s**g
发帖数: 709 | 1 [仅限于国人内部参考]
September 27, 2010 2:00 p.m.
PROCEEDINGS
_____________________________________________________________
THE CLERK: We're here in the matter of Li, et al.,
v. United States, please make
your appearances for the record.
MR. GOLDSMITH: Your Honor, Aaron Goldsmith on behalf
of the government.
THE COURT: Good afternoon.
MS. COHEN: Rebecca Cohen from the U.S. Attorney's
Office, also on behalf of the defendants, Your Honor.
THE COURT: Good afternoon.
MR. PAUW: Robert Pauw on behalf of the plaintiffs.
MR. GIBBS: Robert Gibbs on behalf of the plaintiffs.
THE COURT: Good afternoon to you as well.
Counsel, we have three matters for consideration this
afternoon, and they include a motion to dismiss, a motion for
a preliminary injunction, and a motion for class
certification. I'd like you to confine your remarks and
arguments to just the motion to dismiss this afternoon.
As I see it, there are two significant issues that the
parties need to address in their arguments to this court:
The standing and mootness issue, and whether a viable claim
exists against USCIS.
Now, counsel, the normal practice would be to allow the
moving party to go forward, but under the circumstances of
what's been raised, I think it would be more helpful for the
court if we began with the plaintiffs in this case, with the
court asking you a series of questions and certainly the
defense having an opportunity to respond. Counsel, the
parties will have a maximum of 20 minutes to respond to the
court's questions, and I ask that you confine your remarks to
that time period.
So with that, we'll begin. On behalf of plaintiffs,
counsel, if you'd step to the lectern. Good afternoon.
MR. PAUW: Good afternoon, Your Honor.
THE COURT: Counsel, let's begin. As I read the
briefing, it gave the appearance that the defendants appeared
to be in somewhat of a quandary in terms of the specific type
of relief that you were seeking. It appears that you
clarified that to some degree in your response brief, and
then it seemed like once the issues were framed, it was more
beneficial for the court to understand exactly where you were
going and what you were seeking. So let me begin with: What
kind of prospective relief are you actually seeking?
MR. PAUW: Well, there are a couple of different
types of relief that, I think, the court has some discretion
in fashioning the relief we're looking for.
First of all, we're looking to allocate the number of
immigrant visas to the individuals in the plaintiff class.
Some -- we're asking for 2,400 visas to be allocated.
THE COURT: How many, Counsel?
MR. PAUW: I think the exact number is 2,324.
THE COURT: Okay.
MR. PAUW: We think that's -- at a minimum, there are
that many people in the class that have been harmed by the
misallocation of visas.
THE COURT: And, Counsel, you'd agree that that would
exceed the number that's allocated by Congress for the
particular years, correct?
MR. PAUW: No. No, I don't think that's correct.
Well, let's see. If you're asking if we granted that number
of visas, let's say, for example, this year, would that
exceed the number, China's limit? And I think the answer to
that is, no, it would not, because of the way the per country
limits are calculated.
And in particular, I'm thinking of Section 202(a)(5)(A),
which will allow the -- so we're talking about the Employment
Based Category 3, what we call an EB3 category. Because the
other employment categories, EB1 and EB3 and EB4 and EB5, are
undersubscribed, under Section 202(a)(5)(A), those visas can
be allocated without counting the numbers against China's
cap. So in answer to your question, I believe that those
numbers can be allocated, the 2,324 visas can be allocated
without exceeding China's per country limit.
There's maybe a further question that you're raising, and
that is, could those visas be allocated this year, fiscal
year 2010? And that, it's not clear to me. There's a
worldwide cap, approximately 140,000 visas worldwide. We
don't have the information from the immigration services,
from the Department of State, as to how many of these visa
numbers are left over this year.
There was a notice, the most recent submission made by the
defendants, indicate that no more visas can be allocated for
adjustment of status purposes, suggesting that the total
number has been reached. But what I would point out is, that
was a notice sent by the Department of State to the USCIS,
saying that they should not allow any more adjustments for
status. It does not affect the number of visas that are
allocated at the consular offices overseas. And there may be
some -- we know there are some returns. The immigration
Department of State allocates visas overseas, and some of
those come back. We don't know whether or how many of those
visas may be available. I don't expect that it would be
2,000, but it may be a handful, it may be a couple hundred
that are returned after they're allocated out to the consular
posts.
THE COURT: Counsel, let's go back a little bit in
terms of the context of the briefing submitted to the court.
First of all, you're not disputing that visa numbers for
fiscal years 2008 and 2009 have already been issued, correct?
MR. PAUW: Those have been issued, that's correct.
THE COURT: And you agree that Congress created a
worldwide per country visa limit; would you agree with that
as well?
MR. PAUW: That's correct.
THE COURT: And under what authority do you rely to
support your claim that the State Department has the
authority to reallocate a visa number from a previous year to
a later year?
MR. PAUW: Primarily that was what was done in Silva
v. Bell, the Seventh Circuit case where the court -- the
court or the immigration service agreed to recapture numbers
from previous years. So if -- so under Silva v. Bell, and
generally speaking, I think, under the court's equitable
ability to remedy past violations of a statute, this court
can go back and reach unused visa numbers from prior years.
THE COURT: Well, counsel suggests that and then
replied that Silva appears to no longer be good law, or it's
not clear that that's exactly what the case posited. So
could you address their reply in that regard? I'm referring
specifically to pages 5 and 6 of the reply.
MR. PAUW: Yes. I think they're relying on a
subsequent Seventh Circuit case called Iddir.
THE COURT: Correct. That's I-d-d- --
MR. PAUW: I-r, yes.
That case, indirectly, reaffirms the holding in Silva v.
Bell. It actually cites with approval two district court
cases that talk about recapturing visas, and those cases
specifically rely on Silva v. Bell.
THE COURT: Counsel points out -- not to interrupt
you -- but counsel points out that, as previously noted by
the defense, the Iddir opinion is different from the present
case because it involves a different visa program, adversity
visa program. So aren't we dealing with apples and oranges
under these circumstances?
MR. PAUW: In the other words, the Iddir case
specifically wasn't holding that the court did not have
authority to recapture the prior visas. The Iddir case was
dealing with a diversity visa program. And what I would
point out is that, under that program, which is different
than the EB program that we're talking about here, under the
diversity visa program, the statute specifically says -- here
I'm looking at 8 U.S.C., Section 1154, 8 U.S.C., Section
1154(a)(1), and the statute specifically says those people in
the diversity visa lottery program, they will remain eligible
to receive their visas only through the end of the specific
fiscal year. Subsection -- that's 1154 (a)(1)(L), I believe
it is.
Again, those individuals in the diversity congressional
statute, those individuals are eligible to get their visas
only through the specific fiscal year. That provision does
not apply in the context of the EB applicants, the
employment-based applicants that we're talking about here.
And so Iddir specifically reaffirms the authority of a
court to recapture visas, but then says, well, but you can't
use them in this case because of this particular provision.
THE COURT: So that's a provision, Counsel, that you
believe will allow the State Department to recapture a visa
number that's already been used or issued?
MR. PAUW: Correct. Now, there's a further question
there about whether or not the State Department can recapture
visa numbers that have already been used.
THE COURT: Okay. Well, Counsel, the statute you
just referenced, does that language specifically reference
the State Department as having that specific authority?
MR. PAUW: Let's see. Which one are you talking
about?
THE COURT: The statute you just referenced, 1154.
MR. PAUW: Yes.
THE COURT: Okay. Could you point that specific
provision out?
MR. PAUW: Section 1154(a)(1). Sorry. It's
1154(a)(1)(I).
THE COURT: That's the very first provision under
1154(a)?
MR. PAUW: Capital A, B, C, all the way down to
capital I.
THE COURT: Okay. I'm with you.
MR. PAUW: And then I'm looking at subparagraph small
Roman numeral two, then big numeral two. It says, "Aliens
who qualify for random selection under this lottery system
shall remain eligible to receive such visa, a diversity visa,
only through the end of the specific fiscal year for which
they were selected."
THE COURT: Counsel, I still have to ask you the same
question: How does that authorize the State Department to
recapture a visa number that's already been used?
MR. PAUW: Okay. Well, I guess the argument is this:
There is no statutory provision that prevents the court from
doing so. You know, the court has general equitable powers
to accomplish equitable relief where a statute has been
violated.
In the Silva case, the Seventh Circuit recognized that
district courts have the power to do that, unless there's
some statutory provision that prevents it.
THE COURT: Counsel, I think you have to agree that
courts are reluctant to trample upon the responsibility of
the role of Congress. If Congress had the clear, express
intention that that was the authority to be allowed, wouldn't
the court be in a better position to make a determination if
Congress hadn't expressed a clear intent that that's what
they wanted to have done, as opposed to the court just
assuming the court has the authority to engage in that type
of process?
MR. PAUW: Well, the issue is Congress hasn't spoken
one way or the other as to how to remedy a situation where
the statute has been violated. Congress has left that issue
open, I guess, and ultimately for the courts to decide how to
remedy a violation of the statute.
THE COURT: Well, aren't we getting into a
legislative role as opposed to a judicial role?
MR. PAUW: No, I don't believe so.
I would also -- I would point out -- the other thing I
would point out is that the immigrant visas can be allocated
in a fiscal year. There's a cap for each fiscal year, but
there's no requirement that these visas actually be used
during that fiscal year.
THE COURT: Well, these visas were already issued.
You already agreed those visas were issued in 2008 and 2009.
So my question is: How are we supposed to recapture, and
under your proposal, to be judicially mandated to recapture
the visa numbers. Is that what you're asking the court to
do?
MR. PAUW: Yes. The recaptured part recaptures visas
that have not been used before. We submit that there are --
and the documents and evidence that we have submitted to the
court shows that there are visas available for recapture.
If you look at the ombudsman's report that we have
provided to the court --
THE COURT: But aren't those in specific, defined
areas, Counsel?
MR. PAUW: Specific, defined areas?
THE COURT: Of recaptured opportunity.
MR. PAUW: They can be recaptured. You know, they're
available. These are visa numbers that have not been used.
There are approximately 218,000 visa numbers that have not
been used in the previous years that are, quote, available
for recapture.
THE COURT: And is there any authority, other than
that one specific statutory reference that you rely upon to
support that proposition?
MR. PAUW: Well, I guess two other points: One is
that we are relying on the court's general equitable powers
to remedy a statutory violation. We think that's well
supported, and that's exactly what happened in the Silva v.
Bell case.
Also I would point out that visas -- there are, of course,
numerical limits each fiscal year on visas to be made
available, but there's no -- the statute does not say those
visas, if they are not used, cannot be made available in a
subsequent fiscal year. All right? The statute authorizes
the allocation of immigrant visas, and there's nothing in the
statute that precludes a court from -- or the Department of
State from using those visas in a subsequent fiscal year.
THE COURT: Doesn't your proposal require the court
to go and take visas from other individuals who have already
been recipients of the same?
MR. PAUW: No, that's not correct. And that's where
we're relying on this report from the CIS ombudsman. And I'm
looking at, in our materials, in Exhibit 15-2, pages 55 and
56, and it specifically says, quote, employment preference
numbers available for recapture, and it accounts for over
218,000 employment-based preference numbers that are
available, quote, for recapture. It's those that can be
recaptured. So we're not talking about going back and using
these visa numbers that have already been used.
THE COURT: And under your theory, that would not
exceed any congressionally-limited numbers on a per country
basis?
MR. PAUW: Correct.
If I may make just one other point, and then maybe I can
reserve time for rebuttal.
THE COURT: Certainly. I still have a couple other
questions.
MR. PAUW: Okay. I'm sorry.
THE COURT: Counsel, just so we're clear, your
present lawsuit only deals with the allocation year of 2008
and 2009, and not 2010; is that correct?
MR. PAUW: Well, the issues in the preliminary
injunction deal with 2008 and 2009 and making whole the
people who were harmed then. We think there are issues that
are ongoing relating to how the immigrant visa numbers are
calculated and allocated.
Part of another problem, another violation of the statute
that we think is ongoing is the fact that the Department of
State uses these lists to allocate visas, as it's supposed to
do under the statute, but CIS is -- there's a hidden demand
out there. CIS is using those visa numbers without getting
onto the list. And so there's no way for the Department of
State to do a proper calculation of how many visas are going
to be allocated each month.
What the problem is -- what the violation is, is that CIS
is grabbing these immigrant visa numbers without having the
applicant get onto that waiting list or onto that IVAMS list,
what they currently call an IVAMS list. So when the
Department of State says, okay, we will -- I think one of the
examples they give is, we'll allocate 3,000 visas this month,
and we have this list of applicants. We look at the list,
and we cut off at 3,000 applicants by priority date. So they
set the priority date at a certain date.
The problem is, there's not just the 3,000 people on the
list, but there may be another 3,000 people that are not on
the list who are going to start grabbing those visa numbers
out of priority date order. So that's another issue.
I guess to answer your questions, there are some ongoing
issues, and I think this is a problem that continues into
2010 and beyond.
THE COURT: Counsel, for the court's benefit, any
time I engage in statutory interpretation, the first thing I
have to do is look at the language of the specific statute
and what the authority provides by that statute.
Can you point to where in the statute that you rely upon
that requires USCIS to maintain the department of state's
waiting list or establish cut-off dates for the department of
state's visa bulletin?
MR. PAUW: We're not saying that CIS is supposed to
be the agency establishing cut-off dates. Where CIS's
obligation comes from, I think there are a couple of points:
First of all, the whole statutory framework is set up to
ensure that visas are allocated on a priority-date basis.
Where CIS's obligation comes in, two places: First of all,
with respect to adjustment of status, Section 245(b) requires
CIS to use visas that are authorized under Section 202 and
203; in other words, use visa numbers that are authorized
under the priority date system.
THE COURT: But, Counsel, aren't these
responsibilities committed solely to the Department of State
in accordance with 8 U.S.C., 1154(e)(3) and 1153(g)? Because
as I read those two statutes -- and I have it right here,
Counsel, if you don't have it before you -- it gives the
appearance that that's not the area of responsibility for the
agency that you're suing.
MR. PAUW: Well, again, we agree CIS does not have
the responsibility of establishing the cut-off dates. But
what it does have to do is two things: Section 245(b)
requires it to obtain the immigrant visa numbers under the
priority date system; in other words, Congress puts that
there in order to ensure the adjustment of status also occurs
in priority date order.
And then the second thing I would point to is a
regulation, and I'm looking at 22 CFR, Section 42.51(b),
22 CFR, 42.51(b). And what that requires -- that's a
Department of State regulation. What it says is that, "The
visa office shall allocate immigrant visa numbers for use,
not only by the Department of State, but also for use in
connection with the issues of adjustment of status." So
that's CIS. And in particular, it's required that it's based
on priority dates reported by CIS.
THE COURT: But is there any obligation in that CFR
for the Department of State to maintain a waiting list or
establish cut-off dates?
MR. PAUW: Yes, I think so. I mean, that's exactly
what it says. It says, "The visa office shall allocate visa
numbers for use of the immigrant visas and adjustments based
on priority dates reported by the consular officers and CIS."
So that's the requirement. It says it shall allocate visa
numbers that way; in other words -- and the reason for doing
that is so there's a centralized system to control the
allocation of the immigrant visa numbers.
The way that they're set up is that people have to get on
that list. I mean, as Congress requires, there has to be
waiting lists. The way the system operates is that you get
on that waiting list, and then the Department of State, the
visa office, can determine how to allocate those month by
month. That gives control over the numbers.
The problem here is that CIS is using those numbers
without having gotten on that list. So when the visa office
says, okay, we'll let 3,000 people get their visa number this
month by setting up a cut-off date, there are another 3,000
people who aren't on the list that start grabbing those, and
then the system goes haywire because visas get allocated out
of priority date order.
THE COURT: All right. Counsel, the last thing I
wanted to ask you questions about deals with the viability of
the claims against CIS. Now, Counsel, I direct your
attention to page 9 of the defendant's reply. They argue
that the only source of CIS's legal duty that you identified
is 8 U.S.C. 1153(e), and it's my understanding, just based
upon your last argument, that the CFR in Section 245(d) are
the two source authorities that you rely upon that imposes a
duty on CIS; is that correct?
MR. PAUW: Yes, that's correct. I guess as well I
would point to the overall statutory framework, which is set
up -- you know, Congress's intention is to allocate these
visas on a priority basis. So if you look -- in addition, if
you would just look at the overall structure of the statute,
I would point to that as well.
THE COURT: All right. Thank you, Counsel.
MR. PAUW: Thank you, Your Honor.
THE COURT: Counsel for the defendants, good
afternoon.
MR. GOLDSMITH: Good afternoon, Your Honor.
THE COURT: Counsel, let's start first with: You
provided notice of intent to reply on additional authority
and oral argument. If you c | Q*K
发帖数: 3464 | 2 好长，谁给个总结
【在 s**g 的大作中提到】
: [仅限于国人内部参考]
: September 27, 2010 2:00 p.m.
: PROCEEDINGS
: _____________________________________________________________
: THE CLERK: We're here in the matter of Li, et al.,
: v. United States, please make
: your appearances for the record.
: MR. GOLDSMITH: Your Honor, Aaron Goldsmith on behalf
: of the government.
: THE COURT: Good afternoon.
| S*******r
发帖数: 11017 | | e**o
发帖数: 131 | | s**g
发帖数: 709 | | p********9
发帖数: 37 | 6 读了一遍，以我个人浅见，觉得法官很不愿意作出对政府不利的判决，而且DOS/USCIS
也怕有其它团体跟风打官司所以拼命抵抗。看来确实是UPHILL BATTLE！我方律师的准
备不如对方充分，陈述能力也不如。 | R******e
发帖数: 146 | 7 个人认为政府的律师水平完全不行，首先是不承认有unused visa这一众所周知的事实
“Now, as to the specific allegation that there are these
additional unused visa numbers, I'm not sure what to say,
other than we're not aware of any secret cache of visa
numbers, and I don't understand how that can exist under the
law as written.”
其次是援引了一个与移民法案无关的案例，感觉很没有说服力。
不过感觉还不大清楚USCIS AT FAULT 的原因。不知道是不是因为JUDGE 已经了解了。 | s**g
发帖数: 709 | 8 在现场感觉各方都有些SLOW WARM，有些不着边际。
通过回复政府的SUPPLYMENTAL BREIF,会落实到具体问题上，从而接近案情的实质。
一般小诉讼都会有几个回合的。 | p********9
发帖数: 37 | 9 不承认有unused visa不是因为该律师水平不行，而是他的狡猾之处。他用偷换概念的
办法来忽悠法官，请看这段：
“Because what happens if a visa number were not used, it
would be incorporated into the formula used for the next
fiscal year; for example, if there are unused -- this is a
hypothetical -- unused family visa numbers at the end of a
fiscal year, that number would be added to 140,000, and that
would establish a worldwide limit for employment visas for
the following fiscal year.”
事实上只有UNSED FB VISA是拨给下一年的EB，而unsed EB visa是不carry over的，
但是他给法官的印象是所有的UNSED VISA都拨到下一年了，所以recapture不成立。注
意他用“for example"一词不动声色地引法官。这个官司我们是有理的，但是官司要赢
就要让法官觉得我们理由充分受害很深才行。
【在 R******e 的大作中提到】
: 个人认为政府的律师水平完全不行，首先是不承认有unused visa这一众所周知的事实
: “Now, as to the specific allegation that there are these
: additional unused visa numbers, I'm not sure what to say,
: other than we're not aware of any secret cache of visa
: numbers, and I don't understand how that can exist under the
: law as written.”
: 其次是援引了一个与移民法案无关的案例，感觉很没有说服力。
: 不过感觉还不大清楚USCIS AT FAULT 的原因。不知道是不是因为JUDGE 已经了解了。
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