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This question is not about the merits of our case, but only about
procedure and jurisdiction.
We want to sue the USCIS (INS) because they didn't give my wife a
green card. I'm a US Citizen and I sponsored my wife for a green card
in 1999. We paid the fees, met the requirements, etc., but the
INS/USCIS kept messing up, from a combination of incompetence, bad
attitudes, and bad luck.
My main question is whether the appropriate court would be a federal
district court. Assuming we can find a lawyer who can convince a
federal district court judge to order the USCIS to issue my wife a
green card immediately, would the USCIS comply with such an order?
It seems to me, immigration court might not be appropriate for this,
because it's for prosecuting illegal aliens. Or is it also for civil
lawsuits against the USCIS?
If we have a choice between immigration court and federal district
court, what are the merits of each for such a case?
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David Smith <David99135@hotmail.com> wrote:
This question is not about the merits of our case, but only
about procedure and jurisdiction.
We want to sue the USCIS (INS) because they didn't give my wife
a green card. I'm a US Citizen and I sponsored my wife for a
green card in 1999. We paid the fees, met the requirements,
etc., but the INS/USCIS kept messing up, from a combination of
incompetence, bad attitudes, and bad luck.
My main question is whether the appropriate court would be a
federal district court. Assuming we can find a lawyer who can
convince a federal district court judge to order the USCIS to
issue my wife a green card immediately, would the USCIS comply
with such an order?
Federal district court is the right place to go. But beware that you
can't simply convince a judge to order the green card be given. If
the government fights it, it will likely take months, if not years,
and could cost quite a bit of money. If you establish that the
government's position was frivolous, the court might order that they
part part of your attorneys fees, but that's not guaranteed.
The chances are that, once you sue they will realize that it is
useless to fight, and will give in without a trial. But it will not
happen right away.
Stu
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On Wed, 02 Mar 2005 18:11:13 -0500, David Smith
<David99135@hotmail.com> wrote:
We want to sue the USCIS (INS) because they didn't give my wife a
green card....
If we have a choice between immigration court and federal district
court, what are the merits of each for such a case?
As you already realize, you will need an immigration lawyer to
proceed. There's little point in trying to figure out which court you
can or should use before you retain one. Your lawer will answer your
"can?" question off the cuff, and if there is a choice, will be able
to answer your "should?" question from a thorough understanding of
your wife's individual case -- something that on one here can do.
If the problem is purely administrative, as you say, then the solution
probably will be also administrative. The lawyer will call someone at
the INS, explain the situation, and get it corrected. The lawyer can
do this because (1) s/he knows who to call, and (2) the person s/he
calls knows him/her, and knows that if s/he says "this problem is an
fubar thing you can fix," it's true.
(That is how most lawyers spend most of their time: not helping their
clients go to court, but helping them NOT go to court.)
My email address is llm040903 at earthlink dot net.
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David Smith <David99135@hotmail.com> wrote:
This question is not about the merits of our case, but only about
procedure and jurisdiction.
We want to sue the USCIS (INS) because they didn't give my wife a
green card. I'm a US Citizen and I sponsored my wife for a green card
in 1999. We paid the fees, met the requirements, etc., but the
INS/USCIS kept messing up, from a combination of incompetence, bad
attitudes, and bad luck.
I know of a situation where a U.S. Citizen married a woman on a
tourist visa. They had dinner with us shortly after their
marriage. She was working for an agency of the State of North
Carolina in less than a year. So your wife's situation seems
extreme.
My main question is whether the appropriate court would be a federal
district court. Assuming we can find a lawyer who can convince a
federal district court judge to order the USCIS to issue my wife a
green card immediately, would the USCIS comply with such an order?
The Federal District Court is the correct place. You need to find
an attorney with expertise in immigration law. The first question
you will be asked is what reason the INS has given you?
I wish you success.
Dick
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On Wed, 09 Mar 2005 22:24:15 -0500, rdadams@smart.net (Dick Adams)
wrote:
The Federal District Court is the correct place. You need to find
an attorney with expertise in immigration law. The first question
you will be asked is what reason the INS has given you?
We don't actually have enough money for an attorney right now. This
discussion is about what we plan to do when we do have enough money in
the future. I've been unemployed for more than a year, and, if we
were to reapply for the green card now, I would no longer qualify to
sponsor my wife. We tried to get cosponsors, but there is too much
risk to them that we might end up on some kind of public assistance
and the cosponsors would be liable.
The reason why the USCIS/INS didn't give my wife a green card is
because, after we applied for the green card in California in 1999, we
moved from California to the East Coast in 2001, and they tried to
interview us in California by sending us a notice to our old
California address, which the post office didn't forward till after we
failed to show up for the interview. We have proof that we notified
the INS, long before the interview, of our new address.
After we failed to show up for the interview, they sent us a letter
rejecting our application for that reason, and we didn't know what to
do about it, so we started writing them letters. We wrote to every
USCIS/INS office that seemed relevant, and we kept writing, many
times, for years, trying to get our case forwarded to the East Coast,
trying to get it reopened, etc., but they never replied. Some of our
letters were sent certified, but they never replied to those either.
It seemed reasonable to us to wait a long time for a reply, because
they were in the habit of taking a long time to do anything at all,
sometimes years to act on an application.
We finally went to a USCIS/INS office in person to ask them if they
were receiving our letters, but they didn't know the answer to that
question. They said the only way we could find out about our case was
to use the Freedom of Information act, and that we should also apply
for an employment authorization document. So we did both of those,
paying around $100-200 for the EAD application fee, and it was denied
on the grounds that we didn't have an active green card application
pending. The FOIA inquiry resulted in a bunch of documents, most of
which we already had, and none of which was helpful. It didn't
include any of our letters to them, so we still don't know what
happened to those. So we went back to the same office, and this time
it was a different officer we talked to, and he was even less helpful.
He basically said it was too late for us to do anything about our case
and we would just have to start over and reapply. But we can't just
reapply now, because I don't qualify as a sponsor now. And of course
the $500+ application fees are very inconvenient to someone who's been
unemployed for more than a year. We have to decide whether the $500
would be better spent reapplying or paying an immigration attorney or
paying our rent.
We also wrote to our Representative in Congress, but never got a
reply.
My previous job paid plenty, but the only other jobs I could get now
wouldn't pay enough to qualify as a sponsor for my wife's green card.
We have 2 children now, so our minimum income requirement to qualify
is higher than a lot of jobs pay. I can't get my previous job back,
nor any similar to it, because there is too much unemployment in my
profession in the USA now. I'm hoping that situation will improve in
the near future, so we will be able to afford an immigration attorney.
Meanwhile we just want to find out the best course of future action,
because we would both feel better at least having some kind of plan.
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David Smith <David99135@hotmail.com> writes:
The reason why the USCIS/INS didn't give my wife a green card is
because, after we applied for the green card in California in 1999, we
moved from California to the East Coast in 2001, and they tried to
interview us in California by sending us a notice to our old
California address, which the post office didn't forward till after we
failed to show up for the interview. We have proof that we notified
the INS, long before the interview, of our new address.
In any case, you would have been required to provide a proof of income
during your interview.
After we failed to show up for the interview, they sent us a letter
rejecting our application for that reason, and we didn't know what to
do about it, so we started writing them letters. We wrote to every
USCIS/INS office that seemed relevant, and we kept writing, many
times, for years, trying to get our case forwarded to the East Coast,
trying to get it reopened, etc., but they never replied. Some of our
letters were sent certified, but they never replied to those either.
It seemed reasonable to us to wait a long time for a reply, because
they were in the habit of taking a long time to do anything at all,
sometimes years to act on an application.
I recall reading about a similar case in Florida; the applicants
have been able to get USCIS process their application after
the case got some publicity (the local TV station has interfered).
We have 2 children now, so our minimum income requirement to qualify
is higher than a lot of jobs pay. I can't get my previous job back,
nor any similar to it, because there is too much unemployment in my
profession in the USA now. I'm hoping that situation will improve in
the near future, so we will be able to afford an immigration attorney.
Meanwhile we just want to find out the best course of future action,
because we would both feel better at least having some kind of plan.
Can't you take _any_ job and reapply? The minimum income requirement
seems to be $24,000 for a household of four people.
In any case, going to a federal court would be useless in your
situation; correct me if I am wrong, but I believe all the court could
do is order USCIS to consider your application on expedited basis,
which they will then happily deny. I don't think the court can order
USCIS to give your wife the green card.
--
Vlad
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David Smith <David99135@hotmail.com> writes:
I'm hoping that situation will improve in
the near future, so we will be able to afford an immigration attorney.
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David Smith wrote:
This question is not about the merits of our case, but only about
procedure and jurisdiction.
We want to sue the USCIS (INS) because they didn't give my wife a
green card. I'm a US Citizen and I sponsored my wife for a green card
in 1999. We paid the fees, met the requirements, etc., but the
INS/USCIS kept messing up, from a combination of incompetence, bad
attitudes, and bad luck.
My main question is whether the appropriate court would be a federal
district court. Assuming we can find a lawyer who can convince a
federal district court judge to order the USCIS to issue my wife a
green card immediately, would the USCIS comply with such an order?
It seems to me, immigration court might not be appropriate for this,
because it's for prosecuting illegal aliens. Or is it also for civil
lawsuits against the USCIS?
If we have a choice between immigration court and federal district
court, what are the merits of each for such a case?
I think before you got to federal court, you have to pursue and exhaust
the administrative remedies of the ins.
j.
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