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EB23版 - 08年LIA法律小组对起诉奥本排期捆绑的可行性报告
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话题: agency话题: request话题: foia话题: lia话题: records
进入EB23版参与讨论
1 (共1页)
l********r
发帖数: 28
1
看到大家要打官司告奥本,真的很激动。我代表LIA坚决支持大家的革命行动。另外,
我从robert那里要来了08年LIA法律小组对起诉奥本排期捆绑的可行性报告。大家看看
附件。
虽然这个报告的意见比较负面,但我们相信长江后浪拍前浪,前浪必死沙滩上。新PD们
一定有更好的法律分析能力,组织能力和宣传能力。也殷切的希望新PD能站在我们失败
的基础上,勇敢地闯出一条新路来。
如果需要帮助,请与我们联系
谢谢
I. Jurisdiction and Venue:
1. Court has subject matter jurisdiction over this action pursuant to 28 U.S
.C. § 1331 (federal question jurisdiction; and the Due Process Clause of
the United States Constitution. The plaintiffs bring their claims pursuant
to 8 U.S.C.§§701 et seq (Administrative Procedure Act (APA))
2. There are no administrative remedies available to Plaintiffs to redress
the grievances described. This action challenges the Defendant’s procedural
policies, practices, and interpretations of law.
3. Venue is also proper pursuant to 28 U.S.C. §1391 (e) because Defendants
are officers or employees of U.S. agencies acting in their official
capacities.
II. Plaintiffs:
A): who has submitted adjustment application before Jan. 1, 2004??
B): Who would have filed adjustment application in Jan. 1, 2004 “but for”
the Defendant’s action.
III. Damages:
4. Variety of harms as a result of Defendant’s actions. Primarily,
Plaintiffs were not being able to apply for adjustment of status. Corollary
harms are that, Plaintiffs’ spouses and Plaintiffs are unable to obtain
employment authorizations, resulting in a significant financial impact on
their families. Plaintiffs can not change employers or positions, can not
work part time for another employer, can not self-employed, can not eligible
for an Advance Parole to travel internationally without obtaining a visa
first aboard to come back to the U.S.
5. To determine: Whether Defendants acted without authority and whether
their actions violated the INA, the APA, the Due Process Clause and/or
agency regulations.
IV. Cause of Action:
Count One: Unlawful ordering of visa numbers
6. USCIS’s action in ordering immigrant visa numbers from DOS in April to
be allocated to Indian nationals for EB2 adjustment cases that were not yet
completed and in which the applicant has not yet been determined to be
eligible violated 8 U.S.C. §1225(b), 8 C.F.R. §245.2(a)(5)(ii) and agency
’s own policy and practice manual.
Count Two: Agency’s action of ordering visa numbers and subsequent VB cut-
off days is arbitrary, inconsistent, unreasonable, an action misconstruction
of congressional intention, and an action misunderstanding of law.
7. Under APA, a reviewing court may not set aside an agency’s action unless
it is “arbitrary, capricious, and abuse of discretion, or otherwise not in
accordance with law” 5 U.S.C.§706 (2)(A).
8. Arbitrary & capricious standard:
"Agency action should be overturned only when the agency has 'relied on
factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the
product of agency expertise."
At the instant case, the agency failed to consider the possibility that with
the unlawful ordering of visa numbers, the diversity of nationals immigrate
to the U.S. is diluted by offering more available visa numbers to Indian
nationals. (supported by statistic report)
9. Abuse of discretion may be found where the agency decision is based on an
improper understanding of the law. Occidental engineering Co. V. INS, 753 F
.2d 766, 768 (9th Cir. 1985). The court must review an agency’s
construction of a statute which it administers. The court must consider
first whether Congress has directly addressed the issue. Chevron U.S.A., Inc
.v. Natural Resources defense Council, Inc., 467 U.S. 837, 842 (1984). “if
the intent of congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the ambiguously expressed
intent of Congress.” If the court determines that the status is ambiguous,
the court must then determine whether the agency’s construction of the
statute is reasonable. Grace Korean United Methodist Church v. Chertoff, 437
F. Supp. 2d 1174, 1179 (D. Ore. 2005).
10. At the instant case, DOS’s abrupt and radical determination that cut-
off days China’s applicants not being able to move forward is a direct
result of USCIS’s wrongful ordering of visa numbers from DOS for applicants
not yet finished adjudication, which in turn make visa numbers unavailable
for China’s applicant whose case should have available visa numbers
allocated.
11. Further, the agency alleged that the order of determine the eligibility
to file adjustment of status is in accordance with the law, INA Section 203(
e). So let us examine this law.
(e) Order of Consideration. -
(1) Immigrant visas made available under subsection (a) or (b) shall be
issued to eligible immigrants in the order in which a petition in behalf of
each such immigrant is filed with the Attorney General (or in the case of
special immigrants under section 101(a)(27)(D) , with the Secretary of State
) as provided in section 204(a) .
12. Here, the law says “visas …. shall be issued to eligible immigrants in
the order in which a petition … is filed with the Attorney General..”
13. Visa numbers are available only when adjustments of status applications
are approved. USCIS defines a visa as available for “accepting and
processing” the adjustment of status application if the Visa bulletin
states that the PC is current or PD is earlier than the date shown 8C.F.R.
§245.1 (g)(1). An otherwise eligible-to-file for accepting and processing
case should not be understood as a case that is eligible for a visa number.
14. Therefore, the law of INA Section 203(e) does not apply here to
determine the order of filing an adjustment of status application.
Therefore, pursuant to Occidental engineering Co. V. INS, 753 F.2d 766, 768
(9th Cir. 1985) that “an abuse of discretion may be found where the agency
decision is based on an improper understanding of the law”, an abuse of
discretion has been established.
15. In addition, since the law to determine the order of eligibility to file
adjustment of status application cases is ambiguous, “the court must then
determine whether the agency’s construction is reasonable”. Chevron U.S.A.
, Inc.v. Natural Resources defense Council, Inc., 467 U.S. 837, 842 (1984).
At the instance case, the Agency’s action is unreasonable by setting the
Chinese national’s 485 filing eligibility EB2 cut-off date being the same
with those of Indian nationals. Because approximately two times more Indian
EB2 nationals will be eligible to adjust his/her status than those of
Chinese nationals. This practice is contrary to congressional intent when
setting AC21, and directly violates the general legal principle of diversity
of immigrant.
Count Three: Violation of FOIA
16. Zhang Yue, a legal team member of LIA, sent a request under Freedom of
Information Act to Department of State (“DOS”) in March but DOS failed to
respond to LIA’s request up until now.
17. Under the FOIA (codified at 5 USCS § 552) section (a)(6)(A)(i), an
agency must determine within 20 business days “after the receipt of any
such request whether to comply with such request and shall immediately
notify the person making such request of such determination and the reasons
therefor, and of the right of such person to appeal to the head of the
agency any adverse determination.”
18. A federal court has subject matter jurisdiction over a lawsuit under
FOIA if the plaintiff has exhausted administrative remedies. Ctr. for
Biological Diversity v. Gutierrez, 451 F. Supp. 2d 57, 65 (D.C. Distr. Ct.
2006); Wilbur v. CIA, 359 U.S. App. D.C. 380, 355 F.3d 675, 676 (D.C. Cir.
2004). FOIA section (a)(6) (C)(i), however, provides that “[a]ny person
making a request to any agency for records under [FOIA] shall be deemed to
have exhausted his administrative remedies with respect to such request if
the agency fails to comply with the applicable time limit provisions….”
19. Therefore, a failure by DOS to respond to the request of Zhang Yue (and
LIA) under FOIA within 20 business days and to make any determination on
such request is a violation of the time limit provisions in FOIA. This
gives a federal court the subject matter jurisdiction over a lawsuit filed
by LIA against DOS regarding its failure to respond to the FOIA request,
because the LIA is deemed to have “exhausted its administrative remedies”
after DOS fails to comply with the time limit provisions.
20. The problem: LIA needs to argue that Zhang Yue is a member of LIA and
his request can be considered as LIA’s FOIA request; alternatively Zhang
Yue could be made as a plaintiff to this case.
RELEVANT STATUTES
5 USC § 552. Public information; agency rules, opinions, orders, records,
and proceedings [Caution: See prospective amendment notes below.]
(a)(4)(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall determine the
matter de novo, and may examine the contents of such agency records in
camera to determine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsection (b) of this
section, and the burden is on the agency to sustain its action. In addition
to any other matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency concerning the
agency's determination as to technical feasibility under paragraph (2)(C)
and subsection (b) and reproducibility under paragraph (3)(B).

(a)(6) (A) Each agency, upon any request for records made under paragraph (1
), (2), or (3) of this subsection, shall--
(i) determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request whether to
comply with such request and shall immediately notify the person making such
request of such determination and the reasons therefor, and of the right of
such person to appeal to the head of the agency any adverse determination;
and
(ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial of the request for records
is in whole or in part upheld, the agency shall notify the person making
such request of the provisions for judicial review of that determination
under paragraph (4) of this subsection.

(C) (i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit provisions of this
paragraph. If the Government can show exceptional circumstances exist and
that the agency is exercising due diligence in responding to the request,
the court may retain jurisdiction and allow the agency additional time to
complete its review of the records. Upon any determination by an agency to
comply with a request for records, the records shall be made promptly
available to such person making such request. Any notification of denial of
any request for records under this subsection shall set forth the names and
titles or positions of each person responsible for the denial of such
request.
CASES
Where plaintiff endangered species protection group argued defendant
National Marine Fisheries Service's delays in processing its Freedom of
Information Act requests and appeals were unreasonable, contending that they
established pattern and practice of unresponsiveness in violation of
Administrative Procedure Act, 5 USCS § 706(1), (2)(A), because agency's
response was made within 20 days, fact that later release of more documents
was made did not demonstrate dilatory conduct; agency met exceptional
circumstance standard of 5 USCS § 552(a)(6)(C)(i), and agency was granted
summary judgment on that claim. Ctr. for Biological Diversity v Gutierrez (
2006, DC Dist Col) 451 F Supp 2d 57.
"[E]xhaustion of administrative remedies is a mandatory prerequisite to a
lawsuit under FOIA, which means that a requester under [**20] FOIA must
file an administrative appeal within the time limit specified in an agency's
FOIA regulations or face dismissal of any lawsuit complaining about the
agency's response." Wilbur v. CIA, 359 U.S. App. D.C. 380, 355 F.3d 675, 676
(D.C. Cir. 2004).
“An agency invoking a FOIA exemption bears the burden of establishing its
right to withhold evidence from the public." Senate of Puerto Rico v. U.S.
Dep't of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 585 (1987) (internal
[**27] quotation marks and brackets omitted). To assert successfully the
deliberative process privilege in Exemption 5, an agency must establish two
prerequisites: "[1] that the document is 'predecisional' -- whether it was
generated before the adoption of an agency policy -- and [2] [that] the
document is 'deliberative' - whether it reflects the give-and-take of the
consultative process." Id. (quoting Coastal States Gas Corp. v. Dep't of
Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980)).
Moreover, it "must establish what deliberative process is involved, and the
role played by the documents in issue in the course of that process." Id. at
585-86 (quoting Coastal [*68] States, 617 F.2d at 868). Generally,
providing only "each document's issue date, its author and intended
recipient, and the briefest of references to its subject matter . . . will
not do." Id. at 585.”
p**8
发帖数: 3883
2
re

.S

【在 l********r 的大作中提到】
: 看到大家要打官司告奥本,真的很激动。我代表LIA坚决支持大家的革命行动。另外,
: 我从robert那里要来了08年LIA法律小组对起诉奥本排期捆绑的可行性报告。大家看看
: 附件。
: 虽然这个报告的意见比较负面,但我们相信长江后浪拍前浪,前浪必死沙滩上。新PD们
: 一定有更好的法律分析能力,组织能力和宣传能力。也殷切的希望新PD能站在我们失败
: 的基础上,勇敢地闯出一条新路来。
: 如果需要帮助,请与我们联系
: 谢谢
: I. Jurisdiction and Venue:
: 1. Court has subject matter jurisdiction over this action pursuant to 28 U.S

p**8
发帖数: 3883
3
re
E**r
发帖数: 434
4
股班没人屎,又跑这里来发作.
别闹了,到点该吃药了.
1 (共1页)
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相关话题的讨论汇总
话题: agency话题: request话题: foia话题: lia话题: records