Free Order on Motion for Summary Judgment - District Court of California - California

Case 4:07-cv-02188-WDB

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Filed 12/11/2007

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA QIN CHEN, Petitioner, v. MICHAEL CHERTOFF, Secretary, Department of Homeland Security, et al., Respondents. ____________________________/ The Court has devoted considerable effort to analyzing the parties' crossmotions for summary judgment. As the issues presented are appropriate for decision without oral argument, the motions are deemed submitted. For reasons the Court will set forth in detail if this case is not rendered moot by agency action during the first few months of 2008, the Court DENIES Respondents' motion for summary judgment. At this juncture, the Court declines to rule on Petitioner's motion for summary judgment. As we understand the relevant law, USCIS could not take favorable action on Petitioner's application until a visa could be issued to Petitioner. Petitioner contends that she is in a group (first preference category) for which visas are available now. Respondents, on the other hand, contend that Petitioner is in the second preference category for which no visas will be available until at least January No. C 07-2188 WDB ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

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Case 4:07-cv-02188-WDB

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of 2008. The parties have not presented the Court with sufficient evidence or legal authority to resolve this dispute. That being the situation, we hereby permit the parties to engage in discovery, commencing immediately, that is relevant to determining whether Petitioner is in a group that is eligible for visas now or, if not, when visas would be available for the group in which she is appropriately categorized for this purpose. Petitioner may file a motion for summary judgment on this issue any time before February 11, 2008, if she has developed sufficient evidence to support such a motion. If Petitioner has not filed a motion on the issue of visa availability by February 11, 2008, and if USCIS has not by then made a decision on her underlying application for adjustment of status, then by February 19, 2008, the parties must file a joint case management statement that apprises the Court of any relevant developments that have occurred between now and then. In this statement, the parties must set forth their position or positions about whether Petitioner's group is eligible for visas ­ or when that group is likely to become eligible. If it is clear that Petitioner's group is eligible for visas, or is about to become eligible for visas, the Court will issue a ruling on the motion for summary judgment that is pending now. If it is not clear whether Petitioner's group is eligible for visas, then on February 26, 2008, at 1:30 p.m., the Court will conduct a case management conference to plan the next stages of this litigation. IT IS SO ORDERED. Dated: December 10, 2007 WAYNE D. BRAZIL United States Magistrate Judge

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Case 4:07-cv-02188-WDB

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1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 CHEN, 6 Petitioner, 7 v. 8 CHERTOFF, et al, 9 Respondents. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: December 11, 2007 Richard W. Wieking, Clerk By: Hera Kim, Deputy Clerk Qin Chen 2246 Magnolia Bridge San Ramon, CA 94582 / CERTIFICATE OF SERVICE Case Number: CV07-02188 WDB

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 11, 2007, I SERVED a true and correct copy of the attached Order re CrossMotions for Summary Judgment, by placing said copy in a postage paid envelope addressed to the person hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy into an inter-office delivery receptacle located in the Clerk's office.

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