class action lawsuit for HCMC and K1 visa

[BinhJerome 14]

Ok people, many of you know about the class action lawsuit that is going on right now, for those of you who don’t, here is a brief refresher.

If you were filing for a K1 visa, then you were recommended for denial at the HCMC consulate, you were probably told that you would have a chance for a rebuttal. Most of you have since found out that it was all lies, and your petition was sent back to the California USCIS and subsequently it was allowed to expire, thus making you either re file your K1 visa, and pay all those lovely fees, give up, or try a different approach.

The issues for this class action lawsuit are based on what the K1 rules state, they do not state multiple trips, big engagement parties, and many other things that they are typically denying people over, how long it is taking for them to process your requests, and that even though the consular is saying you are in a sham relationship, this is not his duty, but that is the duty of the stateside person doing your adjustment of status. The other issue is that the petitioner (a US citizen) was not given his due process that they said he would receive (chance for a rebuttal when petition was sent back to USCIS.)

Here is a link with an updated amendment sent to me from Daniel Mai Dinh, one of the people that are involved. He wants all of you in similar situations to contact Brent W Renison, to submit your complaints. The more people that join in the stronger the case is. Here is the link to the amended case

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

Please don’t sit by do something; help people in our situation receive the justice they deserve!!

Jerome

[BinhJerome 14]

7. Plaintiff Dzu Cong Tran is a naturalized United States citizen, born in Vietnam in

1978, and a resident of Portland, Oregon. He filed a Form I-129F petition for fiancé(e) with

USCIS on August 24, 2009, which was approved by USCIS on October 27, 2009. Defendant

State Department communicated to Plaintiff that it had returned the approved petition to

defendant USCIS for revocation on or about May 12, 2010. Defendants subsequently

communicated to Plaintiff’s counsel that the petition was returned on July 31, 2010, much later

than he was originally informed in writing.

8. Plaintiff Daniel Mai Dinh is a U.S. born citizen of the United States, and a

resident of Bonney Lake, Washington. He filed a Form I-129F petition for fiancé(e) with USCIS

on May 19, 2009, which was approved by USCIS on August 25, 2009. Defendant State

Department communicated to Plaintiff that it had returned the approved petition to Defendant

USCIS for revocation on or before January 7, 2010. Defendant USCIS refused to take action on

the petition, and in a letter dated June 24, 2010, communicated that all USCIS action was

concluded due to the expiration of the petition validity of the I-129F petition.

9. Plaintiff Austin Peter Tran is a U.S. born citizen of the United States, and a

resident of Baldwin Park, California. He filed a Form I-129F petition for fiancé(e) with USCIS

on October 13, 2009, which was approved by USCIS on March 19, 2010. Defendant State

Department communicated to Plaintiff that it had returned the approved petition to Defendant

USCIS for revocation in a letter dated August 11, 2010.

10.

Add your names to this list take action!!!!!!!!!!!!

PARTIES

Edited August 28, 2010 by jeromebinh

[Boiler 45,467]

The issues for this class action lawsuit are based on what the K1 rules state, they do not state multiple trips, big engagement parties, and many other things that they are typically denying people over, how long it is taking for them to process your requests, and that even though the consular is saying you are in a sham relationship, this is not his duty, but that is the duty of the stateside person doing your adjustment of status

I believe it is their responsibility.

[Dang Lang Thang 0]

Hi Jerome,

That is great to know that a class action suit has been submitted. I will think about adding to that list. I am still waiting (7 weeks) to hear of our interview schedule date.

I wonder if adding myself to the plaintiff list would be a good position. I think it would help put pressure on HCM Consulate knowing that I intend to get very serious.

I am reading through the filing to learn more. Wow! Everything I wanted to challenge DHS/DOS is in there. My juices are flowing just reading it.

Thanks for posting it.

Regards,

Frank

[JimVaPhuong 4,863]

I believe it is their responsibility.

Agreed. INA 221(g) gives them discretion.

That said, I think there is a lot of merit to some points in the lawsuit. I still think the "due process" claim is weak. There's no doubt that the USC's are being denied due process, but they have to prove that the USC has a right to expect due process in order for this to stick. The angle that USCIS is depriving the USC of property by forcing them to pay an additional filing fee after denying them due process to appeal the returned petition is an interesting way to try to make the case on a Constitutional ground, but I think that would only hold up if USCIS were dipping into your bank account and seizing the money without your consent after refusing to allow you to appeal the expiration of the petition.

Anyway, I'm not a member of this class, so I'll watch from afar with great interest to see how it proceeds.

[TBoneTX 45,266]

See the pinned thread by Marc Ellis in the K-1 forum, if you haven't. Apologies if I haven't scoped the Vietnam subforum adequately to learn whether this is already familiar news, but I wanted to offer a harmless reminder nonetheless.

GOOD LUCK to all who have been hosed by HCMC, and may you triumph, si man.

[BinhJerome 14]

Agreed. INA 221(g) gives them discretion.

That said, I think there is a lot of merit to some points in the lawsuit. I still think the "due process" claim is weak. There's no doubt that the USC's are being denied due process, but they have to prove that the USC has a right to expect due process in order for this to stick. The angle that USCIS is depriving the USC of property by forcing them to pay an additional filing fee after denying them due process to appeal the returned petition is an interesting way to try to make the case on a Constitutional ground, but I think that would only hold up if USCIS were dipping into your bank account and seizing the money without your consent after refusing to allow you to appeal the expiration of the petition.

Anyway, I'm not a member of this class, so I'll watch from afar with great interest to see how it proceeds.

There is much more to it than what I have posted. The fact is that a USC must be the one that files the petition, thus he has rights, and when the K1 guides clearly do not say multiple trips and there is even a clause where there can be a hardship waiver where that can be over looked, and that there is no requirement about even having an engagement party. These things are what the real lawsuit is about. Jim regardless if you think that the case is weak or strong is of no matter, a very good lawyer one that Marc Ellis says is very good has decided with what he has been told that there is merit to such a class action lawsuit. A person can bicker about due process on this or that, the fact is that we are not lawyers, but one such lawyer has decided it is a violation of due process, and there has been a similar standard used before in the US supreme court about the right to marry and live with ones wife which was in favor for the plantiff. We all know things are going on in HCMC that are not right by any means, and this is just something that has not just recently happened, for over 2 years now that I have been viewing the Vietnam forum I have seen countless things happen all of which were not in the guidelines, and if you look at the link you can see what Brent has said about the consulars findings over the engagement parties, one trip, and the other reasons they are denying people, granted this is his opinion, but I feel he is far more qualified to make such statements of justice and merit of a class action lawsuit than you or I do, or any other pissed off person that was denied a K1 visa. I simply tried to put some of the points in a nutshell without going through every detail, the class action lawsuit stands at 46 pages I think right now, and my information will be added eventually as well as many others. So for me to go into every detail would be one huge post. Regardless of the outcome, I am not planning on moving back to America, the only reason I have any interest in this topic is that I do not want anyone else to go through what we have gone through as well as countless others.

Jerome

[BinhJerome 14]

Hi Jerome,

That is great to know that a class action suit has been submitted. I will think about adding to that list. I am still waiting (7 weeks) to hear of our interview schedule date.

I wonder if adding myself to the plaintiff list would be a good position. I think it would help put pressure on HCM Consulate knowing that I intend to get very serious.

I am reading through the filing to learn more. Wow! Everything I wanted to challenge DHS/DOS is in there. My juices are flowing just reading it.

Thanks for posting it.

Regards,

Frank

Frank, I got your email, and Binh says hello, next time you are in Vietnam we will have to go to the beach again, it was great going there with the both of you. As far as it having a bad impact on your case, I do not see where that issue would be, after all Daniel is one of the plantiffs, and he has since refiled as well. Also if you were to join, you would be one that got a NOID and who did NOT have the chance at a rebuttal, your case would simply help and not hurt the class action lawsuit. I have sent all my info to him, and hopefully I will hear something back next week. Regardless of what you fear in joining, it would not hurt at all to talk with Brent and see what his take is, after all you need to look out for yourself first. I have no problems joining this class action simply because I do not have the desire to go back there and live, at least not for quite some time. I am happy here with my wife, and that is what matters, but what I dont like is how you were treated at HCMC and many many others as well. Good luck, and hopefully you will hear something soon. I think your fiancee said something to Binh about comming by and seeing our new house some time, I guess she has family near here.

Jerome

[Boiler 45,467]

I cam across this thread by accident, just a couple of observations:

There are many other consulates where visiting once would be a major issue. I assume the reference to engagement parties falls under cultural norms. Similar issues arise in the MENA countries.

Just one thought arises in connection with the mention of the K1 being a non immigrant visa. I understand that the way non immigrant visa's are set up the Consulate is allowed the discretion to issue one, not the other way around.

[JimVaPhuong 4,863]

There is much more to it than what I have posted. The fact is that a USC must be the one that files the petition, thus he has rights, and when the K1 guides clearly do not say multiple trips and there is even a clause where there can be a hardship waiver where that can be over looked, and that there is no requirement about even having an engagement party. These things are what the real lawsuit is about. Jim regardless if you think that the case is weak or strong is of no matter, a very good lawyer one that Marc Ellis says is very good has decided with what he has been told that there is merit to such a class action lawsuit. A person can bicker about due process on this or that, the fact is that we are not lawyers, but one such lawyer has decided it is a violation of due process, and there has been a similar standard used before in the US supreme court about the right to marry and live with ones wife which was in favor for the plantiff. We all know things are going on in HCMC that are not right by any means, and this is just something that has not just recently happened, for over 2 years now that I have been viewing the Vietnam forum I have seen countless things happen all of which were not in the guidelines, and if you look at the link you can see what Brent has said about the consulars findings over the engagement parties, one trip, and the other reasons they are denying people, granted this is his opinion, but I feel he is far more qualified to make such statements of justice and merit of a class action lawsuit than you or I do, or any other pissed off person that was denied a K1 visa. I simply tried to put some of the points in a nutshell without going through every detail, the class action lawsuit stands at 46 pages I think right now, and my information will be added eventually as well as many others. So for me to go into every detail would be one huge post. Regardless of the outcome, I am not planning on moving back to America, the only reason I have any interest in this topic is that I do not want anyone else to go through what we have gone through as well as countless others.

Jerome

Hi Jerome.

I read the entire complaint, and the comment I posted was based on that and not on your opening posts. As I said before, I think the case has merit on many grounds, and a reasonably good chance of succeeding. I just think the "due process" claim is weak.

Regarding the issue over the number of visits and engagement ceremonies, it's certainly true that nothing in the law requires these things in order to be eligible to receive a visa. By the same token, nothing in the law requires the petitioner and beneficiary to actually love each other, or in fact have any sort of relationship at all. The law DOES require that the relationship not be primarily for the purpose of evading immigration law to secure an immigration benefit, and it gives the consular officer wide latitude in making this determination.

Yes, a US citizen files the petition, and a US citizen has certain Constitutional rights, but obtaining a visa for his/her fiancee or spouse is not one of them. The authors of the Declaration of Independence declared that your "inalienable rights" included "life, liberty, and the pursuit of happiness", but the authors of the Constitution were more pragmatic when they crafted the "due process" clause of the Bill of Rights - they included only "life, liberty, and property" as the things you cannot be deprived of without due process. If they had included "pursuit of happiness" in the due process clause it would have opened up a grab bag of "rights" they never intended to infer, such as the "right" to smear your body with mayonnaise and run down the street naked, if that's what makes you happy.

Anyway, the points in the lawsuit which I think are meritorious include the fact that there is a "colossal sparring match" going on between DHS and DoS, that denials have been "capricious and arbitrary", that consular officers and USCIS often abuse their statutory power, and that consulates have been promising that DHS will provide the petitioner an opportunity to appeal when it is not within their jurisdiction to make such a promise. I think there's a reasonably good chance that changes will be made as a result of this lawsuit. Will it force the consulate to issue a visa when the petitioner has made only one trip to visit the beneficiary and/or did not have a cultural engagement ceremony? I wouldn't hold my breath.

[kennym 275]

Not being a lawyer, but just from the perspective of any lay-person on the streets, it seems that the CO feels they have way more power than the law actually gives them.. I think this lawsuit is great, and hopefully will cause the DOS to standardize there interview/denials processes and create more oversight..

Edited August 28, 2010 by kennym

[Dau Que 6]

Is it smart to sue them while filing your petition or waiting for it to be approved? They won't retaliate right?

[DansJourney 0]

Is it smart to sue them while filing your petition or waiting for it to be approved? They won't retaliate right?

I thought long and hard about that before deciding to step up and be a plaintiff. But I figured there is nothing stopping them from denying the second petition similar to the first. I can understand why anyone would be afraid to step up. So I decided to take action and hope that we can make some change.

[Alan-and-Ira 1]

We had a similar issue at my K1 interview in Ukraine, and our petition was sent back the very next day without any official denial. Instead, I got my passport a few days later... Sure it was empty - with neither visa nor denial stamp! And only a week after mailing the petition back to the US, the Consulate bothered to respond to our multiple requests by a short e-mail stating...

"Section 221(g) of the Immigration and Nationality Act (INA) prohibits a consular officer from issuing a visa to an alien if the officer has reason to believe that the alien is ineligible. Based on indications that petition KEV********** contains inaccurate information, we returned it to the Bureau of Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) for review and possible revocation..."

Well, if I had been denied and not eligible, then why the CO did not tell me that at the time of my interview?! Why was I encouraged to pay for the delivery of an knowingly empty passport if nobody was going to give me that visa anyway?! We never got a single answer to our questions...

I just figure out that unofficially they do have a number of applicants to be denied, or they have a certain monthly amount of visa numbers to be granted... My interview was on January 29th, and it looks like all the visas awailable had been given away before I arrived to the Consulate... It's just sad, and not fair at all! For the next interview I will make it sure to go to the Consulate in the first dates of the month!

We all want to be with our loved ones! My only fault was that I loved my fiance then, I love my husband now and always wanted to be with him... Does it automatically make me "ineligible"? It looks like in the CO's eyes it does... The only our fault is that we are in love with someone who lives so far from us, and we want to be with the love of our lives... I do love my country Ukraine, and the US is not a my dream-country to live in... But it is the country where my love lives!

Our best wishes to everyone on this journey...

P.S. In the odfficial closure letter for our returned (and now dead) K1 petition (due to the term expiration), the reason for denial was stated by the CO as that 'the relationship was established solely for the immigration purpose'... I spoke English at the time of my interview with the CO, although I also had an option to speak Russian or Ukrainian... I just wanted to show my respect, so I spoke the CO's language... I know English pretty well, and it's basically why we have a good relationship - because we communicate! But I had learned my future husband's language not solely for the immigration purpose, but because I wanted to be with him, understand him, talk to him and have a good relation with him... And all these things are impossible without a common language! I did it just because I LOVED HIM! And if my fluent English looked for the CO like I had been preparing myself for living in the US... Well, I do feel sorry for that poor guy in the consulate, because he does not know what LOVE is... Just a poor CO!

Edited August 28, 2010 by Alan-and-Ira

[CoolHand2x2y2z 0]

I fully support all who are a part of this!

Show those monkeys they can't abuse the letter of the law just because they are judge and jury on immigrant petitions.