class action lawsuit against BCIS delay

Dengdeng ,

Can we send them a link to this forum so they are aware of the problems that we face and can advice us accordingly ?
 
dengdeng

I think you forgot the year is 2003 after 09-2001 everything is changed. Have you noticed the changes after 09/01? INS is part of the homeland security and they have all reasons to delay any GC process in the name of "SECURITY". Further they can also Denny or reject any application based on the new rule and have enormous power to do so. This kind of petition or lawsuit is not working anymore. I advice you to keep quit and wait till your time comes and I wish you to get your GC before they eliminate Employment based applications and show us one way ticket to where you and me comes from.

This not to discouraging your effort but I would like to remind you the day and the time that we live in.

Regards,
 
keep in mind that...

...immigrating to the u.s. is not a right, it is a previlege. the BCIS, or any u.s. gov't agency, does not owe you a green card just because you have applied. while the immigration authorities have oft pledged that they will try to reduce backlogs, they have not signed a contract with you that they will do so; it is, therefore, not a right denied you that your GC is not being processed in timely manner. i cannot see any grounds for a lawsuit for growing backlogs alone.

petitioning lawmakers and administrators to see EB immigrants' plight in a favorable light is another matter. insofar as i can see, that is the only way that might work. some people had started just such an initiative a short time ago, but it fizzled out. if you want to take action, that is the direction you should be looking at.

IMHO.
 
wwossen,

(I believe) people expect to have the permit to stay in this land because it's the place w/ freedom & chance for better life.
If it is changed totally someday, most of them will leave for better
place even they have GC. So let us use the right we have
(at the moment) and do what we want...

yager
 
From the comments here, it would seem as if the aspiring immigrants in the US are living under some form of military rule. While the position of the current administration on various civil liberties issues, combined with the long rope provided to the administration by the judiciary in recent cases, based mainly on security concerns, may make it feel as if this is the case, we should remember (and hope) that the system is based very much on the rule of law, and is as such always subject to review by the judiciary.

What dengdeng has suggested is nothing but a judicial review of the current policies and processes being implemented/followed by the agency that is mandated with implementing the law as it is currently written. If the assertion of this very fundamental right is found to be on frivolous grounds, the courts will not entertain the suit and it will not go forward. However, if the courts accept it, as I suspect they will, based on the mountain of evidence available, it means that the litigants have sufficient locus standi and cause to be bringing the action.

Of-course, there are those of us, myself included, that will not want to be a party to the suit for various reasons and we always have the chance to opt out of the class (if at all class status is granted). This, however, is no reason to counsel the abandonment of legal redressal as an option, especially when the injury/grievance is so real.

Good luck to dengdeng and co!
 
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point well taken about the immigrant mindset. however, the fact remains that one recourses to litigation when one is convinced that one is denied what is due one. be that one's rights under various statutory and organic laws, or one's dues stemming from a second party's contractual obligations to one. in absence of either, there is no locus standi.

had there been stipulations in the statutes that immigration benefits shall be made available to intending immigrants within a specified period of time, or had the u.s. government, through one of its organs (e.g. the erstwhile INS), contractually committed that it will adjudicate one's case within some timeframe, a legal case could plausibly have been made if there was a failure by the government/governement agency on either count. since there is no demonstrable failure, there is also no basis for a legal case.
 
extract from murthy.com....

"It appears that the NSC is adjudicating the heavy asylee backlogs in response to a lawsuit filed when the BCIS failed to issue the annual allotment of visa numbers in asylum-based adjustment of status cases. It may be an effort to adjudicate the proper number of these cases before the end of the fiscal year. "

It seems as if lawful grant of asylum is a right, does it not?
 
Yes it is, because its written in the books of law.
But the right to a timely adjudication of a pending EB I-485 is no where to be found.

A Judge is simply a translator of the law, when two parties have different translations of the clause 194(i)(a)(II).

What if there's no law at all? Someone needs to push it in ;)
 
"The Immigration and Naturalization Service is responsible for processing various immigration applications. Under federal law the INS is required to adjudicate these applications "within a reasonable time." The U.S. General Accounting Office reports: "INS' goal is that the application process will be timely, consistent, fair and of high quality.' The GAO went on to note that what was considered "reasonable time' by the INS included 6 months for adjustment of status and naturalization interviews and 3 months for work authorization."

I am not sure if there is anyone here that would call 570 to 600 days reasonable. Further, whatever the security threat situation, we would be hard pressed to find any other application by an individual invloving a US government agency that takes this long.

Now, on to equal treatment guarantees: How about VSC adjudicating Feb.'02 applications and issuing fewer RFEs in contrast to NSC? The federal agencies are required to implement the laws in a fair and even-handed manner. Minor differences between various branch offices are inevitable but there cannot be different processes and wholesale arbitrariness in dealing with the same issue across the country! We have been browsing these forums long enough to have witnessed the scale of arbitrariness involved here.

Anybody who has lost his/her job 5/6 years after the process has begun only to have NSC ask for employment proof will tell you that the process is unfair. The law did not intend for INS to delay adjudications for years and then routinely require proof of employment as a pre-condition for approval. Economic cycles are a fact of life and if INS delays long enough, almost everyone will have been unemployed (or come close to being so) at some point. How is it lawful, from the point of view of an american worker, for someone to be assuming a position, which has been subjected to a labor market test 3/4 years ago, amidst constantly changing labor market conditions.

How fair is it for these "exceptionally skilled" "outstanding" "with advanced degrees" applicants to wait for those many years without career advancement and increased responsibility.

If fairness and reasonableness are the essence of a lawful system of governance, I have trouble undrestanding how one can call the current practices of INS lawful and thus immune from judicial review.

I apologize for my rant, but I just do not see how this type of systemic abuse can go on in a society that calls itself a modern democracy.:eek:
 
I agree

Sankrityayan, I agree with you but we're aliens. The country, the law is running for citizens, isn't it? Nobody cares to listen our voice.
 
Thank you, Sankrityayan and Pork, for presenting both sides of the argument. My thinking is more in line with that of Sankrityayan, though I don't know what the solution is.
 
Here is my 2 cents

The principal arguments against a class action lawsuit are that a. immigration is not a right, it is a privilege and b. that the INS/BCIS are under no contractual obligation to adjudicate within a reasonable time.

Immigration itself may not be a right, but adjudication of an application for immigration in a timely, fair and consistent manner is definitely a right under the canons of natural justice. As for the argument about the contract, remember that every applicant pays a fee for the processing of the application and that creates an implied contract for the service to be performed. The important thing in a contract is not whether it is written or not, but whether or not there is a consideration for its performance under stipulated terms and conditions. The consideration exists in the form of the fee paid and as far as I can make out from the postings, there is a clearly stated stipulation by the BCIS that it would process the applications in a reasonable time frame.

Having said that, I am not sure how the judicial system would react to a class action suit of this kind, but it seems to me that it is worth trying. While we are at it, we should also seek substantial damages for 'pain and suffering' caused by this totally unreasonable delay.
 
Seeking substantial damage compensation...

Having said that, I am not sure how the judicial system would react to a class action suit of this kind, but it seems to me that it is worth trying. While we are at it, we should also seek substantial damages for 'pain and suffering' caused by this totally unreasonable delay.
Click to expand...

I would not seek any more damages than those that they already ahve done, I hope you meant seeking damage compensation. As far as that goes, I understand from something I read sometime back, that the Government or any of its functions are protected by "Sovereign Immunity", sorry for shattering the concept.

P.S: I am nowhere qualified to say this, may be some of the legalese can be clarified by the experts on this forum
 
I don't think so

If governments were protected by what you call sovereign immunity, Libya wouldn't be paying $2.7bn to the relatives of the victims of the Lockerbie bombing. Accountability is one of the basic tenets of the rule of law in civilized societies and financial compensation for wrong doing is one of the principal modes of enforcing civil accountability.
 
Apples to Oranges

norfesept01,

Sovereign Immunity explained:

I have no intentions of practising constituional law, but this is something very interesting, read through this, it sure throws some light on the topic:

Sovereign Immunity Explained

And btw, the Libyan govt is doing it for its own benefit and damage control using the discretionary powers vested in it by the Libyan people and I think it is apples to oranges comparison.

The only way anyone can get any compensation from the Govt. is through legislature or through executive powers of the Head of the State, not thru courts.

Just to bring back the attention to the real problem, wouldn't we be more than happy, if our petitions for immigration got approved even without compensation.

God Bless all.
 
I agree 100% with norfesept01 that Immigration may not be a right but a priviledge, but, adjudication is certainly a right of a non immigrant seeking immigration.

But, the nature of lawsuit should be to press INS to hire more staff and speed up the entire process not to adjudicate one individual case.

If all of us start filing lawsuits then we'll be back in the same mess, no one would get a priority. This is my feeling some of you may not agree to it.

Thanks
 
What if a lawsuti is filed, and BCIS stops further processing of cases until the court decision, and the court takes 2-3 years to decide??

Sankrityayan: I AM KIDDING !!
 
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