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

[ice-qube 648]

5 hours ago, herecomestherain said:

One person on this thread wrote a letter directly to the main players at the consulate and DOS and they got approved. Maybe you could try that first.

Which person was that? I don't recall reading it. 

[herecomestherain 77]

17 minutes ago, ice-qube said:

Which person was that? I don't recall reading it. 

I don’t remember it was a couple pages back. They wrote letters to the most common defendants of WOM cases.

[ClemsonC 62]

22 minutes ago, ice-qube said:

Which person was that? I don't recall reading it. 

It was a VJ Member who had a previous expedite in her case. I believe this was in August, for her father. 

[ConsistentCut 17]

30 minutes ago, ice-qube said:

Which person was that? I don't recall reading it. 

@ThisIsHell and it was for his wife I believe

[ConsistentCut 17]

36 minutes ago, ice-qube said:

Not much, amigo, if the rest of our experiences have any predictive value.

Yes i believe that you are likely right. If this was the case, they made us go to the consulate on false pretences, essentially. 

 

This is debatable. If the case actually got to court, it might lose on the prospect of it only having been 90 days (according to all I have read, the rule of thumb--there is no statutory definition--is that any time within six months for a decision is "reasonable"). However, it seems to me these cases are never even getting to litigation now. The US attorneys obviously know these are not legit national security holds, which is exactly why, shortly after receiving the summons for the WOM suit, they seem to just tell the consulate go ahead and get processing again. In that light, perhaps if you find a lawyer willing to take it on earlier, it might be fine, because it will never likely see a court. 

 

I am still dithering on WOM, just because it sticks in my craw so much, but it sure seems like there is no other way now. And that really just makes me even more disenchanted with this.

 

 

They still have to have a legitimate reason to deny you. I'm pretty sure "we extreme vetted him for 12 months after his interview and found nothing" won't hold up in court.

[throwitaway 189]

2 hours ago, ice-qube said:

This is debatable. If the case actually got to court, it might lose on the prospect of it only having been 90 days (according to all I have read, the rule of thumb--there is no statutory definition--is that any time within six months for a decision is "reasonable"). 

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

[throwitaway 189]

2 hours ago, ConsistentCut said:

They still have to have a legitimate reason to deny you. I'm pretty sure "we extreme vetted him for 12 months after his interview and found nothing" won't hold up in court.

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. 

Edited October 8, 2022 by throwitaway
clarity

[throwitaway 189]

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 648]

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 648]

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 648]

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 648]

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.