bayarea07
09-11 08:23 PM
Called rock Boucher as well
Rick Boucher (D-Va.) 202-225-3861
Rick Boucher (D-Va.) 202-225-3861
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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.
engineer
06-21 12:34 AM
I heard that we have to provide all the address where we stayed in USA for filing I485. But very first time I came to USA almost 6-7 years back for short term and I do not remeber the actual address. Basically i do not remeber very first two address when I came here for short term. Is it a matter of concern.
I believe if you get your Credit score reports from Experian and others, it lists all the addresses you ever lived in USA. You can get free Credit score reports from agency once a year.
I believe if you get your Credit score reports from Experian and others, it lists all the addresses you ever lived in USA. You can get free Credit score reports from agency once a year.
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sGC
08-16 09:36 AM
I Have opened an SR on Aug 6th and then sent an email to TSC followup . I got a response from them on friday " We are currently researching this situation and will contact you with an update." HAs anybody this kind of response?
Thank you
Thank you
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snathan
03-31 08:31 PM
Important information is available on this in the Donor Forum. VBKris77 have compiled the information from the previous analysis and the latest information released by Dept. of State and IV's recommendation.
But I am not allowed to post the information here...:D
But I am not allowed to post the information here...:D
glamzon
06-29 04:26 PM
My Guess is , It is a rumour . since the USCIS suspended the I -140 Premium Service for the month of july . It clearly indicates they are aware/expecting many of the I -485 filings from July 1st and do not want to promise I- 140 decision in 15 days during July .
more...
manand24
09-18 09:16 AM
Yesterday, I received receipt notice via USPS Mail for:
1. My I485 application
2. My I-131 application
3. My wife's I-485 application
Still waiting to hear about My wife's I-131, I-765 for me and my wife.
See signature for details.
PD 04/2006 EB2 INDIA
I-140 NSC AP 10/2006
SELF:
I-485 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-131 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-765 NSC RD 07/02/07 ND Pending - NO Update yet.
WIFE
I-485 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-131 NSC RD 07/02/07 ND Pending - NO Update yet
I-765 NSC RD 07/02/07 ND Pending - NO Update yet
I have not received any reciept notices yet. I also filed on July 2, 2007.
PD 04/2006 EB2 INDIA
I-140 NSC AP 10/2006
SELF:
I-485 NSC RD 07/02/07 ND Pending
I-131 NSC RD 07/02/07 ND Pending
I-765 NSC RD 07/02/07 ND Pending
WIFE
I-485 NSC RD 07/02/07 ND Pending
I-131 NSC RD 07/02/07 ND Pending
I-765 NSC RD 07/02/07 ND Pending
1. My I485 application
2. My I-131 application
3. My wife's I-485 application
Still waiting to hear about My wife's I-131, I-765 for me and my wife.
See signature for details.
PD 04/2006 EB2 INDIA
I-140 NSC AP 10/2006
SELF:
I-485 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-131 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-765 NSC RD 07/02/07 ND Pending - NO Update yet.
WIFE
I-485 NSC RD 07/02/07 ND 09/10/2007 - Receipt Notice recieved from NSC (LIN-XXX) on 09/17/2007 via USPS Mail
I-131 NSC RD 07/02/07 ND Pending - NO Update yet
I-765 NSC RD 07/02/07 ND Pending - NO Update yet
I have not received any reciept notices yet. I also filed on July 2, 2007.
PD 04/2006 EB2 INDIA
I-140 NSC AP 10/2006
SELF:
I-485 NSC RD 07/02/07 ND Pending
I-131 NSC RD 07/02/07 ND Pending
I-765 NSC RD 07/02/07 ND Pending
WIFE
I-485 NSC RD 07/02/07 ND Pending
I-131 NSC RD 07/02/07 ND Pending
I-765 NSC RD 07/02/07 ND Pending
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shahuja
02-05 03:56 PM
hello all,
i will really really appreciate your posts..
its been 23rd day..H1B renewal..New Delhi..still waiting for PP..i got no slip ..no warning to wait ..nothing..
But now i think its not stuck due to PIMS..it could be anything ?? some admin processing ? some security check ? some name check ??
How do we differentiate what are our passports held up for..COULD THIS BE CALLED 221(g)..i read in forums..221g can take forever ??
-Shahuja
i will really really appreciate your posts..
its been 23rd day..H1B renewal..New Delhi..still waiting for PP..i got no slip ..no warning to wait ..nothing..
But now i think its not stuck due to PIMS..it could be anything ?? some admin processing ? some security check ? some name check ??
How do we differentiate what are our passports held up for..COULD THIS BE CALLED 221(g)..i read in forums..221g can take forever ??
-Shahuja
more...
aristotle
05-23 09:25 AM
another question for gurus.
my i140 is based on EB3 and now I have around 8 years of expereience I can apply inn EB2. Can I still retain my priority date?
Yes, some people have successfully done that in this forum. Look at thread for porting PD with approved I140.
http://immigrationvoice.org/forum/showthread.php?t=912&page=13
my i140 is based on EB3 and now I have around 8 years of expereience I can apply inn EB2. Can I still retain my priority date?
Yes, some people have successfully done that in this forum. Look at thread for porting PD with approved I140.
http://immigrationvoice.org/forum/showthread.php?t=912&page=13
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RDB
11-25 12:16 PM
You can put any clauses in the contract as long as they are legal and the renter accepts it. But as 'albertpinto' said, beware of the people with bad credit and bankruptcy or people going through divorces - you may not want to rent them your property as it is very difficult to remove somebody (yes, even from your own house); it can take anywhere between 3 to 6 months and in the meantime, you are still liable to pay the mortgage if your renter defaults.
IMO, Only rent to people with good credit history.
Cant we put all these conditions in the contract? No modification to the house..only one family allowed..unless you want to rent it to bachelors and then charge whatever amount from each person and limit their number in the house..
Contracting agencies do not assure if they will put the house on rent. they say they will find someone.. and how long it takes, they are not sure..
IMO, Only rent to people with good credit history.
Cant we put all these conditions in the contract? No modification to the house..only one family allowed..unless you want to rent it to bachelors and then charge whatever amount from each person and limit their number in the house..
Contracting agencies do not assure if they will put the house on rent. they say they will find someone.. and how long it takes, they are not sure..
more...
RanchCharm
11-07 10:33 AM
I just prepared all the letters and posted in regular mail.
Hope it will reduce some trouble for our immigration community.
Thanks IV and others.
-Nachi
Hope it will reduce some trouble for our immigration community.
Thanks IV and others.
-Nachi
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vdlrao
03-29 06:30 PM
I am expecting the Dates for EB2 Inidia and China will move to Dec 2006 in May with 12k Spill over.
So if we get about 30k more for this whole fiscal year, assuming:
From EB1: 10K more
From EB4 and EB5: About 10K
From EB2 ROW: About 10K
Then EB2 I/C will move about 12 months ahead. That means the cutoff date would be around Jan2008 by Aug/Sep 2011. This is the best case scenario.
If we get only 20k more for this whole fiscal year,
Then EB2 I/C will move about 8 to 9 months ahead. That means the cutoff date would be around Jul 2007 by Aug/Sep 2011. This is the worst case scenario.
This is just my estimation/guestimation.
.
So if we get about 30k more for this whole fiscal year, assuming:
From EB1: 10K more
From EB4 and EB5: About 10K
From EB2 ROW: About 10K
Then EB2 I/C will move about 12 months ahead. That means the cutoff date would be around Jan2008 by Aug/Sep 2011. This is the best case scenario.
If we get only 20k more for this whole fiscal year,
Then EB2 I/C will move about 8 to 9 months ahead. That means the cutoff date would be around Jul 2007 by Aug/Sep 2011. This is the worst case scenario.
This is just my estimation/guestimation.
.
more...
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nat23
04-05 05:19 PM
Let's assume the date moves to Aug 07 by September of this year.
What will happen after that? I mean what would be the rate of movement
What will happen after that? I mean what would be the rate of movement
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rcr_bulk
08-25 03:54 PM
If someone is a customer of Teleblend, they should contact them and ask them to provide a matching world plan service. Or else you and your friends will switch to Vonage. You will be surprised how fast teleblend will come up with a better plan than Vonage. In this country customer is the king. Vonage is trying to tie you up with an yearly plan. Wait and get Teleblend or other company to give you a better deal and you will save more money. Vonage is banking on being the first and capturing the market for 1 year before others give a better deal. It had to do it because people were switching to Teleblend, Omma or MagicJack. Now it is time for customers to contact these company senior executives and ask them to give you a good plan if they want you to stick with the company.
For now Vonage is good plan for who call India frequently and costumer service is good (atleast when you are their costumer). This will at least create some competition among the VOIP companies and Indian calling card companies. When some body comes with a better plan or service or Vonage is not doing good than we can switch to other. Competition like this between companies only consumers (like us) gets benefit.
For now Vonage is good plan for who call India frequently and costumer service is good (atleast when you are their costumer). This will at least create some competition among the VOIP companies and Indian calling card companies. When some body comes with a better plan or service or Vonage is not doing good than we can switch to other. Competition like this between companies only consumers (like us) gets benefit.
more...
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english_august
07-11 12:20 AM
I hate to be nitpicking but
The irony is, in this whole migration debate, our issues are probably easiest to solve," said Bajaj.
Bajaj its not migrationits immigration. bird migrate people immigrate
Phew! Even I hate for you to be nitpicking :eek:
The irony is, in this whole migration debate, our issues are probably easiest to solve," said Bajaj.
Bajaj its not migrationits immigration. bird migrate people immigrate
Phew! Even I hate for you to be nitpicking :eek:
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kriskris
01-25 11:21 AM
We are planning to make a trip to Hyderabad, India along with my wife and my little baby boy. After reading all of your experiences, I am not sure which one should I opt for. We have an expired Visa on passport, planning to Use AP. As we are travelling first time with the little baby boy, I am looking for some hassle free flying. I stay pretty closer to Harrisburg, PA ...thanks
Hi reddy77,
I recently traveled to Chennai. My H1b visa was expired in my passport and have an approved AP. I traveled through AA (Frankfurt) --> Gulf Airways (Bahrain) --> Madras and ultimately to Tirupati by Car, While going to India no one cared to ask for any documents not even in Frankfurt. By the way if you don't know this, you don't need a TV for Germany if you have AP. While coming back (I just came 2 weeks back), the officer at the Immigration counter looked at my passport and asked me how can i travel to US with an expired US Visa. I didn't give him my AP with my passport coz I was lazy to take AP from my bag. Finally I showed him my AP and he let me in. Now all the officers in India know about AP. They wont be surprised looking at the AP. In Bahrain I had a lay over of about 13 hours. Gulf Air gave me hotel accommodation. At the Bahrain immigration counter, the officer flipped 2-3 pages in my passport and didn't even care to look at my visa/AP. In Frankfurt, while boarding the AA flight to Dallas, the lady at the AA counter verified all my documents even my office badge. If possible carry your office badge/ID card with you. If you don't have one it should be OK because you are not required to carry and you can always tell them that you are not carrying. Since I showed her my AP, she took all my documents including my badge to her supervisor for the approval and finally gave me the boarding pass. In DFW the immigration was like a piece of cake. I was the second person in the queue. CBP officer after taking my finger prints took me to an officer (Secondary Inspection). The officer at the Sec inspection verified all my documents in his system and asked me to show my EAD. After checking my EAD, he said its not mandatory to carry EAD but safe. The whole process took less than 15 minutes. Let me know if you have any other questions.
Hi reddy77,
I recently traveled to Chennai. My H1b visa was expired in my passport and have an approved AP. I traveled through AA (Frankfurt) --> Gulf Airways (Bahrain) --> Madras and ultimately to Tirupati by Car, While going to India no one cared to ask for any documents not even in Frankfurt. By the way if you don't know this, you don't need a TV for Germany if you have AP. While coming back (I just came 2 weeks back), the officer at the Immigration counter looked at my passport and asked me how can i travel to US with an expired US Visa. I didn't give him my AP with my passport coz I was lazy to take AP from my bag. Finally I showed him my AP and he let me in. Now all the officers in India know about AP. They wont be surprised looking at the AP. In Bahrain I had a lay over of about 13 hours. Gulf Air gave me hotel accommodation. At the Bahrain immigration counter, the officer flipped 2-3 pages in my passport and didn't even care to look at my visa/AP. In Frankfurt, while boarding the AA flight to Dallas, the lady at the AA counter verified all my documents even my office badge. If possible carry your office badge/ID card with you. If you don't have one it should be OK because you are not required to carry and you can always tell them that you are not carrying. Since I showed her my AP, she took all my documents including my badge to her supervisor for the approval and finally gave me the boarding pass. In DFW the immigration was like a piece of cake. I was the second person in the queue. CBP officer after taking my finger prints took me to an officer (Secondary Inspection). The officer at the Sec inspection verified all my documents in his system and asked me to show my EAD. After checking my EAD, he said its not mandatory to carry EAD but safe. The whole process took less than 15 minutes. Let me know if you have any other questions.
more...
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angelfire76
04-24 06:37 PM
May I ask your immigration status. I believe you already got your GC and roaming around here just beat shit out of others. Each and every of your post is convincing me in that direction only. You would be happy to see the H1 guys thrown out from here. So it will increase your demand and you can make more money. What kind of person you are. is there any difference between you and anti-immigrant. Or are you that coming with Indian name to make fool out of us.
If you dont believe me, you read all your posts again. You are always talking about banning desi consultant. You are more than welcome for that. But you did you even thought about a second for guys who are genuine and unfortunate to work for them.
People are already stressed out. If you got your GC please go-away and enjoy your freedom.
Probably a labor sub guy who got his GC by accident and now can't land a job due to a non-existent skillset. Now how do you market yourself when you are the crappiest product: get rid of the competition and be the only show in town. :rolleyes:
If you dont believe me, you read all your posts again. You are always talking about banning desi consultant. You are more than welcome for that. But you did you even thought about a second for guys who are genuine and unfortunate to work for them.
People are already stressed out. If you got your GC please go-away and enjoy your freedom.
Probably a labor sub guy who got his GC by accident and now can't land a job due to a non-existent skillset. Now how do you market yourself when you are the crappiest product: get rid of the competition and be the only show in town. :rolleyes:
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legal_la
06-29 07:19 PM
My stupid big law firm delayed filing until monday this week. With all this hoopla.. Any ideas or rumors floating around about ppl who did not get reciept yet.
No rumors for June until now, you should be perfectly fine.
No rumors for June until now, you should be perfectly fine.
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Canadian_Dream
06-21 10:34 PM
If possible clarify the following from lawyer:
What are the negative affects of multiple I-485 on your adjustment of status? [Delay, Interview, RFE, Other ?]
Does filling two I-485 (AOS) is considered as willful violation or fraud?
Does filling two I-485 on two different I-140 (for different positions) could lead to revocation due to fraud?
What are the negative affects of multiple I-485 on your adjustment of status? [Delay, Interview, RFE, Other ?]
Does filling two I-485 (AOS) is considered as willful violation or fraud?
Does filling two I-485 on two different I-140 (for different positions) could lead to revocation due to fraud?
amitjoey
09-13 05:07 PM
I have a quick question, Some of you had an older EB3 pd active, filed 485 and then either ported or have used a newer EB2 and gotten approved and Greened.
Now, knowing USCIS uses outdated software, the question is are these people that are greened, taken out from the so called "queque" for EB3?. And then hopefully the line gets shorter for EB3s?.
Now, knowing USCIS uses outdated software, the question is are these people that are greened, taken out from the so called "queque" for EB3?. And then hopefully the line gets shorter for EB3s?.
gc_maine2
08-07 11:20 AM
Very well said. Thats what they do once they GC, there motto is " I want GC and Nobody else should get it". Sad very sad......
Ths poll should be changed to
Do you want to turn into an anti-immigrant when you get your greencard?
Yes I am in
No I am out
Shame on those who votes yes.
Ths poll should be changed to
Do you want to turn into an anti-immigrant when you get your greencard?
Yes I am in
No I am out
Shame on those who votes yes.