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  #1 (permalink)  
Old 05-06-2008, 02:01 PM
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Default IV spotlight: Writ of Mandamus for I485 delays

Please post all useful information about writ of madamus lawsuits in one place.

The intent is to have all information available in a single thread so that members can know complete information. If it is easy, members can also file lawsuit this themselves.

I have recently come across someone who filed this himself and got approved. Having such information will help people who are still stuck due to delays by USCIS.
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  #2 (permalink)  
Old 05-06-2008, 02:12 PM
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Default Found this on the internet

Steps to take to file a lawsuit:

1. Contact your Federal District Court and ask for a Civil Case Pro Se package.
2. Read it and follow the instructions.
3. Prepare a lawsuit on Microsoft word. Print it and sign it.
4. Get a Civil Cover sheet and fill it out.
5. Call the court and ask to speak to the clerk...explain your situation and listen for advice.
6. Either mail in or drop off the papers [complaint (with exhibits if any) + cover sheet]
7. The court will send you a summons with your case number.
8. Make copies of the summons and your complaint. (one for each defendant and an extra copy for the US attorney in your district)
9. Put the case # on all copies.
10. Serve the complaint + summons + exhibits if any via CERTIFIED MAIL RETURN RECEIPT REQUESTED on all defendants and the US atty office. Call the US ATTORNEY and get their address and the right department you should send your complaint to.
11. Wait for the return receipt. The 60-day count starts from the date shown on the receipt received from the US atty.
12. File the return receipt with the court, and send a copy to the US atty office.
13. From here, everytime you file something with the court, send a copy to the US attorney and file a Certificate of service with the court.
14. 2 weeks before the expiration of the deadline, call the US atty, introduce yourself, and ask about your case.
15. Hopefully they will take action on your case and most desirably approve it.

When you file a lawsuit, with your complaint, you have to introduce a Civil Cover Sheet, Basically this allows the court's clerk to classify your case in the system. All immigration lawsuits are filed under code 890 for Nature of Suit. Make sure you use your district court's cover sheet. You may download it online.

While you are reading this, and filing your suit, do not get trapped in the Analysis Paralysis syndrom. Don't get scared or worried about small administrative issues. The Court knows you are a Pro Se applicant and does not expect you to be perfect. Just GO FOR IT, take the first step and things will become clearer as you go along. The first step is the hardest, but trust me, YOU CAN DO IT. I DID.
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  #3 (permalink)  
Old 05-06-2008, 02:16 PM
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Default

Quote:
Originally Posted by gcpool View Post
Steps to take to file a lawsuit:

1. Contact your Federal District Court and ask for a Civil Case Pro Se package.
2. Read it and follow the instructions.
3. Prepare a lawsuit on Microsoft word. Print it and sign it.
4. Get a Civil Cover sheet and fill it out.
5. Call the court and ask to speak to the clerk...explain your situation and listen for advice.
6. Either mail in or drop off the papers [complaint (with exhibits if any) + cover sheet]
7. The court will send you a summons with your case number.
8. Make copies of the summons and your complaint. (one for each defendant and an extra copy for the US attorney in your district)
9. Put the case # on all copies.
10. Serve the complaint + summons + exhibits if any via CERTIFIED MAIL RETURN RECEIPT REQUESTED on all defendants and the US atty office. Call the US ATTORNEY and get their address and the right department you should send your complaint to.
11. Wait for the return receipt. The 60-day count starts from the date shown on the receipt received from the US atty.
12. File the return receipt with the court, and send a copy to the US atty office.
13. From here, everytime you file something with the court, send a copy to the US attorney and file a Certificate of service with the court.
14. 2 weeks before the expiration of the deadline, call the US atty, introduce yourself, and ask about your case.
15. Hopefully they will take action on your case and most desirably approve it.

When you file a lawsuit, with your complaint, you have to introduce a Civil Cover Sheet, Basically this allows the court's clerk to classify your case in the system. All immigration lawsuits are filed under code 890 for Nature of Suit. Make sure you use your district court's cover sheet. You may download it online.

While you are reading this, and filing your suit, do not get trapped in the Analysis Paralysis syndrom. Don't get scared or worried about small administrative issues. The Court knows you are a Pro Se applicant and does not expect you to be perfect. Just GO FOR IT, take the first step and things will become clearer as you go along. The first step is the hardest, but trust me, YOU CAN DO IT. I DID.
Thats great.
So you did it without a lawyer?
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  #4 (permalink)  
Old 05-06-2008, 02:58 PM
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Default I did not do it

I did not do it.
I found it here http://boards.immigration.com/showthread.php?t=216772
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  #5 (permalink)  
Old 05-06-2008, 04:27 PM
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Default check this one

http://en.wikibooks.org/wiki/FBI_nam...Filing_Lawsuit
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  #6 (permalink)  
Old 05-06-2008, 05:27 PM
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Default

Quote:
Originally Posted by lazycis View Post
Laycis,
could you post information for people who are not stuck in namechecks (since namecheck is no longer a reason now for delays per new memo). If the case is outside processing time and PD is current, even then a WOM can be filed.
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  #7 (permalink)  
Old 05-06-2008, 05:31 PM
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Default

this is good to know, whats a good enuf "wait" time before one takes this route if everything else is cleared including NC and PD is current?

Quote:
Originally Posted by lazycis View Post
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  #8 (permalink)  
Old 05-06-2008, 05:37 PM
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Default

Quote:
Originally Posted by pappu View Post
Laycis,
could you post information for people who are not stuck in namechecks (since namecheck is no longer a reason now for delays per new memo). If the case is outside processing time and PD is current, even then a WOM can be filed.
Well, the lawsuit process is the same notwithstanding the reason for the delay. The template posted in wiki (as well as opinions referenced on wiki name check page) is suitable for all delayed I-485.
http://www.immigrationportal.com/att...7&d=1191491072
If name check is cleared, the number of defendants can be reduced to two (Chertoff+Mukasey).
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  #9 (permalink)  
Old 05-06-2008, 05:56 PM
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Default

Quote:
Originally Posted by maverick_joe View Post
this is good to know, whats a good enuf "wait" time before one takes this route if everything else is cleared including NC and PD is current?
If your PD is more that a month earlier than current processing date posted by USCIS, you should start sending inquiries to USCIS+ Ombudsman+ congressman. In the meantime work on the complaint. By the time you will receive responses to your inquiries (2-4 months), it will be the time to file a complaint.
Federal regulations state that adjudication can be delayed for more than a year only if the delay is authorized by USCIS district director. After that, every six months USCIS authorities have to approve any further delay. Therefore, anyone whose I-485 has been pending for over a year can argue that it is been delayed unreasonably and unlawfully.
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  #10 (permalink)  
Old 05-06-2008, 09:07 PM
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Default

Quote:
Originally Posted by lazycis View Post
If your PD is more that a month earlier than current processing date posted by USCIS, you should start sending inquiries to USCIS+ Ombudsman+ congressman. In the meantime work on the complaint. By the time you will receive responses to your inquiries (2-4 months), it will be the time to file a complaint.
Federal regulations state that adjudication can be delayed for more than a year only if the delay is authorized by USCIS district director. After that, every six months USCIS authorities have to approve any further delay. Therefore, anyone whose I-485 has been pending for over a year can argue that it is been delayed unreasonably and unlawfully.
Could you pls post a link to that federal regulation.
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  #11 (permalink)  
Old 05-07-2008, 12:26 AM
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Default

Quote:
Originally Posted by pappu View Post
Could you pls post a link to that federal regulation.
http://edocket.access.gpo.gov/cfr_20.../8cfr103.2.pdf

8 C.F.R. 103.2(b)(18)
(18) Withholding adjudication. A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation. If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director's determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.


Therefore, withholding adjudication should be authorized by the USCIS district director (at 1 and 1.5 year marks), by the USCIS regional commissioner (at 2 year mark) and by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement every 6 months thereafter. (that's my translation of the regulation) Note that withholding is appropriate only if there is ongoing investigation and disclosure of reason for the delay would prejudice the ongoing investigation.
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Last edited by lazycis; 05-07-2008 at 12:38 AM.
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  #12 (permalink)  
Old 05-07-2008, 02:45 AM
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Default I am thinking...

Would many multiple lawsuits by committed people help the community at large ? what do you guys think ?

I mean, we can all discuss here, many will get busy and everything, some will lose interest, many will procrastinate and have the "let others do it" attitude...but the few who want to make a difference, I am ready for it if people agree ?
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  #13 (permalink)  
Old 05-07-2008, 10:45 AM
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Default

Quote:
Originally Posted by here4gc View Post
Would many multiple lawsuits by committed people help the community at large ? what do you guys think ?

I mean, we can all discuss here, many will get busy and everything, some will lose interest, many will procrastinate and have the "let others do it" attitude...but the few who want to make a difference, I am ready for it if people agree ?
If you google for "uscis legal settlement notices" you will find that lawsuits can be helpful.
The regulation cited above applies to I-140/EAD/AP/H1B petitions as well. However in I-140/H1b case the lawsuit has to be brought by employer, which is not always easy to accomplish.
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  #14 (permalink)  
Old 05-07-2008, 12:11 PM
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lazycis,

http://immigrationvoice.org/forum/sh...68&postcount=8

any lawsuits won citing this provison in the law yet?
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  #15 (permalink)  
Old 05-07-2008, 02:22 PM
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Default

Quote:
Originally Posted by pappu View Post
lazycis,

http://immigrationvoice.org/forum/sh...68&postcount=8

any lawsuits won citing this provison in the law yet?
8 USC 1571-1573 is actively being used to prove that the delay is unreasonable. However, it's not a mandatory deadline. It's also just one of the factors (usually six TRAC factors are being used) when courts consider reasonablesness of the agency delays. Even if agency misses mandatory deadline, it can be excused in some cases. So you cannot just file a lawsuit on the 181st day and expect to win.
I highly recommend reading this opinon to understand the details:
http://bibdaily.com/pdfs/Aslam%201-25-08a.pdf
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