Thread by @LilySAxelrod

THREAD: I'll be live-tweeting Judge Messitte's hearing in the Federal District Court of MD, for our #Chakrabarti case challenging delays on EB AOS / visa number wastage, along with others suing USCIS. Starts at 11 eastern. Dial-in info below.

https://twitter.com/LilySAxelrod/status/1432724937224118289

2/ What is this hearing about? USCIS HQ is in Maryland, and federal judges there noticed a bunch of individual suits against USCIS for processing delays, in addition to our large #Chakrabarti suit challenging delays in EB AOS & wasting visa number.

3/ We have requested a preliminary injunction, asking the judge to order USCIS to adjudicate plaintiffs' green cards by the end of the FY and/or hold over numbers into FY22 to avoid huge waste of employment green cards & unnecessary increase in the backlog for Indians & Chinese.

4/ The judge took an unusual step last week of ordering a hearing on our case in addition to many other individual cases filed by other attorneys, and requesting specifically that someone from USCIS be there to answer questions. That's unusual and should be interesting.

5/ These cases are NOT consolidated (combined legally), they're just being heard together to deal with some similar issues. AFAIK our case is the only one directly challenging the waste of EB visa numbers & asking for unused numbers to be held over to FY22.

6/ Hearing may be confusing as we'll have judge, probably several DoJ lawyers representing USCIS, one or more USCIS officials, plus several awesome plaintiffs lawyers (@ckuck for #Chakrabarti, @jimhacking, @AttyImmigration, Naima Said, Brain Scott Green, & several others)

7/ I will do my best to keep up and summarize what's going on. Unless I use "quotation marks," I'm summarizing / paragraphing, not directly quoting. Probably won't have time to answer Qs as we go, but we will contact plaintiffs afterward to give our take!

8/ Hearing hasn't begun yet. So far Ashley Tabbador is Chief Counsel of USCIS. She recently moved to DHS after serving as an immigration judge in California and head of @Imm_Judges_NAIJ (imm judge union).

9/ Tracy Renaud, Acting Deputy Director of USCIS, also present. Several AUSAs (government attorneys) - Tom Corcoran, Vicki LeDuc, and plaintiffs' counsel are joining as well.

10/ Tracy Renaud explains her usual title is Assoc Director of Service Center Operations. Looks like @jeffjoseph is here for our team as well as @gsiskind.

11/ I can't record or photograph the hearing but for fans of sushi (@jeffjoseph 's goldfish) I can assure you that he is looking fine as ever for his appearance in federal court.

@jeffjoseph 12/ Clerk announces that judge will call the case and confirm attorneys' presence shortly. Hearing hasn't begun yet -- public access line will open shortly.

13/ Public access line should begin now. If you're listening say hello (to me here, not to your phone which is on mute) 😀

14/ Clerk making logistical announcements before hearing formally begins.

15/ Hearing opens, Judge Messitte enters, begins with roll call to confirm who is who. "This is really a status conference and it primarily for the benefit of the court" - "not an occasion for individual lawyers to find our how their case has going" -

16/ Judge calls roll of plaintiffs' attorneys, then asks for government: Tom Corcoran & Vicki LeDuc. Other govt attorneys are listening via the public access line. Ashley Tabbador & Tracy Renaud for USCIS.

17/ Judge opens with why we're here - "service moved out to suburban Maryland toward the end of 2020," and have gotten dozens of cases. Bc so many, judges got together and decided it would help for a single judge to "find out what is going on."

18/ Tom Corcoran, Acting Civil Chief for District of MD (gov't attorney representing USCIS), explains that these cases are assigned to various lawyers at his office. He says Tabbador will talk about USCIS operations, and Renaud will talk about org's structure / challenges.

19/ Corcoran re: why are these cases in MD? "Historically our office as well as the court has averaged approximately 5 USCIS mandamus cases per month" "that was pretty stead through the end of 2020"

20/ We compared judge's list to our list and USCIS' list of cases - they are three different lists which "grow and change every day." Since USCIS relocated to MD, have had 1 USCIS mandamus in Jan 2021, 1 feb, 2 march, 5 april, 16 may, 32 june, 42 july, 54 in Aug.

21: Corcoran ctd: these case include #Chakrabarti (our case) which has 196 plaintiffs. Our office will respond to the preliminary junction recently filed. Our response due Sept 3 (Fri) and we will file a response.

22/ Corcoran ctd: very different this year vs previuos years due to COVID and rollover of FB to EB visas. Will explain a bit why (I think he means he's going to explain how the FB to EB rollover works?)

23/ Corcoran confirms a bunch of cases even filed in the last few days. These are various types of cases: agency has immigrant visas and nonimmigrant visas. IV includes family-based, employment-based, etc.

24/ Judge interrupts to say he understands that these cases are coming from all over the country.
Corcoran goes on to explain work permits (EADs) for people in other status, "various buckets" - this is basically Immigration 101.

25/ Since Feb 2021, 160 cases against USCIS, we've closed 45, including 39 adjudicated since May 2021. "A lot of these cases concern residents who do not reside in Maryland" (no kidding... it's where USCIS is, not where plaintiffs are)

26/ Corcoran is previewing the jurisdiction issue - sounds like the government is going to argue that people should sue in their home district or where the application is pending, which would of course be impractical and prevent large suits like Chakrabarti.

27/ Corcoran- most of these cases driven by a small number of lawyers (Hi, that's us!). Notes that some cases have xfered to other venues. (Ironic also bc sometimes when we sue USCIS in other venues, they request to transfer to Maryland... )

28/ Judge: Presumably if you request to change to another venue plaintiffs need opportunity to respond. To economize time and money, suggests filing "universal" motion to request change of venue for all these cases.

29/ Cocoran says of the 160 lawsuits referred to early, they've adjudicated 45 and says that's "very good" (Narrator: it is not.)

30/ Judge acknowledges "Judge Tabbador" ("once you're a judge you're always a judge" -- refers to fact that Ashley Tabbador until a few weeks ago was an immigration judge and head of @Imm_Judges_NAIJ judge's union)

31/ Tabaddor up next, wants to "provide macro level discussion about USCIS in general" - "I joined USCIS in January" (oops, I thought it was more recent). Judge: "I assume immigration law is something you know a little bit about." Tabaddor: "A little bit - quarter century"

32/ Tabaddor: says she's dedicated to reduce backlog, litigation load has quadrupled in 3-4 years which is a drain on their resources. USCIS legal staff went from 25% to 80% of their time on litigation support. Now have a "properly appointed director" who started a few weeks ago

33/ Judge: what do you mean by backlog? What's the change?
Tabaddor: Backlog means "what's outside of our reguar processing time" (in other words they decide how long a case should take and it's defined by... how long they feel like taking. BS)

34/ Tabaddor emphasizes the large number of apps they process, fact that the agency is almost exclusively funded by filing fees for applications. "We also have to complete work that we don't receive any revenue for" - eg humanitarian applications eg asylum, Afghan refugees.

35/ Tabaddor: USCIS isn't just processing one type of application, this group of cases includes at least 16 "different product lines" and 20 "immigrant visa types" - each of which has its own workflow.

36/ Tabaddor: must also consider "humanitarian impact of allocation of resources" - eg we should process EADs quickly even if the underlying application takes longer. (Which is the opposite of what USCIS is doing now with c9 EADs based on pending AOS....)

37/ (Side note I have never heard USCIS refer to "product lines." What....?!)

38/ Tabaddor: the Sept 30 fiscal year is not relevant to most of these lawsuits. Will Renaud will speak more to EB cases where it's relevant. "This is a unique circumstance in which the pandemic has prevented DoS from being able to process family based visas" -

39/ She describes this as a "windfall" for EB. "Unprecedented availability" of EB-3 category. "Unique circumstance" ... we have "budget constraints" - balancing "demand of each service center, field office" etc.

40/ Judge & Tabaddor discussing whether it makes sense for these cases to be all w / a single judge. She says it makes sense for a single judge to learn a lot about immigration but otherwise these cases are diverse.

41/ Judge asks if different judges have dif cases, is there a way to "harmonize" our decisions? Tabaddor offers to share the same general info about USCIS, "I don't have some magic solution as I've been trying to deal with it on my end as well."

42/ (Side note: This is amazing that they are talking about competing priorities, windfalls, whining about their time being taken up with litigation. We wouldn't have to sue you if you'd made a plan last summer for these cases, when you knew they were coming)

43/ (And what's this nonsense about processing work permits more quickly than the underlying application? The most recent green cards I've gotten, the work permit came no more than a few weeks before the green card - and in one case, afterward!)

44/ (Our Chakrabarti plaintiffs who filed last October mostly don't have their work permits yet. Come on).

45/ Judge asks is there a publicly available statement of... ?? Tabaddor: "USCIS website is a wealth of information but can also be intimidating" - talking about maybe making a customized doc for the court (immigration processing 101?)

46/ Judge would like this info to be public, for judges and plaintiffs to have some transparency as to what's going on in the agency. Tabaddor says she's committed to transparency and accountability.

47/ Corcoran: after the hearing I'll talk to USCIS, they gave me a document about their website, different visa categories and forms.
(All this to say... the only people in the room who understand how immigration works are the plaintiffs lawyers and the USCIS staff)

48/ (Appreciate that the judge is interested in getting educated! Not knocking the judges - they have to know a lot about a zillion different things)

49/ Now Tracy Renaud, acting deputy director of USCIS, is up. "Backlogs are not uncommon to USCIS and we certainly have experience with pivoting resources... it takes time to process and adjudicate all of these applications"

50/ Explains USCIS "challenges" - fiscal challenges bc most of our budget is from fees. (Indeed - so what did you do with $1225 X thousands of applicants for EB AOS?)

51/ Explains decrease in fees this past year due to pandemic, "very little revenue coming in" causing FY2020 warning of possible furlough to 70% of workforce (I remember this, good times) - avoided the furlough but it was a serious situation.

52/ Renaud also complains that cost of work has increased and fees have been steady since 2016. Previous admin tried to implement a new fee rule (raising fees) which was enjoined by another federal court.

53/ Result: nationwide hiring fees into FY22 (I think she means 21). Lost staff through attrition.
(My colleague Johnna Main Bailey points out - how can the backlog be growing if fewer cases are being filed?)

54/ And here it is, at minute 43 - blaming "surge at the border" and "unaccompanied minors" and "credible fear interviews" and recently "Afghan evacuees" -- when in doubt, blame asylum seekers.

55/ Amazing how they're blaming everyone but their own failings- issuing pointless RFEs that generate pointless work, losing files, setting interviews for cases that didn't need interviews...

56/ Renaud ctd: Biometric appointments for ID and background checks. Says they sometimes just need photo and signature to produce a card (then what are you doing with the photo and signature in the application?!)

57/ Of course fingerprinting = close contact. Worked with medical team and "industrial hygienist" to create protocol for ASCs. Now back to more normal processing at ASCs but this has stalled applications.

58/ Temporary office closures, some of these apps require in-person interviews at field offices or asylum offices, so when those offices closed a few months and had phased reopening. We're getting back to normal but not entirely w interview capacity yet.

59/ Citizenship applications are back to normal processing times (YAY, this is true and much appreciated), but other apps are not. Have started conducting some video interviews which still require applicant to be in the office (I've done this, so weird)

60/ Applicants' historical file is often stored in a federal record center, which is taking an aggressive approach to dealing w pandemic and "have pulled minimal files for us" so the agency can't even get the physical file. (This is news to me, yikes).

61/ (Here we are in 2021, an agency of the good ol USA, can't do its job because it has physical files stuck in a literal cave: axios.com/immigrant-file…)

62/ Judge asks: is there a statutory sequencing, which applications get priority?
Renaud: explains how complex / diverse these applications are, they "look at who is less or more harmed by a delay in processing"

63/ Eg this is why backlogged FB I-130s take years, because visas aren't current, there's no benefit to rushing them.

64/ Similarly e.g. LPRs requesting to replace a green card, receipt gives a temporary proof of extension, so we don't have to immediately issue the new card.

65/ More significant impact is work authorization. Some categories have statutory or regulatory framework for processing time, we "do our best to comply with" and premium processing for some services, and some court orders mandating processing in certain time.

66/ Renaud: "it's a daily balance to see what they have in their inventory" etc ( it's a little disturbing to hear humans referred to as "inventory" and their life-changing applications as "product lines")

67/ When a court orders us to do something, we don't have more resources to go out and hire people to do that, so it may help one group but it harms other groups. Our processing times are posted on our website (HAHAHAHA not helpful when it says, eg 26-52 months)

68/ Judge: who makes the determination of what priority should be honored?
Renaud: At a very high level it's the director, starts w/ Ur Jaddou director of USCIS, "She's been on board for two weeks and Afghanistan hit" so we haven't gone through other priorities yet w her.

69/ Renaud explaining further the structure of the agency and how each section has internal competing priorities.
Judge: At any given time is there a published list of priorities?
Renaud: No bc priorities change routinely w/exec orders, admin change, court order...

70/ (In other words, no transparency is what the judge is getting at)
Judge: how many court orders out there right now?
Renaud & Tabaddor don't know. 3000 pending court cases this year against USCIS. We have injunctions re: employment authorization for asylum (Casa / ASAP!)

71/ Corcoran: asks Renaud to explain how court orders affect their day-to-day work at USCIS
Renaud: the order for asylum EADs in 30 days has the most impact on us, "have to take employees off other kinds of work load and put them on that particular work load" to comply

72/ (Classic, framing immigration as a zero sum game. How about make the agency more efficient and you can do more cases in less time? It's not lack of resources, it's lack of common sense)

73/ @jeffjoseph objects -
Judge - you can't object, you're an observer
Jeff - govt counsel is leading his witness
Judge - this isn't for you
Jeff - will we have an opportunity to respond?
Judge - no

74/ Jeff insists objection, @jimhacking joins - you're telling the govt attorney to file a global motion, they are making legal arguments, how can we not have an opportunity to respond?

75/ Jeff: US Attys in DC are making the argument to change venue to Maryland, their office can't even
Hacking: we heard for the first time last night at 7 pm that US Atty will be able to speak on venue, and we haven't been able to respond.

76/ Judge asks Brian Green to leave the proceeding, tells Jeff to "hold your tongue."
This is wild. USCIS and US Attorneys are being able to make argument and speak at length giving incomplete and misleading explanations. How can the judge not let plaintiffs' counsel be heard?!

77/ Judge asks USCIS - does the agency advise courts about other pending orders and how it affects flow of handling other cases?

78/ Judge: With regard to September 30 and Chakrabarti, are there options if these cases aren't handled by 9/30?
Renaud: We expect to have some visas go unused, it's not a surprise. In 2018 & 2019 we used approx 140k, in 2020 147k, this year anticipate 180k.

79/ Bragging about how many cases they have adjudicated but admitting visas will go unused.
Renaud: the worst case scenario is that some of these people will have their AOS pending, possibility that October DoS could regress their visa numbers, we would hold their app pending"

80/ Renaud is minimizing the impact on folks who could wait many more years in the backlog, and the loss to the US of thousands of high skilled workers.

81/ (Absolutely stunning that USCIS gets to make this statements and Chakrabarti has no ability to give our side for our plaintiffs, although we did explain in detail in our written filings of course)

82/ Corcoran: USCIS will continue to process AOS even if proceedings are stayed.
Judge: "I don't intend to stop anything as long as you continue to function as best you can"

83/ Judge: Anything else anyone from the agency wants to comment on?
Renaud: we are concerned about backlogs, doing what we can to reduce them, part of that is finding efficiencies, policy / reg changes ease burden on adjudicators, tech to streamline things, etc

84/ Have request for appropriations (money from Congress, not from fees) esp to help process refugees next year, and will issue a new fee rule (to raise fees this coming fiscal year).

85/ "Throughout my 39 year career I have seen a number of backlogs occur, there's no way out of them without resources, and we need resources" from fee rule or from Congress."

86/ Judge: Plaintiffs' counsel will have opportunity to respond in writing to any motions filed by the agency, including any motions to transfer venue. Gives govt 30 days to file motion to change venue and 30 days for plaintiffs to respond, 15 days for reply.

87/ "If indeed there are conflicting views taken by attorneys in Washington or elsewhere I need to know about that" -- referring to the fact that when you sue USCIS in DC or CA they tell you to take it to MD."

88/ Corcoran: How do you want us to get these information al docs to you? Judge: you can file directly with chambers (?!) and maybe give plaintiffs a copy (WHAT?! of course we need copies of whatever they're giving the judge...)
Jeff raises his hand to speak...

89/ Judge allows plaintiffs' attorney Martin Lawler to speak - he gives appreciation for Renaud & USCIS, "I have also filed mandamus throughout the country for long pending cases" and usually these cases will settle.

90/ Points out that a lot of these cases "will drop out" as USCIS just gets them adjudicated.
I have no idea why the judge is letting him speak and not other plaintiffs' attorneys...

91/ Lawler: one for the reasons you're getting a lot of cases now is we're hearing that US attorneys are filing motions for change of venue on cases from DC to MD, therefore we're filing in MD.

92/ Judge: I don't mean to say the agency automatically wins on this, you'll have your chance to explain. In your opposition say whatever you want.
Jeff: Do you want us to file a universal motion to respond or individual motions?
Judge: You may want individual responses?

93/ Jeff: All plaintiffs likely to have the same position, since D resides in MD the venue is proper.
Judge: you're independent, you can file all together or file your own responses.
Jeff: Correction to transcript: when I was speaking before you were speaking to me as Mr Green.

94/ Mr Green confirms he was not objecting just listening.
Naima Said: wants to record she was a few min late and present at hearing.

95/ Judge: sounds like position of agency is that venue does not lie in every case in MD. We need to figure this out now.
Hearing ends.

96/ Well that did NOT go as expected. I appreciate that the judge brought USCIS in - but I expected him to ask them hard questions, and to give plaintiffs' counsel opportunities to be heard. Instead he allowed a one-side evidentiary hearing (ctd)

97/ ...with USCIS allowed to give their own version of the facts and no opportunity for us to clarify. The US attorney asked leading questions and gave legal argument, while we were told to hold our tongues!

98/ #Chakrabarti plaintiffs are conferring right now so I'll end here. We'll be in touch with our plaintiffs to give our take shortly.

99/ Oops I meant to say Chakrabarti plaintiffs' attorneys.
Not sure if I mentioned this earlier but we have several plaintiffs who live in MD. So we think govt may not even try to move our case. And our preliminary injunction process is going forward as normal in the meantime.

100/ The judge mentioned only our case by name, and is aware that it's quite different than the others for individuals, so I think a lot of this hearing was not "about us" at all - but it was certainly inappropriate and infuriating even so.

101/ I'm about to email the Chakrabarti plaintiffs but here's my quick summary of what's next for our case - this hearing was infuriating but didn't actually change the trajectory of our case.

102: Our motion for preliminary injunction asking judge to order USCIS to adjudicate our plaintiffs cases or hold visa #s is still pending. Govt responds this Fri. We hope judge will decide before 9/30. Judge may or may not set a hearing (where we'll get to speak)

103/ In the meantime, the government attorneys will also decide whether they want to try to move our case away from Maryland. The PI will likely happen before they even get to that, and our case will probably stay in MD bc we have several MD plaintiffs (unlike the others).

104/ Unfortunately this shows that for now the judge is open to just taking the government's word for how they operate and why they can't do their job, but we will have opportunities in writing (and probably later at a hearing on the merits of the case) to expose their BS.

105/ In the meantime the judge clarified he is NOT ordering USCIS to stop processing any cases. I'm getting several emails daily from Chakrabarti plaintiffs letting me know their AOS is approved, + others getting medical RFE or biometrics. Not fast enough but encouraging.