We filed WOM 4/2007 against FBI and USCIS slow handling of our I-485 name check. It has been pending for over 2 years since 4/2005. The AUSA sent me a motion of dismiss yesterday and I have to respond within 20 days. Here are some main points he put in the letter. I appreciate advices from friends who were in situations how to respond the MTD.
In the part of "Nature of the mater before the court", he wrote "Plaintiffs' suit should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). This court lacks subject mater jurisdiction over this faction because Congress has divested the courts of jurisdiction over suits such as this one that concerns actions that are committed to agency discretion. See 8 U.S.C. $ 1252(a)(2)(B)(ii); Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006). Even in the absence of this jurisdictional bar, however, the court would lack subject matter jurisdiction over Plaintiffs' mandamus claiim because they cannot show that they have a clear right to adjudication within any particular time frame, or that Defendants have a clear duty to complete the adjudication at any particular speed. both are prerequisites to this Court exercising jurisdiction under 28 U.S.C. $ 1361. The Court is also precluded from reviewing Plaintiffs' APA claim because the APA exempts from judicial review actions that are "committed to agency discretion by law." 5 U.S.C. $ 701(a)(2). Finally, the Declaratory Judgment Act does not confer jurisdiction. Accordingly, Defendants respectfully request dismissal of this action"
In the Background part, he divided it into three sections (1) Factual Allegations (2) Statutory and Regulatory Framework (3) Status of Plaintiffs' Applications. The Argument part, in (I) Plaintiffs' complaints should be dismissed under rule 12(b)(1) because 8 U.S.C. $ 1252(a)(2)(B)(iii) divests this court of jurisdiction. in (II) This court lacks subject matter jurisdiction to grant Plaintiff's' request for mandamus under 28 U.S.c. $ 1361. in (III), the APA precludes this court from reviewing Plaintiffs' claim because it concerns action that is committed to agency discretion. in (IV) the Declaratory Judgment Act is not an independent basis for jurisdiction. In each (.), there are multiple pages argument to support the key point.
I spent most today searching the pacer database for WOM cases in the fourth circuit court. There are not that many WOM cases between 1/1/07-7/17/07 requiring MTD and if they did many were dismissed voluntarily as GC was approved before court order.
It would be very helpful, if you can share with me your experience responding to MTD. I saw one case in Virginia, the MTD was granted by judge after the plaintiffs responded to MTD. In the end, the plaintiff got nothing for a I-485 pending case for over 3 years. That's scary.
I am also thinking of all strategies, (a) try to drag the time to the court order, my court is quite conservative by my search for their records, they almost always supports the big government and powerful defendants. (b) try to amend the original WOM to tune down the request, for example, asking for FBI detailed explanation of the unduly delay.
In the part of "Nature of the mater before the court", he wrote "Plaintiffs' suit should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). This court lacks subject mater jurisdiction over this faction because Congress has divested the courts of jurisdiction over suits such as this one that concerns actions that are committed to agency discretion. See 8 U.S.C. $ 1252(a)(2)(B)(ii); Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006). Even in the absence of this jurisdictional bar, however, the court would lack subject matter jurisdiction over Plaintiffs' mandamus claiim because they cannot show that they have a clear right to adjudication within any particular time frame, or that Defendants have a clear duty to complete the adjudication at any particular speed. both are prerequisites to this Court exercising jurisdiction under 28 U.S.C. $ 1361. The Court is also precluded from reviewing Plaintiffs' APA claim because the APA exempts from judicial review actions that are "committed to agency discretion by law." 5 U.S.C. $ 701(a)(2). Finally, the Declaratory Judgment Act does not confer jurisdiction. Accordingly, Defendants respectfully request dismissal of this action"
In the Background part, he divided it into three sections (1) Factual Allegations (2) Statutory and Regulatory Framework (3) Status of Plaintiffs' Applications. The Argument part, in (I) Plaintiffs' complaints should be dismissed under rule 12(b)(1) because 8 U.S.C. $ 1252(a)(2)(B)(iii) divests this court of jurisdiction. in (II) This court lacks subject matter jurisdiction to grant Plaintiff's' request for mandamus under 28 U.S.c. $ 1361. in (III), the APA precludes this court from reviewing Plaintiffs' claim because it concerns action that is committed to agency discretion. in (IV) the Declaratory Judgment Act is not an independent basis for jurisdiction. In each (.), there are multiple pages argument to support the key point.
I spent most today searching the pacer database for WOM cases in the fourth circuit court. There are not that many WOM cases between 1/1/07-7/17/07 requiring MTD and if they did many were dismissed voluntarily as GC was approved before court order.
It would be very helpful, if you can share with me your experience responding to MTD. I saw one case in Virginia, the MTD was granted by judge after the plaintiffs responded to MTD. In the end, the plaintiff got nothing for a I-485 pending case for over 3 years. That's scary.
I am also thinking of all strategies, (a) try to drag the time to the court order, my court is quite conservative by my search for their records, they almost always supports the big government and powerful defendants. (b) try to amend the original WOM to tune down the request, for example, asking for FBI detailed explanation of the unduly delay.
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