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

[pgrin 2]

The US Supreme Court did belatedly discover the “pursuit of happiness” when interpreting the 14th Amendment to the Constitution. In the 1923 case of Meyer v. Nebraska, there was a challenge to a state law prohibiting the teaching of foreign language to elementary and middle school children. Speaking for the court, Justice McReynolds stated that the liberty guaranteed by the 14th Amendment includes not only freedom from restraint, but also, the right to work, to raise a family and, “generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men.

What greater manifestation of the "Orderly pursuit of happiness by free men" is there then the ability to marry and bring home your soul mate? That I have to ask permission, spend thousands of dollars and waste months of my life while someone whose salary I pay decides if I am worthy of happiness is a crime of the highest order.

P

[bahisgirl 11]

This is wonderful news for so many people on this site. I don't believe a day has gone by where I have not seen a story on this site of someone denied without explanation. It is very frustrating. Thank you for sharing.

[Crossed_fingers 128]

I'll definitely be keeping an eye on this one. Thank you for sharing!

[JimVaPhuong 4,863]

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.

The government never seizes any of this money from the petitioner. It is all paid by the petitioner's own volition. At any point in the process, the petitioner could choose not to pay a fee and there would be no penalty from the US government. Now, if a fine were being levied against the petitioner, and the petitioner was being forced to pay the fine without due process to appeal the sanction, then THAT would be a valid constitutional claim of denial of due process. Since all of the fees, both public and private, are paid by the petitioner voluntarily and without penalty if payment is not made, I don't see how it constitutes a claim that due process has been denied.

The US Supreme Court did belatedly discover the “pursuit of happiness” when interpreting the 14th Amendment to the Constitution. In the 1923 case of Meyer v. Nebraska, there was a challenge to a state law prohibiting the teaching of foreign language to elementary and middle school children. Speaking for the court, Justice McReynolds stated that the liberty guaranteed by the 14th Amendment includes not only freedom from restraint, but also, the right to work, to raise a family and, “generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men.

What greater manifestation of the "Orderly pursuit of happiness by free men" is there then the ability to marry and bring home your soul mate? That I have to ask permission, spend thousands of dollars and waste months of my life while someone whose salary I pay decides if I am worthy of happiness is a crime of the highest order.

P

Thank you! That was a well researched response!

Justice McReynolds actually cited the right to marry as one of the examples of the rights that are protected by the 14th amendment.

The 14th amendment is probably not the best one to apply in the case of a denied petition, though. The 14th amendment merely extends the protections of the 5th amendment to laws enacted by the states. Since we're talking about the federal government here, the 5th amendment is a better fit. The terminology is nearly the same, though. No person shall be denied life, liberty, or property without due process. Since the right to marry was determined by the Supreme Court to be an essential liberty, then it follows that denial of that right would require due process.

But does it really apply in the case of a denied K visa petition? Is the petitioner being denied the right to marry? Is the petitioner being denied the right to live with his/her spouse? Is a K visa for a foreign fiancee an essential liberty, or is it merely a privilege which can be granted or revoked at the whim of the federal government? The law that governs the issuance of visas gives an awful lot of discretion to the government. The law would seem to consider the issuance of a visa to be a privilege and not a right.

Note, also, that the 5th amendment does not just apply to US citizens. It specifically says "No person", so the rights it conveys extend to everyone in matters of US law, including LPR's and visitors to the United States. If a US citizen has a right to have his fiancee join him in the United States, then LPR's and visitors to the US also have that right.

Feel free to jump in if you think I'm wrong about any of this.

[Audy_Rob 26]

But does it really apply in the case of a denied K visa petition? Is the petitioner being denied the right to marry? Is the petitioner being denied the right to live with his/her spouse? Is a K visa for a foreign fiancee an essential liberty, or is it merely a privilege which can be granted or revoked at the whim of the federal government? The law that governs the issuance of visas gives an awful lot of discretion to the government. The law would seem to consider the issuance of a visa to be a privilege and not a right.

Note, also, that the 5th amendment does not just apply to US citizens. It specifically says "No person", so the rights it conveys extend to everyone in matters of US law, including LPR's and visitors to the United States. If a US citizen has a right to have his fiancee join him in the United States, then LPR's and visitors to the US also have that right.

Feel free to jump in if you think I'm wrong about any of this.

I was about to make the point regarding the "right" to pursue happiness through the marriage of a foreign citizen/resident. You beat me to the punch. This has always been discussed before with a general conclusion that it seems to be a privilege and not a guaranteed right.

Whether denials without full and open disclosure deny the right to due process pursuing happiness through marriage to a foreign citizen is going to be an interesting issue. I think Brent is definitely bypassing it as irrelevant and assuming it is guaranteed.

Good luck all.

[ScottThuy 140]

It would have been nice if the client was also in AP @ HCMC and he addressed that issue in the filing as well... free reign to take as long as they want and disregard the 4 month timeframe... or the 30 day DoS policy for that matter..

[Darnell 8,478]

I read the filing last night.

This is 'class action' suit, to change up policies on all Embassy IV Units, not just HCMC.

Cool ! Will watch for news at ilw.com , see if any news services pick it up as well.

[john & jean 37]

so that is why Manila held our visa for 29 days, Hmm....

[ScottThuy 140]

so that is why Manila held our visa for 29 days, Hmm....

huh?

[ScottThuy 140]

The most recent filing was a good read....

http://entrylaw.com/images/Tran_FAC_Filed.pdf

[TBoneTX 45,029]

Si, man. Brent Renison is a potential hero.

[ScottThuy 140]

Moving from K1 progress reports to Immigration news..

[TBoneTX 45,029]

Seen this? Check out the link in post #60.

http://www.visajourney.com/forums/topic/280389-denied-k-1-visa/page__st__60__gopid__4261372#entry4261372