Introduced by family

[luckytxn 2,264]

I agree, and I think the guarantee should be written into the INA. I was saying that there is no Constitutional basis to argue for due process in this case. Nothing is being denied to the petitioner that would be a violation of the Constitutional guarantee of due process. That doesn't mean that Congress can't revise the INA to guarantee a petitioner a chance to appeal a decision by executive review or even the BIA. At this point, the only thing you know for sure that you can do is sue USCIS in a federal court.

I think the lawsuit has merit. I just don't think it will succeed on the due process grounds.

I don't think it will succeed either but the due process claim I feel is valid. I understand the meaning there being no constitutional means for due process not being there as this is a area having to do with secretary of state but we as Americans are used to having that right guaranteed to us and should be extended in this regard. As I stated before. There is this one bureaucrat (actually others like his close superior) that has made a decision that has denied two people a life changing experience. This bureaucrat is usually not a trained investigator or anything of that sort. They could even be having a bad day and so on. There should now be able to go and appeal their decision and all evidence laid out to show that there is a good cause. This would show if it was just a supposed feeling the person had or if they had real valid reasons for the negative decisions. I think they unless they have real valid reasons then the visa should be allowed.

I also feel that any lawsuit will be a waste of time.

[JimVaPhuong 4,863]

I don't think it will succeed either but the due process claim I feel is valid. I understand the meaning there being no constitutional means for due process not being there as this is a area having to do with secretary of state but we as Americans are used to having that right guaranteed to us and should be extended in this regard. As I stated before. There is this one bureaucrat (actually others like his close superior) that has made a decision that has denied two people a life changing experience. This bureaucrat is usually not a trained investigator or anything of that sort. They could even be having a bad day and so on. There should now be able to go and appeal their decision and all evidence laid out to show that there is a good cause. This would show if it was just a supposed feeling the person had or if they had real valid reasons for the negative decisions. I think they unless they have real valid reasons then the visa should be allowed.

I also feel that any lawsuit will be a waste of time.

I don't think the lawsuit is a waste of time. I actually think it has a chance of accomplishing something. USCIS is definitely bungling the handling of returned petitions. I just don't think the due process claim is a valid basis. I do think there is a valid claim that it violates the intent of the law, which was to provide a benefit to a US citizen. The arbitrary way in which they deny this benefit is what's broken. There would also be no conflict with the law if USCIS were to provide an appeals process as a matter of policy. It wouldn't necessarily take a change in the law to force them to do it. Nothing in the INA says they can't do it.

There are actually a lot of times when Americans are not afforded due process. Pretty much any time you apply for any discretionary benefit then there is no guarantee of due process. Sometimes there is an administrative appeals process, but you're appealing to the same agency that originally denied you. There's often no provision for an appeal in front of an impartial jury unless you file a lawsuit.

[luckytxn 2,264]

Well we can disagree then. Congress can but won't force a change and courts are going to do what? Say that agencies will have to start an appeals process and create due process? Doubtful they will do that. The only changes I have ever seen in bureaucracies are when they are forced to by congress to do so. Has any bureaucracy ever been forced to change by judges? None that I know of.

[Jimen & Kenly 0]

[luckytxn said:]

>Has any bureaucracy ever been forced to change by judges? None that I know of.

Yes, in Hawaii. I don't remember the exact details. But a court ordered a government agency to do something when a group sued it. There's a lot of that happening in Hawaii now...

I don't think it's common, but it does happen.

>I also feel that any lawsuit will be a waste of time.

I don't know if this statement only applies to immigration issues or all issues in general. Either way, it depends on the lawsuit. Sometimes, lawsuits are the only means to cause action. It is especially true here in Hawaii.

[JimVaPhuong said:]

>Due process is only guaranteed when you are at risk of losing life, liberty, or property.

I'm no lawyer, so I won't argue with you about what the constitution says. Even if I'm using the wrong words, I know this is true. As a citizen, I am protected under law from the acts of organizations (private or public) that violate regulations and policies that dictate the process with which the organization operates. As an example, not saying it is equivalent to applying for a K1 VISA or anything.

When I apply for a job, employment laws dictate that the potential employer can not discriminate against me based on race, religion or sex. As a process of hiring an employee, employers must follow rules. When they violate those rules, the applicant has rights...ugh, privileges. Or whatever you want to call it. Whether that involves due process, well, I'm no lawyer.

Though the laws are not the same, it is my understanding that the concept applies equally to a government agency.

--jc

[ScottThuy 140]

When I apply for a job, employment laws dictate that the potential employer can not discriminate against me based on race, religion or sex. As a process of hiring an employee, employers must follow rules. When they violate those rules, the applicant has rights...ugh, privileges. Or whatever you want to call it. Whether that involves due process, well, I'm no lawyer.

Though the laws are not the same, it is my understanding that the concept applies equally to a government agency.

--jc

Title IV protects certain classes of people. The members of those classes are the ones that have recourse for discrimination... It would be very difficult to use title IV when it comes to immigration... The only thing I can think of is the requirement to meet in person... if the petitioner never met in person because they are 600+ lbs... and they were denied because they were not able to travel given the size of the petitioner which is often considered a disability... the petitioner could argue that they did not get approved because of the disability...

[JimVaPhuong 4,863]

[JimVaPhuong said:]

>Due process is only guaranteed when you are at risk of losing life, liberty, or property.

I'm no lawyer, so I won't argue with you about what the constitution says. Even if I'm using the wrong words, I know this is true. As a citizen, I am protected under law from the acts of organizations (private or public) that violate regulations and policies that dictate the process with which the organization operates. As an example, not saying it is equivalent to applying for a K1 VISA or anything.

When I apply for a job, employment laws dictate that the potential employer can not discriminate against me based on race, religion or sex. As a process of hiring an employee, employers must follow rules. When they violate those rules, the applicant has rights...ugh, privileges. Or whatever you want to call it. Whether that involves due process, well, I'm no lawyer.

Though the laws are not the same, it is my understanding that the concept applies equally to a government agency.

--jc

"Due process" refers to the process the government or one of it's agencies is required to go through before taking an action against someone. The intention of "due process" is to prevent a government agency from unilaterally acting against you without first going through the appropriate process to ensure that the affected party's rights aren't being violated.

"Due process" is guaranteed by the Fifth Amendment of the US Constitution, which prohibits the federal government from depriving any person of life, liberty, or property without due process. The Fourteenth Amendment extends the same prohibition to the state governments. The "due process" that's referred to is generally an opportunity to make your case in front of an impartial judge and jury.

In a nutshell, this means the government can't kill you, imprison you, or seize your property without giving you your day in court.

These rights aren't "absolute", and there have many instances where the Supreme Court has determined that government actually CAN deprive you of one of these three fundamental things, under certain circumstances, without violating your Fifth or Fourteenth Amendment rights. For example, a local cop can throw you in the pokey for a limited period of time (usually three business days) without taking you in front of a judge. After that, they have to either charge in you court, or release you. The Supreme Court sees this as a reasonable temporary detainment, and not a violation of the Fifth Amendment.

The point is that these are the only circumstances where due process is guaranteed by the Constitution. The Congress is free to pass laws to extend due process beyond these fundamental circumstances, and there are many cases where they have done so, but they cannot pass any law that would deny due process where the Constitution requires it.

The class action lawsuit against USCIS claims that the US citizen petitioner is being denied due process when the returned petition is administratively closed because it's approval has expired. While it's certainly true that the petitioner has been denied due process - they didn't get a chance to appeal the consulate's charges - this isn't a case where either the Constitution or the law guarantees due process. The petitioner isn't being deprived of life, liberty, or property, and the relevant immigration laws don't promise the petitioner will have an opportunity to appeal the decision. That's why I think it's a faulty basis for the lawsuit.

[vietazn 1]

Congress can stop all legal immigration tomorrow if it wants to. No protection from that.

[ScottThuy 140]

Congress can stop all legal immigration tomorrow if it wants to. No protection from that.

And they could declare war on Canada tomorrow as well... what they can do and will do are far from the same..

[Anh map 2,098]

yeah but scott

the other day you told me i met my wife when i was still married even though we was seperated on we only chatted online and i actually met her face to face after i was divorced?so would it be better to my case to say we met f2f after i divorced and not say anyhting about the chats and in his case to show the old chats he has and let the chips fall where they may?Why give the c/o more bullets?

I met my current wife before my divorce was finalized. It was not an issue for us.

Telling the truth is always wise. The interview can be a high pressure event for your fiance(e). Don't add to it by revising history. Focus on proving a bona fide relationship.

[wreath 4]

I met my current wife before my divorce was finalized. It was not an issue for us.

Telling the truth is always wise. The interview can be a high pressure event for your fiance(e). Don't add to it by revising history. Focus on proving a bona fide relationship.

i never said anyting about not being truthful.scott said to me in another post i met my wife when i was still married.... even though i was seperated when i met her online. and he told some one else the c/ o only sees the f2f as the first meeting

so if i went to vn after i was divorced did i meet my wife when i still married to my ex or not. some one else had knew there girl for 3 years online and married on the first trip to vn.so did he met her 3 years ago or meet her online? thats all i was asking about. im happy it wasnt a issue for you, did you have kids near your wifes age??? I never would think of not being truthful and i have even thought of taking apolygraph test to prove we are a true relationship. but from a talk i had with a c/o some years ago he doesnt put a whole lot of weight in them he says .

[wreath 4]

i never said anyting about not being truthful.scott said to me in another post i met my wife when i was still married.... even though i was seperated when i met her online. and he told some one else the c/ o only sees the f2f as the first meeting

so if i went to vn after i was divorced did i meet my wife when i still married to my ex or not. some one else had knew there girl for 3 years online and married on the first trip to vn.so did he met her 3 years ago or meet her online? thats all i was asking about. im happy it wasnt a issue for you, did you have kids near your wifes age??? I never would think of not being truthful and i have even thought of taking apolygraph test to prove we are a true relationship. but from a talk i had with a c/o some years ago he doesnt put a whole lot of weight in them he says .

[/quote

I knew i was getting divorced and had planned to come to vietnam just for a get awayand to relax. But i got online one night in vn chat room and met my wifeso when i went to vietnam i spent my time there with her only. It just doesnt make sense to me to me that c/o s see red flags in peoples relationship and they get those red flags just from people being honest. doesnt make sense