Legal Assistance for Vietnamese Asylum Seekers Thua Van Le Em Van Vo Thu Hoa Thi Dang Truc Hoa Thi Vo v. Department of State, Bureau of Consular Affairs
Docket: 94-5104
Court: Court of Appeals for the D.C. Circuit; February 20, 1996; Federal Appellate Court
The case involves Legal Assistance for Vietnamese Asylum Seekers and individual appellants Thua Van Le, Em Van Vo, Thu Hoa Thi Dang, and Truc Hoa Thi Vo against the U.S. Department of State regarding changes in immigration policies affecting Vietnamese refugees. The U.S. Department of State contended that the case was moot due to their provision of relief to the appellants; however, the District Court ruled in favor of the State Department's mootness argument. The Court of Appeals reversed this mootness determination for two of the appellants, denied the petition for rehearing, and remanded the case for further proceedings consistent with its prior opinions on the merits of the State Department's policies.
The background of the case highlights the immigration procedures for Vietnamese refugees following the North Vietnamese takeover of South Vietnam in 1975. From 1979 to 1988, Hong Kong granted presumptive refugee status to Vietnamese immigrants, contingent on resettlement assistance from the U.S. and other countries. In 1988, due to rising economic immigration, Hong Kong altered its policy to detain new arrivals and assess their refugee status. The Comprehensive Plan of Action was established, requiring non-refugees to return to Vietnam to apply for immigrant visas.
In April 1993, the U.S. Consulate in Hong Kong ceased processing immigrant visa applications upon direction from the State Department. In February 1994, the appellants filed suit against the State Department, alleging violations of the Immigration and Nationality Act, related regulations, the Administrative Procedure Act, and the U.S. Constitution. The District Court granted summary judgment to the State Department in April 1994.
In February 1995, an appellate court determined that the State Department's refusal to process the applications of certain appellants at the U.S. Consulate in Hong Kong violated the Immigration and Nationality Act (INA). Judge Randolph dissented, suggesting that the case should be remanded to assess whether it had become moot due to potential relief obtained by the appellants. In March 1995, the State Department argued for the first time that the case was moot for specific appellants based on their immigration status changes prior to the decision. While appellants acknowledged that the claims of Thua Van Le and Thu Hoa Thi Dang were moot, they maintained that these individuals, along with LAVAS, could still act as class representatives, disputing the mootness of the Vos' claims.
In May 1995, the appellate court remanded the case to the District Court to evaluate mootness, leading to a September 1995 ruling declaring the case moot. The District Court's opinion centered on the claim that Truc Hoa Thi Vo's application should be processed in Hong Kong rather than Vietnam. Ms. Vo's application was processed in Hong Kong but was denied on November 30, 1994. The plaintiffs argued that the case could not be moot since the Consulate had not made a final decision on her application. However, the Court sided with the defendants, concluding that Ms. Vo had achieved the relief she sought—processing her application in Hong Kong. The Court noted it lacked authority to review the Consulate's final determination on the application. Consequently, the claims of Ms. Vo and her sponsor, Em Van Vo, were deemed moot. Further briefing on the mootness issue was ordered as a precursor to addressing the rehearing request.
The legal analysis addresses the concept of mootness in the context of visa applications, referencing key cases. In *City of New York v. Baker*, the court determined that a case did not become moot simply because the State Department stated it would no longer deny future visa applications on the same grounds, as the potential for the government to revert to its previous stance remained. Similarly, in *Allende v. Shultz*, the First Circuit ruled that the granting of a visa to Hortensia de Allende did not moot the case, as the underlying policy dispute persisted. Both cases illustrate that the government cannot evade litigation simply by conceding an individual claim without renouncing the broader policy in question.
In the present matter, appellants contend that their situation mirrors these precedents, citing that they are not merely seeking a one-time resolution but a complete processing of Ms. Vo's visa application, which remains open. The State Department has not fully resolved this issue, indicating that the controversy remains active and thus not moot, as Ms. Vo continues to participate in the application process.
Ms. Vo retains the ability to file a new application despite any expiration of her current application. The dispute regarding her application remains relevant, as the State Department has reverted to its previous policy of not processing applications like hers in Hong Kong since December 1, 1994. This situation indicates a high likelihood that the State Department's refusal to process such applications will recur, which undermines any argument for mootness. Consequently, the court reverses the District Court's judgment of mootness concerning Mr. and Ms. Vo's individual claims and denies the State Department's petition for rehearing, reaffirming the previous judgment on the merits. The case is remanded for consistent treatment with this ruling.
Regarding class certification, the District Court's initial denial of LAVAS and the individual appellants' motion was based on mootness, which is no longer valid following the court's determination that the case is not moot for Mr. and Ms. Vo. Therefore, the refusal to grant class certification is vacated, and the matter is remanded for reconsideration without addressing the merits of the certification motion.
Judge Randolph concurs that the case is not moot, noting that there has been no final processing of Ms. Vo's visa application, which remains active until at least November 16, 1996, according to a declaration filed with the court.
A petition for rehearing is granted based on previously stated reasons, particularly due to the LAVAS ruling, which continues to obstruct the implementation of an international plan aimed at resolving the "boat people" crisis. The refugee situation remains unresolved, with reports indicating that uncertainty regarding U.S. policy has incited riots in refugee camps, hindering repatriation efforts. An international agreement stipulated that all Vietnamese refugees in Hong Kong should have returned to Vietnam by the end of 1995, a deadline that has now passed without resolution. The State Department, in a related case (Lisa Le v. Department of State), argues that the legal basis for the LAVAS decision is misapplied, as it pertains only to visa issuance rather than the processing of visa applications. The State Department claims that the authority over venue determinations lies solely with the Secretary of State. Regardless of this new argument's validity, it is asserted that the plaintiffs were not discriminated against based on nationality, and the majority's decision is deemed erroneous. The case should be reheard to ensure U.S. compliance with the international agreement involving fifty nations.
Additionally, an order was issued regarding motions to continue the stay of the mandate related to the rehearing suggestion, with a decision to withhold the mandate until March 21, 1996, while dismissing a prior motion as moot. Several circuit judges expressed their support for the rehearing suggestion.
