defendo

I'd like you to take a few moments and review the language in these two USCIS Administrative Appeal decisions regarding the consulate imposed requirement of a bona fide relationship and also the non-requirement for the beneficiary to know all details & aspects of the petitioner's life history. AAO opinions, January 08 2007, [LIN 05 023 53986] and February 02, 2007, [LIN 05114 54677] They can be found on the USCIS website under Administrative Decisions, choose catagory D6 and then select these individual cases by number. Below is a brief synopsis of the consular-imposed requirement of a bona fide relationship: The petitions noted in these AAO decisions were returned to USCIS for review after the K-1 visa interview. The consular officer had concerns that these relationships were not bona fide. Upon review, the district director denied the visa petitions. However, the AAO found that in denying these petitions, the district director ¡°appears to have imposed an additional requirement to the petitioner ¨C establishing the genuineness of [the] relationship to the beneficiary.¡± It is not the function of the USCIS to make that determination. [Jan. 2007, LIN 05 023 53986]. It also goes on to say in the other opinion that a beneficiary need not know in intimate detail the petitioner's life history simply to demonstrate there is a true relationship. So for quite a while now, Guangzhou has been ignoring the published decisions of the USCIS Administrative Appeals Office about requiring a showing of a bona fide relationship in order to be awarded a visa. Splinterman How about because they can get away with it and will continue to do so until enough people stand up and challenge this behavior. Who knows it might only take one more person joining the fight to tip the scale and make this a distant memory. Now wait a second - we're talking about two different departments - USCIS and DOS - doing two different things. Neither has any control over the other. The USCIS' interest is only in the petitions filed by US citizens and LPR's. The DOS' interest is in (subjectively) approving or denying a visa application from a foreign national. Neither has any interest in following any policy of the other. My own opinion is that returning the petitions to the US is a sham, serving no purpose. The USCIS cannot and should not evaluate the evidence gathered by the consulate, when the consulate is not a party to any legal action taken in the states. In almost every case, the evidence passed back is going to be insufficient, and no further questioning (or evidence gathering) occurs. There are different standards for determining what is a bona fide relationship here in the states and for immigration purposes. The USCIS can only say, "looks good to us", and pass the petition along to the consulate for a final (and very subjective) determination. The standard for revoking a petition is another matter entirely Randy, what I was trying to address is the fact that it has already been shown that having a 'bona fide' relationship is no longer a plausible argument for GUZ to make in determining visa applications. Yes, you're right about the interests of the DOS and the USCIS being different when it comes to dealing with each other. I wasn't trying to comment about that-that's a known fact and there's nothing we can do about it until the government re-organizes itself with respect to the visa process. I'm sure that GUZ already knows that having a bona fide relationship is not a requirement for being issued a visa, but they still continue to deny on those grounds because they are taking advantage of the inability of the USCIS and the DOS to come together and work with each other. And we, as the petitioners and our beneficiaries, get caught in the middle. They can get away with it under the current structure of the government, so they do. In the other Admin decision it shows that the USCIS holds that it is also NOT a requirement for the beneficiary to know all the details of the petitioner's life in order that she/he be issued the visa. Many of our beneficiaries have been denied visas because they did not answer these type questions with answers that were acceptable to the VOs. Again, they deny on those grounds because they can get away with it. What has to happen is a governmental reorganization of the authority for visa processing. Until that happens, or something else like a successful lawsuit, these things will continue to happen and we and our beneficiaries will continue to get caught in the middle. Our cases will continue to get 'deep sixed' with no concern because Guangzhou has far too many cases to look at that particular day. I was simply trying to show that it is NOT a requirement to have a bona fide relationship nor does the beneficiary need to know all intimate details of our lives before being given a visa. I've pointed out this conflict between DOS and USCIS in my letters to Obama, Clinton, Jacobs, etc., as a continuing reason for the denials coming out of Guangzhou so they see the need to fix the part that's broken that is allowing the travesty in Guangzhou to perpetuate itself every day and throwing hundreds of us into a bureaucratic purgatory. Splinterman The point is that GUZ is not bound by ANY decision by USCIS. The USCIS approves petitions - anyone legally married or engaged should be able to get the petition approved. The standard at the consulates is whether a reasonable person would conclude that the relationship is bona fide. The INA is peppered with the phrase "bona fide relationship". It is at the sole discretion of the Visa Officer to make this determination. The USCIS likewise is not bound by any decisions made by consular officials. So when they revoke a petition based on the "bona fide relationship" standard, they get their hands slapped. That is the basis for the rulings by the AAO - there is nothing anywhere in these rulings that says that the visa should have been awarded. I don't mean to upend your soapbox. I'm on your side. It's just that "not a bona fide relationship" IS a valid reason for visa denial. It is only a valid reason if there is a factual basis for the determination. It is not valid if it is based on opinion and speculation. The fact that a beneficiary does not know every detail of a petitioner's life is not a factual basis. In fact, the INA specifically provides that in order to find that a relationship is not bona fide, the consular officer must rely on information that the relationship was entered into specifically for the purpose of evading the immigration law. Simply stating that a relationship is not bona fide without precise specification is analogous to some one being charge with theft, but not identifying what was stolen, when it was stolen and where if was stolen. There is a presumption of having met the burden of proof of a bona fide relationship with the approval of a petition by USCIS. If this presumption did not exist, why even have an approval process. GUZ is required to rely on relevant, substantial evidence in order to make a finding that a relationship is not bona fide. In that sense GUZ should be required to have a justifiable bases for the decision and without justification, they are bound by the USCIS approval.

Ok...so, lets say he is sucessful in getting USCIS to review petitions in a timely manner. That only applies to active petitions. Petitions that have expired are no longer subject to review. It will just take a bit longer for your petition to be received by the USCIS from GUZ. There, problem solved. It arrived expired...No further action necessary. Yea, the old misrepresentation argument again. Ok..here we go again...this is an administrative finding. You do have the right to petition for a waiver, so your right to answer the finding is fulfilled. They don't call it a crime and you are never indicted or charged, so there is no trial to get to fight over. I tell you what...you go find an attorney that will take a case based on your arguments and will take it all the way to the Supreme Court if necessary. You ask him what it will cost for you to have your "justice". You find out what it will cost to subpoena everyone, travel expenses for the witnesses, do the research, go to trial after trial, court after court, airfare for him and his staff, court costs, etc, etc, etc...and then you come back and let us know if you are going to get your "justice". Your arguments may have just a bit of validity, but very little, but the bottom line is this..you can't afford to fund the battle. So, your arguments are moot. You are obviously very angry and bitter. I am sorry that the actions of GUZ has caused you so much misery. But you are not alone. I agree with your assessment of a corrupt government that has all the chips stacked in their favor. The ordinary citizen certainly does not have the resources to fight back. What the law says and how it is administered in the real world are two different realities. But nothing is lost in arguing the correct application of the law. It is a crime to misapply the law and thier are sanctions that could be imposed. I likelihood of such action is practically nonexistent. You stated in your original reply to Splinterman that "the DOS foreign consulates do not answer to the US Courts" The point of the Bustamante decision is that the court recognizes that consular officers are liable for decisions if the decisions deprive an American citizen of his due process rights. It is irrelevant whether Bustamante won or lost. I for one believe that it is useless to initiate a legal proceeding unless it is a class action that shows a pattern of misconduct. So you and I share the same point of view. I would argue that it is misconduct to wrongly return a petition that does not have a valid basis for the return and that due process is required, even in administrative hearings. There is such a thing as the Federal Administrative Procedures Act. I never asserted that the government follows the procedures. But once again, I have nothing to lose by arguing what the law says. I am stuck in this situation until I either move to China or there is movement on my case. Chances are that, just like you, I will be living the rest of my life in China too. You are preaching to the choir! It is certain that America would still be under the control of England if our founding fathers had your attitude and ceased to resist. One thing is certain, no change will occur without effort. I have written many letters to the committees and subcommittees. Have you? Whether any letters will be effective remains to be seen, but at least I have made the effort. Obviously only a few letters will be ignored. That is why a collective effort is required. Your arguments regarding testimony is wrong. Video testimony has been permitted in many court cases. I am not saying that it will be permitted in a particular case, but your tendency to generalize each situation is not accurate. Yes, the reason for a denial must be "facially legitmate and bona fide". Which means there has to be a factual basis. Opinion, conjuncture and speculation do not fulfill this requirement. That doesn't mean the government has to follow the rules. Because the government routinely makes up its own rules as it goes. The situation at Guantanamo is a good example. But your hypothetical examples are invalid. They are simply predictions based on your own jaded perceptions. I am certainly not naive and I have not expectations. But that does not mean I will simply surrender without a fight. I will use whatever resources I can within my means and whatever arguments that might have some impact. But when it is all said an done, I will probably be living the good life in Chongqing.

It is tragic that people spread misinformation because they simply do not know what they are talking about. Perhaps a review of American history and a civics class would enlighten you. First of all, it is absurd to claim that the U.S. Consulates do not answer to the U.S. Courts. Read Bustamante v MuKasey. The courts reaffirmed exceptions to the non-reviewability doctrine in instances where the visa application process has denied an Amercian Citizen due process as guaranteed by the U.S. Constitution. I have no doubt that my due process rights were blatantly denied by GUZ. I am a party to the actions taken by GUZ. Second, to say that the foreign national is the only person with a grievance is ludicrous. How about the American petitioner? I certainly have a legitimate grievance. Guz fails to follow the requirements of law and federal regulations and in doing so they have denied all of us our liberty to marriage and family. It is not a privilege, but a right. ¡°Freedom of personal choice in marriage and family life is one of the liberties protected by the due process law.¡± (Supreme Court Justice Potter Stewart; Cleveland Board of Education v Lafleur, 1974) You are correct that there is specific right that entitles an American to obtain a visa for a foreign national, but there are laws that govern the process and if they are not fairly applied, them American citizens have the right to petition for redress. You apathy is disheartening. Our country was founded on principals of justice. Simply accepting things as they are, regardless of the rightness or wrongness of the circumstances is an open door to tyranny. Perhaps everyone on this site should recall what Margret Mead once said: NEVER DOUBT THAT A SMALL GROUP OF THOUGHTFUL COMMITTED CITIZENS CAN CHANGE THE WORLD. defendo

Hey,my comment got thru,it is on the blog.It had to wait for approval,which is fine.....on the bottom of the comment box was a sentence in chinese,of course,i don't know much chinese,so i copy and paste to google translator,it said waiting for approval.So,if it seems like it isnt accepting your comment,its a good chance its waiting for approval. keep trying,and keep writing letters,i finished my letters,sending them tomorrow(saturday).Thanks to all,who are making an effort for change. Jimi Thanks Jimi, We need all the participation we can get in this effort. I am hopeful that the Obama people will change the way things are in GUZ. It is critical that we show that many U.S. citizens are being screwed by GUZ and their illicit procedures. As long as the government perceives that the denials are legitimately determined on a case by case basis, there will never be a change in policy. Defendo

I just saw this - but I"m missing one thing - WHEN was this put on the website ? I'm wondering if it's some type of 'spin control' or if it's solely coming in as a series of videos for the 'Know Yer Consular Official' Series. It is not spin control, it is just arrogance. This man doesn't give two shits about any of our relationships. He is responsible for the actions of his subordinates and for the deviation from law and federal regulation. His boss is also ignorant of impact these decisions have. Some people need to exercise power to feel important. Compassion and understanding is not part of their consciousness. Keep the faith, Defendo

Here is the link for the blog. We need to add our support for the efforts that Mr. Roth has made. Only a collective effort can demonstrate that what is going on in GUZ is a pattern affecting many. DOS is trying to portray a perception that GUZ is following policy and the each case is unique and is adjudicated fairly. Your silence will only perpetuate this myth. Peace, Defendo Link: http://www.arctec.com/blog/

Here is the link for the blog. We need to add our support for the efforts that Mr. Roth has made. Only a collective effort can demonstrate that what is going on in GUZ is a pattern affecting many. DOS is trying to portray a perception that GUZ is following policy and the each case is unique and is adjudicated fairly. Your silence will only perpetuate this myth. Peace, Defendo

What an arrogant, condescending and most of all, LYING prick...no doubt a political appointee... Splinterman, My feelings exactly and I could not have said it any better! I am sending out another packet tomorrow to the DOS IG that contains Mr Roth's memo and the articles written by Marc Ellis. He has described my situation with acute accuracy when he states, "DOS will remain free to return hundreds or perhaps thousands of petitions where the officers' conclusions are conclusory, speculative, equivocal, or irrelevant to the bona fides of the petitioned relationships. It can continue to be unaccountable to US Citizen Petitioners. And in those cases, US Citizen Petitioners will have to put their futures on ice in a massive bureaucratic deep freeze". Jay

Putting a face on the enemy. Check out this video. This is the person who is most likely causing our misery. What a joke! http://guangzhou.usembassy-china.org.cn/up...acobsenEng2.wmv

My personal opinion is that e-mail is not as effective as a physical letter. But it is an individual preference.

Here are my thoughts about a date. We need to do this while Mr. Roth's memorandum is current. The more time slips by, the less effective any campaign will be. In the military there is an acronym, OBE, which means OVERCOME BY EVENTS. We do not want to lose the momentum and have our efforts overcome by other events that might take the focus off any success we have. So my vote is the sooner, the better. Here is the the addresses on my mailing list: President Barack Obama The White House 1600 Pennsylvania Avenue NW Washington, DC 20500 Secretary Hillary Clinton Department of State 2201 C Street, NW Washington, DC 20520 James B. Steinberg Deputy Secretary of State Department of State 2201 C Street, NW Washington, DC 20520 Jacob L. Lew Deputy Secretary of State Department of State 2201 C Street, NW Washington, DC 20520 Patrick F. Kennedy Under Secretary for Management Department of State 2201 C Street, NW Washington, DC 20520 Ambassador Janice L. Jacobs Assistant Secretary of State Department of State Bureau of Consular Affairs 2201 C Street, NW Washington, DC 20520 Brian D. Rubendall Special Agent-in-Charge U.S. Department of State Office of Inspector General Room 8100, SA-3 2201 C Street, N.W. Washington, DC 20520 Secretary Janet Napolitano Department Of Homeland Security 245 Murray Lane, SW Washington, DC 20528 U.S. Senator Bill Nelson Landmark Two 225 East Robinson Street Suite 410 Orlando, Florida 32801 Senator Patrick J. Leahy, Chairman United States Senate Committee on the Judiciary 224 Dirksen Senate Office Building Washington, DC 20510 Senator Charles E. Schumer, Chairman United States Senate Subcommittee on Immigration, Refugees and Border Security 224 Dirksen Senate Office Building Washington, DC 20510 Congressman John Conyers, Jr., Chairman House Committee on the Judiciary 2138 Rayburn House Office Building Washington, DC 20515 Congresswoman Zoe Lofgren, Chairperson Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law 2138 Rayburn House Office Building Washington, DC 20515 Our first objective should be to change GUZ's conduct. But each one of us should also ask for expedient redress to our situation. The action by GUZ is not only unfair, but punitive as well. Someone in authority needs to expeditiously review all our cases and those petitions meet the requirements of law and policy. If we have met our burden of proving that our martial relationships are bona fide, we should be be subjected to a lengthy delay to set things right. Peace, Jay

Good idea, but depends on the amount of participation. Ten or more would be effective.

Individually we have no chance, we will fail. Collectively, we can overcome. http://www.youtube.com/watch?v=H0XmsUlz2hI