Free Case Management Statement - District Court of California - California

Case 4:07-cv-02188-WDB

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Filed 04/07/2008

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1 JOSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150 4 Assistant United States Attorney 5 6 7 Attorneys for Respondents 8 9 10 11 12 QIN CHEN, 13 14 v. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-2188-WDB 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6915 FAX: (415) 436-6927

15 MICHAEL CHERTOFF, Secretary of Department of Homeland Security; 16 EMILIO T. GONZALEZ, Director of the U.S. Citizenship and Immigration Services; 17 CHRISTINA POULOS, Acting Director of USCIS, California Service Center; and 18 ROBERT S. MULLER, Director of Federal Bureau of Investigation, 19 Respondents. 20 21

FURTHER CASE MANAGEMENT STATEMENT CMC Date: CMC Time: April 21, 2008 1:30 p.m.

The petitioner, currently proceeding pro se, and respondents, by and through their attorneys of

22 record, hereby jointly submit this further case management statement. 23 (1) On April 20, 2007, the petitioner filed this mandamus action, seeking an order compelling

24 the United States Citizenship and Immigration Services (USCIS) to adjudicate her I-485 25 application to adjust her status to lawful permanent resident. 26 27 (2) The parties have filed cross-motions for summary judgment. (3) On December 11, 2007, this Court issued an order: (a) stating that if this case is not

28 rendered moot by agency action during the first few months of 2008, the Court denies the
FURTHER CASE MANAGEMENT STATEMENT C 07-2188 WDB

Case 4:07-cv-02188-WDB

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1 respondents' motion for summary judgment; (b) declining to rule on petitioner's motion for 2 summary judgment; (c) inviting the parties to engage in discovery on the issue of whether 3 petitioner is in a group that is eligible for a visa now; (d) informing the petitioner that she may file 4 a motion for summary judgment on this issue at any time before February 11, 2008, if she has 5 developed sufficient evidence to support such a motion; (e) stating that if the petitioner has not 6 filed a motion for summary judgment by February 11, 2008, and if USCIS has not by then made a 7 decision on the I-485 application, then by February 19, 2008, the parties shall file a joint case 8 management statement that apprises the Court of any relevant developments that have occurred 9 between the date of the Court's order and now; (f) stating that if the petitioner's group is eligible 10 for visas, or is about to become eligible for visas, it would issue a ruling on the pending motion for 11 summary judgment; and (g) stating that if it is not clear whether petitioner's group is eligible for 12 visas, then on February 26, 2008, the Court would conduct a case management conference. 13 (4) The petitioner has not propounded any discovery nor filed a motion for summary

14 judgment. 15 (5) The respondents continue to maintain that the petitioner is in the Second Preference

16 Category, for which visas are not currently available. 17 (6) On February 21, 2008, this Court granted the parties' stipulation to extend the date of the

18 case management conference from February 26, 2008, to March 17, 2008. 19 (7) On March 13, 2008, this Court granted the parties' stipulation to extend the date of the

20 case management conference from March 17, 2008, to April 21, 2008. 21 (8) The State Department's January Visa Bulletin stated that the priority date for Second

22 Preference Chinese applicants will be January 1, 2003. 23 (9) The State Department's February Visa Bulletin stated that the priority date for Second

24 Preference Chinese applicants will still be January 1, 2003. 25 26 27
1 In the parties' stipulation to continue the case management conference, counsel for the 28 respondents erroneously referred to the February Visa Bulletin, instead of the March Visa Bulletin.

(10) The State Department's March Visa Bulletin1 stated that the priority date for Second

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1 Preference Chinese applicants will be December 1, 2003, an encouraging jump of 11 months. 2 (11) The State Department's April Visa Bulletin states that the priority date for Second

3 Preference Chinese applicants remains at December 1, 2003. A copy of the State Department's 4 April Visa Bulletin is attached as Exhibit A. 5 (12) The petitioner's name check is still pending with the FBI. However, on February 4, 2008,

6 the USCIS issued a new policy regarding applications that have not been adjudicated due to the 7 pendency of an FBI name check. This new policy is attached as Exhibit B. Under the new policy, 8 "[w]here the application is otherwise approvable and the FBI name check request has been 9 pending for more than 180 days, the adjudicator shall approve the I-485 . . . and proceed with card 10 issuance." 11 (13) Accordingly, under the new USCIS policy, USCIS will be able to adjudicate the

12 petitioner's I-485 once a visa number is available for the petitioner, even if the petitioner's name 13 check is still pending. 14 (14) The parties ask this Court to delay ruling on petitioner's motion for summary judgment

15 and to await information on plaintiff's availability for a visa in the State Department's May Visa 16 Bulletin. 17 18 19 20 21 22 23 24 Dated: April 7, 2008 25 26 27 28
FURTHER CASE MANAGEMENT STATEMENT C 07-2188 WDB

Dated: April 7, 2008

Respectfully submitted, JOSEPH R. RUSSONIELLO United States Attorney /s/ EDWARD A. OLSEN Assistant United States Attorney Attorneys for Respondents /s/ QIN CHEN Petitioner

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1 2 3 4 Date: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER Pursuant to stipulation, IT IS SO ORDERED.

WAYNE D. BRAZIL United States Magistrate Judge

FURTHER CASE MANAGEMENT STATEMENT C 07-2188 WDB