FBI Name Check

The objective of this book is to provide a general guide for dealing with FBI name check. It is recommended that all users read the Essential information section, which consists of the first half of the article. Lawsuit steps contains step by step information about how to file a lawsuit by yourself. Also, readers are advised to review The American Immigration Law Foundation page on recent mandamus litigation which provides a comprehensive review of litigation strategy and recent mandamus litigations.

Essential information

FBI Name Check is requested by USCIS for immigration benefit applicants. The FBI NNCP conducts manual and electronic searches of the FBI’s Central Records System (CRS) Universal Index (UNI). The CRS encompasses the centralized records of FBI Headquarters, field offices, and Legal Attache offices. The CRS contains all FBI investigative, administrative, personnel, and general files. After September 11 2001, many immigration applicants have experienced significant delay due to increasing number of cases. FBI published Frequently Asked Questionsrecently regarding the delay which may not tell the whole story as practically the problem with delays is much serious and pervasive as per USCIS Ombudsman annual report for 2007.

This document has detailed information about the name check process associated with application for immigration benefit.

USCIS Ombudsman Report 2007 reported on page 55 that "Name Checks and Other Security Checks FBI name checks, one of several security screening tools used by USCIS, continue to significantly delay adjudication of immigration benefits for many customers, hinder backlog reductions efforts, and may not achieve their intended national security objectives. FBI name checks may be the single biggest obstacle to the timely and efficient delivery of immigration benefits. The problem of long-pending FBI name check cases worsened during the reporting period"

Recent declaration of Michael Cannon, filed in a civil case in Georgia reinforces the fear that the name check process is not based on first in - first out principle: "Another exception to the first-in, first-served policy is a near-term effort agreed to by USClS and the FBI to reduce the number of pending USCIS name check requests by prioritizing "single hit" name checks". Moreover, if a request is pending a long time, it may be required to go thru the process again multiple times! As Mr. Cannon says: "Please note that additional searches against the FBI's Universal Index, additional manual name searches, and/or additional file review of a name check request, depending on the length of time a name check request is pending in the processing queue, may occur periodically during the name check process to ensure that stale information is updated". Therefore, if you have more than one hit the only recourse to avoid waiting for years and years is to file a lawsuit against the USCIS.

Check also this document obtained as part of discovery in a civil case in Oregon. The document sheds more light on how the decision was made by FBI to search both main and reference files for all name check requests submitted by the USCIS. It also has more details about the name check process. All requests from the USCIS get the Priority Level 3 - requests from major customers without specific deadlines.

See also this court order that reveals that the government was not ready to process required volume of name checks when the USCIS changed policy in 2004. The FBI needs to triple NNCP staff just to keep up with the daily flow of the USCIS requests. No wonder that the backlog is growing.

"The government concedes that the agency within the FBI responsible for name checks, the National Name Check Program Section {"NNCPS"), is understaffed. Approximately 3.3 million name checks are requested each year, resulting in 330,000 checks that proceed past the second stage. As of 2006, NNCPS only employed 103 personnel, 59 of which are dedicated to performing name checks for CIS. To meet its internal goals, the FBI has estimated that it needs 180 employees to process the CIS requests alone."

It's nice to see how the judge rebuffs USCIS arguments that they are trying to address the delay.

"There is no evidence of any efforts by CIS to take responsibility for and help remedy the existing name check process. Rather, CIS forwards the request to the FBI and then disclaims any accountability for a delay. This is the very definition of agency recalcitrance - an inability or unwillingness to fix an obvious problem that it helped to create."

How do I know whether I am still in name check by FBI

1. USCIS infopass/inquiry. Call the USCIS customer service and ask to talk to an immigration officer.
2. Send inquiry to the CIS Ombudsman. Click here for details.
3. Send inquiry to your congressman/senator.
4. Refer to the attached file in the following immigrationportal thread for some common FAQs on namecheck (http://www.immigrationportal.com/showthread.php?t=215932).

Name check expedite criteria

There have been two Memos by USCIS that explain the criteria to expedite name check. The 2005 Memo (click here) indicates a pending writ of mandamus lawsuit as a condition for expedited name check. Later on USCIS had another Memo dated Feb 20, 2007 (click here) which removes the lawsuit as a condition to expedite name check.

Filing Lawsuit

Definitions

See US Attorneys' Manual for definitions of common terms (mandamus, service of process, etc.)

AUSA = Assistant US Attorney. S/he is the lawyer who is representing the Defendants in cases when you sue the government (and of course, s/he is the counsel of the Plaintiffs when the government sues somebody, but this is irrelevant in such cases)

What is a Motion?

MTD = Motion to Dismiss A motion to dismiss the complaint argues that there are legal problems with the way the complaint was written, filed, or served. Rule 12(b) of the Federal Rules of Civil Procedure lists the following defenses that can be raised in a motion to dismiss the complaint:
- 1. Motion to dismiss the complaint for lack of subject matter jurisdiction. In this type of motion the defendant argues that the court does not have the legal authority to hear the kind of lawsuit that the plaintiff filed.
- 2. Motion to dismiss the complaint for lack of personal jurisdiction over the defendant. In this type of motion the defendant argues that he or she has so little connection with the district in which the case was filed that the court has no legal authority to hear the plaintiff’s case against that defendant.
- 3. Motion to dismiss the complaint for improper venue. In this type of motion the defendant argues that the lawsuit was filed in the wrong place.
- 4. Motion to dismiss the complaint for insufficiency of process, or for insufficiency of service of process. In these types of motions the defendant argues that the plaintiff did not prepare the summons correctly or did not properly serve the summons on the defendant.
- 5. Motion to dismiss the complaint for failure to state a claim. In this type of motion the defendant argues that even if everything stated in the complaint is true, the defendant did not violate the law. A motion to dismiss for failure to state a claim is not appropriate if the defendant wants to argue that the facts alleged in the complaint are not true. Instead, in a motion to dismiss the complaint for failure to state a claim the defendant assumes that the facts alleged in the complaint are true, but argues that those facts do not constitute a violation of any law.
MSJ = Motion for Summary Judgment

Lawsuit steps

1. Contact your Federal District Court and ask for a Civil Case Pro Se package. Read it.
2. Prepare a lawsuit on Microsoft word (use appropriate complaint template for naturalization or adjustment of status). Print it and sign it.
3. Fill out a Civil Cover sheet and print it out. Note: some district courts have customized JS-44 and may have an extra page to fill up. Check with your local court before filing.
4. Locate you federal district court using your zip code and this link.
5. You can file the original complaint in person at the district court clerk's office or by mail. You need to have signed complaint (with exhibits if any) + cover sheet + check for $350 payable to "Clerk, US District Court" + summons if you file in person (see the next paragraph).
6. Fill and print the summons for all defendants. Use the summons form. (If you sent the original complaint by mail, the court will send you blank summons with your case number.)
7. Make copies of the summons and your complaint, one for each defendant and an extra copy for the US attorney in your district. You can find the name and address of your district US Attorney here.
8. Put the case # on all copies. Make copies of summons to file a proof of service later on.
9. Serve the complaint + summons + exhibits if any via CERTIFIED MAIL on all defendants and the Local US Attorney’s office with a copy to US Attorney General at Washington D.C. (if US AG is one of the defendants, no need to send two copies to him/her, one is enough). Each defendant should get a copy of complaint and summons with his/her name. Local US Attorney gets a copy of complaint and a copy of summons for each defendant. Some courts require the RETURN RECEIPTS in addition to certified mail. To be on the safe side, pay for the Return Receipts (you can request electronic return receipts as a cheaper option). Some courts accept the receipts for the certified mail and the USPS online delivery tracking as a Proof of Service.
10. Check the delivery of your summons on the USPS website. The 60-day count starts from the date AUSA receives your complaint. Note: some courts require that the summon to the AUSA to be address to "Attn: Civil processing clerk", otherwise your summon will not be considered received. Check the local rules before sending summons out.
11. Use the USPS online tracking record to fill "Return of service" section for all summons (back page or second page of the summons form). Attach return receipts or USPS printouts. File "Return of service" with the court.
12. From here, every time you file something with the court, send a copy to your local US attorney and file a Certificate of service with the court.
13. 2 weeks before the expiration of the 60-day deadline, call the US Attorney, introduce yourself, and ask about your case.
14. Hopefully the name check will be cleared, and you'll get an approval within 2 to 3 months of filing the suit.

If you have any questions, post them on immigrationportal forum: http://boards.immigrationportal.com/showthread.php?p=1781629

If the name check is not cleared, then file a request for Discovery (see example), a Motion for Default Judgment, or a Motion for Summary Judgment, depending on your situation:

Discovery may not produce anything useful and may just prolong the case.
A Motion for Summary Judgment is likely to be more productive than Discovery.
A Response to Motion to Dismiss is useful, but is only appropriate if the defendant has filed a Motion to Dismiss.

Citizenship case

Actual lawsuit cases

Irina Astafieva v. Gonzales (see court order), NO. C 06-04820 JW

Here is an analysis about the case of Danilov v. Aguirre, et al., USDC Danilov Aguirre.

Example document for pending Naturalization (N-400)

If you applied for naturalization (N-400) and had an interview, use this document or this one

If you did not have an interview, use the template attached here or here

Adjustment of status (AOS)

Example Document for Writ of Mandamus for AOS (I-485) Applicants

Mandamus Suit Actual Document to File is attached here.

Examples of Opposition to Defendants' Motion to Dismiss

Defendants (USCIS, FBI, etc.) usually file motion to dismiss the lawsuit on two main grounds; lack of subject matter jurisdiction and failure to state a claim. Here are examples of responses to defendants' motion to dismiss:

Kassemi vs. DHS Response to MTD (click here)
Elkhatib v. Bulger petitioners reply to AUSA MTD (click here)
Ibrahim v. Chertoff, plaintiff brief in opposition to motion to dismiss (click here)
Wu v. Chertoff, Plaintiff's Opposition to Defendants' Motion to Dismiss filed through counsel (click here)
He vs. Chertoff (click here)

In order to write your own response to Motion to Dismiss, you may use the following draft and make modification to match your case:

Draft template to write response to MTD (click here)

AILF Legal Action Center

~~MANDAMUS ACTIONS: “HOW TO” AND SUMMARY OF RELEVANT CASE LAW July 18, 2003 by AILF Legal Action Center.~~Broken link, file possibly removed!
MANDAMUS ACTIONS: “HOW TO” AND SUMMARY OF RELEVANT CASE LAW

Example of a Case

(1) On 4/4/2006 Filed in Northern District of CA in San Jose by Pro Se. The Clerk gave me a bunch of documents and asked me to make copies and serve the Defendants with my complaint. I was assigned a judge on the spot, with location and time in San Jose Court building (all printed on a CMC sheet). I also received the case number, the stamped Summon, the Proof of Service sheet. By the way, the clerk even typed my name wrong, and I found it later. I did not bother to go back, so just corrected by hand the served all defendants. For the address and info about the court: http://www.cand.uscourts.gov/

(2) On 4/5/2006 US Attorney I served: Kevin Ryan in San Francisco. http://www.usdoj.gov/usao/offices/index.html#a

(3) A week later, Filed proof of service in the Court. It's very simple and easy. Just filled in the sheet and showed the Certified Mail Receipt. I did NOT have all the return receipt, as I know it will take forever to get anything back from Washington. I mailed everything with Priority + Certified + Return Receipt. There is an email service from USPS web page -- will email you the status of your mail. I printed all delivery confirmation emails sent from USPS. The clerk was happy about the proof. She was busy at the moment, took all my doc, promised me to file them later (and also correct my name).

(4) Two days later, I received a mail from Court -- the printed confirmation showing the dates that I served all the defendants (which were the dates showed in email delivery confirmation from USPS). On this sheet, the 60-day deadline was also printed (started from those dates I provided).

(5) I mailed the "proof" of "proof of service" -- the above sheet clerk gave me with all the serve dates and deadline dates -- to US Attorney in SF, Kevin Ryan, again.

(6) 4 weeks later, I was thinking about to contact Attorney office about my case.....

(7) then on 5/2/2006, a secretary in Attorney office (SF) called me..... it's all done! She asked me if I know how to dismiss, I said I don't know. She then faxed me the template to dismiss, and agreed to let me dismiss after I received formal letter from CIS.

Favorable Cases in Court

See this spreadsheet for I-130/I-485 (AOS) cases: http://spreadsheets1.google.com/ccc?key=pBQx8tqZHHU2A6Q-Pv9sULw&hl=en

Case where judge denied MTD and ordered specific timeline for name check completion and adjudication

Yong Tang v. Chertoff (see court order), 493 F.Supp.2d 148, D.Mass., June 26, 2007

The opinion has in-depth analyses on the jurisdiction-stripping statute of the INA (8 U.S.C. §1252(a)(2)(B)(ii)) and on the applicability of the APA to the processing of AOS applications. Not only did the court deny the defandants' MTD, but also ordered them to complete adjudication of the plaintiffs' I-485 cases by August 6, 2007. The judge wrote: "I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity." Action No. 07cv10231-NG, District of Massachusetts.

Singh v. Still (see court order), 470 F. Supp.2d 1064 (N.D. Cal. 2007)

Court ordered Respondents to complete the adjudication of pending I-485 application forthwith (i.e. immediately). Document of Interest: Document #29 “Order Granting Plaintiff’s Motion For Summary Judgement; And Denying Defendant’ Motion For Summary Judgement” The court found mandamus jurisdiction to order adjudication of plaintiff's Adjustment of Status Application (Form I-485). The court held that there was unreasonable delay in the adjudication of plaintiff's applications and that plaintiff had no other remedy. At the time the court issued its decision, plaintiff's asylum-based I-485 application had been pending for more than seven years and his marriage-based I-485 application had been pending for almost four years. The court noted that the government itself conceded that it has a mandatory duty to process I-485 applications. Case Number: 06-02458; Filed: April 7, 2006; Court: California Northern District Court; Office: San Francisco Office; Presiding Judge: Magistrate Judge Edward M. Chen

Aboushaban v. Mueller (see court order), No. 06-1280, 2006 U.S. Dist. LEXIS 81076 or in WestLaw: 2006 WL 3041086, (N.D. Cal. 2006)

Court ordered on 10/24/2006 the USCIS complete its adjudication of plaintiff’s I-485 application forthwith (i.e. immediately, at once). Document of Interest: Document #40 “Order Awarding Plaintiff Fees” covers reasons to deny defendants’ motion to dismiss. The court found jurisdiction over the mandamus action and ordered USCIS to complete adjudication of plaintiff's Adjustment of Status Application (Form I-485). Plaintiff's application had been pending for approximately eight years when the court issued its decision. Also see judge order to Grant Petitioner Legal Fees Page 8~9 finding FBI delay unreasonable. Case Number: 06-01280; Filed: February 22, 2006; Court: California Northern District Court; Office: San Francisco Office; Presiding Judge: Magistrate Judge Bernard Zimmerman

Elkhatib v. Bulter (see court order), Case No: 04-22407, (S. D. Fla., June 2005)

Court on 6/6/2005 denied MTD and ordered defendants to adjuciate within a detailed schedule (longest timeline is about 90 days from order date). Also Plaintiff's Reply to Respondents' Response to WOM.

Haidari v. Frazier (see court order), Civil No. 06-3215 (DWF/AJB), 2006 U.S. Dist. LEXIS 89177 (D. Minn. December 2006)

The court found jurisdiction over the mandamus action and ordered USCIS to complete its adjudication of plaintiffs' Adjustment of Status Application (Form I-485) within 30 days and to inform the court of its decisions. The court stated that it would maintain jurisdiction over the case to ensure that USCIS complied with its order. Document of Interest: Page 5~14 of Memorandum Opinion and Order discusses court opinion against defendants’ motion to dismiss. At the time the three plaintiffs filed their mandamus suit, two applications had been pending for four years and one had been pending for six years. Case Number: 06-03215; Filed: August 3, 2006; Court: Minnesota District Court; Nature of Suit: Other Statutes - Other Statutory Actions;

Yu v. Brown (see court order), 36 F. Supp. 2d 932

(holding a two-and-a-half year delay unreasonable)

Song vs. Klapakas (see court order), Song v. Klapakas, 2007 U.S. Dist. LEXIS 27203 (April 12, 2007)

Court denied defendants’ motion to dismiss and remanded to USCIS to complete adjudication of plaintiffs applications within thirty days. Court found that defendants’ failure to adjudicate an application for adjustment of status was not a discretionary decision. What is significant about the Song case is that the plaintiffs did not even file an opposition to the MTD from the defendants. The judge could have chosen to grant the MTD; instead, he went ahead and ruled in favor of the plaintiffs and ordered USCIS to adjudicate their AOS applications within 30 days. I485 was filed May 2005; Case Number: 2:2006cv05589; Filed: December 22, 2006; Court: Pennsylvania Eastern District Court; Office: Philadelphia Office; Presiding Judge: HONORABLE LAWRENCE F. STENGEL

Galvez v. Howerton 503 F. Supp. 35, 39 (C.D. Cal. 1980) (see court order)

Court ruled that a six-month delay in processing application for immigration benefit is unreasonable. Moreover, court ordered to issue visa numbers for plaintiffs from the previous fiscal year.

Paunescu v. INS, 76F. Supp. 2d 896 (N.D. Ill. 1999) (see court order)

Court ruled that a ten-month delay in processing application for immigration benefit is unreasonable

Jones v. Gonzales (see court order), 2007 U.S. Dist. LEXIS 45012 (S.D. Fla 2007)

CASE NO.: 07-20334-CIV; UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION; Decided June 21, 2007. Court denied Defendats' MTD and orders "reasonably prompt" AOS: "...no agency responsible for resolving matters of public interest should be free to let those matters pend in perpetuity ... REMANDED to the USCIS for reasonably prompt adjudication of Plaintiffs' I-485 Adjustment Applications."

Ibrahim v. Chertoff (see court order), 2007 U.S. Dist. LEXIS 38352, (S.D. Cal. May 24, 2007)

CASE NO. 06cv2071-L (POR) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA; May 24, 2007, Decided. Adjudication ordered "forthwith." Pending seven years. Pro se!

Liu v. Chertoff (see court order), 2007 U.S.Dist. LEXIS 61772 (E.D. CA. August 22, 2007).

Court grants Plaintiffs' motion for summary judgement. The order states: "In short, while there is no specific time frame imposed on Defendants to process I-485 applications, delay of more than two-and-a-half years is unreasonable under the specific circumstances because there is no evidence in the record demonstrating that the delay is attributable to Plaintiffs nor is there any particularized evidence in the record sufficiently explaining the reasons for the extended delay." Also court refers to 8 U.S.C. 1571(b) and reasons that: "While Congress has not set forth a statutory time limit for adjudication of I-485 applications, the USCIS is required to conclude the matters presented to it within a reasonable time. See 5 U.S.C. SS 555(b), 706(1); see also 8 U.S.C. § 1571(b) [*18] ('It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application . . .')."

Li v. Chertoff (see court order), 2007 U.S. Dist. LEXIS 53309 (US District Court for the District of Nebraska July 19, 2007)

The court denied defendants' motion to dismiss and ordered USCIS to complete adjudication of Li's I-485 application within thirty (30) days. The court reasons that "This Court concludes that the better reasoned view is that courts have jurisdiction at a minimum under the APA because defendants have a non-discretionary duty to process the I-485 application within a reasonable time, as distinct from its discretionary authority of whether to grant or deny the applications." Further, the court refers to Haidari's case and states: "This Court agrees with the Haidari court that 'the USCIS does not possess unfettered discretion to relegate aliens to a state of 'limbo,' leaving them to languish there indefinitely.'"

Liu v. Novak (see court order), Civil Action No. 07-263 (EGS), 2007 U.S. Dist. LEXIS 63683, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (August 30, 2007, Decided)

Court orders that Defendants must adjudicate Plaintiff's AOS by November 30, 2007

Tang v. Chertoff (see court order), 2007 U.S. Dist. LEXIS 64022 (E.D. of Ken. 2007), Decided August 29, 2007

"[T]he defendants' alleged failure to take timely action on the plaintiffs' application is not itself a decision, let alone a discretionary decision, but rather unreasonable inaction, which is the proper subject of mandamus relief."

Dong v. Chertoff (see court order), 2007 WL 2601107 N.D.Cal. Sep 06, 2007

MSJ granted to the Plaintiff. It has a very good discussion about a number of arguments, including "cut in line","national security requires the delay","agency burden", etc. "The Court, however, is not in a position to relieve the defendants’ of their obligation to comply with their mandatory duties. Under the APA, a court “shall” “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In this instance, it is not the place of the judicial branch to weigh a plaintiff’s clear right to administrative action against the agency’s burdens in complying."

Case where judge denied MTD, but has not ordered final relief or was jointly dismissed before judge decides on relief

He vs. Chertoff (see court order)

Judge issued ORDER denying Defendant's Motion to Dismiss for Lack of Jurisdiction on 3/8/2007. Having found jurisdiction over pla's claim, Court declines to remand matter to the US Citizenship and Immigration Service before hearing merits of the case. On 4/30/07, joint MOTION to Dismiss With Prejudice as Moot. Name check was completed. Also see Plaintiff's Opposition to Motion to Dismiss (click here). Case Number: 06-02608; Filed: November 27, 2006; Court: California Southern District Court; Office: San Diego Office; Presiding Judge: Judge Irma E. Gonzalez; Referring Judge: Magistrate Judge Nita L. Stormes

- Wang v Chertoff (see court order)

Judge order denied MTD on 1/19/2007. This order did not rule on final relief. Joint motion to dismiss was filed on 3/26/2007 and case was jointly dismissed. Case Number: 06-3477; Filed: November 3, 2006; Court: Texas Southern District Court; Office: Houston Office; Presiding Judge: Judge Sim Lake; Court ordered on January 19, 2007

Duan vs. Zamberry (see court order)

Court denied Motion to Dismiss on 02/23/2007, but has not ruled on relief yet. Case Number: 06-01351; Filed: October 10, 2006; Court: Pennsylvania Western District Court; Office: Pittsburgh Office; Presiding Judge: Donetta W. Ambrose

Kim vs. Ashcroft (see court order), Kim v. Ashcroft, 340 F. Supp. 2d 384 (S.D.N.Y. 2004)

Court denied MTD on 7/26/2004. WOM case for I-485 pending for more than 3 years. Court dismisses government claims about lack of subject matter jurisdiction and failure to state a claim and denies motion to dismiss.

Gelfer v. Chetoff (see court order), Case No. 06-6724, (N.D. Ca 2006)

Court ordered to grant in part and deny in part MTD. Court finds jurisdiction. The denied part is plaintiff seeks approval instead of adjudication. On 05/02/07 this case was jointly dismissed. Case Number: 3:2006cv06724; Filed: October 30, 2006; Court: California Northern District Court; Office: San Francisco Office; Presiding Judge: Hon. William H. Alsup

Razaq v. Poulos (see court order), Case No. 06-2461-WDB, (N.D. Cal 2006)

This is a WOM case for I-130. Court order denied summary judgement motions from both sides, and court also ordered subsequent court procedures if defendants do not adjudicate within a certain time. Court has some great analysis and favorable to petitioner. The case was jointly dismissed and there is no final judge order on relief technically speaking. Court order Document of Interest: Document #37 “Order And Memorandum Opinion Re Motions For Summary Judgement”. Page 6 to 10 have great points. Case Number: 06-02461; Filed: April 7, 2006; Court: California Northern District Court; Office: Oakland Office; Presiding Judge: Magistrate Judge Wayne D.

Wei v. Chertoff (see court order), Case No. 06-02272, (N.D. TX 2006)

Court order denied MTD and allowed plaintiff to amend complaint. No final order on relief yet. See also Plaintiff's Opposition to MTD as well as Defendant's MTD. Case Number: 3:2006cv02272; Filed: December 11, 2006; Court: Texas Northern District Court; Office: Dallas Office; Presiding Judge: Judge Jorge A Solis; Referring Judge: Magistrate Judge Paul D Stickney

Linville v. Barrows (see court order), Case No. 06-01430, (W.D. OK 2006)

See also Plaintiff's Opposition to MTD. Case number: 5:06-cv-01430-R; Case filed on 12/27/2006 at The Western District of Oklahoma. Court order denied MTD on 4/19/2007. No court order on final relief yet

Elmalky v. Upchurch (see court order), Case No. 3:06-CV-2359-B (N.D. Texas 2007)

DALLAS DIVISION; Judge ordered March 28th, 2007 Court denied defendants’ MTD on 3/28/2007. No final order on relief yet. Case Number: 3:2006cv02359; Filed: December 21, 2006; Court: Texas Northern District Court; Office: Dallas Office; Presiding Judge: Judge Jane J Boyle; Nature of Suit: Other Statutes - Other Statutory Actions; Cause: 28:1651 Petition for Writ of Mandamus

Huang v. Gonzales (see court order), Case No. 07-00096 (W.D. Was 2007)

Plaintiff I485 filed in Sept. 05, pending less than 2 years. Plaintiff did not file opposition to MTD, but court rule denied defendants’ MTD on May 2nd, 2007 YING HUANG and YANNING LIU v. ALBERTO GONZALES, et al. WESTERN DISTRICT OF WASHINGTON AT SEATTLE; Case number 2:2007cv00096

Wu v. Chertoff (see court order or here in pdf), Case No. 06-07880, 2007 U.S. Dist. LEXIS 33816 (N.D. Cal), Decided April 25, 2007

This is a case from N.D.CA. done by professionals not Pro Se. Court denied MTD, stating: This Court has jurisdiction to hear plaintiff's complaint under both the writ of mandamus and the APA. The order states: "The Court agrees with the many district courts that have held that, taken together, the APA, the INA, and section 245.2(a)(5) of the CFR establish a clear and certain right to have immigration status adjustment applications adjudicated, and to have them adjudicated within a reasonable time frame." Plaintiff alleges in her complaint that defendants have delayed over three years in adjudicating her I-485 application. Defendants have provided a detailed description of the FBI name-check process in an attempt to explain the delay. The Court has reviewed defendants' papers, and finds nothing to compel the conclusion that three years is a "reasonable time" as a matter of law. The amount of time that is reasonable is a fact-specific inquiry, which is premature at this stage. See also Plaintiff's Opposition to MTD, Plaintiff's Motion for Summary Judgment and Defendants' Answer

Cho v. Jarina (see court order), Case No. 07-629, EASTERN DISTRICT OF LOUISIANA; Decided May 18, 2007

Judge adopts the and logic of Linville's case and denies Defendants' MTD

QUAN v. CHERTOFF (see court order), 2007 U.S. Dist. LEXIS 44081 (N.D. Cal 2007)

Case No. SC 06-7881; UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; June 6, 2007, Decided. Court denied Defendants' MTD reasoning that: "CIS has a duty to adjudicate Plaintiff's Adjustment Application within a reasonable time, and thus the Court has jurisdiction to hear a mandamus complaint by Plaintiff regarding the pace of that adjudication."

MA and LIU v. GONZALES (see court order), 2007 U.S. Dist. LEXIS 41103 (W.D. Was 2007)

Case No. C07-122RSL; UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON; June 5, 2007, Decided This is a Pro Se case. Court denied Defendants' MTD stating that: "Accordingly, this Court agrees that jurisdiction is proper under the APA and 28 U.S.C. § 1331 to compel USCIS to adjudicate an application for adjustment to permanent status."

Alsaleh v. Gonzalez (see court order), Civil Action No. 3:06-CV-2162-N, (N.D. Tx., Dallas Div.), June 6, 2007, Decided

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION I-485 Mandamus Survives Motion to Dismiss. The court states that: "The Court concludes, contrary to the Government’s assertion otherwise, that it may properly exercise jurisdiction over this matter pursuant to the Mandamus Act and the APA. The Court therefore denies the Government’s motion to dismiss."

Blanco Rosales v. Swacina, May 23, 2007.

Xu v Chertoff (see court order), 2007 U.S. Dist. LEXIS 50027 (D.N.J. 2007), Decided July 10, 2007

I-485 has been pending since Dec, 2004. The judge ordered USCIS to either adjudicate or present a satisfactory reason for the delay.

Qui v. Chertoff (see court order), 2007 WL 1831130, (decided July 26, 2007)

Court only orders to deny MTD

Bondarenko v. Chertoff (see court order), 2007 U.S. Dist. LEXIS 67143, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK, September 8, 2007

Good response to 1252(a)(2)(B)

Case with good opposition to MTD or good response to defendants’ answer, but then was jointly dismissed before judge deciding on MTD

Wang v Chertoff, Case No. 06-7636, (N.D. Cal 2006)

Judge issued order to show cause on Jan. 22nd, 07. There was no MTD but an answer to judge order to show cause. Plaintiff then provided response to answer and proposed order. On 04/10/2007 case was jointly dismissed. So no final judge order. However, plaintiffs’ reply to defendants response to Judge order to show cause can be useful to study. Also plaintiff’s proposed order to judge is useful to study too. Also see Plaintiff's Reply to Defendants' Response (click here). Case Number: 5:2006cv07636; Filed: December 13, 2006; Court: California Northern District Court; Office: San Jose Office; Presiding Judge: Hon. Jeremy Fogel; Referring Judge: Magistrate Judge Howard R. Lloyd

Dang v Gonzalez, Case No. 06-00217, (Was E.D 3006)

Plaintiff filed a good Opposition to MTD on 10/20/2006 (see Plaintiff's Response to MTD). Case was jointly dismissed in Jan 07. Case Number: 2:2006cv00217; Filed: August 4, 2006; Court: Washington Eastern District Court; Office: Spokane Office; Presiding Judge: Chief Judge Robert H. Whaley

Faraj v. Chertoff, Case No. 06-00177, (N.D. Fla 2006)

Plaintiff filed opposition to MTD (see Petitioner Response to MTD). Before judge could decide on MTD, I485 was approved and case was dismissed by plaintiff voluntarily. Case Number: 4:2006cv00177; Filed: April 12, 2006; Court: Florida Northern District Court; Office: Tallahassee Office; Presiding Judge: SENIOR JUDGE WILLIAM STAFFORD; Referring Judge: MAGISTRATE JUDGE WILLIAM C SHERRILL JR

Mohamed Kamel Ibrahim, Case No. 06-13219, (E.D. MI)

Plaintiff filed opposition to MTD on 1/3/2007 (see Ibrahim's response to MTD). Case was jointly dismissed in Feb. 07. So there is no court order on MTD. EASTERN DISTRICT OF MICHIGAN; Southern Division; Case No. 02:06cv13219

Salehian v. Novak (see court order), No. 06-459, 2006 U.S. Dist. LEXIS 77028, (D. Conn. 2006).

The court found jurisdiction over the mandamus action and held that defendants must provide an explanation for the delay resulting from security checks or adjudicate plaintiffs' Adjustment of Status Applications (Form I-485). The court denied defendants' motion to dismiss and ordered plaintiffs to file a motion for summary judgment. The case was dimissed at request of plaintiff in Feb. 07. So no final judge order on relief as petition was approved before judge could issue final order. Plaintiffs' applications had been pending for longer than two years when they filed their mandamus action. Also see Plaintiff's Opposition to Motion To Dismiss and Plaintiff's Exhibit A to the Opposition to MTD. Case Number: 3:2006cv00459; Filed: March 24, 2006; Court: Connecticut District Court; Office: New Haven Office; Presiding Judge: Judge Peter C. Dorsey

Razik v. Perryman (see court order, No 2-CV-05189 (N.D. Ill. Aug. 6, 2003)

Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago) CIVIL DOCKET FOR CASE #: 1:02-cv-05189 Razik, 2003 U.S. Dist. LEXIS 13818, at *5-8 (denying respondents’ motion to dismiss the petitioners’ case; noting that applications had “languished for two years and yet the INS has done nothing”); Questionable: is this case eventually dismissed by judge after defendants Oral argument to dimiss? The last docket report entry is "12/31/2003 9 MINUTE ORDER of 12/31/03 by Hon. William J. Hibbler : Status hearing held. This order is entered nunc pro tunc 10/22/03. Government's oral motion to dismiss is granted without prejudice as stated in open court. All pending dates and motions are terminated as moot. terminating case Mailed notice (gcy) (Entered: 01/02/2004)" This happened after Judge denied MTD on Aug. 2003

Other cases

Loo v. Ridge (see court order), 2007 U.S. Dist. 17822, at *9 (E.D.N.Y. March 14, 2007)

Noting that adjudicating an adjustment of status application is not at the discretion of defendants because defendants are required to do so.

Nazzal v. Chertoff, Case No. 07-20090 (S.D. Fla 2007)

Plaintiff filed opposition to MTD in April 07 (see Nazzal's Response to MTD). Court has not provide order on MTD yet. Plaintiff: Mohamed Nazzal; Defendant: Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzales, Jack Bulger and R. Alexander Acosta; Case Number: 1:2007cv20090; Filed: January 11, 2007; Court: Florida Southern District Court; Office: Miami Office; County: Broward; Presiding Judge: Judge William M. Hoeveler

Liu v. Chertoff (see court order), Not Reported in F.Supp.2d, 2007 WL 1202961 C.D.Ill. Apr 23, 2007

Even though Plaintiff's motion for MSJ is denied in this case (it was premature), the court acknowledged that USCIS does have a mandatory duty to process AOS. "The Defendants, however, have a nondiscretionary duty to process Liu’s application; they cannot decide not to process an application. Such a decision would not be an exercise of discretion, but a refusal to perform assigned duties. This Court has jurisdiction to review whether the Defendants are refusing to act."

Preparation for Appeal

Check this post to find more about the appeal process.

Other Resources

http://www.path2usa.com/immigration/greencard/fbi_name_check.htm
The American Immigration Law Foundation page on recent mandamus litigation
http://groups.yahoo.com/group/namechecktracker
http://groups.yahoo.com/group/push_nc
http://www.immigrationportal.com/showthread.php?t=194681&page=1
http://www.immigrationportal.com/showthread.php?t=174845
http://groups.google.com/group/fbinamecheck
http://immigrationvoice.org/forum/showthread.php?t=898
Sworn testimony of FBI Deputy Assistant Director on promptness of the name check process
Federal Rules of Civil Procedure
U.S. Code collection