal basis against delay (like EAD delayed far beyond 90 days, where regulations set a limit on time to adjudicate), and the course of action to pursue would probably be for a declarative judgment
- Expect to spend about $3-$10k if you hire a very good attorney and do the first set of filings. And if the case gets into a protracted lawsuit, it will cost even more. Good attorneys are very very expensive, and very hard to get hold of.
- In cases where there's no mandatory time limit (like AOS), you can still use a section of Administrative Procedures Act. USCIS has a non-discretionary duty to adjudicate AOS in reasonable time. But such cases where there's no clear time limit gets LOT more complex and subjective.
- USCIS will likely not initially argue on the case strength. Instead, they will first simply try to get your case dismissed on basis of jurisdiction or standing or subject matter expertise. They do this everyday, and so will have got very good at it. At this point, you'll need an experienced lawyer at immigration litigation to convince the court to continue hearing.
- See Rajiv's class action filings closely. If you file, the legal basis (Administrative Procedures Act, Mandamus etc) will be similar to the points mentioned in Rajiv's filings. Indeed Rajiv's filing seems to be quite a definitive case, if only the court will get past the class action issue and take up the content..
- There is a section called EAJA. You can recover attorney fees from USCIS using this, if you go to court AND win. However, it is typical to give up EAJA fees during negotiation phase, so don't count on EAJA to cover attorney fees.
- You will hear lawsuits of people suing McDonalds for coffee being too hot. But suing government is different matter. There is a principle that basically shields government agencies from former type lawsuits. USCIS is even harder. The legal basis for suing USCIS is quite flimsy and complex.
- Go to your biggest local library. You may find a huge set of volumes showing various court opinions and summaries over the years. These can be informative, if you manage to locate a relevant case. Also, if you have a specific case code, you can try finding it in these books.
- There is a court system called PACER that apparently has some more information about historic filings (has a per page view charge). I don't know if this is accessible to public and never got around to finding out. Just search for pacer on google.
Remember, I never actually filed a case. This is information I gathered while thinking of filing a case. Hope this helps somebody else.
~T
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