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

[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 189]

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 189]

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

[jgauthi242 35]

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.

[ice-qube 648]

9 hours ago, jgauthi242 said:

But, the COVID excuse makes no sense for AP.

Be that as it may, I am referring to the judgment as written, which is sadly now part of case law. According to that decision, COVID very much is one excuse that the government can use to defend itself for these absurd time delays, and this was a case where the plaintiff had been in AP for over 3 years. We can say amongst ourselves that they ought not to be able to use that in AP cases—but this court decision legitimizes them doing so.

[ice-qube 648]

All of a sudden this thread is dead?

[ice-qube 648]

So does that mean everyone got their visas and are gone?

[addpeace 40]

1 minute ago, ice-qube said:

So does that mean everyone got their visas and are gone?

Still here just no news or movement. Sept 27th was our last update. Going up to Calgary in November to visit my husband though!!

[ice-qube 648]

1 minute ago, addpeace said:

Still here just no news or movement. Sept 27th was our last update. Going up to Calgary in November to visit my husband though!!

Nice, similarly I will be visiting wife in Miami this weekend!

 

I am wondering if any of the people here who have already filed WoM have any movement in the past week. 

[LAMA9 118]

4 minutes ago, ice-qube said:

So does that mean everyone got their visas and are gone?

Still here! 🙋‍♀️. Consulate requested that I redo medical and send in passport on Sept 26th.  Everything has been submitted now, sent a follow up email to consulate.  Now waiting on them... again...  (Filed WOM July 29, defendants served August 15).

There are a few of us that have now submitted all requested documents (redone medicals, etc.) that should be receiving our visas very soon. 

We have a WOM thread going in DM to discuss movement on our cases so as to not clutter this thread... 

 

[ice-qube 648]

Has anyone noticed CEAC not working in the last couple of days? I just tried again now, the submit button seems to produce no response from the site.

[ice-qube 648]

1 minute ago, LAMA9 said:

Still here! 🙋‍♀️. Consulate requested that I redo medical and send in passport on Sept 26th.  Everything has been submitted now, sent a follow up email to consulate.  Now waiting on them... again...  (Filed WOM July 29, defendants served August 15).

There are a few of us that have now submitted all requested documents (redone medicals, etc.) that should be receiving our visas very soon. 

We have a WOM thread going in DM to discuss movement on our cases so as to not clutter this thread... 

 

Ah yes you have decluttered it well, and now I am still just left here lol.