***Transcript of June 3 Hearing and Further Proceedings ***

Rajiv S. Khanna

Rajiv S. Khanna

HOST, Immigration.Com
Staff member
Attached is the transcript of the 6/3 hearing. There are several errors in it but it gives you all the gist of what happened.

Today, we were before the court (by phone). The court has asked us to go ahead with a Rule 30(b)(6) deposition. Which means we get to speak with a senior officer of CIS and ask him/her questions under oath about the CIS procedures (the deposition can go on for upto 7 hours).

Working on it. Will inform you of details. As I had said earlier, keep the questions ready.
 
Thank you Rajiv for posting it. I read the whole transcipt. To me the judge seems to be favorable...
 
operations said:
Attached is the transcript of the 6/3 hearing. There are several errors in it but it gives you all the gist of what happened.

Today, we were before the court (by phone). The court has asked us to go ahead with a Rule 30(b)(6) deposition. Which means we get to speak with a senior officer of CIS and ask him/her questions under oath about the CIS procedures (the deposition can go on for upto 7 hours).

Working on it. Will inform you of details. As I had said earlier, keep the questions ready.
Click to expand...


so does this imply that we won't get any process documentation but they will answer in a deposition what we ask. Having access to the documents would have allowed us to not only poke holes in it but ask very intelligent questions.
 
1) Can the deposition be done in multiple sessions, total time not exceeding 7 hours? If it is allowed, you may want to consider splitting the deposition into 2 sessions (5 hours initial discovery + 2 hours follow up where we can try to come up with more questions based on info from the first 5 hours) or more.

2) What if 7 hours is insufficient to get to where you need to? Can there be further depositions? What if USCIS uses stalling techniques?

Ladies and Gentlemen, put on your thinking caps and come up with questions that will establish commanality for EB 485 applications.
 
My thoughts...

The Honorable Judge has clearly told the defendants ( henceforth called as INS) that the Petitioner (henceforth Rajiv) can very easily cite more plaintiffs who had suffered losses by filing for EADs, APs, etc. And INS has clearly used the case of argumentum ad rem (facts and dispositions of the case with facts at hand and not what may come down the line) to remind the court that it should take cognizance of what is at hand; not what may come down the line.

However, as presaged originally, the learned Judge had clearly distanced himself from intervening with the affairs of the Executive. He has gone on record to dismiss the plaintiffs' claim for declaration as Class-Action without prejudice, even though he agreed to have it in abeyance at the behest of Rajiv. INS' counsel had tried in vain to actually dismiss the claim without prejudice so that it can be submitted once again in future. I think, the discovery process aided with stellar interrogatories is what will help our cause. What, if we can identify, say 3 or 5 applicants who have had suffered losses with multiple EADs, APs, etc., falling under the jurisdiction of this Honorable Court, so that they can file their suits individually, thereby giving fillip to Rajiv's prayer for declaring this case as a Class-Action? Rajiv can argue that ipso facto 3 OR 5 other petitioners have individually filed suits within the Honorable Circuit Court, the need for treating our case as Class-Action only gets more urgent. This may be viewed in our favor by the learned Judge.

In the discovery process, answer to this crucial question will help further our case: "How does the proposed pilot study program of concurrently adjudicating I-140 and I-485 at CSC possible, if adjudicating I-485 alone involves a lot of 'phantom' processing as the counsel of INS has informed this court?" In other words, "If an I-140 is approved and the finger-prints/name-checks have come out without any IDENTs, what is it that needs in I-485 processing?" Answer to these two questions may aid the Judge to award our prayers by merit, I guess.
 
We need to get insight as to why the FIFO queue is not being followed and why are applications not being processed in order of their receipt?
 
No

kuldeepc said:
so does this imply that we won't get any process documentation but they will answer in a deposition what we ask. Having access to the documents would have allowed us to not only poke holes in it but ask very intelligent questions.
Click to expand...

The Court said yesterday they would allow request for documents after the deposition AND would allow more depositions than one, if needed.
 
That is a good idea

cosmos said:
1) Can the deposition be done in multiple sessions, total time not exceeding 7 hours? If it is allowed, you may want to consider splitting the deposition into 2 sessions (5 hours initial discovery + 2 hours follow up where we can try to come up with more questions based on info from the first 5 hours) or more.

2) What if 7 hours is insufficient to get to where you need to? Can there be further depositions? What if USCIS uses stalling techniques?

Ladies and Gentlemen, put on your thinking caps and come up with questions that will establish commanality for EB 485 applications.
Click to expand...


I think splitting would be good, but I doubt the govt will go for it. I will ask.

In some ays, it is better to go for one deposition. Gives us more time with the witness. I will think about it carefully.
 
Mixed response from the court

Rajiv, Thank you for posting the transcript. I read it all and that’s what every one who has suffered at the hands of USCIS should also do. In the initial pages the feeling I got was that the judge has already formed an opinion (prior to hearing). However, I later realized that he has done some homework. It is unfortunate that the court has not accepted our class certification arguments. However, he understands that we have an ability to put as many plaintiffs as needed with similar class (See his advice not to argue with printing press owner). I really liked your arguments in the end in support of class action and I also liked Erb’s desperation to get the class certification dismissed. That just shows how desperate USCIS is to get us out of their way.

I welcome court’s opinion that there are delays. There is something the court has allowed us to discover what USCIS does behind the iron curtain. This agency is so mismanaged that once given access to their records and allowed disposition, there would be many skeletons that would come out in open.

The spread of approvals is so wide that (see the latest article: http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2627322) any old pending case could be found filled with controversies.
 
I think it was very wise to dismiss the naturalization claims and the Fraga case as precedent to be used here. What lies before you is obviously proving the commonality of these cases and that there are bureaucratic inefficiencies that are slowing this process down. The one way to do that, as the judge almost suggested, is to get more people to join the plaintiff list and to ensure their cases have different backgrounds, classifications, etc. I also think that the plaintiff list should include as many as possible long suffering folks, perhaps 2001s and early 2002s. It will be however, exceedingly difficult to argue a class action, because they can prove that various subclassification drastically affect processing time. So, having long standing EB1s, EB2s might be a good argument against that.

I also think that USCIS will not have a problem in proving a lack of resources and sort of a compounding effect on the backlog. The thing to point out here would be the "reshuffling" of that queue, which can have absolutely no security application. In other words, prove that FIFO is not being utilized, perhaps in order to quash some of the applicant discontent by approving the new applications faster, therefore isolating a single group of applicants (2001-2002). By proving that the new applications are being approved in a "reasonable amounts of time", they can argue your class action point down as well. I think that it is reasonable to assume at this point that you will not be granted a class action.

The discovery process will also be a tough one because, again, per the judge, the government does not like these kinds of things. The process that is used is not public knowledge and for matters of national security, they might argue, cannot be divulged in its entirety. What the discover process should serve to do is, factually, prove that, due to lack of organization and proper priority, files are being processed out of order.

So, in summation, I don't know if the case is that strong. You might have a point that SOME cases take a long time, but they will argue that not ALL the cases are delayed.
 
INS has mentioned officially that, they will make the Green card processing duration "within 6 months by 2006".

Couple of years back they were completing the entire processing and issuing green card "within 1-2 years" too.

So, from these statements it is clear that INS can (Capable to) do entire green card processing within 1-2 year duration. There is no need for 3 years duration for I485 stage alone.

Hence, the present delay is due to their improper management.

MY FEELING IS AS THE JUDGE HAS ACCEPTED THAT "DELAY IS UN ACCEPTABLE AND IT HAS TO BE DISCOVERED", THAT ITSELF A VICTORY FOR RAJIV KHANNA'S TEAM. IF WE GIVE WIDE PUBLICITY THIS POINT, INS CAN UNDERSTAND THAT PEOPLE AND COURT ARE AGINST THE DELAY.

CONGRATS RAJIVJI.

OUR SINCERE THANKS FOR YOUR HELP TO THE SOCIETY.
 
hope...

i hope the "discovery process" brings out the bureaucracy and the "don't care" attitude of the INS. i am sure most 485s filed in later half of 2002 aren't even touched till date. what explanation can INS give for this? if they did touch, why couldn't they approve it immediately. and if INS accepts that there is delay, are they going to give any intermediate relief? if it is a genuine lack of manpower problem, why didn't they atleast recommend to congress that these immigrants need some intermediate relief. i.e., they never said that the problem is in their end and that millions of people should not be made to suffer for that. we need to advertise this vigorously - there was a thread that posted questions like - how would you feel if your employer said - "we are currently sending paychecks for the work you did in 2002, if you haven't received your paycheck, call us and wait 30 days". there is no accountability. INS should be made accountable for their actions. GOD BLESS!!!
 
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Great work. I noticed judge mentioned about the different time frames for different individuals (intead of common delay everyone experience) weaken the argument of class action, which is what CIS is practising now. I had a feeling all along CIS breaks FIFO (pilot program for new filers) just to prevent us from get class cert. I think we shall have no problem to aprove that majority of our cases are not touched for a long time. My own case was not touched (according to their newly design web feature) for more than a year. Even though I did FP 3 months after RD, it is completely wasting of time as the results are not used for anything and I have to do it again.

Anyway great work Rajiv.
 
Press Coverage and some additional points..

Rajiv
Thanks for posting the transcripts of the Court proceedings. I remember a gentleman had posted in this complaint forum site that he had some contacts with the ethnic/local? press and you had told him you would contact him later. Maybe we should use the press forum saying that our case has had the "initial hearing on June 3rd" and there is a "discovery" phase going on now. MAYBE it will put some heat on USCIS to co-operate with us and push the pace of 485 adjudications. (I remember how excited everyone on this forum was when the Judge in MN took USCIS to task for backlogging the Asylee cases.)
SECONDLY during the discovery phase we NEED to find out from USCIS the number of I-485's pending with I-140's ALREADY approved, as I think they will use the "CONCURRENT FILING" issue of the I-140-I485 and the I-140 sub classifications of EB1, EB2 etc to fog up the I-485 issue. There are a sizeable number of applications filed "non-concurrently" prior to July 2002 that have had their I-140's appproved and stuck in I-485 limbo with multiple EAD's, AP's, RFE's, H-1B's,1-FP's, 2nd-FP's or lack thereof...
THIRDLY....Mr ERB-USCIS lawyer, (as per the Transcript) says that we have conflict of interest within the Class and that we are asking, through this lawsuit, an out of turn I-485 adjudication, we should point out that USCIS through its various "pilot projects" inherently breaks the FIFO spirit and there is not a SINGLE PILOT PROJECT to look at, or Speed-up "LONG-PENDING" I-485's.
We need a few of these PILOTS to actually address the Backlogs.
Thanks
 
Rajiv,

Going by the threory that every case is different and that security checks vary in time, it would would be interesting to ask in the Discovery process, why so many of the cases in 02 were kept on the backburner without even a single peek as to its merits/demerits? While processing has already begun in 03/04 cases. It can't be that all the cases in 02 are undergoing security checks. So the question that begs to be asked is what is their criteria to pick up a case for adjudication?

And, why aren't the cases being touched sequentially? for e.g. Case #1 should be touched first, if the security checks are required and are taking too long, Case #2 should be touched, as compared to touching case #50,405. What is the logical progression in that?

The crux of the point made by the judge, (If it turns out, and it may very well turn out, that the application of Mr. X takes four years, the application of Mr. Y takes one year, the application of Mr. Z takes 30 days, the application of A takes six years, the application of B takes four years and three months, and that there's some rational reason for it, then I don't think you got a class action), is that INS can very well manipulate the processing speeds, and claim "Hey look at the descripancy in processing speeds how can you certify a class?". We should be ready with an answer from the discovery process that explains why the cases were not touched sequentially, and that there was some administrative action responsible for the descripancy in the adjudication process.
 
FBI is pretty reasonable at answering inquiries. Many of us contacted them and found out name check results had been returned a year ago at least, and FP was usually returned on the same day. So we have evidence that security check is not the main reason for delay.
 
My thought

Friends,

Friends I feel we should present facts and attach number to that. Like
1) Histogram to show the number of EB-1, EB-2,EB-3 cases etc application that had their I485 approved and what was their Notice Date. Figure speaks thousand words.
This will make the Defendant MUM of their claim that they follow first in and first out policy.
 
I think basically everyone who posted had addressed the questions I have regarding I-485 processing. I am a concurrent I-140 and I-485 filer back on Nov 20 2002. I was fingerprinted Feb 2003. My I-485 case was not touched until 4/8/2004 according to the USCIS website while my I-140 was approved on 2/24/2003. The judge is correct to assume that there is injury in this case, and the most measurable injury is the loss of career opportunities. I hope during the discovery phase, we can establish commonalities among all I-485 cases causing the delay, and justify our class action. Even if we lost the class action motion, our complaint can at least shed some light on the mysterious USCIS case processing.

I am optimistic Rajiv. Thank you for everything you've done. Please let me know what I can do to help.
 
Can we use I-140 examples as well ?

I know we have tons of these examples for I-140 as well, but knowing it is an I-485 litigation, not sure if it will be beneficial.


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I-140 RD 02/18/03
AD ????
 
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