Lawsuit Could Have Substantial Effect Upon K-1 Visa Processing

[S_R 148]

The following article briefly discusses a recently filed lawsuit brought against agencies of the United States Government tasked with adjudicating US visa petitions and applications.

This writer often discusses issues which might have an impact upon the overall processing procedures of American Family Visas. In the case of Tran v. Napolitano*, a lawsuit that was recently filed in the Oregon Federal District Court, an American Citizen has challenged the current administrative protocols associated with K-1 visa adjudication and denial.

At the time of this publication, there seems to be some institutional confusion within the American Immigration apparatus regarding the exact nature of visa refusals issued by US Consular Posts abroad. For instance, when a visa applicant from a country participating in the Visa Waiver Program is issued a 221(g) refusal in connection with an immigrant family visa, a K-1 fiance visa, or any US visa for that matter; then that refusal could detrimentally affect that individual's ability to subsequently enter the United States on the visa waiver program. Pursuant to relatively recently enacted protocols under the Electronic System for Travel Authorization (ESTA) the United States Customs and Border Protection Service (USCBP) would seem to view so-called visa application "refusals" by the Department of State as "denials" which must be disclosed by those seeking entry to the USA under the visa waiver program. Existence of said "denial" could potentially result in USCBP refusing to grant the alien admission to the USA under the visa waiver program.

In the previously cited Tran* case, an issue similar to the "refusal" vs. "denial" dichotomy was brought to light. In a direct quote from the initial complaint, the plaintiff alleged that the:

State Department, in its denial, stated that, "f USCIS revokes the petition, beneficiary will become ineligible for a visa under section 212(a)(6)©(i) of the Act." INA 212(a)(6)©(i), 8 U.S.C. 1182(a)(6)©(i), is a permanent bar to admissibility for misrepresentation. Pursuant to the Foreign Affairs Manual, 9 FAM 40.63 N10.1, State Department placed a marker, called a "P6C1" marker, or "quasi-refusal" in Ms. Pham's records, and will deem USCIS revocation of the petition as automatically establishing the permanent misrepresentation bar to any future immigration possibility.*

Although this article will not attempt to go into all of the details of the complaint, it should be noted that the plaintiff seems to allege that the Consular Officer adjudicating the application, on more than one occasion, made determinations that were "conclusive, speculative, equivocal or irrelevant"*. The result of this, in the plaintiff's view, incorrect adjudication was the placement of a "quasi-denial" marker in the plaintiff's fiancee's case file. This "qusai-denial," in conjunction with a subsequent revocation by USCIS, which occurs automatically if the petitioner does not actively challenge the revocation, results in the automatic establishment of a permanent bar to admission to the USA regardless of the fact that USCIS initially deemed the petition worthy of approval.

Some might posit that this method of finding an applicant permanently inadmissible is "boot strapping" because the two agencies involved use administrative protocols such as automatic establishment of permanent misrepresentation based upon "conclusive, speculative, equivocal or irrelevant"* findings, rather than legal and factual findings on the part of the Consular Officer, to bar admission to fiances of American Citizens.

The outcome of this case remains unclear, but there is little doubt that the final decision in the case may have a significant impact upon the way in which K-1 visa applications and petitions are processed in the future.

http://www.entrylaw.com/images/Tran_Complaint_signed_.pdf

Article Source: http://www.articlesnatch.com

Edited April 23, 2011 by Rhoda_Sam

[JimVaPhuong 4,863]

The Oregon district court threw out the case last month, dismissing all claims.

http://entrylaw.com/tranclassaction.html

They are planning to appeal the 9th Circuit Court.

[I AM NOT THAT GUY 5,715]

The Oregon district court threw out the case last month, dismissing all claims.

http://entrylaw.com/tranclassaction.html

They are planning to appeal the 9th Circuit Court.

Which means the appeal court may get reversed, but given the 9th's 80% reversal rate when SCOTUS reviews the case, I would think the appeal to be frivolous and the lawyers are taking the plaintiff for a ride.

[S_R 148]

Its not over until its really over ...

[NigeriaorBust 4,087]

There have been various lawsuits and the wheels of change move slowly. Lagos is not going to change it's policy of denials based on a lawsuit that is already thrown out once. They will continue to behave as they do, legit couples will get caught in their procedures and fraudsters will convince some unwitting USC to prepare the best possible package to get by the gates of hell , only to dump the USC before the ink of the visa dries. It is written in the history of people on this site. About 1/4 of first petitoins are denied, of those about 1/2 stay with VJ and of those more than half are successful the second time. Of the ones that get a visa and stay in touch with VJ over half of the relationships don't last 5 years , many dont last the first year, If the process was perfect there would be no fraudsters slipping thorugh. But they do, because they using conning and information such as VJ provides to prepare themselves against the best rules and procedures that we put in place. All the problems that we endure are an attempt to keep an ever more intelligent group bad people from getting a foothold of residency here. As petitioners of family we are probably not the most objective at looking at our significant others, it is never a question of us loving them rather of their motives in wanting us.

[TBoneTX 45,663]

It is written in the history of people on this site. About 1/4 of first petitoins are denied, of those about 1/2 stay with VJ and of those more than half are successful the second time. Of the ones that get a visa and stay in touch with VJ over half of the relationships don't last 5 years , many dont last the first year

N or B -- fascinating stuff. How are these figures arrived at? Are they just for Lagos?

[NigeriaorBust 4,087]

Just for Lagos, I have long watched the comings and goings of people through there. Go look at the top posters list and see how many of their relationships have gone down in flames. If you used Lagos as a standard then USCIS needs to be more strict at letting USC's petition for family members. Actually there needs to be more updated techniques at uncovering fraudsters. I know there are technologies that can detect lies without the interviewee knowing they are under observation. I wonder if that would improve the long term outcomes from Lagos. It is sad to see the repeated abuse of USC's by the fraudsters after a ticket to the US.

[TBoneTX 45,663]

Just for Lagos, I have long watched the comings and goings of people through there. Go look at the top posters list and see how many of their relationships have gone down in flames. If you used Lagos as a standard then USCIS needs to be more strict at letting USC's petition for family members. Actually there needs to be more updated techniques at uncovering fraudsters. I know there are technologies that can detect lies without the interviewee knowing they are under observation. I wonder if that would improve the long term outcomes from Lagos. It is sad to see the repeated abuse of USC's by the fraudsters after a ticket to the US.

It's very sad from more than one standpoint, si man. Would these detection methods be along the lines of behavioral techniques, such as some of the TSA agents at the airports are purportedly trained in? If so, are the techniques reliable cross-culturally, or would they have to be adapted in accordance with continent (Europe vs. Africa vs. Asia)?

[S_R 148]

Just for Lagos, I have long watched the comings and goings of people through there. Go look at the top posters list and see how many of their relationships have gone down in flames. If you used Lagos as a standard then USCIS needs to be more strict at letting USC's petition for family members. Actually there needs to be more updated techniques at uncovering fraudsters. I know there are technologies that can detect lies without the interviewee knowing they are under observation. I wonder if that would improve the long term outcomes from Lagos. It is sad to see the repeated abuse of USC's by the fraudsters after a ticket to the US.

The following statement about the divorce rates in America reveals all the details about distribution. According to enrichment journal on the divorce rates in America, the divorce rate in America for first marriage is 41%; the divorce rate in America for second marriage is 60%; the divorce rate in America for third marriage is 73%. According to discovery channel, couples with children have a slightly lower rate of divorce than childless couples. Sociologists believe that childlessness is also a common cause of divorce. The absence of children leads to loneliness and weariness and even in the United States; at least 66 per cent of all divorced couples are childless. According to some experts, however, divorce rates tend to go down primarily because more couples live together without marrying. Other researchers have documented what they call “the divorce divide,” contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

The divorce rate in America is more than 50%, which means one in two couples will break up. Why it is so high. What is the real reason for the divorce? 

It is said that happy families are the same, while miserable families have respective causes. Not all marriages fail for the same reason. Nor is there usually one reason for the breakdown of a particular marriage. Nevertheless, in general the following causes of divorce are mentioned more often than others. They are: poor communication, financial problems, a lack of commitment to the marriage, differences in culture, sexual or emotional abuse and a lack of responsibilities.

It is amazing that the above mentioned causes of divorce are slightly similar with those listed in the Bible. The Bible says, “God hates divorce” (Mal.2:16). According to the Bible, the first cause is money. The Bible says that the love of money is the root of all kinds of evil. (I Timothy 6:10). The uncontrolled desire for money will lead to a temptation, a snare and into many and foolish and hurtful lusts, which drown men in destruction and perdition, and pierce themselves through with many sorrows. Money is the number one cause of broken homes. Second is alcohol. There is a popular sign that reads: Alcohol Destroys Internally, Externally, and Eternally. The Third is sexual problems. The sex pendulum is swung from one extreme to the other. We talk as freely of sex as we talk of politics. Improper attitudes about sex, and not physical causes, bring couples to the breaking point. Both those who regard sex as being acceptable outside of marriage, as well as those who think of sex as dirty and wrong within marriage, are equally guilty of maintaining attitudes which are destined to cause serious trouble to any family relationship. The Fourth is immaturity. Married life is for adults, not for children. Immaturity is the fourth leading cause of broken homes. There is an age when we are not sure about anything. A toy may be ever so much fun one day, and discarded the next. Much of this same uncertainty goes with the person through adolescence with regard to marriage. The Fifth is jealousy. One who demands exclusive devotion, and is intolerant of rivalry usually feels inadequate. If one finds himself caught in the clutches of this weakness, he needs to concentrate on self-improvement. Next is related to in-laws. “Therefore, shall a man leave his father and his mother and shall cleave unto his wife. And they shall be one flesh.” It is from God’s words in Genesis Chapter 2, verse 24. Every couple should establish their own home away from parents. Last is irresponsibility. When a young man is irresponsible and unwilling to work before marriage, the chances are extremely good that he’ll continue the same pattern of behavior after marriage. In the same way the young lady who has shown no sense of personal responsibility before marriage will likely also be unwilling to do her part in containing the home after marriage.

Identifying the major causes of divorce will prevent us from making mistakes. In fact, when people ask about causes of divorce, they’re not necessarily asking about what causes divorce. Often, what they really want to know is how to improve their relationship and avoid causes of divorce in their marriage. Lets not make a fuss on the reasons for bad relationships, instead,let's try to deepen and strengthen our marriages with our efforts and behavior.

[NigeriaorBust 4,087]

You list the reason real couples divorce, but the average real marriage lasts almost 9 years not less then 2 like the Nigerian fraudsters. The primary reason for real marriages ending is infidelity not money, the primary reason from Nigerian marriages ending is the Nigerian fraudsters has gotten permanent residence in the US. It is sad that these men have learned to prey on the relatively isolated USC and pull them into a web of false dreams and then they use this to get out of Nigeria with no regard for the person they are using. Lagos is doing what they can about preventing this and if someone is on AP it is because they have suspicions about the validity of the relationship. They see thousands of couples every year and have some sense of the real and the fake. Do they get if wrong sometimes yes. But they are doing the best the can without the ability to strap the intended recipient to a lie dector.

[JimVaPhuong 4,863]

Which means the appeal court may get reversed, but given the 9th's 80% reversal rate when SCOTUS reviews the case, I would think the appeal to be frivolous and the lawyers are taking the plaintiff for a ride.

Highly unlikely. The 9th Circuit has been pretty balanced when it comes to immigration law. They were the court that handed down the decision on the Momeni case that reenforced the position that USCIS can deny adjustment of status for someone who entered using the VWP for no reason other than the fact that they overstayed.

The Oregon district court's reasons for throwing out the case are also pretty solid. US federal courts have found repeatedly that consulates have the sole authority, jurisdiction, and discretion to decide if a visa should be issued. Their decisions cannot be appealed. Tran's attorneys are also demanding that the courts intervene to establish or change USCIS and Department of State policies with no basis in law that would require them to do so. Probably the weakest claim in their case is the due process violation. I've always thought there was some merit to some of their claims, but there is no basis whatever for their due process claim. Without the threat of losing life, liberty, or property, there is no constitutional guarantee of due process.

I expected this case to fail in the district court. I also expect it to fail in the 9th circuit court. I don't know if they'll try to take it to the US Supreme Court, but I predict the Supreme Court will refuse to hear it.