The dreaded DS-5535 thread for Montreal. Post here and support each other (PART 2)

[throwitaway 190]

2 hours ago, ice-qube said:

 rule of thumb--there is no statutory definition--is that any time within six months for a decision is "reasonable"). 

Excerpt from Judge’s opinion in Dastagir v Blinken, District Court of Columbia Case No. 1:20-cv-02286 (TNM)

 

Dastagir's visa application and other courts have found similar wait times [2018 interview, 2021 lawsuit, 3 years of AP] not unreasonable. More importantly, granting Dastagir relief would allow her to jump ahead of others with no net benefit to anyone but her. While Dastagir and her family may have experienced hardship during the wait, so too have all applicants whose cases are likewise delayed.

[ice-qube 649]

21 minutes ago, throwitaway said:

Not really, I’ve seen WoM fail for applications that have been in AP for 3-5 years. 

of course WoM *could* fail *if* they went to court and there was some legitimate or at least ostensible reason for it. However, this is not what we are seeing with these cases in Montreal on this forum. We are seeing the US attorneys just decline to defend the suits and tell the consulates to continue pushing the cases ahead. For a WoM defence to succeed, the government lawyers will at least have to have some arguable reason to convince the court that it should not compel the agency to make a decision.

3 minutes ago, throwitaway said:

Excerpt from Judge’s opinion in Dastagir v Blinken, District Court of Columbia Case No. 1:20-cv-02286 (TNM)

 

Dastagir's visa application and other courts have found similar wait times [2018 interview, 2021 lawsuit, 3 years of AP] not unreasonable. More importantly, granting Dastagir relief would allow her to jump ahead of others with no net benefit to anyone but her. While Dastagir and her family may have experienced hardship during the wait, so too have all applicants whose cases are likewise delayed.

OK what were the facts in the case here?

[ice-qube 649]

14 minutes ago, throwitaway said:

I mean, it can and does hold up in court. Thousands of DV applicants languished in post-interview AP this year and lost their chance, not because they were denied based on the INA, but because the government failed to adjudicate by the fiscal year deadline. Similarly, other visa types are not protected by law with regards to the timeline of adjudication - if the cost of their inaction meant the total loss of a visa to thousands, you think “I waited for a year” is going to mean anything to them? The DC court denied over 50+ WoM and TRO in September alone. 

A DV is not quite the same situation as a spousal visa, is it though?

[ConsistentCut 17]

36 minutes ago, throwitaway said:

Not really, I’ve seen WoM fail for applications that have been in AP for 3-5 years. 

What do you mean fail? Fail to force the government to make a decision, or fail to lead to an approval? They are two completely different things.

[ConsistentCut 17]

28 minutes ago, throwitaway said:

I mean, it can and does hold up in court. Thousands of DV applicants languished in post-interview AP this year and lost their chance, not because they were denied based on the INA, but because the government failed to adjudicate by the fiscal year deadline. Similarly, other visa types are not protected by law with regards to the timeline of adjudication - if the cost of their inaction meant the total loss of a visa to thousands, you think “I waited for a year” is going to mean anything to them? The DC court denied over 50+ WoM and TRO in September alone. 

Denials hold up in court? Of course they do. Some people don't qualify to immigrate to the United States. Some do qualify but then are rejected for being security threats or other reasons. In my case, there is positively, 100% and without question, zero reason to deny my spouse this immigration benefit. Zero. This is, in my opinion, why they move so fast to approve visas as soon as they get served the WOM: they have no reason to deny it.

 

Comparing DV with a yearly deadline to IR1 which is a citizens RIGHT under US law is like comparing cheese and chalk. They may be tangentially related to immigration, but they aren't the same thing at all.

Edited October 8, 2022 by ConsistentCut

[ice-qube 649]

3 minutes ago, ConsistentCut said:

What do you mean fail? Fail to force the government to make a decision, or fail to lead to an approval? They are two completely different things.

There is one issue here that is relevant, however; if the govt decides to start going to court with these, it does appear based on my quick reading of the judgment he is referring to, they could very well end up denying relief under WOM to make a decision. Which means we would have spent $5k USD only to continue languishing in administrative processing ad infinitum.

2 minutes ago, ConsistentCut said:

Denials hold up in court? Of course they do. Some people don't qualify to immigrate to the United States. Some do qualify but then are rejected for being security threats or other reasons. In my case, there is positively, 100% and without question, zero reason to deny my spouse this immigration benefit. Zero.

 

Comparing DV with a yearly deadline to IR1 which is a citizens RIGHT under US law is like comparing cheese and chalk. They may be tangentially related to immigration, but they aren't the same thing at all.

In fact, most problematic about the case he cites... is that it is actually a spousal case.

[ConsistentCut 17]

19 minutes ago, ice-qube said:

There is one issue here that is relevant, however; if the govt decides to start going to court with these, it does appear based on my quick reading of the judgment he is referring to, they could very well end up denying relief under WOM to make a decision. Which means we would have spent $5k USD only to continue languishing in administrative processing ad infinitum.

In fact, most problematic about the case he cites... is that it is actually a spousal case.

Ya but this case takes place in Russia where

 

"Right now, the Moscow Embassy can only process immigrant visas in "life-or-death emergencies" or "age-out cases."

 

seems to me this doesn't apply to Canada. Two people from this very forum received approvals the same day I had my interview.

 

The five points of the case suggest a "reasonable time frame" varies by jurisdiction. The court seemed to rule that 3 years in Russia is, in fact, reasonable. I don't find that hard to believe at all.

 

Now I'm no lawyer but that's what the case says. The timeline for Canadians would likely not be more than 6 months or so, especially considering the already well established integration and cooperation between intelligence services to determine security threats. Probably also the reason some lawyers suggest to wait that long: it has precedent in case law.

 

It's likely much harder and takes much longer to background check a Russian citizen, for example.

Edited October 8, 2022 by ConsistentCut

[ice-qube 649]

1 minute ago, ConsistentCut said:

Ya but this case takes place in Russia where

 

"Right now, the Moscow Embassy can only process immigrant visas in "life-or-death emergencies" or "age-out cases."

 

seems to me this doesn't apply to Canada. Two people from this very forum received approvals the same day I had my interview.

 

The five points of the case suggest a "reasonable time frame" varies by jurisdiction. The court seemed to rule that 3 years in Russia is, in fact, reasonable.

 

I'm no lawyer but that's what the case says. The timeline for Canadians would likely not be more than 6 months or so, especially considering the already well established integration and cooperation between intelligence services to determine security threats.

I mean, I tend to agree with you yes, but there is a great deal being discussed in this case that could make winning a case, if it actually went to court, more difficult than it would seem. This case affirms that the government could successfully use the COVID excuse, that they could use the fact that there is no statutory or accepted standard of what constitutes "reasonable" timelines, that prioritizing the processing of a case over others  de facto disadvantages those other cases in a system with limited resources, and so on. In my opinion, we would not want this to get to trial given what is discussed in this particular judgment.

[Siarg 72]

I think both sides are correct. 
 

WoM works because they don’t want new case precedent if they lose in court by actually fighting it. 
 

WoM works even though there are plenty of legal technicalities they can hide behind and argue against, but 99% of the time they settle out of court by issuing the visa. 
 

The Canadian argument was used in our case specifically because they’re constantly bragging about the Canada-US relationship, how modern and digital it is, instantly providing information and background on travellers. 
 

They have all the power, but bureaucracy works against them with filing in court, because it’s a lot of time, money and effort to fight against a case that doesn’t have a lot to defend. Ice qube makes a good point that time is really the only thing they have on their side, but you can also argue that immigration has been the time since you first applied, not just since the interview. 
 

It’s just the reality that WoM works because it’s a kick up the butt to DOS, and the legal technicalities of it are rarely followed through.

[throwitaway 190]

1 minute ago, ConsistentCut said:

What do you mean fail? Fail to force the government to make a decision, or fail to lead to an approval? They are two completely different things.

Look I’m just saying that the time thing is not as relevant as you both think it is. I filed WoM after one month from interview, and I was issued. Arguing that your citizen spouse has a right to be reunited with their partner is a good argument, showing them that there’s nothing in your background to be concerned about is too, but saying you’ve waited x amount of time to bolster your WoM isn’t. That’s all. I just came out of this lawsuit so my mind is still stuck ruminating in legalese. Apologies if I was unclear.

[ConsistentCut 17]

2 minutes ago, ice-qube said:

I mean, I tend to agree with you yes, but there is a great deal being discussed in this case that could make winning a case, if it actually went to court, more difficult than it would seem. This case affirms that the government could successfully use the COVID excuse, that they could use the fact that there is no statutory or accepted standard of what constitutes "reasonable" timelines, that prioritizing the processing of a case over others  de facto disadvantages those other cases in a system with limited resources, and so on. In my opinion, we would not want this to get to trial given what is discussed in this particular judgment.

Ya like I said I'm no lawyer but I see way more differences than similarities between the case mentioned and what little I know about the Canadian side of things. In the end I'll obviously just follow the advice of our lawyer.

[ConsistentCut 17]

8 minutes ago, throwitaway said:

Look I’m just saying that the time thing is not as relevant as you both think it is. I filed WoM after one month from interview, and I was issued. Arguing that your citizen spouse has a right to be reunited with their partner is a good argument, showing them that there’s nothing in your background to be concerned about is too, but saying you’ve waited x amount of time to bolster your WoM isn’t. That’s all. I just came out of this lawsuit so my mind is still stuck ruminating in legalese. Apologies if I was unclear.

Ah ok, that's much clearer what you mean now. My initial thought would be that it was important, because a background security check is obviously important and the government needs some time to run it, so you can't just file a WOM 2 days into your application. Perhaps this is bad logic. According to that case you posted, a "reasonable time frame" is actually one of the conditions of a successful or unsuccessful WOM, but what that time frame is varies by jurisdiction, and is ultimately determined by the court.

 

Who was your lawyer, if you don't mind me asking?

Edited October 8, 2022 by ConsistentCut

[throwitaway 190]

Just now, ConsistentCut said:

Well according to that case a "reasonable time frame" is actually one of the conditions of a successful or unsuccessful WOM, but what that is varies by jurisdiction.

 

Who was your lawyer, if you don't mind me asking?

It’s a complex set of conditions required to actually win, and one of them is proving unreasonable delay. But defining “unreasonable” is a losing battle. There’s really no consensus about it in courts, it flip flops based on the judge’s temperament. I was trying to point it out (although poorly) as not something to focus on and is actually a point the government likes to fight, as defining it would be terrible for them. If you’re thinking of filing WoM, make sure you get a good lawyer that can distinguish this and not template file for you.

 

I went with Chris at Paladino, Isbell and Casazza. 

[ConsistentCut 17]

3 minutes ago, throwitaway said:

It’s a complex set of conditions required to actually win, and one of them is proving unreasonable delay. But defining “unreasonable” is a losing battle. There’s really no consensus about it in courts, it flip flops based on the judge’s temperament. I was trying to point it out (although poorly) as not something to focus on and is actually a point the government likes to fight, as defining it would be terrible for them. If you’re thinking of filing WoM, make sure you get a good lawyer that can distinguish this and not template file for you.

 

I went with Chris at Paladino, Isbell and Casazza. 

Thanks very much. You did a fine job explaining, my reading comprehension is just poor.

 

My wife's best friend is actually a lawyer although not immigration, so perhaps she can help us as well. Going to look into it.

Edited October 8, 2022 by ConsistentCut

[sloth_life 36]

4 hours ago, ice-qube said:

I mean, I tend to agree with you yes, but there is a great deal being discussed in this case that could make winning a case, if it actually went to court, more difficult than it would seem. This case affirms that the government could successfully use the COVID excuse, that they could use the fact that there is no statutory or accepted standard of what constitutes "reasonable" timelines, that prioritizing the processing of a case over others  de facto disadvantages those other cases in a system with limited resources, and so on. In my opinion, we would not want this to get to trial given what is discussed in this particular judgment.

But, the COVID excuse makes no sense for AP.

 

By definition, there can be no AP without an interview, and because there were extremely limited numbers of interviews during COVID, there can be no backlog of AP due to COVID.

 

How can it be the case that they're not prioritizing other AP over these ones from Montreal? Some people here have been waiting for over a year now. Clearly, they are prioritizing other visas over these, i.e., SQ, DV, E, and F.