Usual USCIS tactic...
resal_looc said:
Dear all,
I filed my WOM for my pending I-485 (RD Dec. 2004) in September, this year.
Then I got an RFE for my I-485. My beloved company attorney is still working on it. Hopefull they would submit it by today.
I just received a letter, after getting a phone call, from the US attorney representing USCIS, motion to dismiss due to lack of subejct discretion.
I am not sure if this is the experience of guys/gals on this board. But at this point, I would like to see if anyone knows better than what I can find on this board.
1. Any attorney who has successfully represented anyone for WOM appearance in court?
2. Has anyone on this board ever gone to court themselves?
3. Is it possible to transfer to a different district court, with a more friendly record (e.g. N. CA or NY, CT, MA), with a pending job relocation? I am fighting against US attorney in Detroit, my district court is in Ann Arbor.
Many thanks!
EB2-NIW-CHINA AD: Nov. 2004I-485: RD: Dec. 2004
Hi there,
The motion to dismiss this case by US attorney as lacking due to discretion is their usual playbook. Since you have lawyer, he need to file a motion opposing this motion from US Attorney, and cite relevant cases which warrant this matter to be brought before the District Court in Ann Arbor. There are over 100 cases which your lawyer can site which will see to it that Judge rule in your favor, to get the case move forward, meaning to be heard in front of HIS courtroom. In about 99% of lawyer filing to oppose the motion from the US attorney, judges have ruled in their favor and found the govt or US attorney to be negligent or not providing proof as why this case should not be heard. So, your lawyer should file a motion to oppose a request by the US govt....
Realise this, if you have a lawyer representing you in the immigration process, he is supposed to represent you in court. However, you can be represented by an attorney, should you so desire. However, you need to file a brief or notice with the court that you are now represented by attorney, this will have to be communicated to all the parties to the lawsuits. If you personally filed the motion, then you can represent yourself in court. However, the govt will have trained lawyers on their side, so you can represent yourself, by filling this motion for yourself, but you have to write a powerful motive to oppose this motion by US attorney. Man, you can do this... As long as you cite revelant case law, the judge is going to deny US attorney motion based on your compelling case law and opposition, and immediately set a date for trial. My experience, once the govt loses this motion, they act quickly to adjudicate your case, so as to avoid trial at all costs. It involves appt jury, which is money and time. So, they quickly act to finish your case, but they will ask you to withdraw your case, because once it is in the district court, they have no power to adjudicate it. However, you will have to withdraw your case without prejudice from the case, GIVING YOU AN OPTION TO Refile should they fail to give you the benefit sought within a time frame. You will have to negotiate and GET IN WRITING with the US attorney the time he needs to get USCIS to approve or deny your petition, generally give him 30 days. After all, you have been waiting for a long time.... So, each deal you make with the US attorney, get it in writing to ensure that you have proof, and don't agree to anything with him or her, without seeing it in black and white.
Lastly, when you move to another state, that district office cannot adjudicate your case for 3 months, until to have met a residency test in the jurisdiction. Also, where you file a case, unless there unusual circumstance for the case to be moved, it will be heard there. However, you can withdraw the case, wait for 3 months in your new state, and file a lawsuit again against the USCIS. However, you want to avoid being seen as filing frivolous lawsuits against USCIS, but in my viewpoint, it will not be....
Good luck...
