DallasBlue
09-27 02:18 PM
http://www.ailf.org/lac/lac_pa_chrono.shtml
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07%20PA.pdf
1. What are the general arguments that the government makes to dismiss a mandamus/APA case for lack of jurisdiction?
The government�s motions to dismiss for lack of jurisdiction are filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (FRCP). The government generally makes some combination of the following four arguments, all of which center on alleged agency discretion with respect to adjudication of adjustment applications:
� That USCIS does not have a duty to adjudicate an adjustment application and therefore an essential element of the mandamus claim is missing;
� That the pace of adjudication of an adjustment application is discretionary and therefore not subject to mandamus relief;
� That adjudication of adjustment applications is committed to agency discretion by law and not subject to APA relief; and
� That 8 U.S.C. � 1252(a)(2)(B)(ii), which limits judicial review over certain discretionary issues in immigration cases, bars review of these mandamus and APA cases.
2. In responding to a motion to dismiss, can I argue that at least some of the issues raised by the government are not jurisdictional?
Yes. An initial response to a government motion to dismiss for lack of jurisdiction is to question whether, in fact, the government has raised a jurisdictional challenge. The Supreme Court has distinguished between jurisdiction � which is the court�s power to hear the case � and the sufficiency of a valid cause of action. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1988); see also Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003) (distinguishing between the court�s power to adjudicate the case, which is jurisdictional, and the court�s power to grant relief, which is not jurisdictional).
The failure to state a valid cause of action calls for a judgment on the merits and not for dismissal for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946). The Supreme Court has made clear that:
�jurisdiction � is not defeated � by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.� Rather, the district court has jurisdiction if �the right of the petitioners to recover under their complaint will be sustained if the [ ] laws of the United States are given one construction and will be defeated if they are given another ��
Steel Co. v. Citizens for a Better Environment, 523 U.S. at 89 (quoting Bell, 327 U.S. at 682, 685). Thus, one court has held that in resolving whether mandamus jurisdiction is present in an immigration case, the allegations of the complaint are taken as true (unless patently frivolous) to avoid �tackling the merits under the ruse of assessing jurisdiction.� Ahmed, 328 F.3d at 386-387.
Applying these principles, the Seventh Circuit held in Ahmed that the question of whether a statute imposed a �duty� on the government for purposes of mandamus relief was not a jurisdictional question. As the court explained:
[T]he district court has jurisdiction under � 1361 [the mandamus statute] to determine whether the prerequisites for mandamus relief have been satisfied: does the plaintiff have a clear right to the relief sought; does the defendant have a duty to perform the act in question; and is there no other adequate remedy available. � A conclusion that any one of those prerequisites is missing should lead the district court to deny the petition, not [for lack of jurisdiction], but because the plaintiff has not demonstrated an entitlement to this form of extraordinary relief.
Ahmed, 328 F.3d at 386-87.
Thus, where the government claims that jurisdiction is lacking because a prerequisite to mandamus is missing, the plaintiff can respond by arguing that this is not a jurisdictional question and cannot lead to dismissal under Rule 12(b)(1). Most likely, you also will want to address the substance of the challenge, also, as an alternative way to dispute the government�s motion. See, e.g., � 3, below.
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07%20PA.pdf
1. What are the general arguments that the government makes to dismiss a mandamus/APA case for lack of jurisdiction?
The government�s motions to dismiss for lack of jurisdiction are filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (FRCP). The government generally makes some combination of the following four arguments, all of which center on alleged agency discretion with respect to adjudication of adjustment applications:
� That USCIS does not have a duty to adjudicate an adjustment application and therefore an essential element of the mandamus claim is missing;
� That the pace of adjudication of an adjustment application is discretionary and therefore not subject to mandamus relief;
� That adjudication of adjustment applications is committed to agency discretion by law and not subject to APA relief; and
� That 8 U.S.C. � 1252(a)(2)(B)(ii), which limits judicial review over certain discretionary issues in immigration cases, bars review of these mandamus and APA cases.
2. In responding to a motion to dismiss, can I argue that at least some of the issues raised by the government are not jurisdictional?
Yes. An initial response to a government motion to dismiss for lack of jurisdiction is to question whether, in fact, the government has raised a jurisdictional challenge. The Supreme Court has distinguished between jurisdiction � which is the court�s power to hear the case � and the sufficiency of a valid cause of action. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1988); see also Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003) (distinguishing between the court�s power to adjudicate the case, which is jurisdictional, and the court�s power to grant relief, which is not jurisdictional).
The failure to state a valid cause of action calls for a judgment on the merits and not for dismissal for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946). The Supreme Court has made clear that:
�jurisdiction � is not defeated � by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.� Rather, the district court has jurisdiction if �the right of the petitioners to recover under their complaint will be sustained if the [ ] laws of the United States are given one construction and will be defeated if they are given another ��
Steel Co. v. Citizens for a Better Environment, 523 U.S. at 89 (quoting Bell, 327 U.S. at 682, 685). Thus, one court has held that in resolving whether mandamus jurisdiction is present in an immigration case, the allegations of the complaint are taken as true (unless patently frivolous) to avoid �tackling the merits under the ruse of assessing jurisdiction.� Ahmed, 328 F.3d at 386-387.
Applying these principles, the Seventh Circuit held in Ahmed that the question of whether a statute imposed a �duty� on the government for purposes of mandamus relief was not a jurisdictional question. As the court explained:
[T]he district court has jurisdiction under � 1361 [the mandamus statute] to determine whether the prerequisites for mandamus relief have been satisfied: does the plaintiff have a clear right to the relief sought; does the defendant have a duty to perform the act in question; and is there no other adequate remedy available. � A conclusion that any one of those prerequisites is missing should lead the district court to deny the petition, not [for lack of jurisdiction], but because the plaintiff has not demonstrated an entitlement to this form of extraordinary relief.
Ahmed, 328 F.3d at 386-87.
Thus, where the government claims that jurisdiction is lacking because a prerequisite to mandamus is missing, the plaintiff can respond by arguing that this is not a jurisdictional question and cannot lead to dismissal under Rule 12(b)(1). Most likely, you also will want to address the substance of the challenge, also, as an alternative way to dispute the government�s motion. See, e.g., � 3, below.
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logiclife
02-04 01:39 PM
http://tracypress.com/2006-02-04-nation-one.php
The last line in this article may mean something for us.
Hopefully. Let's see if this point is driven to congress by March 27 when they sit down and think "IMMIGRATION !!".
The last line in this article may mean something for us.
Hopefully. Let's see if this point is driven to congress by March 27 when they sit down and think "IMMIGRATION !!".
PBECVictim
02-08 03:32 AM
On FEb 4th my wife and myself went for H1-B visa renewal interview at Chennai Consulate. Both visas got approved. My wife passport was returned with in 3 days. It seems they have found her petitition online. My passport stuck with consulate. I called consulate today, and they have asked me to call back next week end. She said they were not able to locate my petition online.
How long it can take? 1 week or 2 weeks or 1 month? Please provide your experiences for those passports took more than 3 days. I have seen max 1 month in the forum.
How long it can take? 1 week or 2 weeks or 1 month? Please provide your experiences for those passports took more than 3 days. I have seen max 1 month in the forum.
2011 What Goes Around ft. Big Sean
pkpalta
01-24 01:06 PM
I always travel by Asia route. China, Japan, Thailand, Singapore or Korea. For people on the pacific route this is the best option. The customer service is pretty good and they do not harass you for every petty things.
Fying from UK and France in particular feels like you are doing a favor to them. In this age of consumerism just stay away from British, Virgin, Air France and others and they will learn the lesson quickly. Iam very surprised why people take those routes. Just avoid them at all costs!
Fying from UK and France in particular feels like you are doing a favor to them. In this age of consumerism just stay away from British, Virgin, Air France and others and they will learn the lesson quickly. Iam very surprised why people take those routes. Just avoid them at all costs!
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chanduv23
04-24 02:44 PM
They refer to ads on Sulekha and other similar portals
On another note - consulting companies will workaround by creating multiple companies and applying h1b through various companies
On another note - consulting companies will workaround by creating multiple companies and applying h1b through various companies
mirage
08-07 04:13 PM
What's wrong happening in PD porting case ?? Original beneficiary is able to get a visa allocated to him by claiming he was or is eligible for EB-2 ? Where is fraud in this and as you said if law allows it and what's wrong... The point was about abusing the system to get ahead in the line. In that way labor sub shares similarity with PD porting. If a person who landed yesterday fits the job profile and the law allowed it , then what's wrong.
On the other hand if those labor are sold for a price then it is serious problem. And thats why Lab Sub was eleminated. Now thats what is going to happen (and happening) in PD porting case.
On the other hand if those labor are sold for a price then it is serious problem. And thats why Lab Sub was eleminated. Now thats what is going to happen (and happening) in PD porting case.
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eb_retrogession
02-18 08:40 PM
US Immigration Policy On The Table At The WTO
By Sarah Anderson
Immigration Daily, February 15, 2006
http://www.ilw.com/articles/2006,0215-anderson.shtm
By Sarah Anderson
Immigration Daily, February 15, 2006
http://www.ilw.com/articles/2006,0215-anderson.shtm
2010 Posted in art, ig sean,
kpsm88
05-14 03:58 PM
Hi,
We have already made plans for our India trip. We will be leaving US on June 2nd. Can we apply 485 on June 1st and leave to India on June 2nd.
Will there be any complications around this.
As we will be returning in July, we are not sure if my PD will still be current by the time we return back.
Thanks for your time and reply
Regards
KP
We have already made plans for our India trip. We will be leaving US on June 2nd. Can we apply 485 on June 1st and leave to India on June 2nd.
Will there be any complications around this.
As we will be returning in July, we are not sure if my PD will still be current by the time we return back.
Thanks for your time and reply
Regards
KP
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thakurrajiv
11-21 07:55 AM
I was asking for Ideas.. it is not just Kumar or some more people giving an idea that one should leave the house if the value of the house has gone down and now you have to move because of ur job and it is hard selling ur house where u may have to bear a loss ..
I already had conversation with american people ( not any desi's) in my office and they also had the same opinion as to leave a house if u have to leave because of job..
U tell me how wise it is to give a loan to a person without a down payment..The reason i said that other people are stupid is because.. i took an ARM loan of 5 years,, where i knew that i am not going to live in the house for more than 3 years and will later sell it..and there are people who knew that they are going to stay in the same house for more than their ARM period.. but didnt realize that they wont be able to make payment once the rate is re-adjusted.. i am calling those people's decision as stupid..
about me making a bad decision about buying a house.. well not 2 years ago..
i can sell the house for a loss of may be 20,000.. but why should i pay that money from my pocket.. i can keep that in my savings account and use it in my bad time..
Well you seem to have same attitude problem as others in this situation. When people were making profit they were thankful, and now banks/system is there to blame.
Let's see how you are not different from those "stupid" people. Keyword here is "greed". You got greedy and bought house bcoz it will appreciate. People who knew they will be living for more than 5 yrs got ARM bcoz they have to pay less/month(max. leverage), house will appreciate and/or they can refinance when time comes. Do you see any similarity ??? So please stop using derogatory words like "stupid". Banks were lending bcoz they were greedy. All the parties have one thing in common greed.
Ok, coming back to your case. I do not have any experience with foreclosure. From your post it seems like you are losing $20k. Well this does not seem a very big amount. Consider the impact of foreclosure, bad credit will mean you will not get any loan. It will be tough to get auto or any other credit. You carry risk with background checks. I think the lending standards will get tough going forward which means you don't know for how long you will not qualify for home. In my opinion, if you have 20k and it is matter of losing some savings, not going to foreclosure looks better option.
I hope you will learn to own up to your own mistakes, it will only make you better person in life. Good luck.
I already had conversation with american people ( not any desi's) in my office and they also had the same opinion as to leave a house if u have to leave because of job..
U tell me how wise it is to give a loan to a person without a down payment..The reason i said that other people are stupid is because.. i took an ARM loan of 5 years,, where i knew that i am not going to live in the house for more than 3 years and will later sell it..and there are people who knew that they are going to stay in the same house for more than their ARM period.. but didnt realize that they wont be able to make payment once the rate is re-adjusted.. i am calling those people's decision as stupid..
about me making a bad decision about buying a house.. well not 2 years ago..
i can sell the house for a loss of may be 20,000.. but why should i pay that money from my pocket.. i can keep that in my savings account and use it in my bad time..
Well you seem to have same attitude problem as others in this situation. When people were making profit they were thankful, and now banks/system is there to blame.
Let's see how you are not different from those "stupid" people. Keyword here is "greed". You got greedy and bought house bcoz it will appreciate. People who knew they will be living for more than 5 yrs got ARM bcoz they have to pay less/month(max. leverage), house will appreciate and/or they can refinance when time comes. Do you see any similarity ??? So please stop using derogatory words like "stupid". Banks were lending bcoz they were greedy. All the parties have one thing in common greed.
Ok, coming back to your case. I do not have any experience with foreclosure. From your post it seems like you are losing $20k. Well this does not seem a very big amount. Consider the impact of foreclosure, bad credit will mean you will not get any loan. It will be tough to get auto or any other credit. You carry risk with background checks. I think the lending standards will get tough going forward which means you don't know for how long you will not qualify for home. In my opinion, if you have 20k and it is matter of losing some savings, not going to foreclosure looks better option.
I hope you will learn to own up to your own mistakes, it will only make you better person in life. Good luck.
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Libra
07-09 08:59 PM
:D
by any chance are you related to a south indian actress named as Smitha??...if u know whom i am talking about..
:D :D
by any chance are you related to a south indian actress named as Smitha??...if u know whom i am talking about..
:D :D
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anilkumar0902
08-17 01:39 PM
Congrats, Anil. I know it's a big relief....enjoy your freedom..
Thanks gbof..
Thanks gbof..
hot Download Big Sean – So Much
sunny1000
05-17 11:51 AM
Is AP a multiple entry document like a visa? or is there a limit on the number of travels within its one year validity?
Thanks much.:)
Thanks much.:)
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eager_immi
07-18 01:58 PM
Can we all take a month from his list of trancscripts and read through his transcripts and see which one has the H1B mistatement. I think he said this sometime in 2005 or 2006 we only need 24 participants.
'http://transcripts.cnn.com/TRANSCRIPTS/ldt.html
'http://transcripts.cnn.com/TRANSCRIPTS/ldt.html
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vamsree
06-22 02:36 PM
Hi,
My wife filed for greencard in Oct 2006 under the Schedule A category where she filed for 140 and 485 concurrently.
We got our EADs in November 2006. Later my company started my GC process(priority date is Nov 2006). I talked to my attorney about my 485 filing and she says that I should go ahead and file my application but only Adjustment of Status and not AP and EAD along with it. I should however give the reference of my earlier reciept numbers while filing my 485. My questions are:
1. What happens if my wife's I-485 gets denied? How will this affect my I485 process and our EADs?
2. We have not applied for AP and also didn't get our medical examination done when filing my wife's 485 application. Can I do these now when filing my 485?
Please advise.
Thank you.
My wife filed for greencard in Oct 2006 under the Schedule A category where she filed for 140 and 485 concurrently.
We got our EADs in November 2006. Later my company started my GC process(priority date is Nov 2006). I talked to my attorney about my 485 filing and she says that I should go ahead and file my application but only Adjustment of Status and not AP and EAD along with it. I should however give the reference of my earlier reciept numbers while filing my 485. My questions are:
1. What happens if my wife's I-485 gets denied? How will this affect my I485 process and our EADs?
2. We have not applied for AP and also didn't get our medical examination done when filing my wife's 485 application. Can I do these now when filing my 485?
Please advise.
Thank you.
more...
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h1bmajdoor
01-10 07:39 AM
i don't what is the problem you have with AC21? it works just fine and nobody has a problem with it.
if you ask them to mess with it, and it seems to have no problem, they will either make it worse or take it away.
i think you guys are far too risk averse and want everything guaranteed in black and white. it does not work that way and we are not so important in the scheme of things anyway.
if you ask them to mess with it, and it seems to have no problem, they will either make it worse or take it away.
i think you guys are far too risk averse and want everything guaranteed in black and white. it does not work that way and we are not so important in the scheme of things anyway.
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kushaljn
01-03 03:05 AM
My Experience (PIMS):
I was interviewed at Mumbai Consulate on 28th Dec. At the interview I was told that I will receive an email from the consulate within 24-48 hrs at which time I will have to resubmit my passport at any one of the western US VFS centers along with the email and the yellow paper and a photo copy of my I-797.
I gave my passport to one of my friends in Mumbai and continued with the rest of my trip. Till date I have not received any emails from the consulate.
Any body in similar situation and any tips on what should be the next course of action.
Thanks.
I was interviewed at Mumbai Consulate on 28th Dec. At the interview I was told that I will receive an email from the consulate within 24-48 hrs at which time I will have to resubmit my passport at any one of the western US VFS centers along with the email and the yellow paper and a photo copy of my I-797.
I gave my passport to one of my friends in Mumbai and continued with the rest of my trip. Till date I have not received any emails from the consulate.
Any body in similar situation and any tips on what should be the next course of action.
Thanks.
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makeup Big Sean – What Goes Around
pravarupa
07-16 01:18 AM
Applying 485 through Spouse
--------------------------------------------------------------------------
My Priority date is Jan 2006, EB2-India category having approved I-140. My husband is in EB3-India having pd Jan'2004, already applied I-485 (140 is approved) and got his EAD and AP. He is already using his EAD. I am a dependent in his I-485 but did not use my EAD and still continuing on H1-B.
Since my case is EB2-India which is going to be current in August'2008. Am I eligible to apply for I-485 me being the primary and my husband being my dependent? If so would there be any problem when USCIS adjudicates my case?
Your valuable response is highly appreciated.
--------------------------------------------------------------------------
My Priority date is Jan 2006, EB2-India category having approved I-140. My husband is in EB3-India having pd Jan'2004, already applied I-485 (140 is approved) and got his EAD and AP. He is already using his EAD. I am a dependent in his I-485 but did not use my EAD and still continuing on H1-B.
Since my case is EB2-India which is going to be current in August'2008. Am I eligible to apply for I-485 me being the primary and my husband being my dependent? If so would there be any problem when USCIS adjudicates my case?
Your valuable response is highly appreciated.
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pd_recapturing
11-07 12:22 PM
Guys, we have already seen the Dec visa bulletin and there is absolutely no change in processing dates so its even more important to fix the AC21 issue ASAP. With this huge delay in 485 approval, more and more people will force to get into AC21 and will see more denials.
So please please, send letters.
So please please, send letters.
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fcres
08-16 10:21 AM
Thankx fo rthe response.
Does this mean i will surly get a RFE, and if it is say 1 year later, will i have to go for the medical exam again?
Medical report is a valid evidence and if its missing they will surely issue an RFE when they are adjudicating your case, whether its now or 1-2yrs later. Since the medical report is valid only for an year if you get the RFE an year later you might have to do it again.
One thing you can do is, once you get your receipt notice you can send your current medical report along with the copy of RN and a cover letter saying you are sending a missing document. Your lawyer should be able to assist you in this.
Does this mean i will surly get a RFE, and if it is say 1 year later, will i have to go for the medical exam again?
Medical report is a valid evidence and if its missing they will surely issue an RFE when they are adjudicating your case, whether its now or 1-2yrs later. Since the medical report is valid only for an year if you get the RFE an year later you might have to do it again.
One thing you can do is, once you get your receipt notice you can send your current medical report along with the copy of RN and a cover letter saying you are sending a missing document. Your lawyer should be able to assist you in this.
nk2006
09-10 09:54 AM
We should all feel proud that many co-sponsors are a result of efforts of IV and its members.When members ask proof of success, this is one of them.
Well done IV for the work so far - but we have to continue this push. Any idea on which other members we should call.
Note: I spoke with a few members to encourage them to call, there seems some confusion in their understanding of which congressmen we should call first. Calling the current co-sponsors may not be necessary but calling other members might still result in adding more co-sponsors (if we are able to convince them).
Friends, October bulletin is out and we are again seeing the retrogession. So forget about the talk that all dates will become current - it wont happen unless there is a change in law and past visa numbers are recaptured. This bill is our biggest and only hope until for atleast another year. Lets do our part and hope for the best (believe me - all it takes is less than an hour of your time).
Well done IV for the work so far - but we have to continue this push. Any idea on which other members we should call.
Note: I spoke with a few members to encourage them to call, there seems some confusion in their understanding of which congressmen we should call first. Calling the current co-sponsors may not be necessary but calling other members might still result in adding more co-sponsors (if we are able to convince them).
Friends, October bulletin is out and we are again seeing the retrogession. So forget about the talk that all dates will become current - it wont happen unless there is a change in law and past visa numbers are recaptured. This bill is our biggest and only hope until for atleast another year. Lets do our part and hope for the best (believe me - all it takes is less than an hour of your time).
spouse485
01-24 12:18 PM
We are travelling next month and our travel agent wisely suggested and booked tickets for us via frankfurt by air india. He knows that london is a problem especially when you are coming back on AP.
After reading thru the painful story of milind, I feel that I should never go thru london.
Thanks a lot for sharing your pain. What if I wish to travel through Germany/Netherlands/Swiss/France/UAE? on Advance Parole and if my H type visa is not valid anymore?
After reading thru the painful story of milind, I feel that I should never go thru london.
Thanks a lot for sharing your pain. What if I wish to travel through Germany/Netherlands/Swiss/France/UAE? on Advance Parole and if my H type visa is not valid anymore?