There is a reference to the memos in our opposition, quote:
Defendants have settled into a practice of administering laws through ill-conceived and illegal ad hoc memoranda, issued in lieu of regulations, without inviting input from the stakeholders. During the pendency of the case at bar, Defendants, without any consultation with any of the stakeholders, issued a memorandum that, inter alia, violates AC21. During the deposition of Ms. Fujie Ohata, Plaintiffs specifically asked if any input was invited from the stakeholders before issuance of the Ohata Memorandum. Ms. Ohata admitted that no input from any of the stakeholders was invited:
Page 48:
Q. Very good. When a regulation, federal regulation is drafted, it is first issued—or it is first published in the Federal Register for public and stakeholders to comment upon. That way, we, the stakeholders, get our input into your process. But an Ohata memorandum, or a memorandum like this are never offered for public comment; is that correct?
A. Not generally.
Q. Ohata memorandum was not offered for public comment specifically?
A. Not that I know of.
(Ohata Dep. Page 48.)
Page 63:
Q. For the Yates memorandum, did you invite any input from the stakeholders?
A. Not that I know of. This is policy memorandum and we don’t generally ask for input from any stakeholders.
(Ohata Dep. Page 63.)
Attached hereto is Exhibit I, a more detailed extract from the deposition of Ms. Fujie Ohata, Director of Service Center Operations, USCIS.
As submitted earlier, Ohata Memorandum dated March 31, 2004 (Exhibit 1 from deposition conducted on August 26, 2004) was brought into effect without offering the same to the general public for notice and comments. This memorandum modified the earlier adjudicative process for concurrently filed I-140 and I-485s. The memorandum stated that for purposes of measuring and reporting local processing time for these forms, the local I-140 processing time will control and a concurrently filed I-485 will no longer be tracked based upon the local I-485 processing time. Attached please Exhibit J, copy of the Ohata Memorandum dated March 31, 2004. Plaintiffs contend that such tracking and reporting devices are a part of Defendants’ creative accounting to promote an appearance of backlog reduction.
During depositions, Plaintiffs questioned Ms. Ohata about the discretion that had been left in the hands of the Service Center Directors to discontinue prima facie processing of any case that they chose. Please refer to Exhibit K, copy of the extract of Ms. Ohata’s deposition conducted on August 26, 2004, part of which is reproduced below:
Q. In this context, in the context of this question, the Service Center Director has an absolute discretion to discontinue concurrent processing if they so choose; is that correct?
A. It says may discontinue to do prima facie review. Prima facie review. Not discontinue concurrent filing.
(Ohata Dep. Page 52.)
It appears that as a direct result of the questions asked by Plaintiffs, Defendants issued a follow-up memorandum directed only to the issue raised in the deposition. Attached hereto is Exhibit L, copy of the memorandum dated September 16, 2004, issued by the Defendants. While Defendants’ correction of their errors is to be applauded, this type of ad hoc rule-making by Defendants has created and continues to create an atmosphere of uncertainty for the putative class members, whose entire lives depend upon the ill-considered and illegal practices of Defendants. The egregious injustice of this environment is further compounded by the fact that putative class members have no effective way to seek vindication of their legal rights through the Defendants.
The exhibits are attached here below
