Congratulations, Andrew!
Glad I was of any help.
Do not worry about this mistake, USCIS will fix it eventually. You cannot use it to continue litigation. You should call USCIS and ask them to fix it. Anyway, the worst part is over for you!
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Congratulations, Andrew!
Glad I was of any help.
Do not worry about this mistake, USCIS will fix it eventually. You cannot use it to continue litigation. You should call USCIS and ask them to fix it. Anyway, the worst part is over for you!
halotinman
Registered Users (C)
Thanks shvili!!
Ahhhh...thank you so much shvili. I must have missed your previous response to my question. In that case, i will not amend then.
Haolitnman,
please read my previous post before making a decision to amend: you really should not trust your AUSA to provide you with a sound legal advice.
A little correction: both 336 (b) and 1447 (b) are not illogical because both of them refer to sections 335 and 1446 respectively. These referred sections are NOT about denials but about the Nat-n process itself, so both statues are actually quite logical. I forgot about it in my previous post, but everything else in it is correct.
SO again, you made NO MISTAKE in quoting 336 (b), it's only a tautology as it repeats section 1447 (b).
Ahhhh...thank you so much shvili. I must have missed your previous response to my question. In that case, i will not amend then.
what do you think about this?
To counter the argument that Congress gave the AG unlimited power over AOS applications and that Congress did not intend to impose any deadlines for AOS processing, I find that Chapter 13, Subchapter II is very useful.
Not only Congress expressed its intention in 1571(b) that "It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application", but
- 1572(2) says that "The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act"
- 1573 (a) Authority of the Attorney General:
The Attorney General shall take such measures as may be necessary to—
(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog 1 year after November 25, 2002;
(2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and
(3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.
- 1574(b)(2)(C)(i) - subparagraph "Annual reports" specifically includes AOS:
(C) a status report on—
(i) applications for adjustments of status to that of an alien lawfully admitted for permanent residence;
- 1574(b)(2)(B)(iii) - annual report should include (this relates to AOS and other applications)
(iii) the number of applications or petitions pending for up to 6 months, 12 months, 18 months, 24 months, 36 months, and 48 months or more;
(confirming implicitly 180 days as intended processing time)
So clearly it was not Congress intention for application to linger significantly longer than 6 months.
To counter the argument that Congress gave the AG unlimited power over AOS applications and that Congress did not intend to impose any deadlines for AOS processing, I find that Chapter 13, Subchapter II is very useful.
Not only Congress expressed its intention in 1571(b) that "It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application", but
- 1572(2) says that "The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act"
- 1573 (a) Authority of the Attorney General:
The Attorney General shall take such measures as may be necessary to—
(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog 1 year after November 25, 2002;
(2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and
(3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.
- 1574(b)(2)(C)(i) - subparagraph "Annual reports" specifically includes AOS:
(C) a status report on—
(i) applications for adjustments of status to that of an alien lawfully admitted for permanent residence;
- 1574(b)(2)(B)(iii) - annual report should include (this relates to AOS and other applications)
(iii) the number of applications or petitions pending for up to 6 months, 12 months, 18 months, 24 months, 36 months, and 48 months or more;
(confirming implicitly 180 days as intended processing time)
So clearly it was not Congress intention for application to linger significantly longer than 6 months.
part 2
8 CFR 103.2(b)(18) defines conditions under which the adjudication may be withheld pending investigation
(18) Withholding adjudication. A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation.
If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director’s determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.
Therefore, if you application is pending more than 1 year, the USCIS should present the evidence that the district director reviewed your application. If it is pending more then 2 years, it should've been reviewed by the regional commissioner. If it is pending more than 2.5 years, it should've been reviewed by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement. If it was not done, the USCIS "unlawfully withheld" adjudication.
Further, 8 CFR 103.2(b)(18) confirms non-discretionary duty to process an application:
(19) Notification. An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal.
8 CFR 103.2(b)(18) defines conditions under which the adjudication may be withheld pending investigation
(18) Withholding adjudication. A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation.
If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director’s determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.
Therefore, if you application is pending more than 1 year, the USCIS should present the evidence that the district director reviewed your application. If it is pending more then 2 years, it should've been reviewed by the regional commissioner. If it is pending more than 2.5 years, it should've been reviewed by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement. If it was not done, the USCIS "unlawfully withheld" adjudication.
Further, 8 CFR 103.2(b)(18) confirms non-discretionary duty to process an application:
(19) Notification. An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal.
You know how defendants will use this. They'll tell the court that Congress knew that some cases might take up to 48 months or more to resolve and hence the delay is indeed reasonable.
In fact they use 103.2(b)(18) which lays down the SOP for any application delayed for more than 1 year as an indication that USCIS has discretion to delay applicants (forget the fact that in none of our cases that the SOP was never followed). In fact USCIS can be sued on just 103.2(b)(18) alone by anyone whose application has been delayed by more than 1 year. It demands a seperate section in anyone's opp to mtd or motion for summary judgment
USCIS Violated regulatory requirements
Yes, you may file MSJ. You can title it "Motion for judgment on the pleadings" and use rule 12(c) FRCP which is especially designed to speed up the process.
How about this
8 C.F.R (b)(16)(iii)
Discretionary determination. Where an application may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably....
An exercise of discretion means granting or denying an application not processing of an application.
8 C.F.R (b)(16)(iii)
Discretionary determination. Where an application may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably....
An exercise of discretion means granting or denying an application not processing of an application.
You want unlimited time frame here u go
in 8 U.S.C. §1155,
The Secretary of Homeland Security may, at any time, ….
This is how Congress provides discretion over pace of adjudication. If you ain't got "at any time" then you ain't got discretion over pace of adjudication and you gotta follow APA.
in 8 U.S.C. §1155,
The Secretary of Homeland Security may, at any time, ….
This is how Congress provides discretion over pace of adjudication. If you ain't got "at any time" then you ain't got discretion over pace of adjudication and you gotta follow APA.
You are correct. It can look identically to MSJ. It's basically the same thing. The conference will be rescheduled, that's for sure, if you file MSJ. However you may not be able to avoid hearing on MSJ if the judge orders it. It's noting to be afraid of, if it happens, just show up and read your MSJ when the judge calls your name.
You are correct. It can look identically to MSJ. It's basically the same thing. The conference will be rescheduled, that's for sure, if you file MSJ. However you may not be able to avoid hearing on MSJ if the judge orders it. It's noting to be afraid of, if it happens, just show up and read your MSJ when the judge calls your name.
Is this the FRCP 16 conference ? If so isn't it just something regarding discovery and so on ?
Abbasfar - MTD denied
Also read about visa number availability
In Reply, Respondents argue for the first time that Petitioners’ claims should be dismissed because, as of July 2, 2007, the government has run out of employment based visas for the current fiscal year. Respondents argue that because an available visa is a prerequisite to adjustment of status, Petitioners’ claimed should be dismissed for failure to state a claim.
The statute requires: (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255 (a). Thus, an applicant must be eligible for a visa and a visa must be available when the application is filed. The fact that no visas are currently available is, therefore, irrelevant.
Moreover, as Petitioners argue, the current unavailability of a visa does not mean that there is no set of facts upon which relief could be granted. For example, this court could order adjudication within a certain amount of time after a visa becomes available.
Also read about visa number availability
In Reply, Respondents argue for the first time that Petitioners’ claims should be dismissed because, as of July 2, 2007, the government has run out of employment based visas for the current fiscal year. Respondents argue that because an available visa is a prerequisite to adjustment of status, Petitioners’ claimed should be dismissed for failure to state a claim.
The statute requires: (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255 (a). Thus, an applicant must be eligible for a visa and a visa must be available when the application is filed. The fact that no visas are currently available is, therefore, irrelevant.
Moreover, as Petitioners argue, the current unavailability of a visa does not mean that there is no set of facts upon which relief could be granted. For example, this court could order adjudication within a certain amount of time after a visa becomes available.
another good case
Elhaouat v. Mueller, Slip Copy, 2007 WL 2332488 E.D.Pa. Aug 09, 2007
It's N-400 and APA case (no interview). It has a good analysis regarding 1252(a)(2)(B), Norton SC case and other issues.
" A number of courts have already observed that it is impossible to reconcile this last statement with Safadi’s principal holding that Section 1252(a)(2(B)(ii) strips the district courts of jurisdiction in cases in which an adjustment of status (or naturalization) applicant complains of unreasonable delays. The processing of an application is either an action or it isn’t. But it can’t be an action in some cases but not in others. Cf. Duan, 2007 U.S. Dist. 12697, at *8-9 (“This disclaimer, however, raises the question of how an unreasonable delay might not qualify as an ‘action’ . . . while a reasonable delay unambiguously does constitute ‘action.’). Its internal inconsistency aside, the Court finds Safadi unpersuasive for other reasons.
First, the decision simply ignores that the APA requires that any matter presented to an agency must be decided within a reasonable period of time. See 5 U.S.C. § 555(b). And so it’s not particularly relevant that neither the INA nor any regulations promulgated thereunder fail to set forth specific timing deadlines for the CIS to process adjustment of status or naturalization or any other immigration-related applications over which it has administrative authority. That’s because the CIS’ activities must still conform to the APA - including its general provision requiring agencies to conclude matters before them in a reasonable amount of time. The Court can locate no language in the INA which makes 5 U.S.C. § 555(b) inapplicable to the CIS.
Second, the Court is not convinced that Safadi properly defined the word “action.” “Action” is not defined by the INA. See 8 U.S.C. § 1101 (definitions section). And so starting with a dictionary to define the word is not altogether surprising. The Court believes, however, that the better approach is to interpret “action” vis-à-vis the APA. Section 704 (5 U.S.C. § 704) of the APA limits judicial review to final agency actions. Indeed, the provision could not be more explicit: “[a] preliminary, procedural, or intermediate agency action or ruling [is] not directly reviewable . . . .” 5 U.S.C. § 704. In light of this limitation on judicial review of agency action, it makes little sense to read Section 1252(a)(2)(B)(ii) as eliminating jurisdiction that never existed (this provision was added to the immigration code as part of the Illegal Immigration Reform and Immigrant Act of 1996). The federal courts have never had jurisdiction to review “non-final agency actions.” Thus, the word “action” in Section 1252(a)(2)(B)(ii) is better understood to refer to only “final agency actions.”
Elhaouat v. Mueller, Slip Copy, 2007 WL 2332488 E.D.Pa. Aug 09, 2007
It's N-400 and APA case (no interview). It has a good analysis regarding 1252(a)(2)(B), Norton SC case and other issues.
" A number of courts have already observed that it is impossible to reconcile this last statement with Safadi’s principal holding that Section 1252(a)(2(B)(ii) strips the district courts of jurisdiction in cases in which an adjustment of status (or naturalization) applicant complains of unreasonable delays. The processing of an application is either an action or it isn’t. But it can’t be an action in some cases but not in others. Cf. Duan, 2007 U.S. Dist. 12697, at *8-9 (“This disclaimer, however, raises the question of how an unreasonable delay might not qualify as an ‘action’ . . . while a reasonable delay unambiguously does constitute ‘action.’). Its internal inconsistency aside, the Court finds Safadi unpersuasive for other reasons.
First, the decision simply ignores that the APA requires that any matter presented to an agency must be decided within a reasonable period of time. See 5 U.S.C. § 555(b). And so it’s not particularly relevant that neither the INA nor any regulations promulgated thereunder fail to set forth specific timing deadlines for the CIS to process adjustment of status or naturalization or any other immigration-related applications over which it has administrative authority. That’s because the CIS’ activities must still conform to the APA - including its general provision requiring agencies to conclude matters before them in a reasonable amount of time. The Court can locate no language in the INA which makes 5 U.S.C. § 555(b) inapplicable to the CIS.
Second, the Court is not convinced that Safadi properly defined the word “action.” “Action” is not defined by the INA. See 8 U.S.C. § 1101 (definitions section). And so starting with a dictionary to define the word is not altogether surprising. The Court believes, however, that the better approach is to interpret “action” vis-à-vis the APA. Section 704 (5 U.S.C. § 704) of the APA limits judicial review to final agency actions. Indeed, the provision could not be more explicit: “[a] preliminary, procedural, or intermediate agency action or ruling [is] not directly reviewable . . . .” 5 U.S.C. § 704. In light of this limitation on judicial review of agency action, it makes little sense to read Section 1252(a)(2)(B)(ii) as eliminating jurisdiction that never existed (this provision was added to the immigration code as part of the Illegal Immigration Reform and Immigrant Act of 1996). The federal courts have never had jurisdiction to review “non-final agency actions.” Thus, the word “action” in Section 1252(a)(2)(B)(ii) is better understood to refer to only “final agency actions.”
I just didn't understand this sentence
"The federal courts have never had jurisdiction to review “non-final agency actions.”
Also this foot note troubles me
"Moreover, the Court would have to dismiss Elhaouat’s claim against the CIS for unreasonable delay in the processing of his application if the FBI’s failure to complete his background check is the cause for the delay."
"The federal courts have never had jurisdiction to review “non-final agency actions.”
Also this foot note troubles me
"Moreover, the Court would have to dismiss Elhaouat’s claim against the CIS for unreasonable delay in the processing of his application if the FBI’s failure to complete his background check is the cause for the delay."
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This is not always true, but because if the action is not final, there is usually administrative remedy to pursue. However "failure to act" qualifies as final action as equivalent of denial of the relief( 5 USC 551).
I agree that there are some shaky points in this decision (i.e. 1252(a)(2)(B) is not applicable for Natz, yet the judge missed it).