Thank you guys for your comments.
United2007,
Yes, they cite those cases but they use only the legal argument or judgement part of it; my understanding is that in legal lingo, it's called "facial" argument, and I think judges usually do not like purely facial argument.
Again my understanding is that judges really take into account the "factual" argument, where facts and evidence talks.
I might be wrong though.
For instance, for "lack of subject matter jurisdiction" argumen based on Saleh v. Ridge, my attack will be something like this,
A. Legal (facial?) irrelavance:
Saleh has used 8 U.S.C. § 1329 in his complaint, which is a General Penalty Provision, under Subchapter II of Chapter 12 under Title 8.
Saleh used 8 U.S.C. § 1329 because he entered the United States unlawfully, evading immigration inspection.
The Plaintiff (me), however, has used 5 U.S.C. § 701 (APA), 28 U.S.C. § 2201 (DJA) and seeks relief thru writ in the Nature of Mandamus. He did not need to use 8 U.S.C. § 1329 since he enter and stayed in the U.S. lawfully.
B. Factual irrelavance:
B.1. Saleh's claim of eligibility for adjustment of status was based on his wife having been granted asylum. Such an application was subject to the cap of 10,000 per year as established by Congress and as provided in 8 U.S.C. § 1159(b) for the number of aliens for whom the Attorney General may grant discretionary adjustment based on the alien or an immediate relative having been admitted to the United States as a refugee pursuant to 8 U.S.C. § 1158(b)(1).
B.2. During the pendency of Saleh's application for adjustment of status, he was charged with, and pled guilty to Conspiracy to Traffic in Counterfeit Clothing in violation of 18 U.S.C. Sections 371 and 2320. (Id .P10. n2) On July 15, 1999, Plaintiff was sentenced by Judge Miriam Goldman Cedarbaum of this Court to thirty-six months of probation.
The Plaintiff (me) claim of eligibility for adjustment of status was based on marriage to a U.S. Citizen. Such an application is not subject to any cap. The Plaintiff has always been legally presented in the U.S. and never been convicted to any crime.
United2007,
Yes, they cite those cases but they use only the legal argument or judgement part of it; my understanding is that in legal lingo, it's called "facial" argument, and I think judges usually do not like purely facial argument.
Again my understanding is that judges really take into account the "factual" argument, where facts and evidence talks.
I might be wrong though.
For instance, for "lack of subject matter jurisdiction" argumen based on Saleh v. Ridge, my attack will be something like this,
A. Legal (facial?) irrelavance:
Saleh has used 8 U.S.C. § 1329 in his complaint, which is a General Penalty Provision, under Subchapter II of Chapter 12 under Title 8.
Saleh used 8 U.S.C. § 1329 because he entered the United States unlawfully, evading immigration inspection.
The Plaintiff (me), however, has used 5 U.S.C. § 701 (APA), 28 U.S.C. § 2201 (DJA) and seeks relief thru writ in the Nature of Mandamus. He did not need to use 8 U.S.C. § 1329 since he enter and stayed in the U.S. lawfully.
B. Factual irrelavance:
B.1. Saleh's claim of eligibility for adjustment of status was based on his wife having been granted asylum. Such an application was subject to the cap of 10,000 per year as established by Congress and as provided in 8 U.S.C. § 1159(b) for the number of aliens for whom the Attorney General may grant discretionary adjustment based on the alien or an immediate relative having been admitted to the United States as a refugee pursuant to 8 U.S.C. § 1158(b)(1).
B.2. During the pendency of Saleh's application for adjustment of status, he was charged with, and pled guilty to Conspiracy to Traffic in Counterfeit Clothing in violation of 18 U.S.C. Sections 371 and 2320. (Id .P10. n2) On July 15, 1999, Plaintiff was sentenced by Judge Miriam Goldman Cedarbaum of this Court to thirty-six months of probation.
The Plaintiff (me) claim of eligibility for adjustment of status was based on marriage to a U.S. Citizen. Such an application is not subject to any cap. The Plaintiff has always been legally presented in the U.S. and never been convicted to any crime.