Case: Tsamcho v. Napolitano

1:10-cv-02029 | U.S. District Court for the Eastern District of New York

Filed Date: May 5, 2010

Closed Date: March 1, 2013

Clearinghouse coding complete

Case Summary

This case in the U.S. District Court for the Eastern District of New York was brought by the class of immigrants granted asylum in the United States who are seeking to bring their spouses and children to this country. Represented by the New York Legal Assistance Group, they filed a complaint on May 5, 2010, to challenge a policy of the U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security. Plaintiffs argued that the USCIS policy was a violation o…

This case in the U.S. District Court for the Eastern District of New York was brought by the class of immigrants granted asylum in the United States who are seeking to bring their spouses and children to this country. Represented by the New York Legal Assistance Group, they filed a complaint on May 5, 2010, to challenge a policy of the U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security. Plaintiffs argued that the USCIS policy was a violation of the Administrative Procedure Act (5 U.S.C. §§ 551 et seq.) and the Immigration Immigration and Nationality Act (8 U.S.C. §§ 1101 et seq.).

Federal law enables asylees to petition the government to allow their spouses and unmarried children to join them in this country. Once the petitions are approved, relatives living abroad must appear at a U.S. consulate to obtain authorization to travel to the United States. Before the challenged policy was implemented, if a relative did not appear at a consulate or did not bring the requested documents, the approved petition was held until the relative could appear with the documents. Then USCIS changed the policy so that when a relative did not appear at the consulate or bring the requested documents, USCIS automatically reopened and denied the petition that it had previously approved. This lawsuit charged the agency with acting in violation of its own regulations, taking actions that are arbitrary and capricious, and implementing a new policy without providing proper notice to the public.

On November 7, 2012, the parties submitted a stipulation agreement to the Court. On March 1, 2013, Judge Nicholas G. Garaufis approved the order of class action settlement and judgment.

The stipulation agreement stated that USCIS would no reopen and deny approved I-730 petitions solely because the beneficiary did not appear for the interview. Instead, the petitions will only be administratively closed, to be reopened at a later time. In future I-730 petitions, USCIS agreed that if the spouse or child ("beneficiary") does not show for the interview at the consulate, the petition will be administratively closed, and a letter will be sent to the petitioner. If the petitioner responds stating that the beneficiary can appear within six months, the petition will be reopened; if the petitioned responds stating that the beneficiary cannot appear within six months, the petition will remain closed and will be reopened upon a later notification from the petitioner that the beneficiary can appear within six months. Regarding previous petitions that have been denied solely due to the failure of the beneficiary to appear at the consulate, USCIS agreed to send a letter to the petitioner describing the outcome of this lawsuit. The petitioner would then follow the same process as future petitions (described above), depending on the ability of the beneficiary to appear at the consulate within six months. Additionally, USCIS agreed to distribute a Public Service Announcement targeting potential members of the class. Finally, USCIS agreed to pay $25,000 in attorney's fees. USCIS did not admit any liability in this stipulation agreement.

Summary Authors

Dan Osher (5/31/2013)


Attorneys(s) for Plaintiff

Chua, Melissa (New York)

Magida, Jennifer (New York)

Parkin, Jason (New York)

Schulman, Yisroel (New York)

Stevens, Jane Greengold (New York)

Attorneys(s) for Defendant

Atkinson, Theodore W (District of Columbia)

Dunn, Scott (New York)

Attorneys(s) for Plaintiff

Chua, Melissa (New York)

Magida, Jennifer (New York)

Parkin, Jason (New York)

Schulman, Yisroel (New York)

Stevens, Jane Greengold (New York)

Attorneys(s) for Defendant

Atkinson, Theodore W (District of Columbia)

Dunn, Scott (New York)

Documents in the Clearinghouse

Document

Docket

Jan. 10, 2013 Docket
1

Complaint

May 5, 2010 Complaint
24-1

Stipulation and Agreement of Class Action Settlement

Nov. 7, 2012 Settlement Agreement

Important Notice for anyone who is a Refugee or Asylee

No Court

None Notice Letter

Notice of Proposed Class Action Settlement

No Court

None Notice Letter

Docket

Last updated May 12, 2022

Docket sheet not available via the Clearinghouse.

State / Territory: New York

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: May 5, 2010

Closing Date: March 1, 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Immigrants granted asylum who have petitioned USCIS to bring a spouse or unmarried child to the country, and whose petition was denied solely because the spouse or child failed to appear at the consulate for an administrative interview.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

Department of Homeland Security, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Attorneys fees

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Issues

Immigration/Border:

Admission - procedure

Asylum - procedure

Family Separation