The opinion of the court was delivered by: HARRIS
Before the Court are the following motions: plaintiffs' motion to join additional plaintiffs and motion for a preliminary injunction, defendants' opposition thereto, and plaintiffs' reply; plaintiffs' motion for summary judgment; and defendants' motion to dismiss or, alternatively, cross-motion for summary judgment, plaintiffs' reply and opposition to defendants' cross-motion, defendants' reply, and plaintiffs' sur-reply.
The history of this case has previously been set forth in the opinion of June 29, 1995, issued by another judge of this court who had the case temporarily, and in the opinion issued by the United States Court of Appeals for the District of Columbia Circuit in Legal Assistance for Vietnamese Asylum Seekers ("LAVAS") v. Department of State, 310 U.S. App. D.C. 168, 45 F.3d 469 (D.C. Cir. 1995), a separate case which nonetheless is identical to this action in all relevant respects. Plaintiffs filed suit and moved for a preliminary injunction on May 25, 1995, and plaintiffs' motion for a preliminary injunction was granted on June 29, 1995. Vo Van Chau v. Department of State, 891 F. Supp. 650 (D.D.C. 1995). On July 11, 1995, plaintiffs filed an amended complaint, adding 18 additional plaintiffs, and moved for a second preliminary injunction. (Plaintiffs Vo Van Chau and Le Thi Thanh Xuan's claims were later rendered moot when the Department of State processed and granted Le's visa application on September 14, 1995.) Plaintiffs' second motion for a preliminary injunction was granted on December 13, 1995. Le v. Department of State, 1995 U.S. Dist. LEXIS 19206, Civil Action No. 95-989 (D.D.C. Dec. 13, 1995).
Plaintiffs' Motion To Join Additional Parties
On December 22, 1995, plaintiffs moved, pursuant to Fed. R. Civ. P. 21, to join 32 more individuals as plaintiffs. Plaintiffs moved at the same time for a third preliminary injunction and for summary judgment as to those additional parties. As with the 18 current plaintiffs, the 32 individuals are really 16 pairs: 16 are petitioner-sponsors living in the United States
who petitioned the INS for immigrant visas for Vietnamese nationals currently detained in Hong Kong, and 16 are the sponsored Vietnamese nationals.
Plaintiffs' motion to join additional parties requires a brief (and, by necessity, oversimplified) explanation of the process by which eligible detained nationals and their sponsors secure the nationals' entry into the United States. Before a detained Vietnamese national may apply to the United States Consulate General in Hong Kong for an immigrant visa ("IV"), his or her sponsor in the United States must petition for an IV from the Immigration and Naturalization Service ("INS"), under one of several provisions (the relevant provisions in this case relate to spouses, children, and religious immigrant workers). See 8 U.S.C. §§ 1151-1156 (Supp. 1995). The sponsor's IV petition, if approved by the INS, must also be "current" -- that is, the detained Vietnamese applicant would not have to wait for a visa number if his or her subsequent IV application to the United States Consulate General were granted. See Aff. of Wayne S. Leininger, Defs.' Opp. to Pls. Mot. for Prelim. Inj., June 15, 1995.
When a stateside sponsor's IV petition is approved by the INS and is current, the detained applicant has one more hurdle to surmount: he or she must apply for an IV to the United States Consulate General, submit certain supporting documents, and, when his or her documentation is complete, submit to an interview at the Consulate. If the IV application is granted, the applicant is allowed entry into the United States. This case and LAVAS are concerned only with this final stage of the process -- the detainee's application to the United States Consulate General for an IV, once the INS has approved the sponsor's IV petition and the petition is deemed current.
Accordingly, the Court will consider accepting as plaintiffs only those individuals and sponsors whose IV petitions are current and approved by the INS, and who await only processing and decision by the United States Consulate General on their IV applications.
Defendants state in their opposition and their corrected opposition to plaintiffs' motion to join additional parties that 13 of the 16 sponsors' IV petitions are current and have been approved (and, therefore, that 13 of the 16 detained plaintiffs are eligible for an interview with the Consulate, if they are document-ready). Defs.' Opp. to Pls.' Mot. To Join Add'l Parties, Aff. of Martha Sardinas (Jan. 12, 1996) (Sardinas Aff. I), paras. 2-3; Defs.' Corrected Opp., Aff. of Martha Sardinas (Jan. 24, 1996) (Sardinas Aff. II), paras. 3-6; Defs.' Opp., Aff. of Bernard J. Alter (Jan. 12, 1996), para. 2a; Defs.' Corrected Opp., Aff. of Bernard J. Alter (Jan. 24, 1996), para. 2a. Defendants submit that they lack documentation on three detainees: Cao Thi My Linh (sponsored by Jon Van Phan, a.k.a. Phan Thang Van), Nguyen Thi Thanh (sponsored by Nguyen Ngoc Huang) and Nguyen Van Ton (sponsored by Nguyen Van Dien).
Plaintiffs have submitted documentation showing that the IV petition of Jon Van Phan has been approved by the INS. Pls.' Reply, Ex. 1. Plaintiffs also have submitted documentation showing that Phan became a United States citizen on September 13, 1995. According to defendants' submissions, Phan's citizenship, and the INS's prior approval of his IV petition, renders the petition current. Sardinas Aff. II, para. 3. Phan's spouse, Cao Thi My Linh, is accordingly eligible (if document-ready) for an IV interview at the USCG in Hong Kong, upon submission of the approved petition to the USCG in Hong Kong by the NVC.
Nguyen Ngoc Huang is also a United States citizen. Pls.' Mot. To Join Add'l Parties at 3, para. 11. The IV petition of Nguyen Ngoc Huang was approved by the INS on October 25, 1995. Pls.' Reply, Supp. Decl. of Mark Zuckerman, para. 4. His petition, too, is therefore approved and current, and his spouse, Nguyen Thi Thanh, is eligible (if document-ready) for an IV interview at the USCG in Hong Kong, upon submission of the approved petition to the USCG by the NVC. See Sardinas Aff. II, para. 3.
Remaining is detainee Nguyen Van Ton, sponsored by his father, Nguyen Van Dien, who is a United States citizen. Despite plaintiffs' explicit representation to the contrary, see Pls.' Reply at 2, Nguyen Van Dien's IV petition has not been approved by the INS; it has only been received by the INS. Pls.' Reply, Ex. 3. According to that document, it takes "300 to 330 days" from the date of receipt of an IV petition for the INS to process the case. Id. The Court has no other indication that the INS has approved Nguyen Van Dien's IV petition on behalf of Nguyen Van Ton, and these two individuals therefore are not proper plaintiffs in this action. Accordingly, plaintiffs' motion to join additional plaintiffs is granted as to all but two: Nguyen Van Dien and Nguyen Van Ton.
Plaintiffs' Motion for Summary Judgment
On February 13, 1996, the Court of Appeals (by a vote of 7-4) denied defendants' suggestion of rehearing en banc in LAVAS, No. 95-5104 (D.C. Cir. Feb. 13, 1996). This case is, in all relevant respects, identical to LAVAS. See LAVAS v. Department of State, 310 U.S. App. D.C. 168, 45 F.3d 469 (D.C. Cir. 1995); Vo Van Chau v. Department of State, 891 F. Supp. 650, 652 (D.D.C. 1995) (noting that this action is "closely related to LAVAS). While defendants are correct that the doctrine of nonmutual offensive collateral estoppel may not be asserted against the federal government, see United States v. Mendoza, 464 U.S. 154, 78 L. Ed. 2d 379, 104 S. Ct. 568 (1984), the government cannot evade, just as this Court may not fail to follow, precedent from its own court of appeals in a case presenting the same facts and the same issues of law. See ...