EB23版 - [EB3C诉讼] 律师针对法庭决定申诉的立论 |
|---|
|
|
|
|
|
|
s**g
发帖数: 709 | 1 我们跟律师交流,得到以下回复:
A. At bottom, our argument is that DOS and CIS violated the statute
written by Congress when it allocated visa numbers in 2008 and 2009. It is
important to note that this is not challenged in the court’s decision; in
other words, for purposes of appeal, it can be assumed the DOS and CIS
violated the law in 2008 and 2009. The question is how this violation of
law can be remedied. Basically, the court’s argument is that even though
the law was violated, the court cannot do anything to fix the problem
because Plaintiffs “lack standing”.
B. Lack of Standing. The court says that Plaintiffs lack standing for
2 reasons. I think that the court is wrong on both counts.
1. Visa numbers cannot be recaptured and reallocated
The court’s discussion here obscures the real question. The court says
that the State Department cannot recapture “misallocated and unused” visa
numbers. There are 2 different issues. (1) Can visa numbers that were “
misallocated” be recaptured? We agree that visa numbers that were
misallocated and already used cannot be “recaptured” and used again. But
that is not the issue. (2) Can visa numbers that were never used be
recaptured? The issue we want to focus on is whether visa numbers that were
never used during one FY can be “recaptured” and used in a later FY. The
court says it cannot recapture visa numbers from 2008 and 2009, but we are
not asking the court to do that. The visa numbers for 2008 and 2009 were
all used. The real question is whether visa numbers from previous years
that were never used can be used in a later year to correct the violations
of law that occurred in 2008 and 2009.
The court’s discussion of Silva v. Bell is really very weak. The court
says that in Silva v. Bell, the government agreed that unused visa numbers
from prior years could be recaptured and used to correct violations of the
law; but that now in this case the government does not agree; and so the
court seems to think there is nothing to do about it. That line of
reasoning is ridiculous. Does the court mean to suggest that if the
government does not agree to do something, then the court has no power to
correct the mistake? In Silva v. Bell, the government agreed that unused
visa numbers can be used in a later year. The reason is because the statute
makes those numbers available, and there is nothing in the statute that
says such numbers disappear or cannot be used in later years. Furthermore,
it is well established in case law that courts have the power to correct
violations of the law. One way to correct the violations of law that
occurred in this case is to use visa numbers that Congress created, but were
never used. This way to correct the violations is prohibited only if there
is some statute by Congress prohibiting the use of visa numbers in this way.
The court relies on Iddir, but that case shows exactly why the court’s
decision is wrong. Iddir was a diversity lottery case. Plaintiffs tried to
argue that unused DV numbers could be used in a later year. The court
recognized that it had authority to fix the problem, but for the fact that
the statute says that DV numbers have to be used in the same year Congress
allocates them. See 8 USC 1154(a)(1)(I) – subsection (ii)(II). That was
the reason the court could not use the unused DV numbers. The same
limitation does not apply to visa numbers that Congress allocates under the
employment-based system. Iddir suggests that the court does have power to
fix a “misallocation of visa numbers” as long as there is not a statutory
provision like §1154(a)(1)(I) that prohibits the court from doing so.
2. Complaint does not state a claim.
The court’s argument here is very weak, I would say vapid. Again, for
purposes of this argument the court does not dispute that DOS and CIS
violated the law in 2008 and 2009. Plaintiffs are asking the court to “fix
this problem”. The relief Plaintiffs seek includes (1) using unused visa
numbers from prior years and allow plaintiffs and class members to use those
numbers; and/or (2) provide other equitable relief (such as allowing
plaintiffs and class members to obtain work authorization and AP documents
without payment); and/or (3) provide an accounting of pending applications,
and public information about how the visa numbers are allocated, so the
allocation process can be monitored. The court says that Plaintiffs claim
for relief is based on past alleged violations that cannot be undone, and
therefore the Court lacks jurisdiction. Apparently the court is relying on
its claim that visa numbers from prior years cannot be recaptured. But even
if the past acts “cannot be undone”, there is still the question of
whether some other form of relief (for example, (2) or (3)) should be
granted. The court simply ignores the possibility of other forms of
equitable relief. That is a major flaw in the court’s analysis. The court
provides no reason at all why other forms of relief cannot be granted.
捐款网址：
http://www.eb3chinese.org/3.html
多谢大家支持！ | f****n
发帖数: 4615 | 2 律师的意见， 有点不看好？
is
for
【在 s**g 的大作中提到】
: 我们跟律师交流,得到以下回复:
: A. At bottom, our argument is that DOS and CIS violated the statute
: written by Congress when it allocated visa numbers in 2008 and 2009. It is
: important to note that this is not challenged in the court’s decision; in
: other words, for purposes of appeal, it can be assumed the DOS and CIS
: violated the law in 2008 and 2009. The question is how this violation of
: law can be remedied. Basically, the court’s argument is that even though
: the law was violated, the court cannot do anything to fix the problem
: because Plaintiffs “lack standing”.
: B. Lack of Standing. The court says that Plaintiffs lack standing for
| s**g
发帖数: 709 | 3 The court provides no reason at all why other forms of relief cannot be
granted.
个人认定最后一句. | c**s
发帖数: 3796 | | g**e
发帖数: 6127 | 5 support
【在 s**g 的大作中提到】
: The court provides no reason at all why other forms of relief cannot be
: granted.
: 个人认定最后一句.
| y*****7
发帖数: 1555 | | c********k
发帖数: 200 | 7 这个版主没有积极的态度，不会鼓舞也不用做泄气包!
【在 f****n 的大作中提到】
: 律师的意见， 有点不看好？
:
: is
: for
| c********k
发帖数: 200 | 8 支持老猪，老猪说咋整就咋整!
【在 s**g 的大作中提到】
: The court provides no reason at all why other forms of relief cannot be
: granted.
: 个人认定最后一句.
| r******r
发帖数: 700 | 9 Great!
The lawyer makes excellent analysis and strong arguments.
Sue again!
is
for
【在 s**g 的大作中提到】
: 我们跟律师交流,得到以下回复:
: A. At bottom, our argument is that DOS and CIS violated the statute
: written by Congress when it allocated visa numbers in 2008 and 2009. It is
: important to note that this is not challenged in the court’s decision; in
: other words, for purposes of appeal, it can be assumed the DOS and CIS
: violated the law in 2008 and 2009. The question is how this violation of
: law can be remedied. Basically, the court’s argument is that even though
: the law was violated, the court cannot do anything to fix the problem
: because Plaintiffs “lack standing”.
: B. Lack of Standing. The court says that Plaintiffs lack standing for
| M*******t
发帖数: 513 | 10 感觉这个"律师"有点胡忽悠的嫌疑.
is
for
【在 s**g 的大作中提到】
: 我们跟律师交流,得到以下回复:
: A. At bottom, our argument is that DOS and CIS violated the statute
: written by Congress when it allocated visa numbers in 2008 and 2009. It is
: important to note that this is not challenged in the court’s decision; in
: other words, for purposes of appeal, it can be assumed the DOS and CIS
: violated the law in 2008 and 2009. The question is how this violation of
: law can be remedied. Basically, the court’s argument is that even though
: the law was violated, the court cannot do anything to fix the problem
: because Plaintiffs “lack standing”.
: B. Lack of Standing. The court says that Plaintiffs lack standing for
| | | M*******t
发帖数: 513 | 11 "The court
provides no reason at all why other forms of relief cannot be granted."
Why "no reason provided?" ...
Because it is not necessary.
本末倒置.何求?
is
for
【在 s**g 的大作中提到】
: 我们跟律师交流,得到以下回复:
: A. At bottom, our argument is that DOS and CIS violated the statute
: written by Congress when it allocated visa numbers in 2008 and 2009. It is
: important to note that this is not challenged in the court’s decision; in
: other words, for purposes of appeal, it can be assumed the DOS and CIS
: violated the law in 2008 and 2009. The question is how this violation of
: law can be remedied. Basically, the court’s argument is that even though
: the law was violated, the court cannot do anything to fix the problem
: because Plaintiffs “lack standing”.
: B. Lack of Standing. The court says that Plaintiffs lack standing for
| p***8
发帖数: 1081 | 12 EB3的案泥马子有理有据！！！！！！
非常值得坚持到底！！！！！！！！！
尼玛不了解情况的还是少YY为好！！！！
不懂装懂没关系！！！！！
出来装大牛就别乱忽悠了有木有！！！亲！！！！！！！！！！！！！！！！！
你伤不起啊啊啊！！！！！！
【在 M*******t 的大作中提到】
: "The court
: provides no reason at all why other forms of relief cannot be granted."
: Why "no reason provided?" ...
: Because it is not necessary.
: 本末倒置.何求?
:
: is
: for
| c********k
发帖数: 200 | 13 p8388讲演得太好了! 顶!
【在 p***8 的大作中提到】
: EB3的案泥马子有理有据！！！！！！
: 非常值得坚持到底！！！！！！！！！
: 尼玛不了解情况的还是少YY为好！！！！
: 不懂装懂没关系！！！！！
: 出来装大牛就别乱忽悠了有木有！！！亲！！！！！！！！！！！！！！！！！
: 你伤不起啊啊啊！！！！！！
| l********g
发帖数: 24 | | s**g
发帖数: 709 | 15 Will file a briefing to the circuit court this month | i*****s
发帖数: 430 | 16 How long will take for us to get result? If it is successful, can EB3c be
the same as the world row? | s**g
发帖数: 709 | 17 1 year or more. long term...... |
|
|
|
|
|
|
|
