Jaswant Suffered Knowing that Jai Was Separated from the Family for No Reason

You are here

 

As the Consulate and USCIS realized their errors in Jai's case, they became more aggressive and then denied his case to keep him outside of the United States where he would have difficulty challenging them

On February 3, 1983, Jaswant filed three I-130 petitions at the US Embassy at Mumbai (then Bombay), one for her brother Jai and one each for her sisters Paramjit and Ankita.  The INS office in the US Embassy approved all three petitions the same day.  Jaswant was a US citizen and so her three siblings fell in the fourth preference category, which required a wait of almost ten years before they could immigrate to the United States.

In 1994 the priority dates for Jaswant's siblings became current making them eligible to immigrant permanently to the United States.  The US Embassy issued immigrant visas to Paramjit and Ankita, but refused Jai his visa.  After Paramjit and Ankita immigrated to the United States in 1994, Jai was left behind as the last member of his family outside of the United States.  He, his wife and children were separated from their brothers, sisters, cousins, aunts and uncles, nieces and nephews.

Jaswant and Jai believed that this separation would be temporary and that the US State Department would resolve this issue in Jai's favor within some reasonable period of time.  This proved not to be the case.

Following INS' Advice and Instructions

After Jaswant made several inquiries, the State Department's "Transitional Immigrant Visa Processing Center" (TIVPC) directed her to file a duplicate petition with INS and include a copy of the TIVPC letter.  TIVPC did not admit or mention losing the petition.

INS issued a new receipt notice with a priority date of June 1, 1994 noting that it sent the original visa petition to the National Visa Center.  Jaswant's first attorney Sam then made a new inquiry to the NVC on December 20, 1994 noting that INS and NVC made an error and the priority date was supposed to be February 3, 1983 and not June 1, 1994.  The later priority date would require Jai to wait an additional ten years before being eligible to immigrate to the United States.

NVC responded in January 1995 that it could not update Jai's priority date because a different petitioner filed the first petition in 1983.

Trying Another Attorney, and Then Another

After many inquiries sent herself and by Sam, Jaswant hired another attorney in 1997 named Suresh.  In late 1997 Suresh sent two separate inquiry letters to the US Embassy at Bombay explaining the situation.  The Embassy did not respond to Suresh's letters.  Suresh then sent another inquiry in May 1998 and the Embassy responded that it had no record of Jai's case.

In Summer 1998 Jaswant decided to hire another attorney named Kimberly.  Kimberly sent a written inquiry to the Embassy at Mumbai in July 1998 (by this time the Embassy was renamed Mumbai from Bombay).  The US Embassy Mumbai did not respond to this inquiry.

Losing Hope

Jaswant made additional inquiries herself, but after paying three attorneys who could do nothing more than write letters, she mostly lost hope that there was a way to bring Jai to the United States with his wife and children.  Jaswant's past attorneys explained that it was almost impossible to sue because INS would explain that it was the State Department's fault and the State Department would assert that it was INS' fault.  And, they said, it was very difficult to sue the US State Department.

The government's practices wore Jaswant down.  After years of directing Jaswant to do something, then Jai to do something, then Jaswant to do something else, ignoring inquiries, requiring additional correspondence, then ignoring that correspondence, the government came close to tiring Jaswant into accepting what seemed like fate.

Trying Something Different

In 2000 Jaswant was urged to make one last try with attorney Sean Olender who took the case pro bono as a favor to a friend.  Sean sent a demand letter to INS and to the State Department.  Both agencies ignored the demands.

In Spring 2001 Sean filed a mandamus lawsuit in the Federal District Court for the Central District of California.  Mandamus is a remedy available under federal law when a federal agency refuses or fails to perform a duty required of it by law.  Mandamus does not compel the government agency to approve a case or favorably treat an applicant before it.  Instead it simply requires the government to take action when it is sitting there doing nothing.

The Government Behaving Badly

INS appeared vindictive for little reason.  In September 2001 in the midst of the litigation, INS issued a notice revoking Jaswant's petition for Jai on the grounds that the beneficiary did not apply for an immigrant visa within one year of his eligibility to apply in 1994.  This was a lie because the lawsuit presented evidence that the beneficiary had traveled to the US Embassy Bombay at least four times in that first year asking why he was unable to apply for an immigrant visa and was turned away and told to come back in ten years. The INS opinion read:

All Service action in this matter is terminated as of the date of this notice.  There is no appeal from this Decision.

Jaswant and Jai were stunned at what appeared to be almost a personal vendetta.  It was as if the government was punishing them for daring to stand up for their rights.  Jaswant and Jai were saddened and believed that it was unlikely Jai, who was then 55 years old, would ever immigrate to the United States.

A Reasonable Man at the US Attorney's Office

The Office of the United States Attorney is charged with representing federal agencies like USCIS (at that time INS) in lawsuits.  The Office of the United States Attorney also prosecutes federal crimes, and represents the United States government in serious matters.  Unfortunately, the INS' actions were now taking the valuable time of the Office of the United States Attorney.

The attorneys who work under the United States Attorney for the District are titled "Assistant United States Attorneys" or AUSAs.  The AUSA assigned to this case was stunned at the INS' position.  He spoke repeatedly with the INS Service Center's counsel and tried to explain to her that INS was going to lose the case and would have to pay attorney's fees.  But she would not listen.  It was she who directed INS to revoke Jai's approved petition months into the litigation instead of trying to settle the case.

The AUSA assigned to the case ultimately prevailed on the INS counsel representing the Service Center that INS was taking a legally indefensible position and wasting the valuable time of the Office of the US Attorney and that if she continued, INS would lose and have to pay attorney's fees for no reason.

Results Are What Counts

Although it took almost another year of negotiations, the AUSA persuaded INS to settle the case by issuing the visa and allowing Jai, his wife and children to permanently immigrate to the United States.  The AUSA told Sean that he was surprised that the attorneys working at INS were unable to understand why they were wrong on the law, but also how peculiar it was that they pursued such an aggressive and harmful set of actions against Jai and Jaswant who had done nothing wrong... except point out that INS and Department of State had made an error.

As negotiated with the US Attorney's Office, Sean dismissed the lawsuit against the US State Department and INS after Jai was safely inside of the United States with his permanent residence.

Related Subjects: 

visit us at:

  95 South Market St., Suite 363
    San José, CA 95113
 (408) 797-0000

  200 Washington St., Suite 208
    Santa Cruz, CA 95060
 (831) 245-0000

The Olender Pro Bono Project

We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.

NEWSLETTERS

Change Your Address at DHS!

If you are not a US citizen, you must change your address with DHS within 10 days of moving or face deportation. Click Here.