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Vancouver, Washington, United States
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Thursday, July 13, 2006

Law suit update

we are very much approaching a major turn in my case against the US government so to speak, and things are beginning to happen.  One thing I’ve known a long time ago is that, unlike George W. Bush, I’m not a terribly patient man, and I don’t handle suspense very well.  The government has 60 days to respond from the date of being served, and in my case, this deadline is August 8, but their usually is an attempt at sorting out the situation before hand, assuming good will exists on both sides.

 I considered all possibilities at the time of filing, including attempts at stalling or a complete lack of response.  You see,  under FRCP 55, if you or I are summoned to court in a civil case and we fail to appear and/or file a timely response, the person suing us can file for a default judgment and get everything they’re suing for.  Section E of the same rule, however, gives an exception when the government is the defendant, as the plaintiff still has to make his/her case just the same, and it’s still the plaintiff’s responsibility (in most cases) to argue their cause and force the response out of the government.  While it certainly puts me at a disadvantage, I can fully understand the merit of such a procedural exception.  I call it “the incompetence exception”, and it’s almost a testament to the wisdom of the courts to have such a provision, otherwise many people would get things they’re not entitled to, not necessarily because they’ve made a good case or they deserve what they’re asking for, but only because of the government’s incompetence, which really doesn’t take a legal scholar to recognize.  Having said this, however, this doesn’t mean that FRCP 55 gives them an absolute shield against action, it just simply means that they are not subject to default judgment.  They still have to abide by all the other rules, and if they don’t they certainly won’t be gathering any favors with the court, not if it is a fair one.  Nevertheless when your own personal stuff is at stake, well, it sort of changes your perspective a bit.

 I therefore put it on my calendar to initiate contact with the US attorney a month before the deadline if I don’t hear from them.  This should have been last Friday, and I fear that the build up to that day has put me under more anxiety than I’d care to admit.  I wasn’t sure what type of reaction I’d get, but more importantly I wasn’t sure about my ability to hold up to what I have set for myself, argue my case in the face of an experienced attorney (I haven’t done this before), and I was a bit too self conscious, wanting to make sure to present the right image of myself.  I didn’t want to intimidate anyone and thus lose any good will, and at the same time I didn’t want to appear week and run the risk of not being taken seriously.  I guess I was perhaps too conscious of the importance of “the first impression” which features so prominently in all human interactions.  My worse judge when I make a stupid mistake is me, and given I have a difficult time fooling my self, I knew I’d be in for a good one if I screwed up.  

I summoned enough courage and rang up the US attorney last week.  I left several messages for the docket clerk to find out the attorney assigned to my case, and surprise surprise, I never got a call back.  I guess this is where it’s good to have an ego, because I was infuriated – perhaps unnecessarily (after all it’s the government we’re talking about), and I felt compelled to act.  Yeah, I know, not the wisest thing exactly (being compelled to act on emotion), but perhaps it was the catalyst I needed to get me out of my paralysis caused anxiety.

I sent a polite email to the public relations person at the US attorney’s office informing him that I’m trying to find the name of the attorney assigned to my case in order to discuss my case with them.  I explained that I was writing to him because his was the only email published on their web site, and apologized in advance if he wasn’t the right person to answer this question, asking him to kindly forward the email to the appropriate person in his office.

I got a call back just a few minutes after I got the electronic delivery receipt for my email (electronic read receipts are known as the cover your ass tactic, and have been a feature of business email for close to ten years).  I finally had an indication of the one who will possibly be facing me in court, and rather than having to cover a whole range of possibilities, I can now focus on a smaller subset.  The best part is, also, that I wasn’t hit with anything I didn’t expect:

  • They are certainly not the most efficient (the assistant US attorney called me back because she’s the one who has handled most of the litigation against USCIS, but she hasn’t actually been assigned to my case yet – no one has, but she was pretty sure she would be the one).

  • She had no background about my specific case (she only knew my name).

  • She was neither friendly nor sympathetic (she was professional though), so it didn’t seem as if there was much good will to squander.

  • I was quite surprised when her first words were “It doesn’t work that way, it has to be a Writ Of Mandamus for it to work”!  Wow! I thought!  It looks like the US attorney has got this down to an informal process outside the view of the legal radar!  The process could be summarized as “if you sue us, we’ll help you, but if it gets to trial, then God help you!”.  This way clients have to pay their lawyers (if they can find ones experienced and courageous enough to take on such a case) a bundle (the lowest I was quoted was $3,000 just to file the case, with the strong hope and gamble that it won’t get to trial, with no guarantee of what will happen if it ever got to trial, except perhaps the guarantee that I’ll need to pay a lot more money).  This allows the US attorney and USCIS to work out internal procedures to sort this out between them with the least amount of work and egg on their face (see this memo), giving them still the legal room to maneuver if they see otherwise fit!  That’s pretty clever!   A writ of Mandamus brought under 28 U.S.C. 1361, however, is much more difficult to litigate if it ever gets to trial than a complaint brought under 8 U.S.C. 1447(b) (see the Cornell Law Schoolnotes on rule 21 of title 28 in the appendix titled “Federal Rules Of Appellate procedure”), which discusses in more detail the nature and requirements of a Writ Of Mandamus).  With Mandamus, you have to show harm if you don’t get what you’re asking for, and you have to show that you’ve exhausted all other possible means!  8 U.S.C. 1447(b) on the other hand moves the case to the court (giving it jurisdiction over the case and effectively taking it out of USCIS’s hand), actually allowing the court to adjudicate the application and grant or deny citizenship as it sees fit, and protecting the plaintiff from possible vindictive actions by USCIS (such as denying the case).  In other words, and according to a great deal of case law (sorry, can’t put any links here because you have to pay to get the text of these things, but you can look here for background and case citations), until a ruling is made in the plaintiff’s case, USCIS cannot do anything with the case – they can neither approve it nor deny it.  In fact, looking at the multitude of 1447 (b) cases that were settled in the past couple of years, the district US attorney in many cases asked the plaintiff to drop their law suit first before their N400 application was adjudicated (which, despite what some of them tried to argue, is an acknowledgement of the court’s jurisdiction over the case).  A writ of Mandamus, on the other hand, will best result in an order to the government agency to comply, so you can see the difference!  Besides, the nice thing about 8 U.S.C. 1447(b) is that USCIS is actually in violation of it!  They’re already guilty!

  • She (to my advantage) allowed herself to act on her assumption that because I have a foreign name and an accent I’d be timid, ignorant and afraid, so she spent a lot of time and went to great lengths to tell me that the courts give the government a great deal of latitude, especially regarding citizenship applications, due to the “current security situation”.  This is actually not true for cases brought under 8 U.S.C. 1447(b), because most of the cases involving naturalization applications which ended up going to trial (a fraction of the filed cases, since the majority gets settled by the US attorney before they ever go to trial) were decided in favor of the plaintiffs.  It was exhilarating to hear the shock in her voice after I shot back at her with the above, citing in the process a bunch of cases (and the jurisdictions they were tried in).  She made a good comeback when she correctly pointed out that these are not binding in the tenth circuit here in Colorado, but didn’t expect me to point out that it’s therefore a 50-50 shot (and hence worth it for me), since there is actually no precedence to the contrary in the tenth circuit, and the few cases which were decided in favor of the government (I’m only aware of one thus far, namely Danilov) were specifically rejected in most other jurisdictions, with one court having come to the conclusion that “Danilov was decided based upon an inaccurate reading of either § 1447( b) or the regulations that implemented it” (see El-Daour v. Chertoff, 2005 U. S. Dist. LEXIS 18325 ( W. D. Pa. 2005)).

  • She tried the line “It’s not USCIS’s fault, since the FBI has to do their background check and they don’t tell anyone how they work”, I politely informed her that in this case the FBI is a defendant, and hence it’s her responsibility to find out how and why, since she’s their attorney too!

  • She tried to portray me as someone who’s trying to “jump the queue”, since “there are people who have been waiting since 2001 in a limbo (though she didn’t use this word) quite similar to mine, and therefore a year and a half is not a whole lot of time and that I just have to wait for my turn in the queue”, I pointed out to her that the law is pretty clear about 120 days, and that 121 days is breaking the law, and since 99% of applications (according to DHS published statistics and claims) don’t even go through this, her claim that in fact there is a queue to begin with (at least one sanctioned by DHS, FBI,  USCIS internal procedures or published federal statutes) has little (if any) legal basis!

Though she promised to check with CIS and DHS on the status of my application, she did conclude by saying “you’re entitled to a hearing I guess”, which, to me, means that we’ll be going to trial.  In other words, the show has just begun!

It’s a bit of a relief for me to know that despite the enormous stress this has brought to my life and the great deal of uncertainty and anxiety this has put me under, I did do OK when the time for action came.  I’ll be OK with the anxiety if the good performance continues, at least until this is over.

On a different track, I received yet another finger print notice from USCIS, this time dated July 3.  Apart from the date, it looked identical to the previous one.  I called the USCIS customer service center, and after being put on hold for close to a half an hour, I spoke to a very nice young lad, who told me he had no idea what’s going on and who put me through to an immigration officer.  The officer I spoke to was no more helpful, as she indicated that her computer was down and hence couldn’t check anything for me, but that I should go anyway, lest my application be considered “abandoned”.  She indicated that they have had a computer glitch which caused finger print notices to unnecessarily go out , and I had no reason to doubt what she said, until, that is, the gentleman at the service center pointed out to me that the letter was hand written.  I hate it when people blame computers for mistakes.  I am a computer professional, and the first thing I learned about computers was “garbage in, garbage out”.  In other words, computers are as good as those who use them.

I nevertheless went to the service center to get my finger prints taken on the eleventh of July, but they refused to take my finger prints because “there was nothing wrong with the ones taken on June 18" according to them.  They stamped my notice and gave it back to me.  I’ll be sending a copy of the stamped notice to USCIS via express mail with a letter asking for an explanation.  I’ve also made an InfoPass appointment to have a chat with USCIS to try to sort out the multiple finger print notices issue on the 24th of July, so we’ll see.

Moving forward, full of hope and head up high.    

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