Here is the Govt's Response to The complaint

poongunranar,
You are making a good case for defendents...I really liked your answers...they are excellent...

However I got few questions:
i) Why in Consular Processing, with the same security checks the process was able to complete in six months consistently...Can that not be considered a reasonable time... if they are going through different security checks.. will that not constitute discrimination....

ii) When people of December 2001 are waiting, how come they were able to complete the processing of December 2002(that too concurrent filing)...isn't something called "natural justice".....forgot the legal terminology...and if all December/Jan/Feb filers sue INS will they able to prove that Dec'2001 cases are struck because of security reasons...
.. I never heard a case in CP struck for security reasons...with any layman knowledge in statistics and probability that if security checks are hampering in case of AOS then more or less the same ratio has to be there in CP...using this as scientific basis,can't we prove that defendants has not acted in good faith to reduce backlogs...will courts not accept this as the scientific basis ...

iii) INS response is something like this:you go to a bank and then stand in a queue expecting some systematic behavior and when bank is operating in a discretionary way and if someone questions, then the bank replied that there is law to serve the people but there is no law for the time frame ...who decides on the residuary law( I read in my origin country constitution that the residue powers lies with the state..i.e. if something is not defined then that power resides with the state)...is there anything similar in the law.... I believe that in the case of law "priniciples of natural justice" will prevail...what are those priniciples in this case...in good faith the bank should do service in a systematic way and one can find out the reasonable time using some scientific basis...one can easily prove that the only pattern with CIS is anarchy...

iv) Will this not be considered a denial of justice for people who filed earlier were waiting while others who filed much much later are getting approvals...I am not arguing why CIS has approved the later cases..to me it only proves that the CIS is callous in its handling of cases...of course, I am neither an attorney nor intellectual and nor judge not to come to a different conclusion...for these people and for CIS, every case might a file of 100 pages which they can kick like a football.... of course beggers are not choosers...
 
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Folks,
This is the kind of reply any one can expect. Nothing to loose at this moment. All defendants are bound to deny everything in all kinds of cases.. It is like the person who commits the crime ,all/most of the time denies at first hand . But later on Judge understands the fact and rule. remember Rajiv already mentioned ,do not expect victory soon. This is court case .It will take its own time .We need to be patient.

I like what edison said that atleast they did not deny that 485 cases are filed at CIS.
 
Originally posted by kash777
Folks,
This is the kind of reply any one can expect. Nothing to loose at this moment. All defendants are bound to deny everything in all kinds of cases.. It is like the person who commits the crime ,all/most of the time denies at first hand . But later on Judge understands the fact and rule. remember Rajiv already mentioned ,do not expect victory soon. This is court case .It will take its own time .We need to be patient.

I like what edison said that atleast they did not deny that 485 cases are filed at CIS.
Click to expand...

You are right, It is just a regular reply from any defendant.
 
Originally posted by rajum
poongunranar,
You are making a good case for defendents...I really liked your answers...they are excellent...

However I got few questions:
i) Why in Consular Processing, with the same security checks the process was able to complete in six months consistently...Can that not be considered a reasonable time... if they are going through different security checks.. will that not constitute discrimination....

ii) When people of December 2001 are waiting, how come they were able to complete the processing of December 2002(that too concurrent filing)...isn't something called "natural justice".....forgot the legal terminology...and if all December/Jan/Feb filers sue INS will they able to prove that Dec'2001 cases are struck because of security reasons...
.. I never heard a case in CP struck for security reasons...with any layman knowledge in statistics and probability that if security checks are hampering in case of AOS then more or less the same ratio has to be there in CP...using this as scientific basis,can't we prove that defendants has not acted in good faith to reduce backlogs...will courts not accept this as the scientific basis ...

iii) INS response is something like this:you go to a bank and then stand in a queue expecting some systematic behavior and when bank is operating in a discretionary way and if someone questions, then the bank replied that there is law to serve the people but there is no law for the time frame ...who decides on the residuary law( I read in my origin country constitution that the residue powers lies with the state..i.e. if something is not defined then that power resides with the state)...is there anything similar in the law.... I believe that in the case of law "priniciples of natural justice" will prevail...what are those priniciples in this case...in good faith the bank should do service in a systematic way and one can find out the reasonable time using some scientific basis...one can easily prove that the only pattern with CIS is anarchy...

iv) Will this not be considered a denial of justice for people who filed earlier were waiting while others who filed much much later are getting approvals...I am not arguing why CIS has approved the later cases..to me it only proves that the CIS is callous in its handling of cases...of course, I am neither an attorney nor intellectual and nor judge not to come to a different conclusion...for these people and for CIS, every case might a file of 100 pages which they can kick like a football.... of course beggers are not choosers...
Click to expand...


I wish CIS can reply all your questions.
 
Originally posted by poongunranar
Even a bill has no effect in a court of law. It is a court of law. It is never a court of bills or court of opinions. That much said, the defendant can deny any of the opinions which in legal lingua will be treated as hearsay. In re (41) can you provide an INA Act and Section/Sub-Section number of the statute? Clearly the answer is NO. Hence they were able to deny that.

In re to (42), the defendants have a stronger ground to deny. The definition of reasonableness is the key to the defendants' rejection and the plaintiffs' assertion. The court will be hardpressed to define the term reasonableness so that it is reasonable to both the parties. That is why, wherever, there are no clear legal statutes, the defendants can clearly reply in the negative.
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It's not bill as you claim, It is law (Public law: 106-313). I'll provide references for you shortly.
 
Public law 106-313

Note: I apologize to everyone here since this topic was discussed numerous times earlier.

poongunranar,
Thanks for all your excellent replies. But please note that we are discussing about law and not about bill as you mentioned. Please check Public law 106-313 enacted by 106th Congress.
We all know CIS adhered to various clauses of AC21 which is part 1 of law 106-313, also CIS published memo(not regulation) for AC21 few months back. Our complaint was based on part 2 of law 106-313, "Immigration services and Infrastructure improvements". So I believe no one can argue that "Immigration services and Infrastructure improvements" is law or not. If CIS doesn't publish regulation for a law then it doesn't mean that law was not enacted by Congress.

Reference:
http://uscis.gov/graphics/cong106.htm
Click on link "Public Law 106-313" for details about that law on GPO page.

Excerpt from public law 106-313:


Legislation Enacted by the 106th Congress
Public Law 106-313
American Competitiveness in the Twenty-first Century Act of 2000
10-17-2000 Signed by President William Clinton

Public Law 106–313
106th Congress
An Act To amend the Immigration and Nationality Act with respect to H–1B nonimmigrant aliens.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE I—AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY
TITLE II—IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVEMENTS
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Immigration Services and Infrastructure
Improvements Act of 2000’’.
SEC. 202. PURPOSES.
(a) PURPOSES.—The purposes of this title are to—
(1) provide the Immigration and Naturalization Service with the mechanisms it needs to eliminate the current backlog in the processing of immigration benefit applications within 1 year after enactment of this Act and to maintain the elimination of the backlog in future years; and
(2) provide for regular congressional oversight of the performance of the Immigration and Naturalization Service in eliminating the backlog and processing delays in immigration
benefits adjudications.
(b) POLICY.—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, except that a petition for a nonimmigrant visa under section 214(c) of the Immigration and Nationality Act should be processed not later
than 30 days after the filing of the petition.
SEC. 203. DEFINITIONS.
In this title:
(1) BACKLOG.—The term ‘‘backlog’’ means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.
(2) IMMIGRATION BENEFIT APPLICATION.—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.

Originally posted by poongunranar
Even a bill has no effect in a court of law. It is a court of law. It is never a court of bills or court of opinions. That much said, the defendant can deny any of the opinions which in legal lingua will be treated as hearsay. In re (41) can you provide an INA Act and Section/Sub-Section number of the statute? Clearly the answer is NO. Hence they were able to deny that.

In re to (42), the defendants have a stronger ground to deny. The definition of reasonableness is the key to the defendants' rejection and the plaintiffs' assertion. The court will be hardpressed to define the term reasonableness so that it is reasonable to both the parties. That is why, wherever, there are no clear legal statutes, the defendants can clearly reply in the negative.
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Originally posted by dsatish
poongunranar,
I appreciate your role in providing an alternate view point in this forum. How ever, i would suggest that you look into both sides of the coins rather than the weakness of our litigation.

Now try to answer to my simple question : Can't the court intervene if the INS takes 10 years to adjudicate a I485 case (doing 10 EAD renewals in the process) just because there are no timelines defined in the law ?
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I am not here to either argue for the strength or weakness of the arguments of either the plaintiffs or the defendants. If you are at the TSC forum, you will see that none of my legal opinions have ever been refuted by respected members of the legal community. So, if you can calmly and patiently tease me with merits, I will be willing to answer you. But, you seem to be so disgruntled and angry at my observations which were made purely on merit and a disinterested outlook. Even if you find it to be unpalatable, Rajiv needs input like this, because sycophancy never wins suits. If my asseverations are not legally valid, refute it. But, I will not take any argumentum ad hominem but will take cognizance of such refutation only if it is based on legal grounds. I am also one amongst you and I share all your frustrations. However, I am not here in the Plazas of Americas to give vent to what I think the INS should have done in their counter-claim. My job is to educate laypersons like myself who visit this portal so that they become better educated with facts.

In the legal community there is a good joke: If you have facts with you, pound the facts; if you have facts AGAINST you then pound the table against those facts. Whenever a personal personally attacks me, rather than my arguments, I feel sorry, because that person indirectly shows that he is not able to attack me factually, but only pounce my character or plausible beliefs which may be completely different than what I truly believe for.

I am here to not feed to any hatred or to sing cymbals to anybody. I am here to offer a layman's legal opinion, which I am very sure will stand in any court of law in the United States. That much said, I am not one to lampoon any efforts to assert one's rights. So, hope you are able to see an alternative viewpoint that has legal basis, despite your passionate arguments.

The courts can intervene if it takes 10 years to adjudicate a I-485 case, provided the INS has a valid reason to prove to the court why it takes 10 years and how by statute it is not required to adjudicate within 10 years. So, legally, a court can question INS as well as the INS can legally justify its stance. Now, it is upto the courts to buy into that argument or issue a Writ of Certiori or Writ of Mandamus as appropriate. Also, please note that your case is all the more stronger, if say, in the receipt notice INS has said that your case will normally take 300 days to adjudicate, but on 301st day it is not yet adjudicated. Even now, I am still confident that the Court can take cognizance of inordinate delays and pull up the INS for its delays. However, whether it will ultimately FORCE INS to adjudicate within a clear stipulated limit, especially in the absence of any INA statutes is a moot point. I have been arguing along those lines for a long time now and the defendants have only ducked under that loop-hole.

Also, what the defendants have responded is a normal thing. My purpose was to clear the misinformation that it may make the Judge go bananas, etc., which was purely wrong. The court is not inane to either the plaintiffs or the defendants asserting their legal rights. Whether there is substance or beef to their claims is what will be interesting to watch. Clearly Rajiv has thrown a process -- now the process has to go forward and will take its own time. In the interim, counter-claims, rejoinder to counter-claims, etc., are perfectly normal legal processes to which too much reading in between lines should not be resorted to. That is my whole point.
 
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Re: Public law 106-313

Originally posted by Edison poongunranar,
Thanks for all your excellent replies. But please note that we are discussing about law and not about bill as you mentioned.
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Hello Edison, kindly allow me some time for me to peruse the same. My comments regarding BILLS Vs. OPINIONS Vs. OBITERS were to draw the attention of laypersons like you and me to the important distinction between what is law and what is not. That doesn't mean, that this case was filed merely on opinions. Sorry, if that was the impression gained. I will redact more of my opinions after I peruse the law you have posited. Thanks.
 
dsatish

Originally posted by dsatish
i am only challenging the veracity of your hollow explanations towards non validity of "our right to timely justice".
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Whether my opinions are "hollow" or "hallow" can be easily verified with members of TSC forum who have consistently lauded my legalese observations. You are free to even run this by some pro bono lawyers of this country. You do not know me and I do not know you. That is the beauty of this forum. So why personal attacks? Cheer-up dude.

I burst into laughter when I read your suggestion to refute Rajivji's affidavit. Why should I do that? I am not typing all this to earn a name for myself -- to settle scores or to earn a "halo" for my "hollow/hallow" opinions from this forum. If that is my goal, you are right, I will try to be ostentatious and trying to find fault with all that Rajiv does. I am on the side of Plaintiffs because my case is also pending for a long time. However, I am merely educating people like myself who are not attorneys/lawyers. And I do not trust the lawyers/attorneys of any country because of my bitter experience with all of them, but I truly do respect them for their education and knowledge. To that extent, I will not be arrogant enough to dictate to an attorney like Rajiv with the modicum amount of legal knowledge that I may have pragmatically earned over the years.

Peace!
 
rajum

Originally posted by rajum
poongunranar,
You are making a good case for defendents...I really liked your answers...they are excellent...

However I got few questions:
i) Why in Consular Processing, with the same security checks the process was able to complete in six months consistently...Can that not be considered a reasonable time... if they are going through different security checks.. will that not constitute discrimination....

ii) When people of December 2001 are waiting, how come they were able to complete the processing of December 2002(that too concurrent filing)...isn't something called "natural justice".....forgot the legal terminology...and if all December/Jan/Feb filers sue INS will they able to prove that Dec'2001 cases are struck because of security reasons...
.. I never heard a case in CP struck for security reasons...with any layman knowledge in statistics and probability that if security checks are hampering in case of AOS then more or less the same ratio has to be there in CP...using this as scientific basis,can't we prove that defendants has not acted in good faith to reduce backlogs...will courts not accept this as the scientific basis ...

iii) INS response is something like this:you go to a bank and then stand in a queue expecting some systematic behavior and when bank is operating in a discretionary way and if someone questions, then the bank replied that there is law to serve the people but there is no law for the time frame ...who decides on the residuary law( I read in my origin country constitution that the residue powers lies with the state..i.e. if something is not defined then that power resides with the state)...is there anything similar in the law.... I believe that in the case of law "priniciples of natural justice" will prevail...what are those priniciples in this case...in good faith the bank should do service in a systematic way and one can find out the reasonable time using some scientific basis...one can easily prove that the only pattern with CIS is anarchy...

iv) Will this not be considered a denial of justice for people who filed earlier were waiting while others who filed much much later are getting approvals...I am not arguing why CIS has approved the later cases..to me it only proves that the CIS is callous in its handling of cases...of course, I am neither an attorney nor intellectual and nor judge not to come to a different conclusion...for these people and for CIS, every case might a file of 100 pages which they can kick like a football.... of course beggers are not choosers...
Click to expand...
Thanks, dear friend.

1) Just because "Consular Processing," takes little time than "I-485 processing," cannot be a valid argument in the court of law. The easiest rebuttal would be that the local offices have lots of pile-ups, whereas the Consular Posts do not. Also, a lot of logistical constraints and opportunities can be cited to justify the I-485 delays. This, in legal terms will not constitute "discrimination." A simple question to you is: Prove that this is a discrimination. In other words, why should INS discriminate I-485 applicants against Consular Processing applicants? I am sure you will draw a blank and hence will understand the untenuous nature of the argument.

2) Do you have tangible numbers to prove to the court about the irregularities in the order of processing? Even then, does INS guarantee that it will follow a FIFO policy for processing? IT certainly doesn't. Then, how can YOU force on what YOU think is logically correct on an agency that has its own logistical constraints? (View all my questions under a legal context and not under a personal context. Thanks). Also, friend, "good-faith," is something you take it in literal meaning. In legalese, it has a wider ramification. I think, why some of you are getting antsy at my arguments is because of this misunderstanding. You tend to take the terms very glibly under literal context, whereas I am painstakingly jotting them down under legal context. In order to prove that somebody did not do something in "good-faith" is damn hard to prove! For Example, nowhere in the immigration statutes it is said that you need to inform INS about any pending divorce proceedings, if the spouse is a derivative of the primary. True. But guess what? IF INS later realizes that the couple were having a divorce proceeding and failed to inform the INS about the same, then the couple did not operate under "good-faith," which subsequently places both of them in a terrible charge -- SHAM marriage or marriage by fraud for immigration purposes. Now, INS will question as to why YOU DID NOT INFORM US. You will say that there is no NEED to inform INS about pending divorce proceedings. Now, INS will ask you precisely, "should you have not done that in GOOD-FAITH?" So, look at the ramification of the terms under legal context.

3) It is purely the Judge's prerogative to evaluate whether INS was right to cause so much backlogs, but cannot see itself abrogating the powers vested with the Executive branch of the Constitution. I guess, you are from India and had paid good attention to your Civics course, because you are right, there are certain portions of the Civil Procedure Code of 1908 (Government of India) as well as the Criminal Procedure Code in tandem with the Indian Penal Code of 18XX that vests certain powers with the State Government. In fact there is a separate concept of Direct Principles and issues under the Concurrent list, whole-nine-yards, which are beyond the scope of our discussion. If anybody has to go by the word JUSTICE that you give, pinch yourself and ask what is happening in Gitmo and whether the Courts were able to implement any of the true provisos of the US Constitution! The draconian US Patriot Act has undermined most of that concept in one stroke. I feel sorry that this country is constantly held under the threat of terror and that breeds more paranoia that even the august courts of this country are no more savants of natural and social justice. Yet, I will say, truly, that the US Court System is much much better than any of the other legal System, anywhere in the World. India's Judiciary was great, but has started to s(t)ink of late. Coming back to this issue, the Court cannot issue diktats that INS adopt a FIFO or LIFO kind of prioritization rules as it deems fit. The Court's locus standi on such issues can be questioned and guess what, the defendants have clearly alluded to that in their rejoinder. But, yes, the Judge, if he deems fit, will go into the definition of what is the "reasonable" amount of time within which INS should adjudicate (vide ibid.)

4) Friend, I share your agony as I am one like you undergoing the same pain and torture. Unfortunately, this is not a legal argument and hence will leave it unanswered.
 
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Rejoinder to EDISON

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.

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.
 
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Thank you all

I need every one's input. All view points including those I disgree with are welcome.

What does this all mean? Nothing. They could have drafted a more fair response and narrowed the controversy. They chose not to do so. This is their right as defendants. But I find it shameful that our government litigates in a manner calculated to waste the time of the courts rather than achieve justice.

Just because they deny facts or law does not alter either. If they wish to go to trial, we will line up the court with witnesses who can testify as to the harm suffered.

Agreed, they have strong legal arguments. the strongest one being the separation of powers - normally - court will not tell an agency how to run its business. Nevertless, it is upto the court to intervene or not. That is why we are here, in court.

What will we do? We will fight - win or lose. And as a community, we will never again be treated with disregard. We will try always to fight for the right cause - win or lose. It is the struggle that is important.

We must simultaneously approach Congress for help and not just fight on the judicial front.

The first big test in this litigation would be the determination on the class action. Let us see where that goes.

Hang tight. I will keep you informed.

We need some more ledearship amongs you folks. More people to plan, organize, move.

Just my two cents. My warmest regards to all of you.
 
poongunranar,
I hate personal comments more than any one else. I don't think that i have made any personal comments. Ofcourse, while calling your arguments as hollow, i didn't give point by point refutation and this might have resulted in my comments as being seen as personal comments. The reason i haven't refuted arguments, point by point, is that i felt that there is absolutely no merit in any of them and secondly i don't have that much time. I, for one, never like to write 200 lines of posting just to refute 200 lines of blurred lines. Yes, i am definitely attacking your postings, and not you. Please understand that. Normally, i will be able to post in this forum in the evenings or nights. So, i will post a detailed reply to you in the evening.
 
Re: Questioning Jurisdiction cannot be arrogance!!

Originally posted by poongunranar
Kindly treat my responses as clarifications, which I have mustered with whatever little legal knowledge I have. Please note that I am disinterested in my observations. Thanks.

1) It is not arrogance.

2) There are certain criteria that weigh heavily before a suit is admitted as a Class-Action suit. Mere numbers will not make a suit a class-action suit. The defendants are basically questioning the premise of treating this as a Class-Action Suit.

3) In Legal Law, the first and foremost right for a defendant as well as a plaintiff is to assess the Jurisdiction of the said court to hear or adjudicate the suit under question. Now, a plaintiff may believe he has approached the Court of Competent Jurisdiction and the defendant ipso facto has every right to question the court w.r.t the competent jurisdiction to hear the case. Asserting that right by a defendant can never be construed to be an act of defiance or arrogance. Certainly the Learned Judge or the Division Bench will not take it that way. Now, initiator of the Suit has to respond to this counter-claim -- i.e., Rajivji will file a counter to this counter-claim issued by the Respondents. He will have to basically assert why and how this Court is the Court of Competent Jurisdiction. If, the Court determines that it is not within its jurisdiction to hear the case, basically the plaintiff has to transfer the case to a court of competent jurisdiction. That is all.

Also, if the defendants fail to subject themselves to a court of competent jurisdiction (they will NOT and as a Governmental agency CANNOT), then the court can be approached with a Writ of Mandamus to force the defendants to act and respond -- thereby clearly subjecting themselves to the court of competent jurisdiction.
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One thing I hate is when people mispell or mispronounce my name and I try to keep the same principle for the rest of the world. I believe it is "RAJIV".
 
Originally posted by poongunranar
I had observed it earlier in one of these threads, that even if the merits of the case wins approval from the Court, INS will adjudicate only those cases of the plaintiffs. A court cannot adjudicate a suit based on surmises. You can argue that INS approved those petitions only after the case was filed. Can you prove their motive? That is what the court cares. Can you prove that the adjudication of certain plaintiffs after filing the case was done with malafide intentions on the part of INS? Accusations have nothing to do in a court of law. You need to prove your allegations. This being a civil case, the court will adopt the preponderance of evidence yardstick and will rule in favor of INS because why should INS NOT adjudicate the plaintiffs' petitions? Does it know them personally? Does any of the INS Director or the Attorney General have any personal enmity that would come in way of their bungling the plaintiffs' petitions are clear legal issues, that one cannot prove and hence will be ruled in favor of INS.

In a nutshell, one can allege a lot in the forums. However, when it comes to a court of law, the allegations have to be clearly supported with evidence. One way to prove that a defendant is culpable is to prove the motive. To give you an example: In a criminal case, if A murders B, he may get a less sentence. If it is proven that A had mens rea (Criminal motive/Criminal intent) against B, then the sentence may very well be that of capital punishment or life in prison. So, the intent or motive is an important legal yardstick that you have to prove against the accused/defendant/respondent in order to seek the relief you claim.

Along the same lines, just because only 100 men are convicted of rape, does it mean that there weren't that many rapes at all? Only those who approach the legal system will get remedy. If it is a class-action or a Writ petition that is filed ON and IN behalf of a class of people, then the relief may be extended to that entire class. Until it is admitted as a class-action suit, only those individuals who approach the court are ordered relief.
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Are you providing a free Immigration Legal 101 course??
 
Originally posted by poongunranar
Even a bill has no effect in a court of law. It is a court of law. It is never a court of bills or court of opinions. That much said, the defendant can deny any of the opinions which in legal lingua will be treated as hearsay. In re (41) can you provide an INA Act and Section/Sub-Section number of the statute? Clearly the answer is NO. Hence they were able to deny that.

In re to (42), the defendants have a stronger ground to deny. The definition of reasonableness is the key to the defendants' rejection and the plaintiffs' assertion. The court will be hardpressed to define the term reasonableness so that it is reasonable to both the parties. That is why, wherever, there are no clear legal statutes, the defendants can clearly reply in the negative.
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O.K. by this time we had a lot of theory. Could you back it up with specific lawsuits and examples, so we the students can appreciate?
A collection of most the Immigration Class Action suits and their results were posted earlier by myself and others...What about the assylee case and other recent ones?
 
Re: TheLastMile

Originally posted by poongunranar
Again, as I said, it has no "legal basis," in a court of law. Again in legal lingua, it will be observed as "not maintainable." It is because, there is no legal basis upon which the defendant can be accused of a violation. Say, for example, if it was in INA (Immigration and Naturalization Act) code that the maximum number of days for adjudication of any I-485 petition should be 500 days and it is proven that INS did not approve it on the 501st day, it is a clear argument against the defendant. The defendant, now, cannot dismiss lightly of the accusation. Now, there is nothing that Congress has passed as law that specifies a set date and time-limit. That comes handy to the defendants.

Now, "hopes," "obiters," "opinions," "memos," etc. do not have any legal basis. However, they certainly do help in "furthering" a case so that once a Judge or a Division Bench that entertains the suit, is convinced of a prima facie case, further exploration into the case becomes possible. Many a time, whenever there is not clear legal basis, there is always a case made out of jurisprudence. This is what they call in legal lingua as case-law. For example, Private International Law in many countries does not have clearly defined rules and it keeps evolving thanks to the Case Law statutes that were obtained in other cases/suits.

Therefore, "hopes," "obiters," "opinions," "memos," can be pretty handy, if ultimately they can be related to a inkhorn verbiage in statutory law that the very law can be interpreted under the garb of such "opinions," thereby forcing the defendants to be accountable. For that, the attorney representing the plaintiffs has to burn the candle both the sides and should fire all his/her cylinders to make it possible.

Compare and contrast as to how the Class Action Suit against Blockbuster Video Rentals was successful, even though there is no "statutory" provision that deals with fines on return of late rentals. However, the case evolved so wonderfully, that it has now become one of the constituents of case-law. Therefore, such "opinions," etc. should lead the plaintiff to ultimately relate or draw a correlation to a violation or possible violation of a "statutory" law. If not, it is a lost cause :(

Also note, that you cannot prove that INS did not act in "good faith" to resolve the backlogs. You can accuse that way. But you cannot prove. You can prove that it takes longer time to adjudicate. That is different than proving that INS did not act in "GOOD FAITH" to resolve the issue. Note that all this counts in a court of law.

Also, every society, every polity, and every institution of a free country aspires to usher in an egalitarian society that is free of all crimes and corruption. That is the goal. But, only Ulysses' Utopia will qualify for that society. That being said, can I sue the President of this country holding him accountable for every crime and terror attack against its citizenry? Certainly not. The same holds good for your argument against INS bungling on its own "hopes" and "mission" statement. It will remain a mission statement ad infinitum. Courts will not entertain that logic at all.
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The video example is not a good one. There are a lot of suits against the CIS to draw from.....
The Department of Homeland Security Act, Section 458 says clearly that the Backlogs should be eliminated in a year.... (Nov. 19, 2001?)among other things.
 
Originally posted by dsatish
poongunranar,
I appreciate your role in providing an alternate view point in this forum. How ever, i would suggest that you look into both sides of the coins rather than the weakness of our litigation. There is no use writing 20 lines of explanation for some of the weaker arguments posted by some people here. If you have so much patience and time to do analysis, i respectfully suggest that you pick on some strong postings (as and when you deem so) and try to start a discussion.
Now try to answer to my simple question : Can't the court intervene if the INS takes 10 years to adjudicate a I485 case (doing 10 EAD renewals in the process) just because there are no timelines defined in the law ? No sane person will argue that the case should be dismissed because there is nothing in the law about the timelines. If you have real gutsy wisdom, then try to challenge Rajiv's arguments in his filing (he quoted different acts which can be seen in pages 16,17 and 18 in the defendant's reply). Atleat try to answer the basic question raised by me in this post (Is it OK to take 10 yrs to adjudicate a case?).
I once again respect your freedom to express your opinions and i am only challenging the veracity of your hollow explanations towards non validity of "our right to timely justice".
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dsatish,
Just to add some points:
INA does not say what to do after first FP expiry; i.e. go ahead and violate the Constitution because this is what CIS believes to be right.
INA does not support multiple EAD and AP also.
 
Re: Interpretation of CIS reply

Originally posted by Edison
AFFIRMATIVE DEFENSES
1. This Court lacks subject matter jurisdiction to consider the plaintiffs' Complaint or to award any relief sought by plaintiffs, including but not limited to certification of a class, mandamus and declaratory and injunctive relief.
I interpret the above statement as: Just listen to CIS, only CIS.

2. The Complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court lacks the authority to grant any of the relief sought by plaintiffs because there is no statutory or other legal requirement for the adjudication of the plaintiffs' adjustment of status within any period of time.
I interpret the above statement as: CIS will adjudicate your application sometime in your life time or posthumously.

3. Plaintiffs have not exhausted their administrative remedies available; thereby making this action not ripe for consideration by this Court.
I interpret the above statement as: Call NCSC, hold the line for about an hour before you are connected to a representative and they will read the online case status which is available for you online.

4. Relief should be denied plaintiffs as an exercise of judicial discretion to withhold relief where, as here, the Court should not, even if empowered to do so, engage in, or otherwise undertake, the reordering of the defendants' priorities concerning allocation of resources and management of the defendants' case load.
I interpret the above statement as: CIS is above all judicial system. CIS has allocated resources to work on high priority issues like application fees hike proposal. Pay for EAD and AP every year to renew it, if you are not happy then CIS might start issuing EAD and AP valid for 1 month.

5. Plaintiffs fail to meet the requirements for class action certification. See Fed. R. Civ. R. 23.20
I interpret the above statement as: We have lot of your application money to fight such cases individually in different courts across USA. Also we planned to increase all the immigration benefits application fees, so monetarily we are well positioned to fight such cases in different courts across USA.

COUNTER PRAYER FOR RELIEF
WHEREFORE, Defendants pray for the following relief: that the Court dismiss the suit with prejudice for want of subject matter jurisdiction, and for failure to state any claim upon which relief can be granted; denial of class certification and all relief sought by plaintiffs and the class they purportedly represent; award of costs and expenses of suit to defendants, and grant any and all other relief the Court deems to be just, necessary and proper.
I interpret the above statement as: CIS is almighty.
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Nice Interpretation Edison
 
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