Backdating green card due to the USCIS delays in adjudication
- Thread starter lazycis
- Start date
how to stake claim ?
jurisdiction: 1331(federal question statute), APA and estoppel(am not sure how)
claim:
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.
jurisdiction: 1331(federal question statute), APA and estoppel(am not sure how)
claim:
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.
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Call me Shrek
Registered Users (C)
Can those who had green cards for 3 years already join too?
I think the main challenge is to prove that there is great damage like deportation. Estoppel against the govt has a high bar based on Supreme court decision but definitely woth a try. It has to be more than negligence, we will have to show deliberate malicious intent. etc
Immigration Courts and BIA have a 2 prong consideration for nunc pro tunc but both are tied to deportation. I reviewed some of the IJ and BIA stuff but doesnt seem like they have gotten a case like this.
http://www.usdoj.gov/eoir/
Look in Virutal Library for nunc pro tunc decisions; #2723, 3095, 3114, 3031,
3151, 3268
Here are some of the things to the list that wom_ri has. I think it is a uphill battle. Maybe Rajeeve or someone wants to take this on.
1) 8 C.F.R. § 209.2(f).
His grant of lawful permanent residence
dates back to June 28, 2006, exactly one-year before the date of approval of the
adjustment application, as required by 8 C.F.R. § 209.2(f).
2)
Jung Bin Sug v INS
http://bulk.resource.org/courts.gov/c/F2/592/592.F2d.230.78-1457.html
We do not look with favor upon the INS violation of its own regulations.
If the INS had refused to accept petitioner's application, as it should have, in light of the unavailability of a non-preference visa number, petitioner could have obtained a labor certificate4 and filed a Form I-140 for a sixth preference visa for which visa numbers were available in April 1976 according to the Visa Bulletin of the Department of State. He would have secured adjustment of status and avoided deportation.
To leave uncorrected the INS violation of its own regulation would impose upon petitioner the undue hardship of deportation. See Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973); Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491-92 (9th Cir. 1975). In the interest of justice, we vacate the order of the BIA denying petitioner's application for adjustment of status and remand the case to the BIA with instructions to permit petitioner to apply for a sixth preference visa by filing Form I-140 and a labor certificate with the benefit of the April 23, 1976 priority date. See Yoo v. Immigration and Naturalization Service, 534 F.2d 1325, 1329 (9th Cir. 1976).
In namecheck delay victims, losses included disenfrachisement, taxation without representation or path to representation. Other materail losses like loss of wages, employment opportunities
Mendedez v INS
http://cases.justia.com/us-court-of-appeals/F2/563/956/
Courts have looked with disfavor upon actions taken by federal agencies which have violated their own regulations. In Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), it was discovered by the petitioner in a contempt of congress case that the congressional hearing committee had pursued a course at variance with its own rules. Foregoing the constitutional issues raised the Court pointed out that the Committee had acted in violation of its own procedures. The decision of the Committee was reversed, the Court saying:
"While courts have generally invalidated adjudicatory actions by federal agencies which violated their own regulations promulgated to give a party a procedural safeguard, we conclude that the basis for such reversals is not, as Bates asserts, the Due Process Clause, but rather a rule of administrative law. A review of the cases relied upon by the district judge fails to persuade us to the contrary. Agency actions in Yellin v. United States, supra, and Accardi v. Shaughnessy, supra, were reversed for violations of their own regulations, but the court did not rely on the Due Process Clause." (Footnotes omitted).
Here, failure to notify appellant's counsel amounts not only to a violation of 8 C.F.R. 292.5(a), but also to appellant's right to counsel as provided in 8 U.S.C. § 1252(b). We order the Immigration and Naturalization Service to admit appellant into the United States, granting appellant the same status he held prior to the May 15, 1975, deportation. This will permit appellant to pursue any administrative and judicial remedies to which he is lawfully entitled.
Using some of wom_ri arguments of USCIS violation of CFRs and statutes with this.
Immigration Courts and BIA have a 2 prong consideration for nunc pro tunc but both are tied to deportation. I reviewed some of the IJ and BIA stuff but doesnt seem like they have gotten a case like this.
http://www.usdoj.gov/eoir/
Look in Virutal Library for nunc pro tunc decisions; #2723, 3095, 3114, 3031,
3151, 3268
Here are some of the things to the list that wom_ri has. I think it is a uphill battle. Maybe Rajeeve or someone wants to take this on.
1) 8 C.F.R. § 209.2(f).
His grant of lawful permanent residence
dates back to June 28, 2006, exactly one-year before the date of approval of the
adjustment application, as required by 8 C.F.R. § 209.2(f).
2)
Jung Bin Sug v INS
http://bulk.resource.org/courts.gov/c/F2/592/592.F2d.230.78-1457.html
We do not look with favor upon the INS violation of its own regulations.
If the INS had refused to accept petitioner's application, as it should have, in light of the unavailability of a non-preference visa number, petitioner could have obtained a labor certificate4 and filed a Form I-140 for a sixth preference visa for which visa numbers were available in April 1976 according to the Visa Bulletin of the Department of State. He would have secured adjustment of status and avoided deportation.
To leave uncorrected the INS violation of its own regulation would impose upon petitioner the undue hardship of deportation. See Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973); Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491-92 (9th Cir. 1975). In the interest of justice, we vacate the order of the BIA denying petitioner's application for adjustment of status and remand the case to the BIA with instructions to permit petitioner to apply for a sixth preference visa by filing Form I-140 and a labor certificate with the benefit of the April 23, 1976 priority date. See Yoo v. Immigration and Naturalization Service, 534 F.2d 1325, 1329 (9th Cir. 1976).
In namecheck delay victims, losses included disenfrachisement, taxation without representation or path to representation. Other materail losses like loss of wages, employment opportunities
Mendedez v INS
http://cases.justia.com/us-court-of-appeals/F2/563/956/
Courts have looked with disfavor upon actions taken by federal agencies which have violated their own regulations. In Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), it was discovered by the petitioner in a contempt of congress case that the congressional hearing committee had pursued a course at variance with its own rules. Foregoing the constitutional issues raised the Court pointed out that the Committee had acted in violation of its own procedures. The decision of the Committee was reversed, the Court saying:
"While courts have generally invalidated adjudicatory actions by federal agencies which violated their own regulations promulgated to give a party a procedural safeguard, we conclude that the basis for such reversals is not, as Bates asserts, the Due Process Clause, but rather a rule of administrative law. A review of the cases relied upon by the district judge fails to persuade us to the contrary. Agency actions in Yellin v. United States, supra, and Accardi v. Shaughnessy, supra, were reversed for violations of their own regulations, but the court did not rely on the Due Process Clause." (Footnotes omitted).
Here, failure to notify appellant's counsel amounts not only to a violation of 8 C.F.R. 292.5(a), but also to appellant's right to counsel as provided in 8 U.S.C. § 1252(b). We order the Immigration and Naturalization Service to admit appellant into the United States, granting appellant the same status he held prior to the May 15, 1975, deportation. This will permit appellant to pursue any administrative and judicial remedies to which he is lawfully entitled.
Using some of wom_ri arguments of USCIS violation of CFRs and statutes with this.
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.
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.
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
"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
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?
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?
Discrimination is affirmative misconduct when they r duty bound to act fairly on all applications. This could be basis for estoppel ?
They will argue that each case is different.. So.. like all judges.. who have asked fairly.. the onus is on USCIS to give particularized information on each case that justify individual delay..
Discrimination also exists based on Jan2005 memo..(internal memo)
Plus.. they always could have expedited the check..
Plus.. they rechecked 3 million names.. (and most likely.. those applicants where adjudicated and given GC/citizenship)..
So.. withholding adjudication was not warranted.
They will argue that each case is different.. So.. like all judges.. who have asked fairly.. the onus is on USCIS to give particularized information on each case that justify individual delay..
Discrimination also exists based on Jan2005 memo..(internal memo)
Plus.. they always could have expedited the check..
Plus.. they rechecked 3 million names.. (and most likely.. those applicants where adjudicated and given GC/citizenship)..
So.. withholding adjudication was not warranted.
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.
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Good points!
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...
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...
nunc pro tunc not available
We discussed nunc pro tunc on the other forum(for people who r new here) and seems to me that is not a viable option for relief:
http://boards.immigration.com/showpost.php?p=1881394&postcount=16158 http://boards.immigration.com/showpost.php?p=1881394&postcount=16159
I agree with the timing factor and Supreme Court. However, in the light of Succar v Ashcroft, first circuit seems a good bet to favor us.
Trust USCIS to achieve the high bars set by Supreme Court for USCIS
Legislation in current atmosphere is near impossible and usually such things are very time consuming and need strong lobbying. Legal options are the best ROI(return on investment).
Iam interested in how circuit courts rule on estoppel in present conditions. IMO, It's worth a try to get this question onto select circuit courts.
We discussed nunc pro tunc on the other forum(for people who r new here) and seems to me that is not a viable option for relief:
http://boards.immigration.com/showpost.php?p=1881394&postcount=16158 http://boards.immigration.com/showpost.php?p=1881394&postcount=16159
I agree with the timing factor and Supreme Court. However, in the light of Succar v Ashcroft, first circuit seems a good bet to favor us.
Trust USCIS to achieve the high bars set by Supreme Court for USCIS
Legislation in current atmosphere is near impossible and usually such things are very time consuming and need strong lobbying. Legal options are the best ROI(return on investment).
Iam interested in how circuit courts rule on estoppel in present conditions. IMO, It's worth a try to get this question onto select circuit courts.
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why not ? but u need to file a complaint real soon
otherwise USCIS might argue that you are asking for frivolous benefits.
You can apply for jobs that need citizenship and get those rejection letters
and put it into the complaint.
otherwise USCIS might argue that you are asking for frivolous benefits.
You can apply for jobs that need citizenship and get those rejection letters
and put it into the complaint.
interesting link(effective date for GC)
http://murthyforum.atinfopop.com/4/OpenTopic?a=tpc&s=1024039761&f=8144055071&m=9814078972
http://murthyforum.atinfopop.com/4/OpenTopic?a=tpc&s=1024039761&f=8144055071&m=9814078972
April 1, 2008 ruling
Lazycis,
What do you make of this decision on estoppel claims( I see
two cited estoppel victories:
Harriott v. Ashcroft,277 F.Supp.2d 538 (E.D.Pa.2003);
Petition of Tubig in Behalf of Tubig,559 F.Supp. 2 (N.D.Cal.1981). )
Liston v Chertoff
NO. CV-06-0265-LRS
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2008 U.S. Dist. LEXIS 26142
------------------------------------------------------------------
Plaintiff has failed to allege sufficient facts to make a prima facie case for equitable estoppel against the USCIS. As Defendant suggests, Plaintiff has other avenues to obtain citizenship, although the Court recognizes that a mail service problem and the delayed submission of her application until only a few months prior to her eighteenth birthday results in an unfortunate outcome in this case. However, Plaintiff was aware of the importance of an expedited adjudication. Plaintiff allowed the deadline to pass without calling (successfully), writing or stopping by the USCIS office to check on the status of her application.
Lazycis,
What do you make of this decision on estoppel claims( I see
two cited estoppel victories:
Harriott v. Ashcroft,277 F.Supp.2d 538 (E.D.Pa.2003);
Petition of Tubig in Behalf of Tubig,559 F.Supp. 2 (N.D.Cal.1981). )
Liston v Chertoff
NO. CV-06-0265-LRS
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2008 U.S. Dist. LEXIS 26142
------------------------------------------------------------------
Plaintiff has failed to allege sufficient facts to make a prima facie case for equitable estoppel against the USCIS. As Defendant suggests, Plaintiff has other avenues to obtain citizenship, although the Court recognizes that a mail service problem and the delayed submission of her application until only a few months prior to her eighteenth birthday results in an unfortunate outcome in this case. However, Plaintiff was aware of the importance of an expedited adjudication. Plaintiff allowed the deadline to pass without calling (successfully), writing or stopping by the USCIS office to check on the status of her application.
I would prefer the second option too. Unfortunately.. the statute is very clear on that aspect: 8 USC 1427
5 years as GC(for regular cases) & years for spouses in order to apply for citizenship.
We cannot change the statute.
So, I am trying the other option to backdate the GC as USCIS is responsible
for the delay(completion of FBI Namecheck unnecessary for adjudication)
5 years as GC(for regular cases) & years for spouses in order to apply for citizenship.
We cannot change the statute.
So, I am trying the other option to backdate the GC
as USCIS is responsiblefor the delay(completion of FBI Namecheck unnecessary for adjudication)