jurisdiction: 1331(federal question statute), APA and estoppel(am not sure how)
0) PACE of ADJUDICATION IS NOT DISCRETIONARY
a) FBI namecheck is not mandated by statute(mocanu ruling).
b) if FBI namecheck was part of AG discretion in promulgating regulations, it did not follow notice & comment procedure( again such regulation can be reviewed by Court, see Succar)
Again, a regulation cannot be circumvented by a simple Feb4 memo.. stating that namecheck results are no longer required for adjudication.
c) USCIS did not follow 103.b.18 in withholding adjudications in instant case.. i.e.. violation of regulations
d) USCIS always had the option of revoking GC.. i.e.. Namecheck results were not required to adjudicate.. no reason to withhold adjudiction.
e) USCIS capricious policy of expediting namechecks is subject to review under APA and estoppel
f) Jan2005 memo for expediting under mandamus suit & Feb2007 memo & Feb2008 memo warrant estoppel relief
g) Visa numbers were mandated by statute(1153) to be requested based on priority dates. This congressional intent was subverted when
USCIS suspended processing of plaintiffs applications(did nothing.. it could have atleast expedited).. and July visa fiaso meant others behind
the line were given visa numbers. Even if namecheck is found valid.. 1153 demanded that it be expedited if required
h) valuable visa numbers were left unutilized in 2005 and possibly 2006 becos of namecheck delays. See Galvez(mandatory duty to utilize visa numbers)
i) Visa numbers could be claimed under any fiscal year.. So plaintiffs delayed further by retrogression is bcos USCIS misread statutes regarding validity of visa numbers for EB cases
j)DELIBERATE PATTERN OF LIES(national security & 485 adjudication & namecheck.. ) -- collect all related Aytes memo from 2002-2008 is basis of estoppel. It was not negligent delay.. but affirmative misconduct to NOT process applications.
Hardships and significant opportunity costs can be illustrated by :
1. Cannot vote(significant loss)
2. Cannot run for public offices(jobs that require citizenship)
3. Am not sure.. but citizens can apply for citizenship for alien relative.. or can GC holders do too
The big legal question with backdated GC is how visa numbers is used ?
if 2008 granted person like me is given GC with unused numbers from 2005 fiscal year..
Can we force this ? I think so.. becos Diversity visa numbers expire by statute.
So if congress wanted that for EB & Family cases, it would have put it in statute.
We can argue that congress passed AC21 for unused visa numbers only to illustrate that it wanted these numbers used. It could have put the expiring clause for these visa numbers then.. it did not.
Hardship to another GC applicant can be avoided using 2005 visa number for my application and freeing up 2008 number to another applicant.
I think the main thing is discrimination.
While majority cases done n number of months ours took 5 (or so) times longer.
Nobody told us that there is any bad information.
Discrimination could be done as class action?
Even if we lose this litigation( plan to fight atleast to circuit court), we can get an answer to the following debate from circuit court :
"IS PACE OF ADJUDICATION DISCRETIONARY ?".
Surely the next generation of applicants may benefit from this answer(hopefully
circuit court give a favorable response).
That should be some victory atleast.
And if PACE IS NOT DISCRETIONARY.. surely that will form a basis for granting relief..
If not a backdated GC from a prior fiscal year.. atleast the first date of the fiscal year. example Feb 2008 approval cases will get Oct1, 2007. Why not ?
It is not that bad a deal ? a moral victory atleast
Pace (i.e. speed) of adjudication is discretionary to some extent. However it's not immune to judicial review. Certainly the law does not give the USCIS power to not to process applications.
Affirmative misconduct by the USCIS will be easy to prove based on 8 USC 1571-1573, 8 USC 1153(e) and on their own words, as you noted. Feb 4th memo, for example, stated that it is intended to bring policies in line with 2005 recommendations. So why did they use the old policy for 3 years since? Aslam opinion has data that the USCIS/FBI had inadequate staff numbers to process existing workloads (about three times less than necessary).
I-485 receipt used to have an average processing time (365-540 days in my case) so we can request backdating to at least RD+540 days. Old processing times are also available so we can use those as well. If we prevail on estoppel, visa numbers will not be an issue (Galvez).
As for discrimination, the SC ruled that it's permissible in regard to aliens. Overall, I can see this case going all the way to SC and may force the SC to finally answer whether estoppel can prevent government from enforcing the INA.
Going to Supreme Court might take a lot of time which might negate any nunc pro tunc benefits but I do think this is something that a high court needs to weigh in.
I am still not convinced on affirmative misconduct as the bar set by supreme court is pretty high for the government. I believe it has denied all affirmative misconduct claims that has been put in front of it against the govt. I am almost hoping that they amend the INA to use the 485 receipt date for the naturalization clock, so many things happen in a presidential year... wishful thinking...
Can those who had green cards for 3 years already join too?
I am with you folks, my name check was pending for 2+ years and visa numbers always current...
But I would not request backdating of the GC's - rather allowing to apply earlier for citizenship based on for example I-485 notice date + 6 months...