AC21 : 180 days : I140 revoked
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The judge seems to have shafted BCIS.
Krish is OK because what got denied him was motion for summary judgement. Krish's victory is that his 'suit for mandamus relief' (translation: "make these government officials adjudicate my case") stands.
BCIS' motion to dismiss that complaint was denied.
This is good news for the immigrant community.
I ain't advocatin' any high hopes guys...but the Writ of Mandamus can also be used to file complaint to "make these government officials adjudicate my case NOW, coz the guys have not done so in a timely manner"
)
Note that BCIS did try a dirty trick:
"defendants claim that § 242(a)(2)(B)(i) of the Immigration and Nationality Act (INA) divests this court of jurisdiction to review it because it constitutes a "judgment regarding the granting of relief."
which Krish's attorney successfully fought:
"Id. In response, Krishnamoorthy correctly argues that § 242 HN4only precludes judicial review of discretionary decisions. Liu v. INS, 348 U.S. App. D.C. 250, 274 F.3d 533, 535 (D.C. Cir. 2001)."
Krish is OK because what got denied him was motion for summary judgement. Krish's victory is that his 'suit for mandamus relief' (translation: "make these government officials adjudicate my case") stands.
BCIS' motion to dismiss that complaint was denied.
This is good news for the immigrant community.
I ain't advocatin' any high hopes guys...but the Writ of Mandamus can also be used to file complaint to "make these government officials adjudicate my case NOW, coz the guys have not done so in a timely manner"
)Note that BCIS did try a dirty trick:
"defendants claim that § 242(a)(2)(B)(i) of the Immigration and Nationality Act (INA) divests this court of jurisdiction to review it because it constitutes a "judgment regarding the granting of relief."
which Krish's attorney successfully fought:
"Id. In response, Krishnamoorthy correctly argues that § 242 HN4only precludes judicial review of discretionary decisions. Liu v. INS, 348 U.S. App. D.C. 250, 274 F.3d 533, 535 (D.C. Cir. 2001)."
Event-line:
1. BCIS denies I-485
2. KM files suit of Mandamus relief
3. BCIS files motion to dismiss suit
4. KM files motion for summary judgement (translation: "Yo! Judge! There aint nuthin' worth tryin here!")
5. Judge denies BCIS motion
6. Judge also denies KM's motion in (4) above, on a technicality
Note: Original suite of Mandamus relief in (2) stands.
Hurrah!
1. BCIS denies I-485
2. KM files suit of Mandamus relief
3. BCIS files motion to dismiss suit
4. KM files motion for summary judgement (translation: "Yo! Judge! There aint nuthin' worth tryin here!")
5. Judge denies BCIS motion
6. Judge also denies KM's motion in (4) above, on a technicality
Note: Original suite of Mandamus relief in (2) stands.
Hurrah!
Those who has money, will power and patience can try filing writ of mandamus. People with 485 RD before Nov 2001 has good chance of success. Just couple of such actions and stupid BCIS bosses will start wiping their asses quickly to get down to work.
"writ of mandate" or "writ of mandamus"
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which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.
"writ of mandate" or "writ of mandamus"
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which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.
godsaint,
The diabolical idea I have is to file a class action lawsuit of Mandamus relief for everyone who has been pending unadjudicated over 180 days.
Kashmir estimates that there are 200K I-485 cases pending. If 1% of that contributed $10 each, we could have a $20K fund to pay a lawyer willing to do this. (Zuzana, are you reading this?)
The diabolical idea I have is to file a class action lawsuit of Mandamus relief for everyone who has been pending unadjudicated over 180 days.
Kashmir estimates that there are 200K I-485 cases pending. If 1% of that contributed $10 each, we could have a $20K fund to pay a lawyer willing to do this. (Zuzana, are you reading this?)
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Ain't gonna happen, guys. There is no legal basis for such a lawsuit. INS does not refuse to adjudicate our cases, right? They take their time, that's for sure, but they never promised a certain timeframe (even those 999 days they indicate in the receipts).
Suppose there is a legal basis, the lawsuit is filed and won. INS is bent over and ordered to adjudicate all cases pending longer than <put a timeframe here> NOW. Great. You feel better. But nothing happens then - they don't have adequate resources to do so. If they had, they would have done so without any lawsuits, eh?
While idea of suing INS and having an illusion of superiority over them is most certainly amusing, although attempts to realize this idea would be futile, to say the least.
Suppose there is a legal basis, the lawsuit is filed and won. INS is bent over and ordered to adjudicate all cases pending longer than <put a timeframe here> NOW. Great. You feel better. But nothing happens then - they don't have adequate resources to do so. If they had, they would have done so without any lawsuits, eh?
While idea of suing INS and having an illusion of superiority over them is most certainly amusing, although attempts to realize this idea would be futile, to say the least.
I think I finally fathom your choice of ID.
When the pain of lawsuits, bad publicity, accusations of inefficiency etc. become worse than the pain of demanding resources, they will demand them.
Furthermore, can you even imagine what would happen if, instead of a class action, there were 20,000 different lawsuits? The power of an united group is such that we could actually do the work once, yet file 20,000 suites and have the US Attorney's office kicking serious BCIS ass to settle.
I'm kinda disappointed with your response, but perhaps we could forget the Bitter part and concentrate on the Man. Deal?
When the pain of lawsuits, bad publicity, accusations of inefficiency etc. become worse than the pain of demanding resources, they will demand them.
Furthermore, can you even imagine what would happen if, instead of a class action, there were 20,000 different lawsuits? The power of an united group is such that we could actually do the work once, yet file 20,000 suites and have the US Attorney's office kicking serious BCIS ass to settle.
I'm kinda disappointed with your response, but perhaps we could forget the Bitter part and concentrate on the Man. Deal?
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gcwaiting007
Registered Users (C)
What does automatic revocation of I140 mean? If an employee quits the 140 sponsor, will 140 be automatically revoked? Or does it get revoked only if the employer files for revocation?
Automatic revocation, of I-140, in case of quittting the employer, pending I-485 adjudication, effective on the date of filing the I-140, was the claim presented by BCIS.
They might have gotten away with it prior to AC21. The judge's ruling was that this stand fails to take into the account the provisions of AC21, and is, therefore, bad in law. And, since no other appeal was available to KM, there existed a condition for a valid complaint of manadamus.
The bad news is that even today, the I-140 might be considered revoked even if the employer does not expressly request revocation, if one quit before 180 days had passed since filing I-485.
They might have gotten away with it prior to AC21. The judge's ruling was that this stand fails to take into the account the provisions of AC21, and is, therefore, bad in law. And, since no other appeal was available to KM, there existed a condition for a valid complaint of manadamus.
The bad news is that even today, the I-140 might be considered revoked even if the employer does not expressly request revocation, if one quit before 180 days had passed since filing I-485.
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140_takes_4ever
Registered Users (C)
Niladri30
'K' signifies 1000, 200K = 200,000 * 10 $ = 2,000,000 $ Big enough fund. But the problem is in getting the money from everyone. We are talking big organization here people.
Niladri30,
The idea of filing a class action sounds appealing to me. I have been waiting close to 1 year now (short by 10 days). It is high time something was done to allocate priority to 485's. At the rate INS is going we have no time frame that we can pace our life by, I think these are definitely grounds for cruel and inhumane punishment!
I think collecting 1000 signatures should be feasable. Remember it is not just EB based people who we can get signatures from, but also their dependents.
Here is an idea, Niladri30, since you obviously have the drive, why not ping Rajiv Khanna on the general idea of a lawsuit and see what an expert has to say on this? If he gives it the go ahead, we can start with the process of setting up a non profit organization on this regard and start a money drive!
We don't have to use all the money we collect as a defense fund, instead can also use it to start a political action committee.
BitterMan,
The class action lawsuit is not to pressurize INS into giving us approvals, but just to give priority to something they have been ignoring for 2 years. It is to have them stick to their deadline of 999 days because I am done with 365 with no respite in sight. I am not willing to wait till after 999 days have elapsed to start the fight.
As far as resources are concerned, when 140 BILLION consisting of my hard earned tax payer $'s are going to a useless war, I don't see why 10 Million cannot be diverted back to grant legal immigrants relief. Offcourse not even asking for a portion of the war money, just a small chunk of the money we pay in application fees (1 Billion ), if diverted back to us can make a big difference.
That is what the lawsuit is going to buy us!
'K' signifies 1000, 200K = 200,000 * 10 $ = 2,000,000 $ Big enough fund. But the problem is in getting the money from everyone. We are talking big organization here people.
Niladri30,
The idea of filing a class action sounds appealing to me. I have been waiting close to 1 year now (short by 10 days). It is high time something was done to allocate priority to 485's. At the rate INS is going we have no time frame that we can pace our life by, I think these are definitely grounds for cruel and inhumane punishment!
I think collecting 1000 signatures should be feasable. Remember it is not just EB based people who we can get signatures from, but also their dependents.
Here is an idea, Niladri30, since you obviously have the drive, why not ping Rajiv Khanna on the general idea of a lawsuit and see what an expert has to say on this? If he gives it the go ahead, we can start with the process of setting up a non profit organization on this regard and start a money drive!
We don't have to use all the money we collect as a defense fund, instead can also use it to start a political action committee.
BitterMan,
The class action lawsuit is not to pressurize INS into giving us approvals, but just to give priority to something they have been ignoring for 2 years. It is to have them stick to their deadline of 999 days because I am done with 365 with no respite in sight. I am not willing to wait till after 999 days have elapsed to start the fight.
As far as resources are concerned, when 140 BILLION consisting of my hard earned tax payer $'s are going to a useless war, I don't see why 10 Million cannot be diverted back to grant legal immigrants relief. Offcourse not even asking for a portion of the war money, just a small chunk of the money we pay in application fees (1 Billion ), if diverted back to us can make a big difference.
That is what the lawsuit is going to buy us!
goodsaint already answered it!
My guess is that Krish will quietly get his GC. BCIS would not risk any more publicity than the defeat already is causing them.
Incidentally, no matter, how much I flame BitterMan (BM.), he is right that one may not have a class action lawsuit with merit unless there are grounds for a Mandamus complaint.
However, I am all for frivolous lawsuits if I can file 20,000 of them and bring the machinery to its knees before they wake up. I've been at the receiving end too long.
Victories like Krish's have the advantage that they make the enemy more willing to turn back and run...
My guess is that Krish will quietly get his GC. BCIS would not risk any more publicity than the defeat already is causing them.
Incidentally, no matter, how much I flame BitterMan (BM.
), he is right that one may not have a class action lawsuit with merit unless there are grounds for a Mandamus complaint.However, I am all for frivolous lawsuits if I can file 20,000 of them and bring the machinery to its knees before they wake up. I've been at the receiving end too long.
Victories like Krish's have the advantage that they make the enemy more willing to turn back and run...
140_takes_4ever
Registered Users (C)
Originally posted by niladri30
My guess is that Krish will quietly get his GC. BCIS would not risk any more publicity than the defeat already is causing them.
Incidentally, no matter, how much I flame BitterMan (BM.
I agree, all I want to do is stand up for my rights! When I see all the illegal immigrants around me getting amnesties while I have to stick to the well trodden path, something snaps in me.
The concept of the lawsuit is more of a threat than action. We should definitely get a lawyer, start the process of a class action suit and then ask INS if they want to settle or fight!
When I say settle, I mean more priority for AOS, dedicated resources allocated to it and more streamlined processing. Since petitions are obviously filed in the wastepaper basket, here is hoping this will shake them up!
140_takes_4ever
Registered Users (C)
Re: Re: Niladri30
All I am looking for in this lawsuit is for INS to juggle the funds towards EB 485's instead of AP's or EAD's, amnesty blackholes or even religious workers/hurricane xyz, etc. Afterall we are one of the larger group of tax payers, paying taxes in much higher brackets than most other communities, with an extremely low crime rate! Don't you think we should be rewarded?
True, just that it takes a hell of a lot more money to go after the Congress (read lobbing), so the INS is a lot easier.
All I am looking for in this lawsuit is for INS to juggle the funds towards EB 485's instead of AP's or EAD's, amnesty blackholes or even religious workers/hurricane xyz, etc. Afterall we are one of the larger group of tax payers, paying taxes in much higher brackets than most other communities, with an extremely low crime rate! Don't you think we should be rewarded?