Tran versus Napolitano

[ellis-island]

Tran versus Napolitano

 

I was in Guangzhou last week, I got a call from Brent Renison. My cell phone said 4 a.m. It was actually 5 a.m.

 

He said, "Marc, I'm filing a class-action on K1's",

 

I said, "It's 4 in the morning,".

 

Then I asked, "Which consulate?"

 

He said, "Ho Chi Minh City,"

 

After we talked a bit, I went back to sleep thinking,

 

"That's a really nice way to start out any morning."

 

The last class action Brent Renison filed - he won. It got rid of the

Widow Penalty for widowed spouses of US Citizens.

 

I've written a lot about the problem of K1 returns by consulates,

expirations & reviews.

 

Brent told me he'd read what I wrote on INFONET.

 

Brent is seeking review rather than expiration, but he wants it within 30 days.

 

There is another serious problem I hope can be raised in the litigation.

That's the issue of automated misrepresentation findings. I saw

Guangzhou handing out I-601's to mystified beneficiaries every day

on that issue. It's erroneously telling petitioners that the

misrepresentation findings were made by USCIS, during K1 NOID's.

 

No they weren't. They were made by DOS.

 

Petitioners don't know exactly what was misrepresented.

Beneficiaries don't know what was misrepresented.

Conoffs don't even know what agency made the findings.

 

Yet, US Citizen petitioners are being told their spouses are inadmissible

for life every day. And nobody can say exactly why.

 

I know why. And it's DOS that needs to clean up its act on this issue.

It is causing serious damage to US Citizens.

 

But Brent's lawsuit EXTREMELY IMPORTANT NEWS for any US Citizen petitioners who have had K1's refused at any consulate. Stay tuned.

[warpedbored]

Wow! that is a bombshell. Too bad he didn't include GZ in his suit. Please keep us posted Marc.

[ellis-island]

Wow! that is a bombshell. Too bad he didn't include GZ in his suit. Please keep us posted Marc.

 

Actually it does apply to Guangzhou. All consulates are included in the

suit. And the K1 return procedure he is suing on is the same world-wide.

Guangzhou doesn't return as many K1's as it used to. But it will be

affected by this suit.

 

When I was in Guangzhou, I saw I-601 waiver applications being

handed out to beneficiaries. These are very bad news. You don't

ever want this to happen to your loved ones.

 

It means your loved one is inadmissible for life without a waiver

of extreme hardship.

 

DOS is telling people the inadmissibility finding against the

beneficiaries was made by USCIS. No. it wasn't. It was made by DOS.

And it's made without anybody ever knowing exactly what was

misrepresented.

 

Petitioner's don't know. Beneficiaries don't know. And consulates

don't even know what agency made the finding. It's very dumb

and a lot of American families are being damaged by this.

 

Brent covered that phenomenon too. If he wins on any single issue,

I hope it's that one. A lot of US families are damaged by DOS's

mis-interpretation of the legal term "Misrepresentation".

 

Here's the suit.

 

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

[Kyle]

This is a very interesting read for me. Thank you Marc, for bringing it to our attention. Although I cannot speak for the others here at CFL, I will with great interest, look forward to seeing how this progresses.

[warpedbored]

Interesting that the case was filed in Portland. This may be a more immigration friendly city than many others. About 10 years ago the local paper, The Oregonian, published a series of Pulitzer prize winning articles about heavy handed tactics of our local INS office that earned the city the nick name of Deportland.

 

http://www.oregonlive.com/special/current/.../ed050207.frame

 

Eventually there was a shake up of the INS office and the director was replaced. Portland all of a sudden became quite immigration friendly.

[tsap seui]

Marc, thanks for posting, and for your efforts.

 

Reading this class action lawsuit is enough to make ones blood boil. I hope something positive comes out of this and actual action is forced to be taken by the consulates, we have vertainly seen what they do with no oversight.

 

I would not expect you to remember me and I won't be giving my name out in public, but you and I communicated by e-mail a few times in 2008 and again in June 2009 when I got a reaffirmation by the USCIS of our July 2007 interview for K-1. We were given a blue slip at the interview with no questions or futher evidence asked of us, made to wait 10 months and finally denied in May 2008

 

Our denied K-1 in Guangzhou took 11 months for the consulate to return to the NVC, then 2 months later I recieved a notice of action letter from the Vermont USCIS service center that our case had been reviewed, re-approved, and returned to the consulate in Guangzhou.

 

I was never sent a rebuttal letter, never found out what the DOS said was wrong with our case, and never even knew Vermont had our case, as I could not get the GUZ DOS workers to even tell me they had sent our case back to the states.

 

In our 2009 e-mails you told me I was lucky to have Vermont as a service center and that you couldn't remember a case that didn't get a rebuttal letter before the USCIS reaffirming the case. You also advised me that there may be a C6P1 marker in our file.

 

I, just this week, sent in a CR-1 application, we were married in China in March 2009, three months before I got the NOA letter from USCIS reaffirming our K-1 and consider myself lucky, if you call waiting over two years to see what the DOS denied was reaffirmed by the USCIS lucky. I indeed call it luck...maybe a tad late to continue with the K-1.

 

I hope this lawsuit wins and action is taken with these consulates so that others don't have to go through the heartbreak, stress, and separation that many of us have endured.

 

Again thank you or posting Marc, and thank you for your work.

 

 

tsap seui

Edited June 26, 2010 by tsap seui (see edit history)

[HongKong2LA]

Any CR-1 suits being filed against the Hong Kong Consulate in the near future? I'm down with that...hehe...kidding, but that does sound like potentially good news for K-1 filers. In my humble opinion there is far to great of leeway for the consulates to operate and make decisions that effect the citizens lives with no accountability, oversight or even a requirement to justify and make known to the petitioners, their (the CO's) decisions with a clear explanation or reason for the questions or concerns the CO's may have, whether valid or not, in denying a visa to our wives and fiances (or husbands as the case may be). They should at a minmum be required to state their specific objection in a specified period of time, say 60 days max with some clear guidelines for appeal of denials for the petitioners.

 

Like that will ever happen...

[ellis-island]

Any CR-1 suits being filed against the Hong Kong Consulate in the near future? I'm down with that...hehe...kidding, but that does sound like potentially good news for K-1 filers. In my humble opinion there is far to great of leeway for the consulates to operate and make decisions that effect the citizens lives with no accountability, oversight or even a requirement to justify and make known to the petitioners, their (the CO's) decisions with a clear explanation or reason for the questions or concerns the CO's may have, whether valid or not, in denying a visa to our wives and fiances (or husbands as the case may be). They should at a minmum be required to state their specific objection in a specified period of time, say 60 days max with some clear guidelines for appeal of denials for the petitioners.

 

Like that will ever happen...

 

This case can affect CR-1 petitions in at least one way.

I think the most laudable part of this lawsuit is the part where

he asks that the practice of consulates placing p6c1 markers

in beneficiaries' computer files be halted.

 

These are essentially automated misrepresentation findings.

They are based on a legal fiction, that if a consulate refused

a visa, then somebody must have misrepresented something.

 

When I was in Guz last week, I saw two of these handed down to

CR-1/IR-1 beneficiaries. Their K1's had been refused previously.

The consulate probably handed out a lot more than two.

 

In both the cases I saw, the beneficiary did not know what had

been misrepresented. The petitioner did not know what had been misrepresented.

And the consulate is telling them that USCIS made these findings.

 

It did not. These are purely a DOS phenomenon. They are based on

an obscure part of the FAM that very few people -- including the

vast majority of USCIS adjudicators & immigration lawyers,

even know about.

 

It's dumb. It's unnecessary. And it has damaged countless numbers of US citizen families.

 

9 FAM 40.63 note 10.1

 

That part of CR1/IR1 visa processing will change if Brent wins this thing.

And then there will be the interesting question about what to do about

all those earlier misrepresentation findings where nobody actually misrepresented anything.

 

If someone has made a material misrepresentation,

it ought to be specifically incorporated into the record.

 

But it's not. DOS is essentially making automated misrepresentation

by default findings. These findings are also being made, BTW, where

USCIS revokes an IR1/CR1 petition in a revocation proceeding.

 

So the class suit can affect IR1's/CR1's in that respect.

 

9 FAM 40.63 note 10.1 Misrepresentation in Family Relationship Petitions

 

Pursuant to 8 CFR 205, invalidation of a labor certification for

fraud in accordance with the instructions of USCIS or the

Department of State automatically revokes an employmentbased

immigrant visa (IV) petition. On the other hand,

USCIS retains exclusive authority to disapprove or revoke

family-relationship IV petitions. Thus, a misrepresentation

with respect to entitlement to status under a familyrelationship

petition, e.g., document fraud, sham marriage or

divorce, etc., cannot be deemed material as long as the

petition is valid. Upon discovery of a misrepresentation, you

must return the petition to the appropriate USCIS office. If

the petition is revoked, the materiality of the

misrepresentation is established.

Edited June 30, 2010 by ellis-island (see edit history)

[Randy W]

If I'm remembering correctly, we've seen more than a couple of cases where a K-1 is denied, nothing was heard from USCIS (or it was allowed to expire), and a subsequently filed CR-1 went through without a waiver.

 

Is there a difference from these cases, or am I just not remembering correctly?

[Randy W]

Your "Denials Of Family-Based Immigrant Visas At Consulates And DHS Petition Revocations " says this -

Note the last words of 9 FAM 40.63.N10: ¡°If the petition is revoked, the materiality of the misrepresentation is established.

 

 

 

This will slip by a lot of people. But a beneficiary who fails to satisfy the consular officer¡¯s interpretation of the ¡°Reasonable Person¡± as set out in 9 FAM 42.43 N2.2(3) according to this part of the FAM may have made a misrepresentation with respect to entitlement of status .

 

. . .

 

So when the consulate returns our petitioner¡¯s approved K-1 petition to USCIS, it will put a 212(a)(6)( c )(1) marker, called a ¡°P6C1¡± marker, or a ¡°quasi-refusal¡± in the beneficiary¡¯s record. If DHS decides at a later date to revoke that petition, a hard 212(a)6( c )(i) finding can kick in.

 

This seems to indicate that only the "hard finding" would require the waiver.

 

So is the requirement of a waiver for the ¡°P6C1¡± markers something new, of just an aspect of the denial process that we're becoming more aware of?

Edited July 1, 2010 by Randy W (see edit history)

[HongKong2LA]

Any CR-1 suits being filed against the Hong Kong Consulate in the near future? I'm down with that...hehe...kidding, but that does sound like potentially good news for K-1 filers. In my humble opinion there is far to great of leeway for the consulates to operate and make decisions that effect the citizens lives with no accountability, oversight or even a requirement to justify and make known to the petitioners, their (the CO's) decisions with a clear explanation or reason for the questions or concerns the CO's may have, whether valid or not, in denying a visa to our wives and fiances (or husbands as the case may be). They should at a minmum be required to state their specific objection in a specified period of time, say 60 days max with some clear guidelines for appeal of denials for the petitioners.

 

Like that will ever happen...

 

This case can affect CR-1 petitions in at least one way.

I think the most laudable part of this lawsuit is the part where

he asks that the practice of consulates placing p6c1 markers

in beneficiaries' computer files be halted.

 

These are essentially automated misrepresentation findings.

They are based on a legal fiction, that if a consulate refused

a visa, then somebody must have misrepresented something.

 

When I was in Guz last week, I saw two of these handed down to

CR-1/IR-1 beneficiaries. Their K1's had been refused previously.

The consulate probably handed out a lot more than two.

 

In both the cases I saw, the beneficiary did not know what had

been misrepresented. The petitioner did not know what had been misrepresented.

And the consulate is telling them that USCIS made these findings.

 

It did not. These are purely a DOS phenomenon. They are based on

an obscure part of the FAM that very few people -- including the

vast majority of USCIS adjudicators & immigration lawyers,

even know about.

 

It's dumb. It's unnecessary. And it has damaged countless numbers of US citizen families.

 

9 FAM 40.63 note 10.1

 

That part of CR1/IR1 visa processing will change if Brent wins this thing.

And then there will be the interesting question about what to do about

all those earlier misrepresentation findings where nobody actually misrepresented anything.

 

If someone has made a material misrepresentation,

it ought to be specifically incorporated into the record.

 

But it's not. DOS is essentially making automated misrepresentation

by default findings. These findings are also being made, BTW, where

USCIS revokes an IR1/CR1 petition in a revocation proceeding.

 

So the class suit can affect IR1's/CR1's in that respect.

 

9 FAM 40.63 note 10.1 Misrepresentation in Family Relationship Petitions

 

Pursuant to 8 CFR 205, invalidation of a labor certification for

fraud in accordance with the instructions of USCIS or the

Department of State automatically revokes an employmentbased

immigrant visa (IV) petition. On the other hand,

USCIS retains exclusive authority to disapprove or revoke

family-relationship IV petitions. Thus, a misrepresentation

with respect to entitlement to status under a familyrelationship

petition, e.g., document fraud, sham marriage or

divorce, etc., cannot be deemed material as long as the

petition is valid. Upon discovery of a misrepresentation, you

must return the petition to the appropriate USCIS office. If

the petition is revoked, the materiality of the

misrepresentation is established.

 

Thanks for the clarification. I'm looking forward to hearing about the outcome of the suit.