Tran v. Napolitano - Class Action Lawsuit against DHS & Ho Chi Minh City

[ellis-island 6]

Tran versus Napolitano

I was in Guangzhou last week, I got a call from Brent Renison. My cell phone said 4 a.m. It was actually 5 a.m.

He said, "Marc, I'm filing a class-action on K1's".

I said, "It's 4 in the morning,".

Then I asked, "Which consulate?"

He said, "Ho Chi Minh City,"

After we talked a bit, I went back to sleep thinking, "That's a really nice way to start out any morning."

The last class action Brent Renison filed - he won. It got rid of the Widow Penalty

for widowed spouses of US Citizens.

I've written a lot about the problem of K1 returns by consulates, expirations & reviews.

Brent told me he'd read what I wrote on INFONET.

Brent is seeking review rather than expiration, but he wants it within 30 days.

There is another serious problem I hope can be raised in the litigation.

That's the issue of automated misrepresentation findings. But this is EXTREMELY IMPORTANT NEWS

for any US Citizen petitioners who have had K1's refused at any consulate. Stay tuned.

[john & jean 37]

maybe this will set the tone for news, OTHER than illegal immigration!

[Kathryn41 3,205]

Accidental duplicate thread removed.

[Darnell 8,478]

Hey Marc - thanks for checking in with some good news !! YAY !!!

[JimVaPhuong 4,863]

Looks good, Marc.

I've heard the "due process" argument kicked around here a few times, but I've never really understood how it applies. The petitioner isn't being denied life, liberty, or property (unless the filing fees are considered the "property"). After the petition is allowed to expire, the petitioner is left pretty much as they were when they started. Can you explain how the constitutional guarantee of due process is applicable here?

[Tom and Teaw 1]

I found the lawsuit very interesting. Our case got put into AP and they called her to come in this last Tuesday

and bring her passport. We thought they were going to tell her to come back later and pick up the visa. Instead

the pulled a surprise 2 hour interview where they grilled her. I had no notice of any interview being conducted and we are now waiting to hear what the outcome is. They did keep her passport, though, so I am hoping that is a good sign. I will be watching the lawsuit with interest. But the only problem is it takes so many years for these things to work their way through the courts.....and I am retired from the California court system and now working in the North Carolina court system so I know how long it can take.

[clayr1 3]

I'll be glad to sign up. Finally someone who recognizes the problem at consulate in Saigon and is doing something. Everyday I see on the news some politician talking immigration reform but says nothing about the process we have to go through legally. So are they going to push some reform to help illegals get citizenship and leave us out? I don't think so. Because some unidentified piece of s**t at the consulate I have to start over and wait another year plus and nothing I can do about it. So it will take 3 years to get to 2nd interview? What's wrong with this picture?

[Tom and Teaw 1]

It's because of the whim of someone who really knows NOTHING about you and your fiancee and takes a wild guess

after reading and talking to her only in most cases. Gee, would it be so hard to call someone if they have concerns

and question them over the phone?

[ScottThuy 140]

As was stated in the filing.. HCMC denies visas based on assumptions and accusations that go against the evidence that has been submitted... Then the couple has to wait, as Clay said.. a long time to get another interview... There are policies and laws in place that govern this process and the consulate as well as DHS has disregarded these policies and laws... they have 30 days from the date they recieve the evidence to decide on whether to issue the visa or not... and at that point they must provide the decision to the applicant.. many folks,,, us included.. have been in AP at the consulate for several months after the interview or when the evidence requested was submitted... As a result of the additional delay created by the consulate not adhering to policy.. the applicant must pay to have a new medical done and in some cases police certs... this could amount to hundreds of dollars...

I was amazed that nobody at the consulate itself was named.. only those at the top of the heap...

[ScottThuy 140]

It's because of the whim of someone who really knows NOTHING about you and your fiancee and takes a wild guess

after reading and talking to her only in most cases. Gee, would it be so hard to call someone if they have concerns

and question them over the phone?

HCMC CO's wont talk to the petitioner even if he is outside waiting on the day of the interview.. and if they come to the consulate on the days provided as USC specific communication days (two afternoons a week for a couple of hours) the CO will not talk to the petitioner even if requested in advance...

[Audy_Rob 26]

Looks good, Marc.

I've heard the "due process" argument kicked around here a few times, but I've never really understood how it applies. The petitioner isn't being denied life, liberty, or property (unless the filing fees are considered the "property"). After the petition is allowed to expire, the petitioner is left pretty much as they were when they started. Can you explain how the constitutional guarantee of due process is applicable here?

It isn't a loss of life, liberty nor pursuit of happiness.

In this case due process means a fair hearing or chance to provide all relevant documents and defend your position and be given a fair hearing.

Good luck to all in AP.

[TBoneTX 45,029]

A similar lawsuit needs to be filed against Guayaquil -- naming their Section Chief and every ####### CO who's worked there since 2007. Upon such a suit's filing, the cheers from all across America would be deafening.

[JimVaPhuong 4,863]

It isn't a loss of life, liberty nor pursuit of happiness.

In this case due process means a fair hearing or chance to provide all relevant documents and defend your position and be given a fair hearing.

Good luck to all in AP.

The problem is that due process isn't guaranteed except in cases where someone may be denied life, liberty, or property (pursuit of happiness isn't mentioned in the 5th or 14th amendments of the Constitution). That's why I don't understand the argument that something is being denied when that something is not guaranteed. He repeatedly makes the claim in the court filing that the petitioner is being denied due process, but what is the basis for claiming the petitioner has a right to due process in this case?

[ellis-island 6]

I should point out that all consulates would be affected by the outcome of this case - not only HCMC.

So anyone who has had a K1 visa application refused at a consulate & who was notified that it had expired

by CSC would be a class member.

I'm especially glad that Brent raised the issue of P6c1 Misrepresentation findings that DOS automatically boot-straps on cases.

Every day, in consulates all over the world, US Citizen Petitioners are being damaged by 212(a)(6)( c )(i) findings,

in cases where nobody has misrepresented anything.

The petitioner doesn't know what was misrepresented. The beneficiary doesn't know what it was.

And DOS doesn't even know which agency made the finding. In Guangzhou, officers tell baffled

petitioners that USCIS made the finding. That's not true. These very damaging findings were made by DOS.

Beneficiaries become inadmissible for life because of misrepresentations that were never made.

This case raises a lot of issues I've been harping on for years. Brent did a great job.

http://entrylaw.com/tranclassaction.html

[Azzudiin 26]

The problem is that due process isn't guaranteed except in cases where someone may be denied life, liberty, or property (pursuit of happiness isn't mentioned in the 5th or 14th amendments of the Constitution). That's why I don't understand the argument that something is being denied when that something is not guaranteed. He repeatedly makes the claim in the court filing that the petitioner is being denied due process, but what is the basis for claiming the petitioner has a right to due process in this case?

The petitioner being the US Citizen definitely has a right to due process, when their fiance is rejected and the petitioner is not told why other then a form letter with obscure reasoning, I call that a gross denial of due process. The cost associated with additional fees to overcome this rejection without cause can be extremely expensive which would fall under property.

Edited June 25, 2010 by Azzudiin