Case: Tsamcho v. Napolitano

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

Filed Date: May 5, 2010

Closed Date: March 1, 2013

Clearinghouse coding complete

Case Summary

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

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

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

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

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

Summary Authors

Dan Osher (5/31/2013)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/12845931/parties/tsamcho-v-napolitano/


Attorney for Plaintiff

Chua, Melissa (New York)

Magida, Jennifer (New York)

Parkin, Jason (New York)

Attorney for Defendant

Atkinson, Theodore W (District of Columbia)

Dunn, Scott (New York)

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Documents in the Clearinghouse

Document

1:10-cv-02029

Docket

Jan. 10, 2013

Jan. 10, 2013

Docket
1

1:10-cv-02029

Complaint

May 5, 2010

May 5, 2010

Complaint
24-1

1:10-cv-02029

Stipulation and Agreement of Class Action Settlement

Nov. 7, 2012

Nov. 7, 2012

Settlement Agreement

Important Notice for anyone who is a Refugee or Asylee

No Court

None

None

Notice Letter

1:10-cv-02029

Notice of Proposed Class Action Settlement

No Court

None

None

Notice Letter

Docket

See docket on RECAP: https://www.courtlistener.com/docket/12845931/tsamcho-v-napolitano/

Last updated April 1, 2024, 3:08 a.m.

ECF Number Description Date Link Date / Link
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)

May 5, 2010

May 5, 2010

Clearinghouse
2

NOTICE of Appearance by Jason Parkin on behalf of Lhakpa Tsamcho (aty to be noticed) (Parkin, Jason) (Entered: 05/10/2010)

May 10, 2010

May 10, 2010

PACER
3

NOTICE of Appearance by Jane Greengold Stevens on behalf of Lhakpa Tsamcho (aty to be noticed) (Stevens, Jane) (Entered: 05/10/2010)

May 10, 2010

May 10, 2010

PACER
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)

May 11, 2010

May 11, 2010

PACER
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)

May 11, 2010

May 11, 2010

PACER
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)

May 11, 2010

May 11, 2010

PACER
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)

May 11, 2010

May 11, 2010

PACER
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)

May 11, 2010

May 11, 2010

PACER
9

SUMMONS Returned Executed by Lhakpa Tsamcho. (Parkin, Jason) (Entered: 05/11/2010)

May 11, 2010

May 11, 2010

PACER
10

CERTIFICATE OF SERVICE by Lhakpa Tsamcho re 1 Complaint on Attorney General of the United States (Parkin, Jason) (Entered: 05/11/2010)

May 11, 2010

May 11, 2010

PACER
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)

May 14, 2010

May 14, 2010

PACER
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)

July 9, 2010

July 9, 2010

PACER
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)

July 15, 2010

July 15, 2010

PACER
14

MOTION to Withdraw as Attorney for Plaintiffs by Lhakpa Tsamcho. (Parkin, Jason) (Entered: 09/23/2010)

Sept. 23, 2010

Sept. 23, 2010

PACER
15

DECLARATION re 14 MOTION to Withdraw as Attorney for Plaintiffs by Lhakpa Tsamcho (Attachments: # 1 Exhibit A) (Parkin, Jason) (Entered: 09/23/2010)

Sept. 23, 2010

Sept. 23, 2010

PACER
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)

Sept. 28, 2010

Sept. 28, 2010

PACER
17

NOTICE of Appearance by Jennifer Beth Magida on behalf of Lhakpa Tsamcho (aty to be noticed) (Magida, Jennifer) (Entered: 10/26/2010)

Oct. 26, 2010

Oct. 26, 2010

PACER
18

STATUS REPORT in response to the Court's directive by Janet Napolitano (Dunn, Scott) (Entered: 11/04/2011)

Nov. 4, 2011

Nov. 4, 2011

PACER
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)

Feb. 29, 2012

Feb. 29, 2012

PACER
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)

Sept. 11, 2012

Sept. 11, 2012

PACER
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)

Sept. 12, 2012

Sept. 12, 2012

PACER
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)

Oct. 12, 2012

Oct. 12, 2012

PACER
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)

Oct. 16, 2012

Oct. 16, 2012

PACER
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)

Nov. 7, 2012

Nov. 7, 2012

PACER
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)

Jan. 10, 2013

Jan. 10, 2013

PACER

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)

Jan. 10, 2013

Jan. 10, 2013

PACER
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)

Feb. 19, 2013

Feb. 19, 2013

PACER

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)

Feb. 25, 2013

Feb. 25, 2013

PACER
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)

March 1, 2013

March 1, 2013

PACER

Case Details

State / Territory: New York

Case Type(s):

Immigration and/or the Border

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: May 5, 2010

Closing Date: March 1, 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

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

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

Department of Homeland Security, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

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

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

Available Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Attorneys fees

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Issues

Immigration/Border:

Admission - procedure

Asylum - procedure

Family Separation