Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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LHAKPA TSAMCHO, on behalf of herself and all other similarly situated individuals,
Plaintiff,
-against-
JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security; ALEJANDRO MAYORKAS, in his official capacity as Director ofthe United States Citizenship and Immigration Services; DONALD NEUFELD, in his official capacity as Associate Director ofthe Service Center Operations Directorate of the United States Citizenship and Immigration Services; DAVID L. ROARK, in his official capacity as Director ofthe Texas Service Center of the United States Citizenship and Immigration Services; and GERARD HEINAUER, in his official capacity as Director ofthe Nebraska Service Center of the United States Citizenship and Immigration Services,

'* MM 0 5 2010 ,,":
10 CV - - - 2ROOKLYi~ OfTICE.
(ECFCASE) COMPLAINT
]0 2029
GARAUF\S, J.

Defendants.
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PRELIMINARY STATEMENT

I. Plaintiff Lhakpa Tsamcho, on behalf of herself and all other similarly situated

individuals, brings this class action challenging the United States Citizenship and Immigration

Services' ("USCIS") reopening and denial of approved Refugee/Asylee Relative Petitions

("1-730 petitions") solely because the beneficiary of the approved 1-730 petition did not appear

for overseas processing at a U.S. consulate or appeared without requested documents.

2. Tsamcho is an ethnic Tibetan who was granted asylum in the United States after

she fled persecution against Tibetans in the People's Republic of China. After obtaining asylum

status for herself, she submitted 1-730 petitions to USCIS in order to obtain "derivative asylum"

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status for her husband and three children. USCIS approved Tsamcho's 1-730 petitions and appointments were scheduled for her family members to appear at a U.S. consulate for overseas processing. However, Tsamcho's family members did not appear for their appointments: Tsamcho's husband, youngest daughter, and son were unable to escape Tibet due to severe travel restrictions imposed upon Tibetans by the Chinese goverrunent following the Tibetan uprising in March of2008, and Tsamcho's eldest daughter had already escaped Tibet but incorrectly believed that she would not be seen at the consulate unless her father and siblings were also present. Rather than simply holding the approved 1-730 petitions until Tsamcho's family members are able to appear for overseas processing, as was USCIS's policy until recently, USCIS reopened and denied each ofTsamcho's approved 1-730 petitions. Thus, in a perverse twist, the Chinese goverrunent's mistreatment of Tibetans earlier served as the basis for USCIS's grant of asylum status to Tsamcho, but is now leading to USCIS's denial of derivative asylum status to Tsamcho's husband and children.
3. Tsamcho seeks individual and class-wide relief pursuant to the Administrative Procedure Act on the following grounds: First, USCIS's reopening and denial ofTsamcho's and class members' approved 1-730 petitions is "not in accordance with law," in violation of 5 U.S.c. § 706(2)(A), because such actions violate USCIS's own regulation establishing the circumstances under which an approved 1-730 petition becomes invalid, 8 C.F.R. § 208.21 (d); second, USCIS's reopening and denial ofTsamcho's and class members' approved 1-730 petitions is "arbitrary [or] capricious," in violation of5 U.S.C. § 706(2)(A), because the fact that an 1-730 beneficiary does not appear for consular processing or appears without the requested documents is not relevant to whether the beneficiary is eligible for derivative asylum status, and because the purpose of consular processing is primarily to determine whether the person who
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appears claiming to be the beneficiary of an approved 1-730 should be admitted to the United States, not to re-adjudicate the already-approved 1-730 petition; and, third, USCIS's failure to engage in notice-and-comment rulemaking prior to implementing its new policy or rule requiring the reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents, violates 5 U.S.C. § SS3(b).
JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, which confers jurisdiction over an action that arises under a right of action created by the Administrative Procedure Act,S U.S.c. § 701 et seq., and the Declaratory Judgment Act, 28 U.S.c. § 2201 et seq. S. Venue properly lies in the Eastern District of New York under 28 U.S.c.
,
§ 1391(e)(3) because the named Plaintiff resides in this judicial di~trict and no real property is
I
involved in the action. PARTIES
Plaintiff 6. PlaintiffLhakpa Tsamcho is an ethnic Tibetan and a citizen of the People's
Republic of China. She was born in 1970, in Lhasa, Tibet, and she currently resides in Corona, New York. Tsamcho filed 1-730 petitions for her husband and three children on or about May 29,2007, which USCIS approved on May 21, 2008. In four identical decisions dated October 30,2009, USCIS reopened and denied Tsamcho's 1-730 petitions solely because her husband and children did not appear for overseas processing at a U.S. consulate.
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Defendants 7. Defendant Janet Napolitano is the Secretary of the United States Department of
Homeland Security ("DHS"). As such, she is responsible for, inter alia, administering USCIS and ensuring the implementation and enforcement of the Immigration and Nationality Act.
8. Defendant Alejandro Mayorkas is the Director of the United States Citizen and Immigration Services ("USCIS"). As such, he is responsible for, inter alia, the administration of immigration benefits and services in the United States.
9. Defendant Donald Neufeld is the Associate Director ofthe Service Center Operations Directorate of the United States Citizenship and Immigration Services. As such, he is responsible for, inter alia, overseeing all activities at USCIS's four service centers, including the Texas Service Center and the Nebraska Service Center.
10. Defendant David L. Roark is the Director of the Texas Service Center of the United States Citizenship and Immigration Services. As such, he is responsible for, inter alia, the adjudication of petitions and applications for immigrant benefits, including Refugee!Asylee Relative Petitions ("1-730 petitions") submitted by aslyees residing in Alabama, Arkansas, Connecticut, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, South Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia. See Instructions for 1-730 Refugee!Asylee Relative Petition, available at http://www.uscis.gov/fiIesiformli-730instr.pdf.
II. Defendant Gerard Heinauer is the Director of the Nebraska Service Center of the United States Citizenship and Immigration Services. As such, he is responsible for, inter alia, the adjudication ofpetitions and applications for immigrant benefits, including 1-730 petitions
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submitted by asylees residing in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming. See Instructions for 1-730 Refugee/Asylee Relative Petition, available at http://www.uscis.gov/ files/formli-730instr.pdf.
STATUTORY AND REGULATORY FRAMEWORK 12. Asylum may be granted to an alien who is unable or unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." S U.S.C. § I 101 (a)(42)(A). 13. In general, a "spouse," as defined in S U.S.C. § 1101 (a)(35), or a "child," as defined in S U.S.c. § 1101(b)(I), ofan alien who is granted asylum may, ifnot otherwise eligible for asylum, be granted the same status as the alien if accompanying, or following to join, such alien. S U.S.c. § l15S(b)(3)(A); see also S U.S.C. § l15S(b)(3)(B) (establishing continuing classification of certain aliens as children); S C.F.R. § 20S.2l(a) (establishing eligibility criteria); S C.F.R. § 20S.2l(b) (establishing rules concerning existence of spouse and child relationship). This status is referred to as "derivative asylum" status. 14. When a spouse or child of an alien granted asylum resides outside the United States, the asylee may request derivative asylum status for his or her spouse or child(ren) by filing a separate RefugeelAsylee Relative Petition ("Form 1-730" or "1-730 petition") for each qualifying family member. S C.F.R. § 20S.2 I(d); cf S C.F.R. § 20S.2l(e) (establishing rules for requesting derivative asylum status for spouses and children residing inside the United States).
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15. Depending on the asylee's state of residence, the asylee must file his or her 1-730 petitions with either USCIS's Texas Service Center or Nebraska Service Center. See Instructions for 1-730 RefugeelAsylee Relative Petition, available at ht!p:llwww.uscis.gov/files/formli730instr.pdf.
16. Each 1-730 petition must set forth the full name, relationship, date and place of birth, and current location ofthe qualifying family member, and it must be accompanied by a recent photograph that clearly identifies the family member and that will be made part of his or her immigration record for identification purposes. 8 C.F.R. § 208.21(d).
17. An asylee who files an 1-730 petition must establish by a preponderance of the evidence that the person on whose behalf he or she files the 1-730 petition is an eligible spouse or child. 8 C.F.R. § 208.21(f).
18. An asylee must file an 1-730 petition within two years of the date on which the asylee was granted asylum status (or before February 28,2000, whichever is later), unless USCIS determines that the filing period should be extended for "humanitarian reasons." 8 C.F.R. § 208.21(d).
19. When USCIS approves an 1-730 petition, it notifies the asylee of such approval on a Form 1-797, Notice of Action. 8 C.F.R. § 208.21(d). USCIS then forwards the approved 1-730 petition to the U.S. Department of State for delivery to the U.S. embassy or consulate having jurisdiction over the area in which the asylee's spouse or child is located. Id. The Department of State then schedules appointments for the beneficiaries of approved 1-730 petitions to be processed at the embassy or consulate.
20. "The purpose of the consular interview with [1-730] beneficiaries is to verifY the applicant's identity, confirm the relationship between the petitioner and beneficiary, and
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determine whether any INA 212(a) [8 U.S.C. § 1182(a)] inadrnissibilities or other bars to admission exist." U.S. Dep't of State, 9 Foreign Affairs Manual App'x 0, § 1208.1 (Mar. 19, 2009), available at http://www.state.gov/documents/organizationl88059.pdf.
21. "The approval of the [1-730 petition] shall remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked." 8 C.F.R. § 208.21(d).
22. A spouse or child who obtains derivative asylum status pursuant to an 1-730 petition "shall be granted asylum for an indefinite period unless the principal's status is revoked." 8 C.F.R. § 208.21(g).
23. If an asylee's spouse or child is found to be ineligible for derivative asylum status, "a written notice stating the basis for denial shall be forwarded to the principal alien." 8 C.F.R. § 208.21(e). "No appeal shall lie from this decision." ld.
24. The Administrative Procedure Act ("APA") provides that any individual "adversely affected or aggrieved by agency action ... is entitled to judicial review." 5 U.S.C. § 702. A reviewing court must "hold unlawful and set aside" agency action found to be, inter alia, "not in accordance with law" or "arbitrary [or] capricious." 5 U.S.C. § 706(2)(A).
25. The APA further requires federal administrative agencies to provide a notice-andcomment period prior to implementing a substantive rule or policy, including a rule or policy that conflicts with existing regulations or is a departure from prior policy and practice. 5 U.S.C. § 553(b).
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CLASS ACTION ALLEGATIONS 26. Plaintiff brings this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, on behalf of herself and a proposed class of: All individuals who have submitted or will submit a Refugee/Asylee Relative Petition ("1-730 petition") to the United States Citizenship and Immigration Services ("USCIS"), and whose 1-730 petition has been or will be approved by USCIS but subsequently reopened and denied by USCIS because the beneficiary of the 1-730 petition did not appear for processing at a United States consulate or appeared without the requested documents. 27. The proposed class is so numerous that joinder of all members is impracticable. Upon information and belief, there are currently many dozens, if not hundreds, of individuals who are similarly situated to the Plaintiff. 28. There are questions of fact and law common to members of the proposed class that predominate over any questions affecting only the named Plaintiff, including whether USCIS's reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents violates Sections 706(2)(A) and 553(b) of the Administrative Procedure Act. 29. The claims ofthe named Plaintiff are typical of the claims of the members of the proposed class. The named Plaintiff, like all class members, is an individual who has submitted one or more 1-730 petitions, whose 1-730 petitions have been approved by USCIS, and whose 1-730 petitions have been subsequently reopened and denied by USCIS because the beneficiary of the 1-730 petition did not appear for processing at a U.S. consulate or appeared without the requested documents. Like all members of the proposed class, the named Plaintiff brings claims under the Administrative Procedure Act against all Defendants.
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30. The named Plaintiff will adequately and fairly protect the interests of all members of the proposed class because she has the requisite personal interest in the outcome of this litigation and she has no interest antagonistic to any members ofthe proposed class.
3I. Plaintiff is represented by the New York Legal Assistance Group, whose attorneys are experienced in class-action litigation, including litigation to enforce the rights of immigrants.
32. Defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
FACTUAL ALLEGATIONS COMMON TO THE CLASS 33. USCIS is implementing a policy or rule requiring the reopening and denial of approved I-730 petitions solely because the beneficiary did not appear for overseas processing at a U.S. consulate or appeared without the requested documents (hereinafter "derivative asylum policy"). 34. USCIS reopens and denies approved I-730 petitions pursuant to the derivative asylum policy regardless of the reason why the beneficiary did not appear for overseas processing at a U.S. consulate or appeared without the requested documents. 35. There are many reasons why beneficiaries of approved I-730 petitions may not appear for overseas processing at a U.S. consulate or may appear without the requested documents. 36. Hostile conditions in the country in which the beneficiaries reside may make traveling to a U.S. consulate dangerous or impossible. These country conditions are typically the same conditions that formed the basis of the I-730 petitioner's asylum claim.
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37. Hostile conditions in the country in which the beneficiaries reside may prevent beneficiaries from obtaining the official documents requested by U.s. consular officials; for example, government officials hostile to particular racial, ethnic, religious, or political groups may refuse to issue passports, birth certificates, marriage certificates, and other official documents to members of those disfavored groups. These country conditions are typically the same conditions that formed the basis of the 1-730 petitioner's asylum claim.
38. Beneficiaries who do not have the money necessary to pay for a passport or to purchase an airplane ticket may not appear for processing because they are unable to travel to the United States at the time of the scheduled appointment.
39. Beneficiaries who are very young children may not appear for processing because they are not ready or able to travel alone to the United States.
40. Even when beneficiaries of approved 1-730 petitions do not appear for overseas processing at a U.S. consulate or appear with the requested documents, the beneficiaries are likely, if not certain, to be able to appear at a U.S. consulate with the requested documents on some future date.
4 I. When USCIS reopens and denies approved 1-730 petitions pursuant to its
derivative asylum policy, users does not dispute the legitimacy of the asylee's relationship to his or her spouse and children. Indeed, usels does not set forth any reason for reopening and
denying the 1-730 petitions other than its assertion that the beneficiaries did not appear for overseas processing at a U.S. consulate or appeared without the requested documents.
42. When usels reopens and denies approved 1-730 petitions pursuant to its derivative asylum policy, usels does not do so in the exercise of its discretion. Instead, it
determines that the approved 1-730 petitions must be reopened and denied solely because the
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beneficiaries did not appear for overseas processing at a u.s. consulate or appeared without the

requested documents. According to USCIS, these facts constitute so-called "adverse

information" that requires denial ofthe 1-730 petitions. Nowhere does USCIS indicate that it is

denying the 1-730 petitions as a matter of discretion.

43. Once USCIS reopens and denies an approved 1-730 petition, the asylee who filed

the 1-730 petition has no administrative appeal rights through which she can challenge the

reopening and denial ofthe 1-730 petition.

44. USCIS's derivative asylum policy is in conflict with 8 C.F.R. § 208.2I(d), which

establishes the circumstances under which an approved 1-730 petition becomes invalid.

45. USCIS's derivative asylum policy is based on an interpretation of8 C.F.R.

§ 208.21 that contradicts USCIS's earlier interpretation of that regulation.

46. USCIS' s derivative asylum policy imposes new requirements, duties, and

obligations upon 1-730 petitioners and beneficiaries. These new requirements, duties, and

obligations are not supported by and instead conflict with the statutory and regulatory provisions

governing USCIS's processing and adjudication ofI-730 petitions.

47. policy.

USCIS's derivative asylum policy is a substantive departure from prior USCIS

48. Asylees have suffered and will suffer irreparable harm as a result of USCIS's

derivative asylum policy. This harm includes the effective deprivation oftheir ability to reunite

their families in the United States by obtaining derivative asylee status for their spouses and children.

49. Most, ifnot all, asylees whose 1-730 petitions are denied pursuant to USCIS's

derivative asylum policy will be unable to submit new 1-730 petitions within the two-year filing

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period because of the length of time that passes between when an asylee files an I-730 petition and when USeIS reopens and denies an approved I-730 petition. Indeed, as recently as June of 2008, it took useIS an average of 18 months to adjudicate I-730 petitions and forward approved petitions to the State Department for overseas processing.
50. USeIS may extend the two-year filing period for I-730 petitions for "humanitarian reasons." USeIS determines whether to extend the filing deadline based on the asylee's explanation of why he or she "could not file within 2 years of being granted [asylum] status." See Instructions for I-730 Refugee/Asylee Relative Petition, available at http://www.uscis.gov/files/formli-730instr.pdf.Itis therefore extremely unlikely that USeIS will extend the filing deadline for asylees whose approved I-730 petitions were reopened and denied pursuant to USeIS's derivative asylum policy. Accordingly, USCIS's reopening and denial of approved I-730 petitions pursuant to the derivative asylum policy will result in many asylees forever losing their opportunity to obtain derivate asylum status for their spouses and children living abroad.
51. Even if an asylee whose I-730 petition is reopened and denied pursuant to the derivative asylum policy is able to obtain an extension of the two-year filing period for "humanitarian reasons," the asylee will be required to wait many months longer to reunite his or her family in the United States than ifthe initial I-730 petition had not been reopened and denied.
52. Even if the unlikely situation arises in which USeIS reopens and denies an approved I-730 petition pursuant to the derivative asylum policy before the two-year filing period has expired, the asylee will be required to wait many months longer to reunite his or her family in the United States than if the initial I-730 petition had not been reopened and denied.
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53. Many asylees cannot afford to hire an attorney and are unable to obtain free legal representation, making it very difficult for asylees to challenge USCIS 's reopening and denial of their approved 1-730 petitions pursuant to the derivative asylum policy.
54. Prior to implementing the derivative asylum policy, USCIS did not provide notice to the public of the policy or give the public an opportunity to comment on the policy, as required by the Administrative Procedure Act, 5 U.S.C. § 553(b).
55. Prior to implementing the derivative asylum policy, USCIS (and its predecessor agency, the Immigration and Naturalization Service) did not reopen and deny approved 1-730 petitions solely because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents. Instead, USCIS "administratively closed" approved 1-730 petitions in such situations. Ifthe beneficiary subsequently became able to appear for processing with the requested documents, the petitioner could notifY USCIS of this fact and, as long as the beneficiary remained eligible for derivative asylee status under 8 c.P.R. § 208.2 I(d), USCIS would resend or "reaffirm" the approved petition to the U.S. consulate for overseas processmg.
56. As recently as June 25, 2008, USCIS indicated that approved 1-730 petitions do not expire or become invalid when the beneficiary does not appear for overseas processing. When asked how to "revive" an 1-730 petition that was approved but not used for seven years because the beneficiaries were young children whose overseas guardian refused to allow them to travel alone to the United States, USCIS responded that if the 1-730 petition was "administratively closed for failure to prosecute the case to completion" the petitioner should request "to reaffirm the case to the consulate now that the derivatives are able to travel to the United States. The files will be requested and reaffirmed back to the consulate." See Question
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& Answer, USCIS National Stakeholder Meeting 5-6 (Apr. 29, 2008, rev. Jun. 25, 2008), available at http://www.uscis.gov/ files/nativedocumentslrevised_qa_062508.pdf. USCIS provided similar guidance on January 26, 2006. See Question & Answer, USCIS NSC Refugee/Asylee Teleconference 8 (Jan. 26, 2006) ("lfthe initial [1-730J petition was sent back by post because the beneficiary failed to show up for an interview, the NSC will reaffirm its decision and send the case back to post for continued processing.").
57. Thus, prior to implementation ofthe derivative asylum policy, USCIS would not have reopened and denied the approved 1-730 petitions that have been and will be reopened and denied pursuant to the current policy. Rather, USCIS would have "administratively closed" the 1-730 petitions and once USCIS was notified that the beneficiary was able to appear at the U.S. consulate it would have "reaffirmed" the 1-730 petition back to the consulate for overseas processmg.
FACTS OF THE NAMED PLAINTIFF 58. Plaintiff Lhakpa Tsamcho, an ethnic Tibetan and a citizen ofthe People's Republic of China, entered the United States on January 5, 2003, and filed an application for asylum on or about December 22, 2003. Tsamcho sought asylum based on persecution by the Chinese government on account of her Tibetan ethnicity. Tsamcho was granted asylum on December 13, 2005. 59. On or about May 24,2007, Tsamcho filed separate Refugee/Asylee Relative Petitions ("1-730 petitions") for her husband, Nyima GyaJtsen; her eldest daughter, Tenzin Dickey; her youngest daughter, Tenzin Tapsang; and her son, Tenzin NOljin.
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60. At the time Tsamcho filed her 1-730 petitions, her husband, youngest daughter, and son were living in Tibet, while her eldest daughter had already fled Tibet and was living in India.
61. Tsamcho filed her 1-730 petitions so that she could be reunited with her family in the United States, where they would be safe from persecution against Tibetans. She was unable to file her 1-730 petitions sooner because it took her many months to obtain her official marriage certificate and her husband's and children's official birth certificates.
62. Tsamcho requested on her 1-730 petitions that her family members' overseas processing appointments be scheduled in India because she believed that it would be safer and easier for them to travel to the U.S. consulate in New Delhi, India than to a consulate in China.
63. While Tsamcho was waiting for USCIS to adjudicate her 1-730 petitions, Tsamcho's husband, youngest daughter, and son applied for Chinese passports. Because of their Tibetan ethnicity, they were forced to pay an exorbitant fee to a middle-man to ensure that their applications would be processed.
64. Beginning on March 10, 2008, several Tibetan Buddhist monks and nuns engaged in non-violent protests to commemorate the anniversary of the 1959 Tibetan uprising. These peaceful protests sparked widespread unrest in Tibet, and many Tibetans living in Tibet and the surrounding areas joined the protests in the following days. Chinese security officials used force to arrest and imprison many Tibetan protestors, and rioting occurred on March 14 and 15,2008.
65. In the wake of the Tibetan unrest of March 2008, Tsamcho's husband, youngest daughter, and son were informed by the middle-man that the Chinese government was no longer processing passport applications for Tibetans.
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66. On March 21, 2008, USCIS infonned Tsamcho that her I-730 petitions were approved. Thereafter, USCIS forwarded the approved 1-730 petitions to the U.S. Department of State's National Visa Center for Tsamcho's family members' "overseas processing."
67. The U.S. Department of State scheduled processing appointments for Tsamcho's husband and children at the U.S. consulate in New Delhi, India, as requested by Tsamcho on her I-730 petitions.
68. Tsamcho's husband, youngest daughter, and son did not appear at this appointment, scheduled for June 4, 2008, because the Chinese government's severe travel restrictions on Tibetans prevented them from leaving Tibet. Although Tsamcho's eldest daughter was living in India at the time, she also did not appear at the consulate because someone had told her that if she did not go to the interview with her entire family, she would not be pennitted to come to the United States.
69. Tsamcho was later notified that her husband and children should appear for processing at the U.S. consulate in India on September 10,2008. Tsamcho's family members did not appear on that date for the same reasons they did not appear for the previous appointment.
70. On or about July 21,2009, USCIS mailed Tsamcho a "Notice ofIntent to Deny" for each of her approved I-730 petitions, indicating that, because Tsamcho's husband and children did not appear for their appointments at the U.S. consulate, USCIS intended to reopen her 1-730 petitions and deny them. See Notice of Intent to Deny Form 1-730 (July 21,2009).
71. On or about August 20,2009, Tsamcho's attorney submitted to USCIS a Request for Reconsideration ofIntent to Deny on Humanitarian Grounds, arguing that Tsamcho's 1-730 petitions should be extended until her husband and children are able to leave Tibet and appear at
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a U.S. consulate. The Request for Reconsideration referenced and included copies ofthe following documents: an affidavit from Tsamcho; the U.S. Department of State 2008 Human Rights Report: China; and an INS memorandum authored by former Deputy Commissioner William Yates, Procedural Guidance on Admission and Adjustment ofStatus for Refogees (May 15,2000).
72. On October 30, 2009, USCIS issued four identical Decisions denying Tsamcho's 1-730 petitions. See Decisions on Form 1-730 (Oct. 30, 2009), attached as Exhibit A. According to the Decisions, Tsamcho's family members' inability to appear for consular processing constituted "adverse information" that required USCIS to deny her 1-730 petitions. The Decisions conclude with the following two paragraphs:
The evidence does not indicate the waiting time for the named beneficiaries to receive the necessary documents to travel to India to appear for a scheduled interview. It is unknown when conditions in China will be changed and the restrictions on travel will be lessened. Without this information, the Service is unable to grant a reasonable extension. Based upon the reasons set forth in this decision, Form 1-730 must be denied. There is no appeal to this decision. The petitioner may file a motion to reopen or a motion to reconsider within 30 days from the date of this decision (33 days of this notice was received by mail). If the petitioner is able to overcome the grounds for this denial, a new petition with the appropriate documentation may be submitted to this office. The Decisions were signed by David L. Roark, Director, USCIS Texas Service Center. 73. USCIS thus reopened and denied Plaintiffs 1-730 petitions solely because the beneficiaries of those petitions were unable to appear for overseas processing at a U.S. consulate. 74. USCIS has never disputed the legitimacy ofTsamcho's relationship to her husband and children. USCIS has not set forth any reason for reopening and denying Tsamcho's 1-730 petitions other than its assertion that Tsamcho's family members' inability to appear for overseas processing required denial ofthe 1-730 petitions filed on their behalf.
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75. USCIS did not reopen and deny Tsamcho's 1-730 petitions in the exercise of its discretion. Instead, it determined that Tsamcho's family members' inability to appear at the U.S. consulate in India constituted "adverse information" that required denial of the 1-730 petitions. Nowhere in the Decisions did USCIS indicate that it was denying Tsamcho's 1-730 petitions as a matter of discretion.
76. USCIS has taken no further action on Tsamcho's 1-730 petitions. 77. Tsamcho has not administratively appealed USCIS's denial of her 1-730 petitions because there are no administrative avenues by which to seek relief. See 8 C.F.R. § 208.2I(e). 78. USCIS's reopening and denial ofTsamcho's approved 1-730 petitions has caused Tsamcho to suffer great distress and hardship. It has been extremely difficult for Tsamcho to be separated from her family for so long. She cries every day. 79. Tsamcho desperately wants to reunite her family in the United States, where they will be safe from the persecution faced by Tibetans in China. 80. Tsamcho has not seen her husband, youngest daughter, or son since she left Tibet, and she has not seen her eldest daughter since 2002, when she saw her in Nepal. 81. Tsamcho's husband and children continue to want to join her in the United States as soon as possible. 82. Tsamcho's husband, youngest daughter, and son intend to flee Tibet and travel to the U.S. consulate in India as soon as the Chinese government lifts the travel restrictions placed on Tibetans, or as soon as they are able to find another way to travel to India. 83. Tsamcho's eldest daughter continues to live in India. She is now aware that she can appear for consular processing without her father and siblings. If she is given another
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appointment at the U.S. consulate, Tsamcho's eldest daughter intends to appear at the appointment and travel to the United States.
STATEMENT OF CLAIMS FIRST CLAIM FOR RELIEF 84. Defendants' reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents is contrary to 8 C.F.R. § 208.21(d) and 8 U.S.c. § 1158(b)(3)(A), and, therefore, is an "agency action" that is "not in accordance with law," in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). SECOND CLAIM FOR RELIEF 85. Defendants' reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested
documents is an "agency action" that is "arbitrary [or1capricious," and, therefore, violates the
Administrative Procedure Act, 5 U.S.c. § 706(2)(A). THIRD CLAIM FOR RELIEF
86. Defendants' implementation of a policy or rule requiring the reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S, consulate or appeared without the requested documents, without first publishing a proposed regulation and providing a period for public comment, violates the Administrative Procedure Act, 5 U.S.c. § 553(b).
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment in her favor as follows:
19

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 20 of 30
I. Assume jurisdiction over the matter; 2. Certify this action as a class action pursuant to Rule 23(a) and (b)(2) ofthe Federal Rules of Civil Procedure, with the class of individuals proposed herein; 3. Issue a declaratory judgment declaring that:
a. USCIS's reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents is contrary to S C.F.R. § 20S.21(d) and S U.S.c. § lI5S(b)(3)(A), and, therefore, is an "agency action" that is "not in accordance with law," in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A);
b. USCIS's reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the
requested documents is an "agency action" that is "arbitrary [or1capricious," and,
therefore, violates the Administrative Procedure Act, 5 U.S.C. § 706(2)(A); and c. USCIS's failure to engage in notice-and-comment rulemaking prior to
implementing its policy or rule requiring the reopening and denial of approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents, violates the Administrative Procedure Act, 5 U.S.C. § 553(b). 4. Hold unlawful and set aside USCIS's denial of Plaintiffs and class members' approved 1-730 petitions, order USCIS to notify Plaintiff and class members that USCIS's denial of their approved 1-730 petitions has been set aside, and remand Plaintiffs and class members' 1-730 petitions to USCIS for further processing;
20

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 21 of 30
5. Issue a pennanent injunction ordering USCIS to refrain from reopening and denying approved 1-730 petitions because the beneficiary did not appear for processing at a U.S. consulate or appeared without the requested documents;
6. Award reasonable attorneys' fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.c. § 504,28 UB.C. § 2412; and
7. Grant any and all further reliefthis Court deems just and proper. Dated: New York, New York
May 5, 2010

./

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Jane ngold St ens, of Counsel Jason Parkin, of ounsel

450 West 33rd treet, 11th Floor

New York, New York 10001

Tel. (212) 613-5000

Fax (212) 750-0820

Counsel for Plaintiffand the Proposed Class

21

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 22 of 30
EXHIBIT A

Case 1:10-cv-02029-NGG Document 1

Filed 05/05/10 Page 23 of 30
U.S. Dep3J"tment of lJomeland Security'" P.O. Box 852841 Mesquite, Texas 75185-2841

TO:
Lbakpa Tsamcbo 96-19 42"d Ave, I" Floor Corona, NY 11368

u.s. Citizenship
and Immigration Services
a DATE: OCT I) 2009
Petition: Form 1-730
File Number: SRC0718251018!A88610290 Beneficiary: NORJIN, Tenzin

DECISION
---_._--- ---
Reference is made to Refugee! Asylee Relative Petition (Form 1-730) filed by Lhakpa Tsamcho (the petitioner) on behalf of Tenzin Norjin (the beneficiary) in accordance with Title 8, Code of Federal Regulations, part 208.21 [8 C.F.R. §208.21]. After consideration, it is ordered that Form 1-730 be denied.

8 CFR 103.5(a)(5)(ii) states "When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period."

The Service must notifY the petitioner of any adverse information relating to the petition. See 8 CFR 103.2(b) (16) (i).

8 CFR 103.2(b)(6), states "An applicant or petitioner may withdraw an application or petition :'! any tune

until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted

or granted adjustment or change of status, based on the petition. However, a withdrawal may not be

...",

retracted."

Form 1-730 was approved by U.S. Citizenship and Immigration Services (USClS) on May 21, 2008 and forwarded to the U.S. Department of State's National Visa Center for the beneficiary's overseas processing. Form 1-730 Was subsequently returned to USCIS upon discovery of adverse information. The beneficiary failed to appear for interviews scheduled on June 4,2008 and September 10, 2008.

Any application or petition may be denied if a petitioner or applicant fails to appear for a required interview, fails to provide an original document when requested to do so, fails to appear for fingerprinting as directed or fails to provide additional evidence when requested. See 8 CFR 103.2(b).

Based upon the above reasons, the petitioner was notified on July 21, 2009 that it is the intent of USCIS to deny Form 1-730. The petitioner was 30 (thirty) days (33 days if this notice is received by mail) to submit evidence in opposition to the notice of intent to deny. Evidence must show

(I) The required appearance was complied with during the allotted period; or

(2) The request for appearance was sent to an address other than the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of

www.dhs.gov

Rev. 312612009

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 24 of 30
address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.
Service records show a response was received from on August 25,2009. The petitioner's response package contained a properly completed and signed G-28, Notice of Entry of Appearance as Attorney along with a Request for Reconsideration of Intent to Deny on Humanitarian Grounds from the attorney of record. The response also contained the petitioner's affidavit, U.S. Department of State 2008 Human Rights Report: China and a copy of Legacy INS memorandum from Deputy Commissioner William Yates dated May 15, 2000, titled, Procedural Guidance on Admission and Adjustment a/Status/or Re/ugees.
According to the response, the petitioner is ""... a Tibetan asylee from the Peoples' Republic of China, and when she filed her Form 1-730 petitions she indicated that her family would appear at a consulate in India because they would not be able to travel to a consulate in China to appear for an appointment. Up until March of last year (1988], it was quite common for Tibetans to flee to India and appear at U.S. consulates in India for consular interviews. However, in March of 2008, a peaceful protest by Buddhist monks and nuns in Tibet led to severe repression on the part of the Chinese government, which in tum sparked riots that cause a tightening of restrictions on travel for all Tibetans." As a result of the crackdown, the petitioner's youngest daughter, son and husband who continue to reside in Tibet were unable to acquire passports m order to leave I Ibet. Accordmg t01lle counse!'sietter, the-1lenl!fictariesiTad-rrIed<tpplications-------for passports but applications are still pending. The petitioner's affidavit request that the petitions be extended until they are able to leave Tibet.
The evidence does not indicate the waiting time for the named beneficiaries to receive the necessary documents to travel to India to appear for a scheduled interview. It is unknown when conditions in China will be changed and the restrictions on travel will be lessened. Without this information, the Service is unable to grant a reasonable extension.
Based upon the reasons setforth in this decision, Form-730 mU,st be qeIlied. There is no appeal to this decision. The petitioner may file a motion to reopen or a motion to reconsider within 30 Ja).; 'i. ,,1 the date of this decision (33 days if this notice was received by mail). If the petitioner is able te s,',,'c('me tile grounds for this denial, a new petition with the appropriate documentation may be submitted to thi, o"fi( (
Sincerely,
~L/~
David L. Roark, Director Texas Service Cente'1~
Officer # XM I09
cc: Tony Y. Lu New York Legal Assistance Group (NYLAG)

www.dhs.gov

Rev. 312612009

Case 1:10-cv-02029-NGG Docu'm. e.nt 1

Filed 05/05/10 Page 25 of 30

u.s. Department of Uomelan-d Sec'britV

P.O. 80x 852841

•

Mesquite, Texas 75185-2841

TO:
Lhakpa Tsamcho 96-19 42nd Ave, 1'1 Floor Corona, NY 11368

US. Citizenship and Immigration Services
a DATE: OCT 020U9
Petition: Form 1-730
File Number: SRC0718251026!A88610291 Beneficiary: GYALTSEN, Nyima

DECISION
Reference is made to Refugee! Asylee Relative Petition (Form 1-730) filed by Lhakpa Tsamcho (the petitioner) on behalf of Nyima Gyaltsen (the beneficiary) in accordance with Title 8, Code of Federal Regulations, part 208.21 [8 C.F.R. §208.2Ij. After consideration, it is ordered that Form 1-730 be denied.
8 CFR 103.5(a)(5)(ii) states "When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period."
The Service must notifY the petitioner of any adverse information relating to the petition. See 8 CFR 103.2(b) (16) (i).
8 CFR 103.2(b)(6), states "An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted. "
Form 1-730 was approved by U.S. Citizenship and Immigration Services (USCrS) on May 21,2008 and forwarded to the U.S. Department of State's National Visa Center for the beneficiary's overseas processing. Form 1-730 was subsequently returned to uscrs upon discovery of adverse information. The beneficiary failed to appear for interviews scheduled on June 4, 2008 and September 10,2008.
Any application or petition may be denied if a petitioner or applicant fails to appear for a required interview, fails to provide an original document when requested to do so, fails to appear for fingerprinting as directed or fails to provide additional evidence when requested. See 8 CFR 103.2(b).
Based upon the above reasons, the petitioner was notified on July 21, 2009 that it is the intent of USCIS to deny Form 1-730. The petitioner was 30 (thirty) days (33 days if this notice is received by mail) to submit evidence in opposition to the notice of intent to deny. Evidence must show
(I) The required appearance was complied with during the allotted period; or
(2) The request for appearance was sent to an address other than tile application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of

www.dhs.gov

Rev, 312612009

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 26 of 30
address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.

Service records show a response was received from on August 25, 2009. The petitioner's response package contained a properly completed and signed G-28, Notice of Entry of Appearance as Attorney along with a Request for Reconsideration of Intent to Deny on Humanitarian Grounds from the attorney of record. The response also contained the petitioner'S affidavit, U.S. Department of State 2008 Human Rights Report: China and a copy of Legacy INS memorandum from Deputy Commissioner William Yates dated May 15, 2000, titled, Procedural Guidance on Admission and Adjustment ofStatus for Refugees.

According to the response, the petitioner is ""... a Tibetan asylee from the Peoples' Republic of China, and when she filed her Form 1-730 petitions she indicated that her family would appear at a consulate in India because they would not be able to travel to a consulate in China to appear for an appointment. Up until March oflast year [1988], it was quite common for Tibetans to flee to India and appear at U.S. consulates in India for consular interviews. However, in March of 2008, a peaceful protest by Buddhist monks and nuns in Tibet led to severe repression on the part of the Chinese government, which in turn sparked riots that cause a tightening of restrictions on travel for all Tibetans." As a result of the crackdown, the petitioner's youngest daughter, son and husband who continue to reside in Tibet were unable to acquire passports in order to leave Tibet. According to the counsel's letter, the benefiCIaries had filed apphcallons for passports but applications are still pending. The petitioner's affidavit request that the petitions be extended until they are able to leave Tibet.

The evidence does not indicate the waiting time for the named beneficiaries to receive the necessary documents to travel to India to appear for a scheduled interview. It is unknown when conditions in China will be changed and the restrictions on travel will be lessened. Without this information, the Service is unable to grant a reasonable extension.

,.,~, ,,_ .... '.

Based upon the reasons set forth in this decision, Form-730 must be denied. There is no appeal to this decision. The petitioner may file a motion to reopen or a motion to reconsider within 30 days from the date of this decision (33 days if this notice was received by mail). If the petitioner is able Ii, ••vercome the grounds for this denial, a new petition with the appropriate documentation may be submitted to !:l; "tlice.

Sincerely,
(J~,i-..1-/ A:. ,." ~ d

David L. Roark, Director Texas Service Center'fl

Officer # XM I09
cc: Tony Y. Lu New York Legal Assistance Group (NYLAG)

www.dhs.gov

Rev. 312612009

Case 1:10-cv-02029-NGG Document 1

Filed 05/05/10

Page 27 of
U.S. Department

o3f 0Homeland~Sec~rity

-

P.O. Box 852841

Mesquite, Texas 75185-2841

u.s. Citizenship
and Immigration
Services

TO:
Lhakpa Tsamcho 96-1942"" Ave, 1" Floor Corona, NY 11368

DATE: OCT 3 • ZOO9
Petition: Form 1-730
File Number: SRC0718251027/A88610292 Beneficiary: TAPSANG, Tenzin

DECISION
---.----~--
Reference is made to Refugeel Asylee Relative Petition (Form 1-730) filed by Lhakpa Tsarncbo (the petitioner) on behalf of Tenzin Tapsang (the beneficiary) in accordance with Title 8, Code of Federal Regulations, part 208.21 [8 C.F.R. §208.21). After consideration, it is ordered that Form 1-730 be denied.
8 CFR 103.5(a)(5)(ii) states "When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period."
The Service must notifY the petitioner of any adverse information relating to the petition. See 8 CFR 103.2(b) (16) (i).
8 CFR \03.2(b)(6), states "An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted. "
Form 1-730 was approved by U.S. Citizenship and Immigration Services (USCIS) on May 21, 2008 and forwarded to the U.S. Department of State's National Visa Center for the beneficiary's overseas processing. Form 1-730 was subsequently returned to USCIS upon discovery of adverse information. The beneticiary failed to appear for interviews scheduled on June 4, 2008 and September 10, 2008.
Any application or petition may be denied if a petitioner or applicant fails to appear for a required interview, fails to provide an original document when requested to do so, fails to appear for fingerprinting as directed or fails to provide additional evidence when requested. See 8 CFR 103.2(b).
Based upon the above reasons, the petitioner was notified on July 21, 2009 that it is the intent of USCIS to deny Form 1-730. The petitioner was 30 (thirty) days (33 days if this notice is received by mail) to submit evidence in opposition to the notice of intent to deny. Evidence must sbow
(I) The required appearance was complied with during the allotted period; or
(2) The request for appearance was sent to an address other than the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of

www.dhs.gov

Rev. 312612009

. Case 1:10-cv-02029-NGG Docu-m.ent 1 Filed 05/05/10 Page 28 of 30
address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.
Service records show a response was received from on August 25, 2009. The petitioner's response package contained a properly completed and signed G-28, Notice of Entry of Appearance as Attorney along with a Request for Reconsideration of Intent to Deny on Humanitarian Grounds from the attorney of record. The response also contained the petitioner's affidavit, U.S. Department of State 2008 Human Rights Report: China and a copy of Legacy INS memorandum from Deputy Commissioner William Yates dated May IS, 2000, titled, Procedural Guidance on Admission and Adjustment ofStatus for Refugees.
According to the response, the petitioner is ""... a Tibetan asylee from the Peoples' Republic of China, and when she filed her Form 1-730 petitions she indicated that her family would appear at a consulate in India because they would not be able to travel to a consulate in China to appear for an appointment. Up until March oflast year [1988], it was quite common for Tibetans to flee to India and appear at U.S. consulates in India for consular interviews. However, in March of 2008, a peaceful protest by Buddhist monks and nuns in Tibet led to severe repression on the part of the Chinese government, which in tum sparked riots that cause a tightening of restrictions on travel for all Tibetans." As a result of the crackdown, the petitioner's youngest daughter, son and husband who continue to reside in Tibet were unable to acquire passports m order to leave IIDct.Accordmg to the counsel's letter, theoenellclarles hailIi1ed applications for passports but applications are still pending. The petitioner's affidavit request that the petitions be extended until they are able to leave Tibet.
The evidence does not indicate the waiting time for the named beneficiaries to receive the necessary documents to travel to India to appear for a scheduled interview. It is unknown when conditions in China will be changed and the restrictions on travel will be lessened. Without this information, the Service is unable to grant a reasonable extension.
Based upon the reasons set forth in this decision, Form-730 must be denied. There is no "!)real to th ie decision. The petitioner may file a motion to reopen or a motion to reconsider within 30 days from the date of this decision (33 days if this notice was received by mail). [fthe petitioner is able to UVe!'comc (',.0 grounds for this denial, a new petition with the appropriate documentation may be submitted to II,;. effie"
Sincerely,
f/a' w.e'pLf/' l~
David L. Roark, Director Texas Service Centery
Officer # XM I 09
ce: Tony Y. Lu New York Legal Assistance Group (NYLAG)

www.dhs.gov

Rev_ 312612009

Case 1:10-cv-02029-NGG Document 1

Filed

05/05/10

Page u.s. Depa

29
rtme

of 30
nt of Ho

m

e

l

a

n

..,
d

S

e

c

u

r

i

t

C,.
y

P.O. Box 85284)

Mesquite, Texas 75185-2841

u.s. Citizenship
and Immigration Services

TO:
Lhakpa Tsamcho 96-1942nd Ave, 1" Floor Corona, NY 11368

DATE: OCT:I 0 2009
Petition: Form 1-730
File Number; SRC0718251032!A88610293 Beneficiary: DICKEY, Tenzin

DECISION
Reference is made to Refugee! Asylee Relative Petition (Form [-730) filed by Lhakpa Tsamcho (the petitioner) on behalf of Tenzin Dickey (the beneficiary) in accordance with Title 8, Code of Federal Regulations, part 208.21 [8 C.F.R. §208.21J. After consideration, it is ordered that Form [-730 be denied.
8 CFR \03.5(a)(5)(ii) states "When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period."
The Service must notifY the petitioner of any adverse information relating to the petition. See 8 CFR 103.2(b) (16) (i).
8 CFR 103.2(b)(6), states "An applicant or petitioner may withdraw an application or petitio~ "' an~ hne until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjusttnent or change of status, based on the petition. However, a withdrawal may not be retracted. "
Form 1-730 was approved by U.S. Citizenship and Immigration Services (USC[S) on May 21, 2008 and forwarded to the U.S. Department of State's National Visa Center for the beneficiary's overseas processing. Form [-730 was subsequently returned to USCIS upon discovery of adverse information. The beneficiary failed to appear for interviews scheduled on June 4, 2008 and September 10,2008.
Any application or petition may be denied if a petitioner or applicant fails to appear for a required interview, fails to provide an original document when requested to do so, fails to appear for finge~rinting as directed or fails to provide additional evidence when requested. See 8 CFR 103.2(b).
Based upon the above reasons, the petitioner was notified on July 21, 2009 that it is the intent of USCIS to deny Form 1-730. The petitioner was 30 (thirty) days (33 days if this notice is received by mail) to submit evidence in opposition to the notice of intent to deny. Evidence must show
(I) The required appearance was complied with during the allotted period; or
(2) TIle request for appearance was sent to an address other than the application, petition, or notice of representation, or that the applicant or petitioner advised the Service; in writing, of a change of

www.dhs.gov

Rev. 312612009

Case 1:10-cv-02029-NGG Document 1 Filed 05/05/10 Page 30 of 30
address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.
Service records show a response was received from on August 25, 2009. The petitioner's response package contained a properly completed and signed G-28, Notice of Entry of Appearance as Attorney along with a Request for Reconsideration ofIntent to Deny on Humanitarian Grounds from the attorney of record. The response also contained the petitioner's affidavit, U.S. Department of State 2008 Human Rights Report: China and a copy of Legacy INS memorandum from Deputy Commissioner William Yates dated May 15, 2000, titled, Procedural Guidance on Admission and Adjustment a/Status/or Re/ugees.
According to the response, the petitioner is ""... a Tibetan asylee from the Peoples' Republic of China, and when she filed her Form 1-730 petitions she indicated that her family would appear at a consulate in India because they would not be able to travel to a consulate in China to appear for an appointment. Up until March of last year [1988], it was quite common for Tibetans to flee to India and appear at U.S. consulates in India for consular interviews. However, in March of 2008, a peaceful protest by Buddhist monks and nuns in Tibet led to severe repression on the part of the Chinese government, which in turn sparked riots that cause a tightening of restrictions on travel for all Tibetans." As a result of the crackdown, the petitioner's youngest daughter, son and husband who continue to reside in Tibet were unable to acquire
··-~--passports ili-order to leave Tibet. According to the counsel's °letter, thebeneficiarles-naa-fifea aiipl,catTons-
for passports but applications are still pending.
According the counsel's letter, "The Petitioner's eldest daughter, Tenzin Dickey, is currently in India. She did not previously appear for her interviews because she was awaiting the arrival of her father and siblings, so they could go together." The petitioner's affidavit request that the petitions be extended until they are able to leave Tibet
The evidence does not indicate the waltmg time for the named beneficiaries to receive the neceS'ary documents to travel to India to appear for a scheduled interview. It is unknown when condition, in China will be changed and the restrictions on travel will be lessened. Without this information, the ServIce is unable to grant a reasonable extension.
Based upon the reasons set forth in this decision, Form-730 must be denied. There is no ap,"""' ;'.' !;,;, decision. The petitioner may file a motion to reopen or a motion to reconsider within 30 days tiv." Ii" date of this decision (33 days if this notice was received by mail). If the petitioner is able to overcome the grounds for this denial, a new petition with the appropriate documentation may be submitted to this office.
Sincerely, ~ 1'/;.'"'.0 '/ :/-//"l l' ~d~
David L. Roark, Director Texas Service Center~
Officer # XM I09
cc: Tony Y. Lu New York Legal Assistance Group (NYLAG)

www.dhs.gov

Rev_ 312612009

 
 Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 1 of 43 PageID #: 71

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

LHAKPA TSAMCHO, on behalf of herself and all other similarly situated individuals,
Plaintiff,
-against-
JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security; ALEJANDRO MAYORKAS, in his official capacity as Director of United States Citizenship and Immigration Services; DONALD NEUFELD, in his official capacity as Associate Director of the Service Center Operations Directorate of United States Citizenship and Immigration Services; GREGORY RICHARDSON, in his official capacity as Director of the Texas Service Center of United States Citizenship and Immigration Services; and MARK HAZUDA, in his official capacity as Director of the Nebraska Service Center of United States Citizenship and Immigration Services,
Defendants.

10-CV-02029 (NGG) (MDG)
(ECF CASE)
STIPULATION AND AGREEMENT
OF CLASS ACTION SETTLEMENT

STIPULATION AND AGREEMENT OF CLASS ACTION SETTLEMENT Plaintiff Lhakpa Tsamcho, on behalf of herself and all other similarly situated individuals, and Defendants Janet Napolitano, Secretary of Homeland Security; Alejandro Mayorkas, Director of United States Citizenship and Immigration Services; Donald Neufeld, Associate Director of the Service Center Operations Directorate of United States Citizenship and Immigration Services; Gregory Richardson, Director ofthe Texas Service Center of United States Citizenship and Immigration Services; and Mark Hazuda, Director of the Nebraska Service Center of United States Citizenship and Immigration Services (together, "Defendants"),

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 2 of 43 PageID #: 72

by and through their attorneys, hereby enter into this Stipulation and Agreement of Class Action

Settlement (the "Stipulation").

WHEREAS:

A.

Plaintiffs filed this Action on behalf of themselves and all similarly situated

individuals against Defendants in the United States District Court for the Eastern District of New

York on May 5, 2010, seeking class-wide declaratory and injunctive relief;

B.

Plaintiffs' counsel have conducted discussions and arm's length negotiations with

Defendants' counsel with respect to a compromise and settlement of this Action with a view to

settling the issues in dispute;

C.

To date, Defendants have not answered or otherwise responded to the Complaint,

and the Court has not granted class certification, designation of class counsel, or declaratory or

injunctive relief;

D.

Defendants deny all liability with respect to this Action, deny that they have

engaged in any wrongdoing, deny the allegations in the Complaint, deny that they committed any

violation of law, deny that they acted improperly in any way, and deny liability of any kind to the

Plaintiff, Class Members, or the Putative Class Members, but agree to the settlement and

dismissal of this Action on the terms of this Stipulation in order to avoid the substantial expense,

inconvenience, and distraction of protracted litigation;

E.

After considering the benefits that the Plaintiff, Class Members, and Putative

Class Members will receive from settlement of this Action and the risks of litigation, Plaintiffs

and Plaintiffs' Counsel have concluded that the terms and conditions of this Stipulation are fair,

2

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 3 of 43 PageID #: 73

reasonable, adequate, and in the best interests ofthe Plaintiff, Class Members and Putative Class

Members; NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the
parties to this Stipulation through their respective attorneys, that this Action is settled, subject to the approval ofthe Court pursuant to Rule 23(e) ofthe Federal Rules of Civil Procedure and
subject to the following terms and conditions:

I.

Definitions

Wherever used in this Stipulation, the following terms have the meanings set forth below:

1.

"Action" means the above-captioned action pending in the United States District

Court for the Eastern District of New York (1 0-CV-02029 (NGG) (MDG)).

2.

"Plaintiff' is Lhakpa Tsamcho and her personal representatives, assigns, and

heirs. 3.

'~Defendants':- are Janet Napolitano~ in her capacity as Secretary of Homeland

Security; Alejandro Mayorkas, in his capacity as Director of United States Citizenship and Immigration Services; Donald Neufeld, in his capacity as Associate Director of the Service Center Operations Directorate of United States Citizenship and Immigration Services; Gregory Richardson, in his capacity as Director of the Texas Service Center of United States Citizenship and Immigration Services; and Mark Hazuda, in his capacity as Director of the Nebraska Service

Center of United States Citizenship and Immigration Services.

4.

"USCIS" is the United States Citizenship and Immigration Services and its

officials acting in their official capacity.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 4 of 43 PageID #: 74

5.

"Released Parties" means any and all of Defendants, their predecessors and

successors, their departments and agencies, and their past or present agents, employees, and

contractors.

6.

"Form I-730" or "I-730 Petition" or "Petition" means the Refugee/Asylee

Relative Petition filed by an individual who has been granted asylum, by which the individual

requests derivative refugee or asylum status for his or her spouse and/or child who resides

outside the United States. (See 8 C.F.R. § 207.7(£)(2) and 8 C.F.R. § 208.21(d); cf 8 C.F.R. §

207.7(£)(1) and 8 C.F.R. § 208.21(e) (establishing rules for requesting derivative refugee and

asylum status for spouses and children residing inside the United States).)

7.

"Petitioner" is the petitioner identified on a Form I-73 0.

8.

"Beneficiary" is a beneficiary identified on a Form I-730.

9.

"Consular Interview" is an interview conducted at a United States Consulate or

Embassy or USCIS office outside of the United States, in connection with an approved I-730

Petition, for the purpose of determining the identity of a Beneficiary and the Beneficiary's

eligibility for a travel document for admission into the United States. 10. "Consulate" means the American Embassy or United States Consulate having
jurisdiction over the area in which the Petitioner's Beneficiary is located, or the American Embassy or United States Consulate at which a Consular Interview of a Beneficiary has been or

will be scheduled. 11. "Class Members" or "Plaintiffs" are defined as follows: PPdeeesttiicttriioiobnneedhrsaisnwbSheeoecnhtiaoovrnewVsiuIlIlb, mbweiitlatlepdspuroborvmweidthaobn,ydIU-u7rS3iCn0gIPSte,htebitueitoffwnehctotoisvUeeSBdCaeItnSeesfaioncdfiatwhryihs ooSsftetihpsauutlcaIht-i7oI3-n7030

4

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 5 of 43 PageID #: 75

Pweittihti8onCd.Pid.Rn.o§t§or20w7i.l7l (nfo)(t2a)popre2ar08fo.2r1a(dC)oannsdulraerlaItnetderpvrioewvisfioornps.rocessing in accordance

12.

"Class Counsel" means counsel for Plaintiff and the Class Members: the New

York Legal Assistance Group, 7 Hanover Square, 181h floor, New York, NY 10004.

13.

"Putative Class Members" are those Petitioners who claim or purport to be Class

Members. 14.

"Effective Date" is the date on which the Final Judgment ofthis Action is entered

by the Court.

15.

"Settled Claims" means any and all claims in law or equity that were asserted or

that could have been asserted by Plaintiff in this Action, based upon the facts alleged in the

Complaint, and excluding claims that are to be withdrawn without prejudice pursuant to the

terms of this Stipulation. 16. "Settlement" means settlement of this Action under the terms set forth in this

Stipulation. 17.

"No-Show Letter" is a letter, sent to Petitioners when a Beneficiary has failed to

appear for a Consular Interview, informing the Petitioner of the options for rescheduling a Consular Interview, and informing Petitioner how the I-730 Petition at issue will be handled by
USCIS. For the purposes of this Stipulation, and allowing for non-material changes, a "No-

Show Letter" shall be substantively the same as the letter attached as Exhibit A.

18.

"No-Show Letter Instructions" are instructions for properly responding to a No-

Show Letter, and are set forth in a No-Show Letter. The No-Show Letter Instructions entitled "Instructions for How to Proceed If the Beneficiary Can Attend an Interview in the Next Six

5

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 6 of 43 PageID #: 76

Months" are applicable in cases where a Beneficiary can attend a Consular Interview within six months of the date of the No-Show Letter. The No-Show Letter Instructions entitled "Instructions for How to Proceed If the Beneficiary Cannot Attend an Interview in the Next Six Months" are applicable in cases where a Beneficiary cannot attend a Consular Interview within
six months of the date of the No-Show Letter. 19. "Administratively Close" and "Administratively Closed" means administratively
suspending further action on an approved I-730 Petition in accordance with the terms of this Stipulation. An Administratively Closed I-730 Petition shall be subject to future processing if
and when USCIS Reaffirms the Petition. 20. "Reopen" or "Reopened" mean that an I-730 Petition that has already been
decided is reopened by users for further action.
21. "Reopen and Deny" or "Reopened and Denied" or "Reopening and Denying" mean USCIS reopening an approved I-730 Petition on its own motion and then denying or

revoking that Petition. 22. "Reaffirm" or "Reaffirmed" means USCIS confirming the previous approval of

the Petition so that the Petition may be processed.

23.

"Notice of Action" means a notice from USCIS, on Form I-797 or the

appropriate immigration form, informing a Petitioner of an action taken by USCIS with regard to

an I-730 Petition.

24.

"Nebraska Specifically-Identified Individuals" or "NSII Group" means

Petitioners whose approved I-730 Petitions were Reopened and Denied by the Nebraska Service

Center of USCIS from January 1, 2008 until the Effective Date of this Agreement because a

6

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 7 of 43 PageID #: 77

Beneficiary failed to appear for a Consular Interview. USCIS estimates that the number of approved I-730 Petitions filed by Nebraska Specifically-Identified Individuals that were later Reopened and Denied because a Beneficiary failed to appear for a Consular Interview is at least

160. 25. "NSII Group Notice" means a notice to be issued in accordance with this
Stipulation informing the NSII Group of their right to relief under this Stipulation. For the purposes of this Stipulation, and allowing for non-material changes, a "NSII Group Notice" shall
be substantively the same as the notice attached as Exhibit B. 26. "Public Service Announcement" means a notice informing Class Members of
their right to relief under this Stipulation. For the purposes of this Stipulation, and allowing for non-material changes, the "Public Service Announcement" shall be substantively the same as the
notice attached as Exhibit C. 27. "Class Settlement Notice" means a notice informing the Class Members and
Putative Class Members of the Stipulation and its terms, and of the right to object to the terms of the Settlement set forth in this Stipulation in a manner established by the Court in accordance with Federal Rule of Civil Procedure 23. The parties agree that the Class Settlement Notice attached to this Stipulation as Exhibit D constitutes a fair and reasonable notice of this Action and the Class Members' and Putative Class Members' right to object to the Settlement of this

Action.

28.

"Preliminary Approval Order" means an order jointly proposed by the parties and

preliminarily approving this Stipulation in advance of any final approval of this Stipulation in

accordance with Federal Rule of Civil Procedure 23. The Preliminary Approval Order submitted

7

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 8 of 43 PageID #: 78

to the Court in this Action by the parties in accordance with this Stipulation shall be

substantively the same as the Preliminary Approval Order attached as Exhibit E.

29.

"Final Approval Order" means an order jointly proposed by the parties and

entering final judgment in this Action. The Final Approval Order submitted to the Court in this Action by the parties in accordance with this Stipulation shall be substantively the same as the

Final Approval Order attached as Exhibit F.

II.

Prospective Treatment ofl-730 Petitions

1.

Beginning fourteen (14) days after the Effective Date of the Stipulation, if not

before, Defendants will not Reopen and Deny approved I-730 Petitions solely because a

Beneficiary has not appeared for a Consular Interview, except as provided herein. If a

Beneficiary fails to appear for a Consular Interview, USCIS shall contact the Petitioner, determine whether the Beneficiary is or will be able to appear for a Consular Interview, and, if

so, shall Reaffirm or Administratively Close the Petition. Nothing shall prevent USCIS from

taking further action on an approved I-730 Petition, including Reopening and Denying an

approved I-730 petition, for reasons other than the failure of a Beneficiary to appear for a

Consular Interview.

2.

Beginning no more than fourteen (14) days after the Effective Date of the

Stipulation, and for the duration of this Stipulation, Defendants agree to handle I-730 Petitions in

cases where Beneficiaries fail to appear for a Consular Interview in accordance with Section !!.3-

II. 7 of this Stipulation.

3.

Issuin£ a No-Show Letter. If a Consulate or USCIS overseas office returns an

approved I-730 Petition to the USCIS Service Center because a Beneficiary of an approved I-730

8

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 9 of 43 PageID #: 79

Petition does not appear for a Consular Interview, then USCIS shall Administratively Close the

I-730 Petition and send the Petitioner a No-Show Letter.

4.

Response to a No-Show Letter and Administrative Closure. If the Petitioner

responds to the applicable No-Show Letter Instructions of the No-Show Letter issued to Petitioner and indicates a desire to proceed with processing of the I-730 Petition, then USCIS

shall take the following steps:

a.

If the Petitioner or Beneficiary indicates that the Beneficiary will be able

to attend a Consular Interview within six months of the date of the Petitioner or

Beneficiary's response, USCIS shall Reaffirm the I-730 Petition and send it to the U.S.

Department of State's National Visa Center for completion of a Consular Interview and

other processing. USCIS shall issue to the Petitioner a Notice of Action indicating that

the I-730 Petition has been Reaffirmed and sent to the U.S. Department of State's

National Visa Center for completion of a Consular Interview and other processing.

b.

If the Petitioner or Beneficiary indicates that the Beneficiary is unable to

attend a Consular Interview within six months of the date of the Petitioner or
Beneficiary's response, or if the Petitioner or Beneficiary cannot identify when the Beneficiary will be able to attend a Consular Interview, the I-730 Petition shall remain Administratively Closed. Once the Petitioner complies with the instructions of the NoShow Letter by notifying USCIS that the Beneficiary will be able to attend a Consular
Interview within six months of the date ofthe Petitioner or Beneficiary's response, USCIS shall Reaffirm the Petition for processing and shall issue to the Petitioner a Notice
of Action indicating that the I-730 Petition has been Reaffirmed and sent to the U.S.

9

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 10 of 43 PageID #: 80

Department of State's National Visa Center for completion of a Consular Interview and

other processing.

5.

If the Petitioner does not respond or fails to comply with the instructions in the

No-Show Letter, the approved I-730 Petition shall remain Administratively Closed.

6.

If the Petitioner elects to withdraw the I-730 Petition, US CIS may Reopen and

Deny the I-730 Petition.

7.

Nothing in this Stipulation restricts USCIS from Reopening and Denying an I-730

Petition filed by a Petitioner on grounds other than the failure of a Beneficiary to appear for an

interview.

III.

Retrospective Treatment of Denied 1-730 Petitions

A. 1.

NSII GROUP No later than thirty (30) days after the Effective Date, USCIS shall Reopen and

Administratively Close all NSII Group I-730 Petitions which were Denied solely because a

Beneficiary of an I-730 Petition filed by an NSII Group did not appear for a Consular Interview.

2.

NSII Group Notices: To ensure appropriate notice to members of the NSII Group

of their right to relief under this Stipulation, within thirty (3 0) days after the Effective Date, Defendants shall mail NSII Group Notices to the last address known by USCIS to each Nebraska

Specially-Identified Individual. Defendants shall inform counsel for Plaintiffs when all NSII

Group Notices have all been mailed.

3.

USCIS shall approve the I-730 Petition of any NSII Group member who responds

to a NSII Group Notice, indicating a desire to pursue processing of the I-730 Petition, and who

complies with the instructions set forth in the NSII Group Notice.

10

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 11 of 43 PageID #: 81

a. If the Petitioner or Beneficiary indicates that the Beneficiary will be able to attend a Consular Interview within six months of the date of the Petitioner or Beneficiary's response, USCIS shall Reaffirm the I-730 Petition and send it to the U.S. Department of State's National Visa Center for completion of a Consular Interview and other processing. USCIS shall issue to the Petitioner a Notice of Action indicating that the I730 Petition has been Reaffirmed and sent to the U.S. Department of State's National
Visa Center for completion of a Consular Interview and other processing.
b. If the Petitioner or Beneficiary indicates that the Beneficiary is unable to attend a Consular Interview within six months of the date of the Petitioner or Beneficiary's response, or if the Petitioner or Beneficiary cannot identify when the Beneficiary will be able to attend a Consular Interview, the I-730 Petition shall remain Administratively Closed. Once the Petitioner notifies USCIS, in compliance with the instructions ofthe NSII Group Notice, that the Beneficiary will be able to attend a Consular Interview within six months ofthe date ofthe Petitioner or Beneficiary's response, USCIS shall
Reaffirm the Petition for processing and shall issue to the Petitioner a Notice of Action indicating that the I-730 Petition has been Reaffirmed and sent to the U.S. Department of State's National Visa Center for completion of a Consular Interview and other

processing.

4.

USCIS shall not Deny the I-730 Petitions ofNSII Group Members who do not

respond to or fail to comply with the NSII Group Notice, but shall continue to keep those I-730

Petitions Administratively Closed, and shall Reaff1rm such Petitions if and when NSII Group

11

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 12 of 43 PageID #: 82

Members inform USCIS, in compliance with the instructions of the NSII Group Notice, that their Beneficiaries will be able to attend a Consular Interview.

5.

Nothing in this Stipulation restricts USCIS from Denying an I-730 Petition filed

by a NSII Group member on grounds unrelated to the failure of a Beneficiary to appear for an

interview.

B. ALL OTHER CLASS MEMBERS

1.

Public Service Announcement. To ensure proper notice to Class Members of

their right to relief under this Stipulation, within fourteen (14) days after the Effective Date,

Defendants shall publish a Public Service Announcement. The Public Service Announcement

shall be published on USCIS's website in a conspicuous manner, and through other third-party

websites that the parties shall work together in good faith to identify no later than seven (7) days

from the Effective Date.

2.

USCIS shall Reopen and approve the I-730 Petition of any Class Member or

Putative Class Member who contacts USCIS and indicates a desire to pursue processing of the I-

730 Petition and who meets the definition of a Class Member. a. If the Petitioner or Beneficiary indicates that the Beneficiary will be able

to attend a Consular Interview within six months of the date of the Petitioner or Beneficiary's response, USCIS shall Reaffirm the I-730 Petition and send it to the U.S. Department of State's National Visa Center for completion of a Consular Interview and other processing. USCIS shall issue to the Petitioner a Notice of Action indicating that

12

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 13 of 43 PageID #: 83

the I-730 Petition has been Reaffirmed and sent to the U.S. Department of State's National Visa Center for completion of a Consular Interview and other processing.

b. If the Petitioner or Beneficiary indicates that the Beneficiary is unable to
attend a Consular Interview within six months of the date of the Petitioner or Beneficiary's response, or if the Petitioner or Beneficiary cannot identify when the Beneficiary will be able to attend a Consular Interview, then USCIS shall Administratively Close the I-730 Petition. Once the Petitioner notifies USCIS, in accordance with the instructions in the Public Service Announcement, that the Beneficiary will be able to attend a Consular Interview within six months of the date of the Petitioner or Beneficiary's response, USCIS shall Reaffirm the I-730 Petition for processing and shall issue to the Petitioner a Notice of Action indicating that the I-730
Petition has been Reaffirmed and sent to the U.S. Department of State's National Visa
Center for completion of a Consular Interview and other processing.

3.

With respect to I-730 Petitions Reopened and approved pursuant to paragraph 2,

US CIS shall not Reopen and Deny the I-730 Petitions of any Class Member for failure to comply

with the instructions in the Public Service Announcement, but shall continue to keep those I-730

Petitions Administratively Closed and shall Reaffirm such Petitions if and when Class Members

inform USCIS that their Beneficiaries will be able to attend a Consular Interview within six

months of the date of the Petitioner or Beneficiary's response.

13

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 14 of 43 PageID #: 84

4.

Nothing in this Stipulation restricts US CIS from Denying an I-730 Petition filed

by a Class Member or Putative Class Member on grounds other than the failure of a Beneficiary

to appear for an interview.

5.

USCIS shall charge no fee to any Petitioner for the Reopening or Reaffirming of

any case under Sections II or III of this Stipulation.

IV.

Compliance/Dispute Resolution

In the event that either party to this Stipulation alleges that the other party has failed to

comply with the terms of this Stipulation, either with respect to the class or to an individual Class

Member, the complaining party shall inform the other party in writing ofthe specific grounds

upon which non-compliance is alleged within 10 business days from the date ofthe complaining

party's counsel's discovery ofthe alleged non-compliance. The party alleged to have failed to

comply with the terms of the Stipulation shall investigate the alleged non-compliance, take any

appropriate steps required to resolve the non-compliance concerning each individual case, and

report the results of such investigation, including what steps, if any, were taken to resolve the

non-compliance, in writing to the other party's undersigned counsel within ten (10) business

days of the date on which the party alleged to have failed to comply with the Stipulation was

notified. The parties agree to make good faith attempts to resolve all issues informally; however,

if the dispute cannot be resolved informally within thirty (30) days of the date on which the party

alleged to have failed to comply with the Stipulation was notified of the alleged non-compliance,

either party may inform the Court of their disagreement and seek resolution of the dispute

through a conference with a magistrate judge or other similar dispute resolution process

conducted under the Court's auspices. If, within seven (7) days following conclusion of any

14

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 15 of 43 PageID #: 85

dispute resolution with a magistrate judge or through the Court's auspices, the parties have not resolved any issue regarding non-compliance, the complaining party must provide the other party a written statement that the issue has not been resolved. Seven (7) days after the complaining party has provided the written statement that the issue has not been resolved, either party may apply to the Court for enforcement of the Stipulation, but in no case shall either party apply to the Court to enforce the Stipulation without first following all of the steps in this paragraph.

V.

Release and Dismissal of Claims

1.

On the Effective Date, this Action will be dismissed with prejudice, excluding

claims that are to be withdrawn without prejudice pursuant to Paragraph V.2, and the Plaintiffs,

on behalf of themselves, their heirs, executors, administrators, representatives, attorneys,

successors, assigns, agents, affiliates, and partners, shall be deemed to have fully, finally, and forever released, relinquished, and discharged the Released Parties of and from any and all of the Settled Claims, and shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against any of the Released Parties. Nothing herein releases Defendants from their

obligation to comply with the terms of this Stipulation.

2.

On the Effective Date, Plaintiffs' class-wide claims pertaining to 1-730

Petitions that were Reopened and Denied because the Beneficiary appeared at a Consular Interview without the requested and/or required document(s) for processing will be dismissed

without prejudice.

VI. No Admission of Liabilitv

1.

This Stipulation does not constitute and shall not be construed or viewed as an

admission of any wrongdoing or liability by any party.

15

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 16 of 43 PageID #: 86

2.

This Stipulation shall not be offered or received against Defendants as

evidence of, or construed as or deemed to be evidence of, any presumption, concession, or

admission by any of Defendants of the truth of any fact alleged by the Plaintiff or the validity of

any claim that has been or could have been asserted in the Action or in any litigation, or the

deficiency of any defense that has been or could have been asserted in the Action, or of any

liability, negligence, fault, or wrongdoing of Defendants, or any admission by Defendants of any

violations of, or failure to comply with, the Constitution, laws or regulations.

3.

This Stipulation shall not be offered or received against Defendants as evidence of

a presumption, concession, or admission of any liability, negligence, fault, or wrongdoing, or in

any way referred to for any other reason as against any of the parties to this Stipulation, in any other civil, criminal, or administrative action or proceeding, other than such proceedings as may

be necessary to effectuate the provisions of this Stipulation.

VII.

Reservation of Jurisdiction and Termination

This Stipulation and all responsibilities and obligations contained herein shall begin on

the Effective Date, unless otherwise specified. The parties agree that this Court will retain

jurisdiction for three (3) years from the Effective Date to enforce the terms of this Stipulation, at

which time this Stipulation will terminate.

VIII.

Attornevs' Fees and Costs Within ninety (90) days of the Effective Date, Defendants will deliver to Plaintiffs'

Counsel through direct deposit, provided accurate direct deposit information is provided by counsel for Plaintiffs, the sum of twenty-five thousand dollars ($25,000.00), in settlement of all claims for attorneys' fees and costs in, arising from, or in connection with this Action through

16

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 17 of 43 PageID #: 87

the date that the Final Approval Order of Class Action Settlement is signed by the parties, including any other attorneys' fees and/or litigation costs provided under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, or any other provision of law. After the Final Approval Order of Class Action Settlement is signed by the parties, if Plaintiffs apply to the Court for enforcement of the Stipulation after following the Compliance/Dispute Resolution procedures in accordance with the provisions of Paragraph IV of this Stipulation, they may seek reasonable attorneys' fees and costs arising from or in connection with such application for enforcement, provided that Plaintiffs prevail on any such application. Nothing in this paragraph precludes
Defendants from raising any defense to any motion or request for attorneys' fees by Plaintiffs in connection with an application for enforcement of the Stipulation, including any claim of substantial justification or other defense to an award of fees under the EAJA, 28 U.S.C. § 2412. Except as othenvise provided in this Stipulation, Plaintiff agrees that she shall not seek, solicit or request any other attorneys' fees and/or litigation costs provided under the EAJA, 28 U.S.C. §
2412, or any other provision of law, with respect to this Action.

IX.

Approval of Stipulation

1.

The parties contemplate and understand that this Stipulation is subject to approval

by the Court in this Action in accordance with Federal Rule of Civil Procedure 23. In accordance with procedures and time schedules below, counsel for Plaintiff and Defendants shall

take such actions, and prepare and file all appropriate notices, motions, and proposed order

forms, as reasonably necessary to obtain both preliminary and final approval of this Settlement

Agreement from the Court in this Action. Counsel for Plaintiffs and Defendants shall seek to

accomplish the following: 17

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 18 of 43 PageID #: 88

a.

Preliminary Approval: Within ten (1 0) days of signing this Stipulation, counsel

for Plaintiffs and Defendants shall jointly request that the Court enter the Preliminary Approval

Order.

b.

Final Judgment: Counsel for Plaintiffs and Defendants shall jointly request that

this Court enter the Final Judgment at the appropriate time following a fairness hearing in

accordance with Federal Rule of Civil Procedure 23.

X. Additional Provisions

1.

This Stipulation may not be modified or amended, nor may any of its

provisions be waived except by a writing signed by all parties hereto or their successors-in-

interest.

2.

The parties recognize that changes to statutory provisions or federal regulations

may affect the operation of this Stipulation. In the event that Defendants believe that a change in

statute or regulation renders fulfillment of the obligations set forth in this Stipulation impossible

or impracticable, Defendants shall provide Plaintiffs' counsel with not less than thirty (30) days'

notice in writing of the statutory and regulatory change, and identify the provisions of this

Stipulation affected. The parties shall thereafter meet and confer concerning the Defendants'

notice. The parties agree to negotiate in good faith regarding modification(s) to this Stipulation

to address the change in statute or regulation that Defendants believe renders fulfillment of the

obligations set forth in this Stipulation impracticable or impossible. The parties will jointly seek

approval of any agreed-upon modifications to this Stipulation. If the parties are not able to agree

within twenty (20) days of Defendants' written notice, any party may make a motion to the Court

18

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 19 of 43 PageID #: 89

to seek relief. The parties agree that any relief sought with respect to this paragraph shall not include declaratory, injunctive, or other relief against the implementation or operation of the

statutory or regulatory change affecting the operation of this Stipulation.

3.

The waiver by one party of any breach of this Stipulation by any other party

shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation.

4.

This Stipulation and its exhibits constitute the entire agreement among the

parties hereto concerning the settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto other than those contained and memorialized in

such documents.

5.

This Stipulation shall be binding upon, and inure to the benefit of, the

successors and assigns of the parties hereto.

6.

This Stipulation shall not be construed more strictly against one party than

another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel

for one of the parties, it being recognized by the parties that this Stipulation is the result of arm's

length negotiations between the parties and that all parties have contributed substantially and

materially to the preparation of this Stipulation.

7.

All counsel and any other person executing this Stipulation and any of the

exhibits hereto, or any related settlement documents, warrant and represent that they have the full

authority to do so and that they have the authority to take appropriate action required or

permitted to be taken pursuant to the Stipulation to effectuate its terms.

19

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 20 of 43 PageID #: 90

old Stevens enn' r agida
elissa Chua 7 Hanover Square, 18th floor New York, NY 10004
Attorneys for Plaintiffs

T Senior Litigation Counsel United States Department of Justice Office oflmmigration Litigation District Court Section Box 868, Ben Franklin Station Washington, DC 20044
United States Attorney Eastern District ~fNew York
,U~L1&0/t,A~,--·l'j4-.~ ,}j(J_;L / -
SCOTIDUNN Assistant United States Attorney
Attorneys for Defendants

20

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 21 of 43 PageID #: 91
EXHIBIT A
No-Show Letter
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 22 of 43 PageID #: 92

- [LETTERHEAD]

TfboiyhlfeiSdsUt.laoSetnt.ete'CbsreiNrthiezaaletlaifntoeosnshfaiftlpoinVatshinesedratRICBmeeefmnuntgeiegferirecaf/oiAtairorstynyh'lseSeeneBraRvemnieceelea]fsti(icvt(ihUeaerSPyBCe'setIinSotie)vofeonicrnsi(aeFfraioynsr)smp.err.oJTt-chd7eaa3stt0seFi]npogaern.tmidtiIos-en7n)3,t0ttohpatethtyietoiUoun.S(tw.haDesePapepatiprttrimoonveeenrdt) TawairoaonehpvsiUfcclecfpellei.hrueScFihsevade.ooedreiaErl.wnudmsrmglieIet(onfthdbIafou-daft7gaihismvnc3eescete0eyieor.na//irpapCilfYvstsyyeeiotyoterrotinluanwhtesfitaeeoimuttvahnilrsteuvaeitlwstasealyeta,tlaUutefyocsisot.olrot,SolsenulUtu.sroshe,bEmhSwe)siimCnaeptBthydqIhbeSbeiueaneceesoFlaetinsewntvfoyctiiselrnec/tytmCrgeirtsauonro-eyrceInaytwo-tthss7iuumoiue3rotrnnlh0ufPadsedfsteiedpertbctsaeieebtiitwtor.nlieieootifUtwiIntohinnoenSnettrseoCoweFurarIvrndioniSttniterdheiofmrlbdwofBtterfroheaiImecc-dewnafe7uue}UBa3trfs.t0hteiSehcaenUCpieteaUhFerISfreSto.iyCpiSctrBrwiiI.msooaSeoEhcrnnyIewemte-bhsn7cfiysbali3atlcatthn0whistneahseaorpryeiBttyetFt/iteBCdenoifntneaegroidnmeionnlayfneesai,d.fucInli-ebilc7taatiuoitn3rtaetyet0rareiyponcrtpovaprsmetnieUteteaiahawtSyriidsoCfanoIt,rS

Instructions for Can Attend an

How to Proceed Interview in the

If the Next

Beneficiary Six Months

Ifyou waUi8TPAyBwst0tHhUoSGeei0uCtnnEtR-hRor3deIsSESCtf7ephUai5ElUcrebnfo-AiMy5SaapciNn2rneTrEcyot8deaTOeN'dc3lsrtleMTTvhiawsnieo.OnseEgiridtwBnYRhTt1tgheohH-apSne8toeureEE0oUaffwPR0ciyTSUce-eiVo7ilCSts.aliu6SIsAtIrCrai7iS.ynolM-FE,sEg1nNootmC8ehRoran3remHbtfE'e3isayFoOePsAIo(ndoR-sTua7(r-vtEpmnDlr3o/ruCS0CFDopmIEoounp-rn7rNfbosoemo3stevtuTorui0rintmsdlAitIcaoh.p-eee7TtneeedrT3u.tIhiV0pSwhtseideeaEiopaarrtmrenhevtTite-iinirinccdHtsegiehcosAcnoieiCnomox)Ti,npepSfmatntYeaanEtenociOedTrunttreUomTti'idshfnL)brsttfA.e.ohEeoaYRelryrMlf,moOEfBfaiEurarUneeCmtNdmneioAMeTtuannfhLnsiuUecftLdmoiScaIrpboNTrrbvenoGorTtcCatEaehcAteLtdN1L-

ApefttietrioUnShCasISbereecneriveaefsfiyromuerdreaqnudeshta,syboeuewn islelnrtetcoeitvhee

aUN.So.tiDceepoafrtAmcetinotnoifnSdtiactaet'isngNtahtiaotntahle

Form I-730 Visa Center

for

interview scheduling.

CInasntnruoct tAiotntesnfdoranHoInwtetroviPewrocineetdheIfNtheextBSeinxeMficoinarthys

If you wCBiEBtNST1shAmehe8aaESnn3ttNbtRAie3eotoafNfhVMnsi(ipeccsTOarIiyilCoBaDCaT/crCrCeHDEyyeanuoeOtedsiRntfdsefotosoiEnrwea(ucmdpsbiPltiaahlrtenRaehrtoereoynnEtphtSowcoirSekenaouaiarnEtntctvernhotieNriecainwvcsnntegTseitdedeiwsAniCwnimaxghsdeTnaepanmymIattiathoVnnoeia-eurtrnEeceirrU'ntsrdhhhFvt.)ToetSsei.oo,re)H.rYvlowUlmESirAeO.fSmErswITeChUT-Tbe,7eIhaYTc3SMnscro0LOseuawnveUnmEpUt/iaeCmlMSablcttoeAiTotthtEerninoURonsTaNtlndhuSdtEE,TslC1aatLaChpI-tnAneS8erLAdii0GownFb0TLirtyoiR-e,ftHL3rrhtocEmv7hIiEraNn5ieEleaI-lCMwBsGsi-5n7i2exUsg3Ea8Ano0tmS3tNeohBafTpnoeTioOeUncOra.tUits.iaUh1SMtSrYisy-.voT.C8oEon0ouIuTR0Sruk-Hwtn7hntiE6eiolll7wt-ahleso

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 23 of 43 PageID #: 93

Fniseoenrdmo tfoIe-e7p3rtoo0vrrieedacefefuiiprpmtdnaautenmddbcpeorro,nctaaencedtditnhwfeiotBrhmethnaeteifopincroifacorerys'bssionatnhgdyotofhuyerosPueerltfFiatoinordmnethIr-e's73BA0e-nnpeuefmtiictbiioaenrrys..,

the There

ApefttietrioUnShCaIsSbereecneirveeasffyiromuerdreaqnudeshta,syboeuewn islelnrtectoeitvhee aUN.So.tiDceepoafrtAmcetinotnoifnSdtiactaet'isngNtahtiaotnthaleVFiosramCIe-n7t3e0r for interview scheduling.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 24 of 43 PageID #: 94
EXHIBITB
NSII Group Notice
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 25 of 43 PageID #: 95
Dear [Petitioner's Name]:
This letter contains an IMPORTANT LEGAL NOTICE FOR YOU, AS A PETITIONER WHO FILED A REFUGEE/ASYLEE RELATIVE PETITION (Form 1-730 petition).
Pursuant to a Settlement Agreement in Tsamcho v. Napolitano, No. I0-CV-2029 (E.D.N.Y), U.S. Citizenship and Immigration Services (USCIS) has agreed to reopen Form 1-730 petitions that were previously approved but then reopened and denied because the Beneficiary (relative) did not appear for processing at the U.S. Embassy/Consulate or USCIS overseas office. In those cases, USCIS will not deny, but instead will hold (administratively close) the reopened Form 1-730 petition until the Beneficiary can appear at the U.S. Embassy/Consulate for processing. There will be no fee to reopen the Form 1-730 petition, but the individual who filed the petition (the Petitioner) must contact USCIS to proceed with processing the Form 1-730 petition.
USCIS has therefore reopened vour previously denied Form 1-730 petition. Ifvou wish to proceed with the processing ofvour Form 1-730 petition. vou should follow these instructions.
Instructions for How to Proceed If the Beneficiary Can Attend an Interview in the Next Six Months
If you wish to proceed with processing of your Form 1-730 petition, and if the Beneficiary CAN attend an interview at a U.S. Embassv/Consulate within six months. you must contact USCIS by either calling the USCIS National Customer Service Center toll free number at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired). YOU MUST TELL THE CUSTOMER SERVICE REPRESENTATIVE THAT YOU ARE CALLING ABOUT THE TSAMCHO (pronounced sam-cho) SETTLEMENT AGREEMENT. You will also need to provide updated contact information for both yourself and the Beneficiary, the Form 1-730 petition receipt number, and the Beneficiary's and the Petitioner's A-numbers. There is no fee to reaffirm and proceed with the processing of your Form I-730 petition.
After USCIS receives your request, you will receive a Notice of Action indicating that the Form 1-730 petition has been reaffirmed and has been sent to the U.S. Department of State's National Visa Center for interview scheduling.
Instructions for How to Proceed If the Beneficiary Cannot Attend an Interview in the Next Six Months
If you wish to proceed with processing your Form 1-730 petition, and if the Beneficiarv CANNOT attend an interview at a U.S. Embassv/Consulate within six months or the Beneficiary does not know whether he or she can attend an interview at a U.S. Embassy/Consulate within six months, USCIS vvill hold the Form 1-730 petition until the Beneficiary is able to attend an interview. Three months prior, or as soon as you know that the Beneficiary can attend an interview, contact USCIS by either calling the USCIS National Customer Service Center's toll free number at 1-800-375-5283 or 1-800-7671833 (TDD for the hearing impaired). YOU MUST TELL THE CUSTOMER SERVICE REPRESENTATIVE THAT YOU ARE CALLING ABOUT THE TSAMCHO (pronounced sam-cho) SETTLEMENT AGREEMENT. You will also

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 26 of 43 PageID #: 96

nFneuoemrdmbteoIr-s7p.3ro0Tvhpideeertietuiiopsndnaroteecfdeeeicpottonntrauecmatfbifneirrfm,oramanndadttihpoernoBfcoeerendbeofwitchiitayhroytuh'sresapenlrdfoactnehdsestiPhneegtiBotiefonyneoefuri'crsiFaAro-yr,mthIe-730

petition.

ApefttietrioUnShCaIsSbereecneriveaefsfiyromuerdreaqnudeshta,syboeuewn islelnrtectoeitvhee

a Notice of Action indicating that the U.S. Department of State's National

Form I-730 Visa Center

for

interview scheduling.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 27 of 43 PageID #: 97
EXHIBIT C
Public Service Announcement
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 28 of 43 PageID #: 98

IMPORTANT NOTICE for anyone who is trying to bring a family

who is a member

REFUGEE OR ASYLEE to the United States,

(Form 1-730 PETITION),

and whose family getting to the U.S.

member has Embassy or

had trouble or might have trouble Consulate for his or her interview.

Pn(awUaopuidSwprlmslCeucaoIiaoSnrnnni,astttthUtitrnaaoa.uSttUaie.tvh.SCSteeoel.iyBttbEitzleecmeenlmponebrssfeaoehinscc)istpieyaaAspr/asCygpnerroddieosnewvIsammeuvhdlmeaeaninFtiletgaotbrhirfnaomeletrTiiot1nsaon-and7miaS3ivpnc0eipthdrepveouraeiavcrtvliie.etawsiwNto(htnaUhoaspenSofwdCiUlliheIpt.aSdeSrnno.)tochEwte,hemsieNlsplbiBoenan.tesgoinst1.tiy0eod/fTnCCeihcno(Vietyanh,rFse2yubo0Plu(n2aert9nteteiiln(.t1aiEs-tot7i.envD3aee0.dr)N)pdw.neoYitoeli)ltts,iihfonfionreoolstdm

•

TaT8CAyBp0ooHAeGp0unce-ELrRoea3snLfr7EeCit5lfcIaEfUoN-ic5arMatSGrn2pyUdT8Er'3AosSONthcCaBoeMTenIrsOS.dBs1Ei-UetwnYRh8ngTeh0oe,Se0ufPyTin-Eceow7HitRtu6ahiilt7rEVelmiy-oaB1,ITunlC8tesseSh3otnEreA3'ecsnfaRFMe(iAlocTleEi-nCdDtanPhnrHtuDReyom1OEN-ofpb7oSafr3er(otyE0rpivtsoohrNi.pnuodeeaTrenthlTFioAuetChuoipaToeunnrdrniIsncaenVttreoge1iedsEmd-ci7mense3cTioarp0poHmtaSnfpeitAen-reearceutcvTtdhimtoti)oiciYb.oner)eneYfOrCSao,iOfUrsEefamniUnTartAavdmeTtaMriRtLioha(lEnaUNneEbdCfMSloepSTrErtCoboTN)co:EeTthe1Ld-L

with the processing of your Fonn I-730 petition.

AIV-7fits3ea0rCUpeeSntCitteiIroSnforhercaiesnitbveeeresvniyeorweuarsfcfrhierqemdueuedslitn,agny.douThawhseirlbelereiesncnesoievnfeeteatotNothopetircoUec.eSoe.fdDAwecpittiahornttmhienednpitrcooactfeinSsgstaitnthega'sot NtfhyaeotiFuoronnanl Form 1-730 petition.

Pwfwpwoueeirirltlrlislpetunirbopaooenrnctenteudvosteniosontfiieutnylhesg,telhbtyaoseutaatrtBmpheiepneoenrspUoseteeevfn.aiStectdt.dliheawEebmrmyuiFeltlbncotraatrhemnsaeosgnypaIrpe/-reC7npee3oeoma0apnnerespdnnuaeteltt,tahditUttheeiaenoSnonCUhdr,oI.UbdSSldue.ShtnCE(aitaehmIsdSdemabbgPoaierfsneefcstiieiysactdtu/ierCosatoneootivenvtrrehseeruemlosylepBuaaectsesenltn.ocfFesooIfeonrin)rcptmtitahharcoore1tycs-FUee7dso3Scisr0daiCmnspnIgeSeo1s.t-t,it7TtoaU3ipoh0ShpneaCersveaIteSrhat the Fonn 1-730 petition reopened.

If your Form I-730 petition was denied, you are eligible to have your Fonn 1-730 petition reopened if:

(1) (2) (3)

You filed a Refugee/Asylee Relative Petition on Fonn 1-730; and,

USCIS approved the The Beneficiary did

Fonn 1-730 petition; and, not appear at a U.S. Embassy/Consulate

for

a

(4)

required interview; and, USCIS then reopened and

denied

the

Form

1-730

petition

solely

because

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 29 of 43 PageID #: 99

the Beneficiary did not appear at the U.S. Embassy/Consulate for the interview.

Ydeonuieadrefonrost oemligeibreleastoonhoatvheerytohuarnFtohremfari-l7u3re0

petition reopened of the Beneficiary

if the Form r-730 petition was to appear for an interview at a

U.S. Embassy/Consulate.

rfyou believe your Form r-730 petition was denied and that you are eligible to have your case reopened, you must:

o

MT1CAyBiEisn-soEhAae8GmfueaknoL0LRbbrere0cLsmlaLf-Eaeeasi3nlIcTsEt7rfUNiyoeaH5aMa/SqpGr-nCaEuC5ypdEpoe2'erApsNntsCaS8ehtsarB3aTUe.untiroOfl.odBSaTwtruhtUteTYhehi1enstiOTeo-hsoeeB8uifrMPwnr0Tiecuwes0niHsEilt-sealiiib7lxREtfreleyi6iyocnrma7,TScinssl-atsoauESeh1rolnorre8yAlRe'tvisn3hnFweVMae3sAgrope,isIlrC(-dptCeylmhTnraoHoteuEoDsourmrpOND-owpRrs7bfiarha3fiEe(fotloitoi0prlcvePosurrein.npRlodhtdoaehweanEWtltenaoiiubSCttldhuhihspeEoluoeenidinnansnaNcaitbgrntoersmiTleeidnedmidxcaAifgcteeksmoucaTiriaipomtnsomaISetngVenppetn-wtpaartrchuEhvcieshhsmretaiee.Tcodribdnren)eHere)afta.fCqtrSeoAtn,uYtrehrEhdamemnTeOeTnstwiatedBnTYU,UtrhieetyL.eoOh(sSnoMrNnEe.eeUtuhCffMUihoescSAehrSEicCoabRoTaNru)osrv:EletTdh

should be reopened.

AapVpefipttseieatriaoCrunewsnheitaterhsrsibnforesereicnxienirmtveeeaorsfvnfityiehrowmsu,ersydcroehauqenudwdeuislhlitlan,srgae.bncedeeivinfesyaeonuNtrotoctiactsheeeoisUf rA.Seco. tpDioeennpeiadnrdtamincdeantyitnoogufrtShBateatntyeeo'fsuicNriaFartoyiormncaanrl-730

o

brtowihfnurveifttaoohBisrunmtessrhnoteBeUeoafenpSdinrcCaoeiwsacrfSiireylcylsoiisahcnuiranovkanlgcdncacooa(powfanprydndeotmoaahutnrairncataeitFttstheottwerhnraimedBtthiUaverntne-.hS7leiey.3fni0iEtccneilmprsaovtersbryiteueai)tcwswisttohiiynwole/l.nCiFbtshoeoainrnbasmboutlvhleraee-t.7teon3eTf0aoxhprtpepesareeitnxaitiriismnoftonnoeornruvtafnhienteseiw.lintuy.otoesTrrueevhairirenfsefwfeiowr,rmmmyiloolaununntodshsthespodrrpueosrnlcidoytehr,e,adt

ApefttietrioUnShCasrSbereecneriveeasffyiromuerdreaqnudeshta,syboeuewn islelnrtectoeitvhee aUN.So.tiDceepoafrtAmcetinotnoifnSdtiactaet'isngNtahtiaotnyaoluVr iFsoarCmenr-t7e3r 0for interview scheduling.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 30 of 43 PageID #: 100
EXHIBITD
CLASS SETTLEMENT NOTICE
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 31 of 43 PageID #: 101

IFMILPEODRATARNETFUNGOETEIFCIOAOESNROYIBLFNEEPDHERIARVOELIPDFLOUAOSATEFILDVASECWRPLEHEALTOSAISTTHAIIAOVCVENTEI(FOoNrmSEIT-7T3L0 EPMetiEtiNonT) A proposed settlement of a federal class action lawsuit may affect your rights.

IfStnehedeMrevPriaaecylteicst2i'o0ou(1nUr0et,rSfoaC(trhcIStlehasseB's)eEraneaceostftipieocerninnailrnDaywg)issswtuariainctsd,t uTodnsfeaanNbmileacelwhstooYofvaor.preNkpf,euaacpgrhoeaaleitltl/ateahnnseoygl,iUenNe.gSoF.U.oC.1rSo0m.nCCsIu-Vi7tlia3z2t0ee0n2pos9erhtiE(ipEtmio.aDbnna.sdNswsI.ymYhe)mf,onirwgtharaeanstirifoneillnteaedtrivviineewo.f

Tbapohptehrolsavivdeveytsehrebsesfleoietrtvlpeelmathienantttiftafhsgeraepnerdompdeoensfteeidnndsoaenrtdttlseermhfaeovnretitaagtgorreeteeadmkeoennefttfeiesrcmtb.essttofoser tatllel

this litigation. The lawyers Class Members. The Court

for must

If to

you are a member of the comment on or object to

class, you the terms.

have

a

right

to

learn

about

the

terms

of

the

proposed

settlement

and

WHO IS l~CLliDED 1:\' THE PROPOSED SETTLEME:\'T?

AIpis-en7tay3it0miroepenfmeudtgibitedeieornnooorwft ataohssreywalCepiellpalrwsnoshovoatendahdpaopwsreiswalulriblbflmoebrieatatfeafCdepcopotnrerosdwvuebliadlylr

bsIyunbtUemrSviCiteaIwSF,foobrrumtpwrIo-h7c3oe0ssespiBnegteintoieonfnitchtioearoUyrSiogCfinItShalaatanFpdpoerwmahroaIns-7ec3eF0doarmte the Settlement.

THE TERMS OF THE PROPOSED SETTLEMENT wUTPehShteeCitnFIioStohnrheemarBs)Ien-a7nog3etri0effieicepdiseantrUioytitSodtCnooIewSdseitnlnhloyact,toabtnphutpeitneBiuanreesntateeotafadibceUtioap.rSrhy.oocCilsdeosan(svaseadudimllaawitbnehlieeosntrtrotaEhtamiepvbpeinaleydsasircvylaiodtfsoutehra)elaanwUphip.nSort.oervCreveqodiuneeswFusotlareamndtedtIhop-er7ro3Epc0emetspibsteaiitonsinstgiy.o(.nthse UdctrFpheaeSeoeosntrCepiimBtesIei,dSeonItnnhb-hte7sheeaf3ecdisr0caeeFaiunoapgosirpereeryeetmditencthdiweaIoed-ntin7loBFla3repro0beenporeoepmepapfeaeibetrcIniln-tieea7iaodtF3rtnyto0oah,rndecpmbdiaeudUlttltIi.on-Stta7iho.oc3tetoonC0anliolwpntp-nipdfienrlseitluevuiateenilridaooniftutntoeusasrbmlopetprwhrbrodaEeohcetrcomenwetsiobfseseiasildrhneise,nadsggvbyp.teurhafetIotetnvhwrtdipheoipieelvucrltoiaisUbdtclsieyu.eeoSasnha.rsleepsimClonpdwopgurone.hs(anvstouTdeechldmdohaa.entibverntueeaiotcswhrtttrhaiEUadletlmSnitvbChbreeeaeIliSynsorsopctyIeo-lf.no7ehs3eeIaedn0tvdotae)hnuotdhnseetil
UIcnoStneCtravISciet hwUa,SsUCaSlIsSCoIbaSegfwroerieeldl yntohouatrtdBiefneyyno,eufbiudctioairnnyosttwekaildnlowbweilwlabhhloeelndtoy(oaaudttrmenBidneinasetrCfaioctinivaseruyllyawrcilIlonlstbeee)rvtahibeelweI,-t7oa3na0dttpUeenStdiCtiaIoSCn.woYnilsoluutlhacerann continue to process your request.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 32 of 43 PageID #: 102

WHAT IS A FAIR.'\"ESS HEARII"G? BsAIefetttfthtolheeremreehetheanreaterisisonebgtftaj,leieCrcm,tliareoesnnastssC,ocantohnauebntalCseke,oeluaaenrnftdfdweactidhtl,leeqtcDhuoeanetfsCeeidonaeudnrradtnthwwtseihmlwel.tihhlTolehlardesiktaCit"sohFueinariCttrwhnoeeuilsrlbstettHhsoteenaianprdtpieenrrcogeiv"sdteetsotwohdefhetecshteiehdteteClrewlmtaohseseantpMthpeaerrgomrtvehbeeeemtrhsee.nt. settlement.

HOW DO I GET MORE 1:\"FOR.vlATIO::'\? IoAfbsyjseoicsuttawonricsaehttGteonrodluotpoh,keSaFetavtiherenneeHsnsatniHroeevaperrrionSpgqo, usyeaodrues,ce1at8tnltheamfslkeonoftor,raNgarecewoempYyeonfrrtkob,meNfoTerwseamYdecochrikodiC1n0go0uw0n4hseeoltrhaebt:ryNtoceacwlolimYngmor2ekn1Lt2,e-gal
946-0353.

YOU DO NOT NEED TO DO ANYTHING TO BE PART OF THIS SETTLEMENT.

Yycoaonuuswdtaoatnentoyttoohucarovomepmtioneidonont oaonnr vtthethlelinttehgremtoCsotoaukfretthwaedhsvyeatnytltoeaumgedeonotfnotohrtiisafgsyreoeteutlewdmiisteahngttrh.eeeBswuetti,ttlhiefmtyhoeenuptraoorrepsoaosCmedleasspesattMrlteeommfeibnt.et,rTyahoneud Court will consider your views.

TScyoooemvucermonnmeaHnmmatsneenoaatvnndeodrrapoStubqtthjueyeacortteuo,,rpse1ao8ndtfdhdtrhyFeeolsousforiarrcs,ntodNmpteaemwgleeeYpnwhotsorrinkttoee,

NTTessaawmmYcchhooorkvC.1oN0u0an0ps1eo.lliatWat nNroite,ewNdoYo.wo1rn0kyCLoeVugra2ol0bA2j9escs(tiEisot.aDnns.cNoer.YG)r.ouSpi,gn number on the bottom of your letter.

OR

You are welcome to Fairness Hearing on

come

to

the Fairness , 2012

Hearing

to

tell

the judge United

what you think. The Court States Courthouse, located

will

hold

a

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 33 of 43 PageID #: 103
EXHIBIT E
PRELIMINARY APPROVAL ORDER
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 34 of 43 PageID #: 104

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

LHAKPA TSAMCHO, on behalfofherselfand all other similarly situated individuals,
Plaintiff,
-againstJANET NAPOLITANO, in her official capacity as Secretary of Department of Homeland Security; ALEJANDRO MAYORKAS, in his official capacity as Director of United States Citizenship and Immigration Services; DONALD NEUFELD, in his official capacity as Associate Director of the Service Center Operations Directorate of United States Citizenship and Immigration Services; GREGORY RICHARDSON, in his official capacity as Director of the Texas Service Center of the United States Citizenship and Immigration Services; and MARK HAZUDA, in his official capacity as Director of the Nebraska Service Center of United States Citizenship and Immigration Services,
Defendants.

10-CV-02029 (NGG) (MDG)
(ECF CASE)
PRELIMINARY APPROVAL ORDER OF THE CLASS ACTION
SETTLEMENT

This matter comes before the Court on the joint request (the "Joint Motion") ofLhakpa

Tsamcho and a class of persons similarly situated (collectively, "Plaintiffs" or "Settlement Class

Members"), on the one hand, and Defendants Janet Napolitano, in her official capacity as

Secretary of Homeland Security, eta!. ("Defendants"), on the other, for preliminary approval of

1l}1)J the Stipulation and Agreement of Class Action Settlement (the "Stipulation"), dated

Z. J

2012. The Court has reviewed the Stipulation and its attached exhibits, and the Joint Motion and

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 35 of 43 PageID #: 105

its attached exhibits, and, good cause appearing,

IT IS HEREBY ORDERED AS FOLLOWS: Definitions. For the purposes of this Order, the Court adopts by reference the definitions
set forth in the Definitions section and throughout the Stipulation, dated !!i.l:__, 2012, which is

attached to the Joint Motion as Exhibit 1. Certification of a Settlement Class. The Court hereby finds that, for settlement purposes

only, all requirements for class certification under Federal Rule 23(a) and (b)(2) have been met

in this case. For settlement purposes, the Court thereby certifies a class as:

PwBInehettnoeitersiveofiinceeiIwa-r7sryf3ow0rohpfoPretohhtciaatevitsoesnIi-ns7ugh3ba0imsn iPatbteceetcediotniroodnroarnwdciwieldliwlslniutohbbtme8oirtaCpa.wFpnri.RlolIv-.7en§3do§0t

Petition to by USCIS, appear for 207.7(f)(2)

USCIS and but whose a Consular or 208.21(d)

and related provisions.

Preliminary Approval. The Court preliminarily approves the settlement of the Action as

set forth in the Stipulation and Exhibits thereto as being fair, reasonable, and adequate to the Parties. Specifically, this Court finds that settlement of this Action under the terms agreed to by the Parties with respect to the treatment and handling of I-730 Petitions and with respect to all

other terms and obligations is fair and reasonable. If the above settlement is not given final approval for any reason or in any way, or the
Effective Date does not occur, or the Stipulation is rescinded and terminated, the Parties shall be restored to their respective positions in the Action as of the approximate date on which the parties signed the Stipulation. In such event, the terms and provisions of the Stipulation shall have no further force and effect with respect to the Parties, shall be deemed to be without

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 36 of 43 PageID #: 106

prejudice in any way to the position of the Parties with respect to this Action or any other action,

and shall not be used in the Action or in any other proceeding for any purpose, except as

provided in the Stipulation or herein.

Fairness Hearing. A Fairness Hearing will be held on ______, 2012, at

.m.,

at which time the Court will determine whether the certification of a class for settlement

purposes and settlement of the Action should be finally approved as fair, reasonable, and

adequate and whether the Judgment and Order of Dismissal with Prejudice (the "Final

Judgment") should be entered.

Form and Content of the Notice. The Court approves, as to form and content, for

distribution to Putative Class Members, the Class Settlement Notice in the form of Exhibit D

attached to the Stipulation.

Mailed Notice and Publication. No later than 14 days after the date upon which the Court

enters the Preliminary Approval Order, Defendants must mail the Class Settlement Notice to all

NSII Group Members at their last address known to Defendants by first class mail. No later than

14 days after the date upon which the Court enters the Preliminary Approval Order, Defendants

must cause the Class Settlement Notice to be published on the website maintained by USCIS and

circulated to those websites identified by the parties pursuant to paragraph III.B.1 of the

Stipulation, attached hereto as Exhibit 1. Defendants' Counsel shall file with the Court no later

than 5 business days prior to the Settlement Hearing a declaration stating that the mailings and

publication have been completed in accordance with the terms of this Preliminary Approval

Order.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 37 of 43 PageID #: 107
Best Practicable Notice. The Court finds that dissemination of the Class Settlement Notice in the manner described herein constitutes the best notice practicable under the circumstances to potential Class Members and complies fully with Federal Rule of Civil Procedure 23, any and all substantive and procedural due process rights guaranteed by the United States Constitution, and any other applicable law.
Objections. Any Class Member who objects to the settlement shall have the right to appear and be heard at the Fairness Hearing. The manner in which a Notice of Objection should be prepared, filed, and delivered shall be stated in detail in the Class Settlement Notice. Any Class Member who does not make his or her objection in writing prior to the Fairness Hearing or at the Fairness Hearing shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the Settlement unless otherwise ordered by the Court.
Defendants' Denial of Liabilitv. The Court notes that Defendants deny any liability to Plaintiff or to the Class Members for any matter whatsoever. Without conceding any infirmity in their defenses, and while continuing to deny all allegations of liability, Defendants consider it desirable that the Action be dismissed and that the claims against Defendants be released, on the terms set forth herein, in order to avoid further expense, dispose of burdensome and protracted litigation and put to rest all claims which have or could have been asserted against Defendants arising from the acts, transactions or occurrences alleged in the Complaint.
so·ORDERED this _ _ day of _ _, 2012.
UNITED STATES DISTRICT JUDGE

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 38 of 43 PageID #: 108

engold Stevens Jennifer Magida Melissa Chua Seven Hanover Sq. 181h fl. New York, NY 10004
Attorneys for Plaintiffs

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THEe'>DoR£ W. ATKINSON -

Senior Litigation Counsel

United States Department of Justice

Office of Immigration Litigation

District Court Section

Box 868, Ben Franklin Station

Washington, DC 20044

KIMBERLY L. WIGGANS Trial Attorney Office of Immigration Litigation, District Court Section

United States Attorney Eastern District ofNew Y:
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SCOTT DUNN Assistant United States Attorney

Attorneys for Defendants

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 39 of 43 PageID #: 109
EXHIBITF
FINAL APPROVAL ORDER
STIPULATION AND AGREEMENT OF SETTLEMENT 10-CV-02029 (NGG) (MDG)

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 40 of 43 PageID #: 110

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

LHAKPA TSAMCHO, on behalf of herself and all other similarly situated individuals,
Plaintiff,
-againstJANET NAPOLITANO, in her official capacity as Secretary of Department of Homeland Security; ALEJANDRO MAYORKAS, in his official capacity as Director of United States Citizenship and Immigration Services; DONALD NEUFELD, in his official capacity as Associate Director of the Service Center Operations Directorate of United States Citizenship and Immigration Services; GREGORY RICHARDSON, in his official capacity as Director of the Texas Service Center of the United States Citizenship and Immigration Services; and MARK HAZUDA, in his official capacity as Director ofthe Nebraska Service Center of United States Citizenship and Immigration Services,
Defendants.

10-CV-02029 (NGG) (MDG)
(ECF CASE)
FINAL APPROVAL ORDER OF THE CLASS ACTION SETTLEMENT

This matter comes before the Court on the joint request of Lhakpa Tsamcho and a class of persons similarly situated (collectively, "Plaintiffs" or "Settlement Class Members"), on the one hand, and Defendants Janet Napolitano, in her official capacity as Secretary of Homeland Security, et al. ("Defendants"), on the other, for final approval of the Stipulation and Agreement
of Class Action Settlement (the "Stipulation"), dated JJ]_, 2012, and for a final judgment in
this action.

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 41 of 43 PageID #: 111

Notice of the Stipulation was sent to_ class members at their last mailing address
known to Defendants. Notice was also published on the website of U.S. Citizenship and Immigration Services ("USCIS"), as well as on public interest group and other websites. A total

of_ class members objected to the Settlement.

The Court being duly advised in the premises,

IT IS HEREBY ORDERED AS FOLLOWS:

l.

Definitions. For the purposes of this Order, the Court adopts by reference the

bll, definitions set forth in the Definitions section and throughout the Stipulation, dated

2012,

which is attached hereto as Exhibit 1.

2.

Notice. The Court finds that the distribution of the Notice of Class Action

Settlement as provided for in the Preliminary Approval Order, constituted the best notice

practicable under the circumstances to all persons within the definition of the Class, and fully

met the requirements of Rule 23 of the Federal Rules of Civil Procedure and, any and all

substantive and procedural due process rights guaranteed by the United States Constitution, and

any other applicable law.

3.

Final Approval. The Court finds that the Settlement to be implemented by the parties is

fair, reasonable, and adequate, and accordingly, the Court approves the Settlement, as follows:

a.

The Court hereby dismisses with prejudice the Action and all Settled Claims

against Defendants except those claims that have been dismissed without

prejudice pursuant to the Stipulation.

b.

The Parties have agreed upon Attorney's Fees and Costs, as provided in the

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 42 of 43 PageID #: 112

Stipulation.

c.

Upon the Effective Date, the Plaintiff and all Class Members shall be deemed to

have, and by operation of law shall have, fully, finally, and forever released and

discharged all Settled Claims against each and all ofthe Defendants.

5.

Jurisdiction. The Court finds that it has jurisdiction over the subject matter of the

Action, the Plaintiff, the other Class Members, and Defendants. The Court reserves exclusive

and continuing jurisdiction and venue to implement, enforce, construe, and interpret the

Stipulation or Judgment.

6.

Entry of Judgment. There being no just reason to delay entry of this Judgment,

the Clerk of the Court is ordered to enter this Judgment forthwith.

SO ORDERED this _ _ day of ___, 2012. UNITED STATES DISTRlCT JUDGE

/

YLMAN LEGAL ASSISTANCE

j

ne Greengold Stevens

Jennifer Magida

Melissa Chua Seven Hanover

Sq.

18111

fl.

New York, NY 10004

Attorneys for Plaintiffs

THEODO,IW W. ATKINSON Senior Litigation Counsel United States Department of Justice Office of Immigration Litigation District Court Section Box 868, Ben Franklin Station Washington, DC 20044
KIMBERLY L. WIGGANS Trial Attorney Office of Immigration Litigation, District Court Section

Case 1:10-cv-02029-NGG Document 24-1 Filed 11/07/12 Page 43 of 43 PageID #: 113
United States Attorney Eastern District ofNew York
/--/2/Certz;:;(tzf].
SCOTT DUNN Assistant United States Attorney Attorneys for Defendants

 
 U.S. Citizenship and Immigration Services Service Center Operations Washington, DC 20529-2060
IMPORTANT NOTICE OF PROPOSED CLASS ACTION SETTLEMENT FOR INDIVIDUALS WHO HAVE
FILED A REFUGEE/ASYLEE RELATIVE PETITION (Form I-730 Petition) ON BEHALF OF A RELATIVE
A proposed settlement of a federal class action lawsuit may affect your rights.
In May 2010, a class action lawsuit, Tsamcho v. Napolitano, No. 10 CV 2029 (E.D.N.Y), was filed in federal court for the Eastern District of New York, challenging U.S. Citizenship and Immigration Services’ (USCISs’) reopenings and denials of refugee /asylee Form I-730 petitions when the relative of the Petitioner (the Beneficiary) was unable to appear at the U.S. Consulate or Embassy for an interview. The lawyers for plaintiffs and defendants have agreed on terms to settle this litigation. The lawyers for both sides believe that the proposed settlement agreement is best for all Class Members. The Court must approve the settlement agreement in order for it to take effect. If you are a member of the class, you have a right to learn about the terms of the proposed settlement and to comment on or object to the terms. WHO IS INCLUDED IN THE PROPOSED SETTLEMENT? Any refugee or asylee who has submitted or will submit a Form I-730 petition to USCIS and whose Form I-730 petition was approved or will be approved by USCIS, but whose Beneficiary of that Form I-730 petition did not or will not appear for a Consular Interview for processing on the original appearance date is a member of the Class and will be affected by the Settlement. THE TERMS OF THE PROPOSED SETTLEMENT USCIS has agreed not to deny, but instead to hold (administratively close) approved Form I-730 petitions when the Beneficiary does not appear at a U.S. Consulate or Embassy for an interview and processing. The Form I-730 petition will continue to be processed when the individual who

Class Settlement Notice Page 2
requested the petition (the Petitioner) notifies USCIS that the Beneficiary is available to appear at the U.S. Consulate or Embassy.
USCIS has agreed to reopen Form I-730 petitions that were previously approved but then reopened and denied because the Beneficiary did not appear for processing at the U.S. Consulate or Embassy. In those cases, the reopened Form I-730 petition will not be denied, but will be held (administratively closed) until the Beneficiary can appear at the U.S. Consulate or Embassy for processing. There will be no fee to reopen the Form I-730 petition, but the individual who filed the petition must contact USCIS to have the Form I-730 petition reopened and to continue its processing. Individuals who have had their I-730 petitions denied will be able to call a toll-free number to have the case reopened.
USCIS has also agreed that if you do not know when your Beneficiary will be able to attend a Consular Interview, USCIS will not deny, but instead will hold (administratively close) the I-730 petition. You can contact USCIS before your Beneficiary will be able to attend a Consular Interview, and USCIS will then continue to process your request.
WHAT IS A FAIRNESS HEARING?
Before the settlement can take effect, the Court will hold a “Fairness Hearing” to decide whether the settlement is fair, reasonable, and adequate and whether it is in the best interests of the Class Members. At the hearing, Class Counsel and the Defendants will ask the Court to approve the settlement agreement. If there are objections, the Court will consider them. The Court will then decide whether to approve the settlement.
HOW DO I GET MORE INFORMATION?
If you wish to look at the entire proposed settlement agreement before deciding whether to comment, object or attend the Fairness Hearing, you can ask for a copy from Tsamcho Counsel at: New York Legal Assistance Group, Seven Hanover Square, 18th floor, New York, New York 10004 or by calling 212-946-0353.
YOU DO NOT NEED TO DO ANYTHING TO BE PART OF THIS SETTLEMENT.
You do not have to do anything to take advantage of this settlement. But, if you are a Class Member and you want to comment on the terms of the settlement or if you disagree with the proposed settlement, you can state your opinion or tell the Court why you do not agree with the settlement or some part of it. The Court will consider your views.
To comment or object, send your comments to Tsamcho Counsel at New York Legal Assistance Group, Seven Hanover Square, 18th Floor, New York, New York 10001. Write down your objections or comments and at the top of the first page write Tsamcho v. Napolitano, No. 10 CV 2029 (E.D.N.Y). Sign your name and put your address and telephone number on the bottom of your letter.
OR

Class Settlement Notice Page 3
You are welcome to come to the Fairness Hearing to tell the judge what you think. The Court will hold a Fairness Hearing on February 25, 2013, at 10:30 am, at United States District Court, Eastern District of New York, located at 225 Cadman Plaza East, Brooklyn, NY 11201.

 
 Case: 1:10-cv-2029 As of: 05/31/2013 10:06 AM EDT 1 of 4
CLOSED,MJSELECT−MDG
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:10−cv−02029−NGG

Tsamcho v. Napolitano et al Assigned to: Judge Nicholas G. Garaufis Cause: 05:702 Administrative Procedure Act
Plaintiff Lhakpa Tsamcho on behalf of herself and all other similarly situated individuals

Date Filed: 05/05/2010 Date Terminated: 03/01/2013 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Jane Greengold Stevens New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 750−0800 ext. 207 Fax: (212) 750−0820 Email: jstevens@nylag.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Parkin Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520−9090 203−432−8294 Fax: 203−432−1426 Email: jason.parkin@yale.edu TERMINATED: 09/28/2010 LEAD ATTORNEY
Jennifer Beth Magida New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 212−613−5046 Fax: 212−750−0820 Email: jmagida@nylag.org ATTORNEY TO BE NOTICED
Yisroel Schulman New York Legal Assistance Group 450 West 33 Street New York, NY 10001 212−613−5050 Email: yschulman@nylag.org ATTORNEY TO BE NOTICED

V.
Defendant
Janet Napolitano in her official capacity as Secretary of the Department of Homeland Security

represented by Scott Dunn United States Attorneys Office Civil Division Eastern District of New York 271 Cadman Plaza East

Case: 1:10-cv-2029 As of: 05/31/2013 10:06 AM EDT 2 of 4

Brooklyn, NY 11201−1820 (718) 254−6029 Fax: 718−254−6081 Email: Scott.Dunn@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Alejandro Mayorkas in his official capacity as Director of the United States Citizenship and Immigration Services

represented by Scott Dunn (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Neufeld in his official capacity as Associate Director of the Service Center Operations Directorate of the United States Citizenship and Immigration Services

represented by Scott Dunn (See above for address) ATTORNEY TO BE NOTICED

Defendant
David L. Roark in his official capacity as Director of the Texas Service Center of the United States Citizenship and Immigration Services

represented by Scott Dunn (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gerard Heinauer in his official capacity as Director of the Nebraska Service Center of the United States Citizenship and Immigration Services

represented by Scott Dunn (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/05/2010
05/10/2010 05/10/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010

# Docket Text
1 COMPLAINT against Gerard Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David L. Roark Disclosure Statement on Civil Cover Sheet completed −no,, filed by Lhakpa Tsamcho. (Attachments: # 1 Civil Cover Sheet) (Bowens, Priscilla) (Entered: 05/06/2010)
2 NOTICE of Appearance by Jason Parkin on behalf of Lhakpa Tsamcho (aty to be noticed) (Parkin, Jason) (Entered: 05/10/2010)
3 NOTICE of Appearance by Jane Greengold Stevens on behalf of Lhakpa Tsamcho (aty to be noticed) (Stevens, Jane) (Entered: 05/10/2010)
4 SUMMONS Returned Executed by Lhakpa Tsamcho. Janet Napolitano served on 5/5/2010, answer due 7/6/2010. (Parkin, Jason) (Entered: 05/11/2010)
5 SUMMONS Returned Executed by Lhakpa Tsamcho. Alejandro Mayorkas served on 5/5/2010, answer due 7/6/2010. (Parkin, Jason) (Entered: 05/11/2010)
6 SUMMONS Returned Executed by Lhakpa Tsamcho. Donald Neufeld served on 5/5/2010, answer due 7/6/2010. (Parkin, Jason) (Entered: 05/11/2010)
7 SUMMONS Returned Executed by Lhakpa Tsamcho. David L. Roark served on 5/5/2010, answer due 7/6/2010. (Parkin, Jason) (Entered: 05/11/2010)
8 SUMMONS Returned Executed by Lhakpa Tsamcho. Gerard Heinauer served on 5/5/2010, answer due 7/6/2010. (Parkin, Jason) (Entered: 05/11/2010)
9 SUMMONS Returned Executed by Lhakpa Tsamcho. (Parkin, Jason) (Entered: 05/11/2010)

Case: 1:10-cv-2029 As of: 05/31/2013 10:06 AM EDT 3 of 4

05/11/2010 05/14/2010 07/09/2010 07/15/2010 09/23/2010 09/23/2010 09/28/2010 10/26/2010 11/04/2011 02/29/2012 09/11/2012
09/12/2012 10/12/2012 10/16/2012 11/07/2012

10 CERTIFICATE OF SERVICE by Lhakpa Tsamcho re 1 Complaint on Attorney General of the United States (Parkin, Jason) (Entered: 05/11/2010)
11 NOTICE of Appearance by Scott Dunn on behalf of Gerard Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David L. Roark (aty to be noticed) (Dunn, Scott) (Entered: 05/14/2010)
12 MOTION for Extension of Time to File Response/Reply to the Complaint requesting an additional sixty days by Janet Napolitano. (Dunn, Scott) (Entered: 07/09/2010)
13 ORDER granting 12 Motion for Extension of Time to File Response by sixty days. Ordered by Judge Nicholas G. Garaufis on 7/09/2010. (Lee, Tiffeny) (Entered: 07/15/2010)
14 MOTION to Withdraw as Attorney for Plaintiffs by Lhakpa Tsamcho. (Parkin, Jason) (Entered: 09/23/2010)
15 DECLARATION re 14 MOTION to Withdraw as Attorney for Plaintiffs by Lhakpa Tsamcho (Attachments: # 1 Exhibit A) (Parkin, Jason) (Entered: 09/23/2010)
16 ORDER granting 14 Motion to Withdraw as Attorney. Attorney Jason Parkin terminated. Ordered by Judge Nicholas G. Garaufis on 9/23/2010. (Lee, Tiffeny) (Entered: 09/28/2010)
17 NOTICE of Appearance by Jennifer Beth Magida on behalf of Lhakpa Tsamcho (aty to be noticed) (Magida, Jennifer) (Entered: 10/26/2010)
18 STATUS REPORT in response to the Court's directive by Janet Napolitano (Dunn, Scott) (Entered: 11/04/2011)
19 ORDER OF DISCONTINUANCE: The action is hereby discontinued, without prejudice to the right to reopen the action of the settlement is not consummated. So Ordered by Judge Nicholas G. Garaufis on 2/28/2012. (Lee, Tiffeny) (Entered: 03/01/2012)
20 ORDER REOPENING CASE: This putative class action was discontinued by the court without judicial approval of the settlement reportedly negotiated between the individual Plaintiff and Defendants. (See Nov. 4, 2011 Status Report (Docket Entry # 18).) As judicial approval is required for a class settlement,the Clerk of Court is ordered to reopen this case. The parties have never made a motion for class certification or supplied the court with the terms of this reported settlement. The parties shall jointly file a letter establishing a briefing schedule for class certification motions, submission of class notice to the court for approval, and availability for a fairness hearing on the reported settlement. So Ordered by Judge Nicholas G. Garaufis on 9/11/2012. (Lee, Tiffeny) (Entered: 09/11/2012)
21 Letter to Hon. N Garaufis in response to Court's directive to submit schedule for motion for class certification by Lhakpa Tsamcho (Stevens, Jane) (Entered: 09/12/2012)
22 Letter to inform the Court that the parties be permitted until November 1, 2012 to notify the Court that a settlement has been approved OR to inform the Court of status of settlement (on consent) by Gerard Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David L. Roark (Dunn, Scott) (Entered: 10/12/2012)
23 ORDER, Application to be permitted until November 1, 2012 to notify the court that the settlement has been approved or to inform the court of the status of the settlement is Granted. (Ordered by Judge Nicholas G. Garaufis on 10/16/2012) (Piper, Francine) (Entered: 10/16/2012)
24 Letter with attached Stipulation and Agreement of Class Action Settlement, signed by both parties by Gerard Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David L. Roark (Attachments: # 1 Stipulation and Agreement of Class Action Settlement) (Dunn, Scott) Modified to motion on 1/10/2013 (Lee, Tiffeny). (Entered: 11/07/2012)

Case: 1:10-cv-2029 As of: 05/31/2013 10:06 AM EDT 4 of 4

01/10/2013 01/10/2013
02/19/2013 02/25/2013 03/01/2013

25 PRELIMINARY APPROVAL ORDER of the Class Action Settlement. Fairness Hearing set for 2/6/2013 at 10:30 AM in Courtroom 4D South before Judge Nicholas G. Garaufis. So Ordered by Judge Nicholas G. Garaufis on 1/09/2013. (Lee, Tiffeny) (Entered: 01/10/2013)
SCHEDULING ORDER: The court recently issued a Preliminary Approval Order of the Class Action Settlement, in which it scheduled a Fairness Hearing for February 6, 2013, at 10:30 a.m. (See Dkt. 25.) At the request of the parties, the Fairness Hearing is hereby RESCHEDULED for February 25, 2013, at 11:30 a.m. Ordered by Judge Nicholas G. Garaufis on 1/10/2013. (Edelman, Keith) (Entered: 01/10/2013)
26 Letter to inform Court that mailings and publication requirements have been completed by Gerard Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David L. Roark (Dunn, Scott) (Entered: 02/19/2013)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Fairness Hearing held on 2/25/2013 re 24 Motion for Approval of Settlement. No individuals objected to the Stipulation and Agreement of Class Action Settlement. (Court Reporter Judi Johnson) (Edelman, Keith) (Entered: 02/25/2013)
27 Final Approval Order of Class Action Settlement and Judgment. So Ordered by Judge Nicholas G. Garaufis on 2/25/2013. (Lee, Tiffeny) (Entered: 03/01/2013)

 
 IMPORTANT NOTICE for anyone who is a REFUGEE OR ASYLEE who is trying to bring a family member to the United States, (Form I-730 PETITION),
and whose family member has had trouble or might have trouble getting to the U.S. Embassy or Consulate for his or her interview.
Pursuant to a Settlement Agreement in Tsamcho v. Napolitano, No. 10 CV 2029 (E.D.N.Y), from now on, U.S. Citizenship and Immigration Services (USCIS) will not deny, but instead will hold (administratively close) approved Form I-730 petitions when the Beneficiary (relative) does not appear at a U.S. Embassy/Consulate for an interview and processing. The Form I-730 petition will continue to be processed when the individual who filed the petition (the Petitioner) notifies USCIS that the Beneficiary is available to appear at the U.S. Embassy/Consulate.
• To contact USCIS when the Beneficiary of your Form I-730 petition is available to appear for processing, you must call the National Customer Service Center (NCSC): 1-800-375-5283 or 1800-767-1833 (TDD for the hearing impaired). YOU MUST TELLTHE CUSTOMER SERVICE REPRESENTATIVE THAT YOU ARE CALLING ABOUT THE TSAMCHO (pronounced sam-cho) SETTLEMENT AGREEMENT. You will also need to provide updated contact information for both yourself and the Beneficiary, the Form I-730 petition receipt number, and the Beneficiary’s and the Petitioner’s A-numbers. There is no fee to reaffirm and proceed with the processing of your Form I-730 petition.
After USCIS receives your request, you will receive a Notice of Action indicating that the Form I-730 petition has been reaffirmed and has been sent to the U.S. Department of State’s National Visa Center for interview scheduling. There is no fee to proceed with the processing of your Form I-730 petition.
Pursuant to the same settlement agreement, USCIS has agreed to reopen Form I-730 petitions that were previously approved but then reopened and denied because the Beneficiary did not appear for processing at the U.S. Embassy/Consulate or USCIS office overseas. In those cases, USCIS will not deny, but instead will reopen and then hold (administratively close) the Form I-730 petition until the Beneficiary can appear at the U.S. Embassy/Consulate for processing. There will be no fee to reopen the Form I-730 petition, but the Petitioner must contact USCIS to have the Form I-730 petition reopened.
If your Form I-730 petition was denied, you are eligible to have your Form I-730 petition reopened if:
(1) You filed a Refugee/Asylee Relative Petition on Form I-730; and, (2) USCIS approved the Form I-730 petition; and, (3) The Beneficiary did not appear at a U.S. Embassy/Consulate for a required interview; and, (4) USCIS then reopened and denied the Form I-730 petition solely because the Beneficiary did not appear at the U.S. Embassy/Consulate for the interview.
You are not eligible to have your Form I-730 petition reopened if the Form I-730 petition was denied for some reason other than the failure of the Beneficiary to appear for an interview at a U.S. Embassy/Consulate.
If you believe your Form I-730 petition was denied and that you are eligible to have your case reopened, you must:
• Make a request to USCIS by calling the National Customer Service Center (NCSC): 1-800-3755283 or 1-800-767-1833 (TDD for the hearing impaired). YOU MUST TELL THE

CUSTOMER SERVICE REPRESENTATIVE THAT YOU ARE CALLING ABOUT THE TSAMCHO (pronounced sam-cho) SETTLEMENT AGREEMENT. You will also need to provide updated contact information for both yourself and the Beneficiary, the Form I730 petition receipt number, and the Beneficiary’s and the Petitioner’s A-numbers. When making the request, you should inform USCIS if the Beneficiary will or will not be able to appear at the U.S. Embassy/Consulate or USCIS overseas office within six months. If the Beneficiary is able to appear within six months, you should also indicate when and where he or she can appear. This will ensure appropriate handling if USCIS determines the case should be reopened.
After USCIS receives your request, and if your case is reopened and your Beneficiary can appear within six months, you will receive a Notice of Action indicating that your Form I-730 petition has been reaffirmed and has been sent to the U.S. Department of State’s National Visa Center for interview scheduling.
• If your Beneficiary cannot attend an interview within the next six months, USCIS will not deny, but instead will hold (administratively close) the Form I-730 petition until you inform USCIS that the Beneficiary can appear at the U.S. Embassy/Consulate for an interview. Three months prior, or as soon as you know that the Beneficiary will be able to appear for an interview, you should inform USCIS in accordance with the instructions above. There is no fee to reaffirm and proceed with the processing of your Form I-730 petition.
After USCIS receives your request, you will receive a Notice of Action indicating that your Form I-730 petition has been reaffirmed and has been sent to the U.S. Department of State’s National Visa Center for interview scheduling.