Here is the Govt's Response to The complaint

[poongunranar]

Request and Response to disney2k

Dear Beloved:

Can we hug each other with signs of peace? I do not want to name anybody but look at the hypocrisy, brothers and sisters -- While my meaningful digression and explanation was subjected to extreme mockery as being too verbose, etc., what we are seeing for more than 3-4 pages with tens of postings are vituperative attacks against each other. Honestly one should stop, breathe, and then ask one's own self, if they are fomenting trouble or creating amity in the forum. This is the reason, I pleaded and still keep pleading all of those detractors of mine to ignore me and just either counter my arguments or even just ignore them as well. And isakimuthu friend, kindly do not do anything that would brand all TSC folks as being bellicose, because we TSC folks already do not have a good name in general because we are considered to be not proactive and cooperative. I have read such comments elsewhere and when you openly say that you belong to TSC and if you engage in verbal attacks that weakens all of us, especially TSC folks as well. So, to you as welleace. I have nothing to say about the 'senior member' of this forum, who is not able to embrace and lead others, rather is becoming more of a center of controversy by fighting with everybody. To you, my brother, PEACE as well.

That much said, let me stick on to what I said -- I will comment only on direct questions addressed to me, so that I don't get sucked into this controversy and fisticuffs.

poongunranar,
Your comments make a very intresting reading about the legal perspective. Keep up your postings & don't get distracted by ...

No friend. I am on a personal mission. I will never give up. Thanks for your kind words.

- If the first litmus test is to admit this case as 'class action' then, What are the strong arguments we have in favour?

We have a lot of strong arguments in our favor. Please note that I had precisely asked Rajiv if INS will try to bring in mootness to attentuate our case, to which he had done a very good Shepardize and summed up the case-law pointers. To give you a few strong points,

1. Obviously, a CATEGORY of applicants are affected. Even if all the 30 odd plaintiffs are adjudicated, yet the problems arising out of these delays are going to be challenged in a court of law. Hence this CLASS of petitioners, whose case have been pending for impractical tenures will have to be investigated as a CLASS per se.
2. Due to the myriad number of issues with VARYING problems clearly exist, prima facie a case exists for Class-Action.
3. One of the things that the court will closely have to analyze and answer if this should be admitted as Class-Action is to see the PROBABILITY or the LIKELIHOOD of such CATEGORY/CLASS of applicants knocking the doors of justice for relief. ( As it is immediately obvious that INS is not going to be able to resolve the backlogs immediately, this class of litigants are only going to be on the rise and if this case is not heard as a class-action suit, individual litigants are going to flood the courts with cases -- a fundamental point that the court cannot be oblivious to.)
4. Now, as Rajiv had said, the case can even be dismissed, because of a POSSIBLE inability for us to NOT being able to cater to the LEVEL/STANDARD OF PROOF the judge expects in the case. Even so, I am diffident that this case will not be admitted as a class-action suit.
   [/list=1]
   

   - Generally what all makes the basis (by the court) for a case to be considered as 'class action'?

   OK, let us go the basics. A Judge, when prayed for admitting a case for class-action will have to FIRST see, if at all the CASE can be admitted on a prima facie existence of facts. Don't worry about whether it is classified as CLASS ACTION at this stage. Just say, he (for simplicity sake pardon my sexist language. Thanks. "He" should be read as "He or She" etc.) admits the case, the next thing he has to look for admittance is the prayer portion that prays him for admitting the suit as a CLASS-ACTION suit. Now, the Judge should be convinced of this crucial fact: "So, they(plaintiffs) are asking for admittance as Class Action. Are there SUFFICIENT ENOUGH plaintiffs and even if they do are there VARYING DEGREES of issues involved, ultimately holding the DEFENDANTS responsible for all those varying issues? Can I order a JOINDER instead? (Joinder is an attempt to JOIN all the plaintiffs together for the suit in question and this is not close to admitting as CLASS-ACTION. Remember, Joinder is only for those litigants who have approached the court, whereas CLASS-ACTION includes you and me as well as isakimuthu who was passionately concerned about his/her own case as well) Now the learned judge, after going through the litanies of the plaintiffs will decide, if there is a high likelihood of such types of people who are most likely to be affected with similar plaints, but yet, either haven't approached the courts or have a high probability to approach the court in future. If this crucial question is answered in the affirmative, he will immediately admit it as a Class-Action suit. This is where, Rajiv will leave no stone unturned to represent all those litanies. Now compare, his request to some of you to document and send him some rejection of CC applications, etc., to show to the court as to how many problems are arising out of not getting adjudicated in a timely manner and yet those people haven't approached the court!!! In a nutshell, Rajiv will be assumed by the Court to behave as a FIDUCIARY COUNSEL representing the interests of ABSENTEES TO SUIT like DISNEY2K, POONGUNRANAR, ISAKIMUTHU, etc. Also our fellow brethren plaintiffs will be construed by the court as pleading NOT ONLY FOR THEIR OWN RIGHTS, BUT FOR THE INHERENT RIGHTS OF A CLASS OF PEOPLE WHO HAVE YET NOT APPROACHED THE COURT FOR RELIEF, BUT THE OUTCOME OF THE CURRENT SUIT WILL ORDER RELIEF NOT JUST FOR THE PLAINTIFFS BUT FOR THE CLASS AS A WHOLE. In a nutshell, for you and me. (Kindly pardon my block-letter emphasis, which even I hate, but am trying hard to drive the point.)
   
   And don't kid yourselves. Often in a class-action suit, the court pays very important attention to the DIVERGENCE OF INTERESTS AMONGST PLAINTIFFS THEMSELVES; PLAINTIFFS Vs ATTORNEYS; PLAINTIFFS Vs THE CLASS THEY REPRESENT; PLAINTIFFS' LAWYER Vs THE CLASS HE REPRESENTS. This is why I am painstakingly asking people who attack me and others to stay calm, because, even before going to court, we are just slamming and attacking each other in a forum. If this is the demeanor we are going to adopt here, it is the very same factor that will ruin or mar the Class-Action suit in court. The art of persuasion and constructive dialogue and criticism is the key to winning class-action suits. Kindly bear that in mind before lashing out at each other.
   

   - How long time the court takes to admit or deny a class action?

   Friend, my experience is only with State Courts and not with Federal Circuit Courts. Rajiv can give a better answer. But I know the process, somewhat. I think, before even the Judge admits or takes next step of action, Rajiv has to file a counter to the counter that INS has filed. Usually there will be a statute of limitation within which this has to be done. Rajiv is the man to explain on these things. I do not want to mislead with erroneous information. So, if you are asking a ball-park figure, I would safely guess that it would be another 3 months at least for us to see if this gets admitted as Class-Action. Rajivji can give a more peremptory estimate on this.
   
   God bless and have a great weekend, all of you.

 

[poongunranar]

Re: Can we use similar cases to strengthen ours ?

Originally posted by BacklogBlues
Everyone,
I am not by any means a legal expert, so please excuse my naive question. Disclaimers aside, can we use other similar cases, like the one posted above to strengthen our case for getting this as a class action suit ?
I mean if we read the description of the above case, ours isnt too different in principle namely, hardship caused due to delays in DHS processing.will appreciate all replies regards BacklogBlues

Wonderful thought, my dear friend. Please read my earlier response. Surely this is a feather in our cap. In fact, we can represent to our Judge, who if vacillating to admit as Class-Action, will go by jurisprudence and there are numerous other CA suits to our quiver that the Judge cannot ignore. So already we are on a firm ground w.r.t getting admitted as CA suit. The latest one (thanks to whoever posted it) is another barrel in our armory. In fact, in one other response I had raised a poser, if we can request a en banc (full bench) hearing of the case. I know, in India, when greater questions of significant ramifications are raised, they can be sought to be heard en banc. I am, yet, not sure, how it is done here in the US. Will the Chief Justice decide so, or even a single Judge, if he/she feels it right to refer to a full bench do it? I don't know. By clubbing all similar cases together, a full-bench hearing will have all the attention on the case and INS will really be in a terrible position to counter such a case!!!

 

[poongunranar]

Re: Re: rajum

Originally posted by rajum
lastly, I might have wrongly interpreted your stand and if so, I apologize for the same and withdraw my statement .-rajum

Friend, no need to apologize. Communicating via email/internet/bulletin-board is the greatest challenge in this era where everybody is quick to anger. One cannot observe the other person's body-language, his frustrations, fears, stress, under what situation he writes, etc. To that extent, I never have any grudges or spite. If you would have WRONGLY INTERPRETED my stand, part of the blame is also on me in that I should have tried to communicate better. At times, I use pedantic language, which is something that I battle with myself to avoid. However, pedantic language is what suits me to accurately redact legalese issues. So, I fully agree that I can be misunderstood and misrepresented and the same holds good other way also -- I may also have misunderstood others' opinions. This humility is what makes me highly restrained in not lashing out at others. I am not sure if I would have had any (or may be a few during the initial days of adapting myself to this forum) digs over anybody in my 400 odd postings, because that is clearly not my mission. That is why, I keep repeating, pounce on the arguments. Just keep arguing. You are better that way. Once arguments are targetted against the writer, that is a loss for everybody. Also, why I say that I come from a Socratesian school of thought is to drive home the point that I am here to learn myself more about immigration process/fears/anxieties/happy-news, etc. As much as I can acknowledge my NOTHINGNESS I will grow in knowledge and understanding. The very moment, I start boasting myself about anything, I am not going to learn anything new here. If at all I boast, I would have boasted about my weaknesses -- my failures including and very sparingly about a modicum of accomplishments, if my veracity is questioned. I have made no secret -- except my true name, because, I want to convince myself that whatever I do or did, I did out by remaining nameless to nameless friends over the web. Period. So, we are cool, friend. No need to apologize. God bless.

 

[poongunranar]

Response to M101

Originally posted by M1O1
Mr. poongunranar (your name is greek to me.) and rest of the world - I mean whole world OK?

Friend, I am not sure if you would like my response to this question, but there may be certain lovers of Tamil, who can recognize my name, yet, may not have known the reason behind it. And if you are a lover of languages/cultures/poetry, please take a moment to browse this topic where I had answered this question after many folks kept asking this question about me again and again that I finally decided to answer:

http://boards.immigrationportal.com...did=109052&perpage=15&pagenumber=2#post663745

 

[lca_001]

Rajiv Ji,
After looking at the response for the lawsuit from the Govt, do you expect any different response on class action. I believe they did aver to class action in the reponse - is that their combined replies to the two petitions?

The reason I am asking the question is because I dont think they are going to do more than "sentenced denied - denied" for each of our compliaints, so why do they need 30 more days to do so? I think the defendants are just using time wasting techiniques to delay any resolution on the matter. Is it possible to impress upon the judge the actions of defendents to deny us of fast redressal of our issues - and request the judge not to grant any extensions whatsoever in future trial hearings.

001

 

[poongunranar]

lca_001

Originally posted by lca_001
The reason I am asking the question is because I dont think they are going to do more than "sentenced denied - denied" for each of our compliaints, so why do they need 30 more days to do so? I think the defendants are just using time wasting techiniques to delay any resolution on the matter. Is it possible to impress upon the judge the actions of defendents to deny us of fast redressal of our issues - and request the judge not to grant any extensions whatsoever in future trial hearings.

I will give my two cents and Rajiv can give his part. This is the same point that I argued for my case at which time I was politely pointed out that the Statute of Limitation is something that the defendant can use as per the rights given to the Defendant. I am not sure what the limitation is for CA suit, but that is why you will see the defendants taking so long a time to even respond. This is classic filibuster stalling technique that is allowed by law. It is the process. At times, when the Judge clearly sees this and tries to rule something against the defendant before the statue of limitation is over, that itself will give the defendant a right to cast aspersions on the Judge's applicability of mind in the suit and hence can go on an appeal citing that they cannot expect justice in Justice X who not even allowed the defendants sufficient time as enshrined by the constitution and laws of the country. So, most Judges, even though are mute witnesses to such flagarant stalling techniques cannot do much about it. This is my personal experience.

 

[ficapls]

The statute of limitation shouldn't be a factor here. Even the most restrictive statute for personal injury is 1 year from the date of the offense. Plus perceived offenses here are ongoing.

 

[lca_001]

Re: lca_001

Poongunranar,

I am not as learned as you in the legal aspects (here or in any country of this world, or other if they exist ), and I say this in no disrespectful manner- so my arguments is based on a lot of "breaking news" stories on TV. I believe the Judge has some rights not to grant extensions and filibusters. I have seen this happen where lawyers try to drag the case by asking for a change of venue etc. and the Judge comes back admonishing the lawyers, and does not grant the wishes of the lawyers. You do bring out a vaild point about defendants asking the judge to recuse, but that seldom happens (unless the judge has a personal opinion or a clear conflict of interest) - as the motion not to grant blanket extensions is tabled by the plaintiffs, the Judge has to rule based on the facts - the Judge has to take a stance, to the liking of one group or the other (obviously both parties cant be satisfied all the times) - the ruling can not be construed as a sell out of the Judge.

001

Originally posted by poongunranar
I will give my two cents and Rajiv can give his part. This is the same point that I argued for my case at which time I was politely pointed out that the Statute of Limitation is something that the defendant can use as per the rights given to the Defendant. I am not sure what the limitation is for CA suit, but that is why you will see the defendants taking so long a time to even respond. This is classic filibuster stalling technique that is allowed by law. It is the process. At times, when the Judge clearly sees this and tries to rule something against the defendant before the statue of limitation is over, that itself will give the defendant a right to cast aspersions on the Judge's applicability of mind in the suit and hence can go on an appeal citing that they cannot expect justice in Justice X who not even allowed the defendants sufficient time as enshrined by the constitution and laws of the country. So, most Judges, even though are mute witnesses to such flagarant stalling techniques cannot do much about it. This is my personal experience.

 

[lca_001]

Also another question, The defendants have asked the the case to be dismissed with prejudice. I am not too sure, but I believe if the case is dismissed with prejudice - it will disallow us from filing another lawsuit on the same grounds, is that right?

001

 

[lca_001]

Yeah, and also dont we have right to a speedy trial? Or is that granted only to defendants and not the plaintiffs?

001

Originally posted by ficapls
The statute of limitation shouldn't be a factor here. Even the most restrictive statute for personal injury is 1 year from the date of the offense. Plus perceived offenses here are ongoing.

 

[Edison]

Re: Strategy , strategy & strategy

Originally posted by eb2_I485_RD0901
Edison , cinta and "P" please do not forget that the key here is Strategy , strategy & strategy ... and at this time this is what really matters.

Each legal comment posted relvent to the case (Govt's response) must be carefully examined (by those capable) .....to better prepare for the case .

Please avoid personal comments. (In the end the only winners / losers will be us).

I think everybody here shold be "mature" enough to take a step back and revisit what they had posted.



Thank you & Regards.

Like you, I wish everyone understand that we are the only winners/losers not CIS. I'm sure if everyone understand that then we'll see lot of volunteers for all the community efforts.

If everyone want this lawsuit to be class certified then I'm sure that there will be lot of signatures supporting class action.

Btw, I don't encourage any personal comments, also I don't make any personal comments. Anyway thanks for the suggestion.

 

[Edison]

Re: Re: rajum

Originally posted by rajum

..............
Bush era is clearly an aberration in its 230 years of independence, may be with an exception of Mccarthyism period in 50s....and I believe that this country will come out of this mob-frenzy mode and will revitalizes itself on sane policies...if that hope is lost, then I will pack my bags on the first day....
..................
I never attended a court...but I know how the court proceedings will be and what can the classic example than Clinton's testimony.....How he defended that he didn't had sex with her...rather she had sex with him...
However,I got great respect for Clinton and his presidency is one of the best years in American history.
Sometimes, despite having merits in the case we may not win the case...In that respect, I agree with you..
.................

-rajum

Clinton was there in the right place at the right time nothing much and most of his good policies are lifted from Republicans agenda. All the current problems are due to misadministration of the prior government. They didn't flex the muscles in the right time (since it is required to be superpower) eventhough they know all the problem causing terrorist groups.

Most of immigrants bluntly support Democrats and criticize Republicans. But the fact is Republicans support legal immigration and democrats support legalizing the illegal immigrants. Republicans support legal immigration because of their support from big corporates. But lately Republicans also started supporting legalizing illegal immigrants since this is election year otherwise they will support only legal immigration. I support legalizing illegal immigrants since we have accept the fact and lead life, but obviously not at the cost of legal immigration.

Let's forget about all these politics and reach both the parties so that they might try to help us when there is bipartisan support.

Originally posted by rajum

.................
I am eager to see what position it takes on 180 days. Unlike you suggested, I don't think that it will confront that it is not enforceable and hence it has denied in its reply It might take the position that 180 day is only a guideline but not binding and it tries to explain that it has made every effort to reduce the backlogs and might say that still it is committed to 180 day rule..
...................
I strongly believe, CIS will never take the position that they got resource or logistics problem.They argue that security checks are placing them under additional responsibility for extra scrutiny and that is delaying the cases.
In all the above three counts, it all depends on how far the judge allows us to question the defendants. In that respect, I agree with you that if one enters the court one really knows how helpless an individual might feel despite having good points..

lastly, I might have wrongly interpreted your stand and if so, I apologize for the same and withdraw my statement .

-rajum

CIS already mentioned that 180 days is only opinion of Congress.

Delaying the adjudication process will never improve the security, infact it will worsen the security. I wish judge understand this like most of us.

 

[Edison]

Originally posted by lca_001
Yeah, and also dont we have right to a speedy trial? Or is that granted only to defendants and not the plaintiffs?

001

Our lawsuit is for timely (or speedy) adjudication of I-485 and for this lawsuit now we need a timely (or speedy) trial.

 

[Edison]

Re: Re: Can we use similar cases to strengthen ours ?

Originally posted by poongunranar
...............
By clubbing all similar cases together, a full-bench hearing will have all the attention on the case and INS will really be in a terrible position to counter such a case!!!

I'm eagerly looking ahead for this wonderful day!!!!!!!!!!

 

[Edison]

Poon,
1. As you said most the legal documents are legthy but the short same reply by CIS attorney irritated most of our friends here.
2. I don’t accept that individuals need not go through mental torture since this is class action. Only 1000+ signed the class action support petition eventhough there are 1.2 million pending I-485 applications. I accept that not everyone are vistors of this forum but I’m sure atleast 5000+ know about his lawsuit and decided not to sign due to fear of backlash by CIS.
3. I accept your view that immigration laws are conservative. Let’s discuss what are the documental proof we might need to substantiate our problems.

 

[poongunranar]

Re: lca_001

Originally posted by lca_001
Also another question, The defendants have asked the the case to be dismissed with prejudice. I am not too sure, but I believe if the case is dismissed with prejudice - it will disallow us from filing another lawsuit on the same grounds, is that right?001

Nope, friend. I don't think so. Again, the defendants have just made that request according to the book. Nothing more. Whether there is merit in their claim is for the Judge to decide. Also, if an adverse verdict is given to us, we always have the right to go on appeal.

For your personal understanding, if a case WITH A SAME PLAINTIFF/PLAINTIFFS against a DEFENDANT/DEFENDANTS is decided by a JUDGE/BENCH, that very SAME case with the same PLAINTIFF/PLAINTIFFS against the very same DEFENDANT/DEFENDANTS with the same MERITS of the case CANNOT be decided again in a SIMILAR court of law. The legal principle governing this is called in legal-lingua as RES JUDICATA. Only an appeal is possible in that case. . Hope this helps.

As far as the delay in their response is concerned, even though we call it as 'filibusters' and 'stalling' techniques, they will be called as such only when the trial is started and if at that time the defendants adopt such techniques. For now, the process gives them time like 90 days in most civil action suits. As I said, Rajiv should be able to throw more light.

 

[poongunranar]

Originally posted by lca_001
Yeah, and also dont we have right to a speedy trial? Or is that granted only to defendants and not the plaintiffs?001

You have the answer in your own question. TRIAL -- that is the key. We are not there yet . Thanks.

 

[Edison]

Re: Rejoinder to EDISON

Originally posted by poongunranar
Edison:

The LAW you have quoted does not mention about the consequences of non-compliance of the 180-day time-frame objective of the Congress. So, while you can argue about your delays, INS will argue to its end that it is leaving no stone unturned to realize that objective, even while the ground-realities and logistical infrastructure makes it impossible to attain that goal. Now, the very same law gives provisions to report about backlogs etc. to the Congress and Attorney General. However, there is no punitive or regulatory provision ordered, which basically says something like, "If this subsection is not complied with, then the Service will have to ______" Such a provision was purposefully omitted out. Congress has not spelled out that crucial part of the law, purposefully to prevent INS from buckling under litigation suits. Even if the Court were to order compliance of that statute, what will happen if INS cannot adhere to that 180-day limit? A court cannot award punitive sentence that is not envisioned as per law, by which ipso facto it derives its right to hear the case in the first place. In Section 204, it talks about a lot of other things like what the Attorney General should do to clear backlogs. But is there any section that says that a suitable identification system be installed that would flag applicants that are 180 days or older so that those applications be adjudicated? Answer is NO. When statutes do not explicitly award that measure, the Circuit Court Judge will have little latitude to reward relief. Yet, I know of Civil Action Suits, wherein the Judge has intervened and ordered such relief and INS on its part did not feel worthwhile to go on an appeal and basically fulfilled its obligations. In those cases, it was a small subset and hence INS could afford to not go on appeal. Here, as it affects overwhelming majority, it has no other choice.

Yet, one strong point for INS is that it will claim that it has been consistently working on programs to speed-up adjudication process and the effects of which will not be evident immediately due to the overwhelming backlogs that existed during the promulgation of the act. The court will have little to say, at that point. Let us wait and see.

No relief, then what's use of this law. If the time and money spent to enact this law would have been spent for I-485 adjudication process then atleast it would helped to reduce the backlog.

But CIS never submitted any backlog reduction plan/ report as required by this law, so I believe we all can approach Congressional office and request them to follow up with CIS.

If CIS argues that it has been consistently working on programs to speed-up adjudication, I'm sure that processing time frame for I-485 won't increase. I wish judge also understand this.

 

[Edison]

Originally posted by poongunranar
Edison:

Thanks for the pointer. Good to see you around, despite your approval. You are truly a source of encouragement to all. Kudos to you. God bless.

I prefer to continue the fight against backlog at CIS with you and other sufferers since I can't forget that mental torture. Also it's time to help the community which helped me a lot.

Thanks.

 

[poongunranar]

Edison

Originally posted by Edison
Poon,
1. As you said most the legal documents are legthy but the short same reply by CIS attorney irritated most of our friends here.

Friend, Edison. I say AMEN. Even I am irritated. However, just for the sake of legal correctness, I wish to make clear that they are within their right to do that. Boy, I go back to that great Philosopher Voltaire's remarks, when he said, "It is WRONG to be RIGHT when the Government is WRONG.". Great thinker he was and how true it is for this scenario. Not that I am saying we are WRONG, but I think that Philosopher stressed the difficulty of being RIGHT when the Government is WRONG. That is what we are seeing here -- increased tempers, feeling of helplessness, etc. But our resolve is stronger and we will fight until the end, for sure. All of us need patience for sure. We have already committed to a process. Every Civil/Criminal Action has initial periods of limitations beyond which nobody can stall, risking increased judicial scrutiny.

2. I don’t accept that individuals need not go through mental torture since this is class action.

Friend, I had mentioned about 'personal' cases and I am sure I had explicitly clarified that such a torture is not going be seen here because the suit is a class-action suit. Of course, as with any litigation, torture will be there -- but at least a JOINDER or CLASS-ACTION suit is a collective thing that will provide moral support to the plaintiffs as well as assurance to others, rather than fighting individually, which will be a torture of the lifetime. By that I was encouraging folks, at the same time, I was also reminding them that suing as a personal plaintiff/defendant is extremely difficult to prove the frustrations I underwent, as well as a few other falsely/truly accused alien friends -- some of them couldn't take any more and voluntarily departed. That is all. I am with you on this one.

3. I accept your view that immigration laws are conservative. Let’s discuss what are the documental proof we might need to substantiate our problems.

Sure, friend. Your encouragement and mild-mannered exhortations truly strengthen the resolve. Keep it up. We all will pour out our two-cents without getting personal against each other. That is the need of the hour.