Senator Dianne Feinstein
One Post Street, Suite 2450
San Francisco, CA 94104

Re:	Administrative Review of Approved I-129F
	Petitioner:	Andrew DeFaria
	Beneficiary:	Olga Fedoryaka
	CSC File #:	WAC0101653678
	Case ID #:	WRW2001009031

Dear Senator Diane Feinstein,

Thank you for your letter dated February 4, 2002. Unfortunately, again, I find it insufficient. Telling me that processing of my petition will take 24 to 30 months from some unknown date is telling me nothing. In order to determine an amount of time one needs to have at least the start time and a duration or an end date. You do not tell me the end date, only the duration. You do not tell me the start time therefore it is impossible to determine the end date lacking that information.

You state "at this time it is impossible to determine the exact date the petition was received". At what time will this become possible?

Also, statutorily the INS is bound, by Sec. 103.2 of the INA regarding withholding of adjudication which states "has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner". Assuming the INS received the petition in a reasonable amount of time (and I have reason to believe that the INS had received my petition around the end of May 2001) we are approaching that 1 year anniversary. As such I am curious to know if they INS will conform to their own laws and whether or not I will be notified of the district director's decision or again be left in the dark. Seems to me in order to adequately determine when that one year anniversary occurs one must know the date of which to start counting. So again I implore you to find out when that start date was, when the INS had officially received my petition back from the Warsaw embassy.

Additionally I find the fact that I am being withheld from living my life with the woman that I love by my own government for upwards of 2 years simply unacceptable. Especially when you consider the fact that I am being denied this opportunity without any stated just cause or any mechanism to petition for redress for upwards of 2 years. Effectively this is not much different than a prison sentence being tried and convicted without the benefit of due process, without knowing what the charges are, without to the opportunity to address this charges or to appeal them in a proper legal manner all because a government agency cannot process simply paperwork for years! How can this be right? How can this be just? All I'm asking is for my "case" to be heard in a timely fashion! 24 to 30 months is not timely fashion by anybody's definition of the word "timely" .

As you continue to refuse to address my questions I can find no other solution but to continually ask the questions. If you really believe that 24 to 30 months is not that long of a time for me to wait for an answer then surely you will not mind 24 to 30 months of my continually asking the same questions. I am still seeking to obtain answers to the following questions:

1. When will you have an answer for the following question: What is the exact date that the INS received my returned petition?
2. You stated that the California Service Center is backlogged several months. How many months is the California Service Center backlogged? Because I've already been waiting 10 months. In a few more months it'll be a year! What is going to be done to stop these unnecessary delays?
3. I still do not have a definitive statement of what the problem is with my petition. You mean to tell me that I'm to be kept separated from my fiancee for more than 2 years and I will not be told why? How could this be right? How can this be just? How can you let your constituents suffer such pain? As a United States Citizen I demand to know why I am being persecuted for years without a known just cause! This is similar to a Writ of Habeus Corpus
4. According to Lisa Piascik <PiascikL@state.gov> of the Visa Services in the state department there is a difference between an approved petition and an approved visa application. The embassy takes the visa application and must either issue or refuse the visa. My fiancée's visa was refused. According to Lisa the embassy must issue a written explanation why they refused the visa ("New facts arose..." doesn't cut it because there are no new facts! See below). My fiancée and I never received the written explanation. Now I know your office approached the embassy inquiring on my behalf as to the reasons my petition was returned for administrative review but only managed to receive a vague response. Now I am asking you to get this written explanation about why my fiancée's visa was refused. I want a written explanation from the embassy.

Following are a few points that remain unanswered from my last fax. Why do you continue to not answer these?

• I would still like to know what status my petition is in as well as some indication of what steps are ahead. I have no foreknowledge of the steps and procedures that the INS takes in these matters. I am trying to understand this process, where I am in this process, what's next and what other steps lie ahead. Again I do not think that this is too much to ask for. 
• I also feel that I should be allowed the opportunity to present evidence and/or additional information to support my case. I was told, on a number of occasions by the Warsaw Embassy that I can submit additional evidence however I was never told how I can do that nor where I should submit the evidence. Can I or can I not submit evidence to support my case? If I cannot then why did the embassy tell me, several times mind you, that I could?

And although the following is rather lengthy I feel it is still pertinent and as such I ask you to respond to it again. Make no mistake about it I will continue to ask these questions and push these issues until they are addressed. They are important to me and if you were in my shoes I'm sure you would do likewise. I feel like I have been treated unfairly and I have been pleading with your office for assistance so that this wrong can be righted.

I do believe that I am being unfairly judged and that I was unfairly treated by the embassy. I have already filed a complaint about the consular who treated me very disrespectfully, intimidating me and being downright rude. I also feel I've been treated with disrespect by INS officials too. I would like to be treated with respect from your office and the people that work there.

And I do believe that my petition should not have been returned by the embassy, that there was not a legal basis for the consular to return the petition. I say so because of the following section from the Foreign Affairs Manual (9 FAM 42.43 N2.1 Petitions Approved in Error):

The approval of a petition is usually considered to be prima facie evidence that the alien beneficiary has met the petition requirements. Unless a petition has been approved in error, the petition can only be returned if the consular officer knows, or has reason to believe, that the beneficiary is not entitled to status. Knowledge and reason to believe must be based upon evidence that the INS did not have available at the time of adjudication. This evidence often arises as a result of or during the consular officer’s interview. Reason to believe must be more than mere conjecture or speculation—there must exist probability, supported by evidence that the alien is not entitled to status.

And 9 FAM 42.43 N2.2 Cases of Sham Marriages:

INS has minimum evidentiary standards that must be established before revocation proceedings may begin. These minimum evidentiary standards are:

(1) A written statement from one or both of the parties to the marriage or documentary evidence that money exchanged hands; or

(2) Factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws.

It is clear that the wording of these clauses is fairly strong and that the intention was to stress that the consular officer should not be second guessing the decisions made by the INS unless there exists factual evidence developed by the consular officer to indicate otherwise. Further it is expressly mentioned that conjecture or speculation is not enough to return a petition, that there must be probability supported by evidence before the consular should consider returning the petition. It seems clear that the INS knows that such returned petitions can cause undue hardships and delays.

And yet I feel strongly that the consular did return my petition without sufficient factual evidence. This is why I had tried so hard to find out what factual evidence they were basing their decision to return the petition on. You see I was at the interview and I heard what the consular heard. My petition had clearly disclosed both of my fiancée's prior marriages, their start and end dates as well as both of her divorce decrees. For the life of me I cannot fathom what new facts the consular thought arose at the interview that the INS did not have available at the time of adjudication. There were no new facts. I feel confident when I say that I believe the consular return the petition based on conjecture and speculation that my fiancée must have married solely for the purposes of obtaining an immigration benefit and if he sent back my petition then surely the INS would find something.

However they will find that they are mistaken because I have already researched this, obtained a Freedom Of Information Act (FIOA) file that clearly shows the record and there is no evidence in the record that my fiancée ever even applied for an immigration benefit based on her second marriage (her first marriage was a K1 so obviously they applied for AOS for her first marriage but I feel that the consular was clearly questioning her second marriage not her first and I know the first marriage was not entered into fraudulently either).

I fail to understand what is so secretive about these new facts that I cannot be made aware of them. This is definitely not a matter of national security and there isn't even a hint of a terrorist threat or anything like that. Yet the embassy will not tell me what these supposed new facts are and I believe that this is because they don't have any new facts and to admit that would be to admit that they did not follow the proper procedures.

While I may not be privileged enough to be told these facts perhaps you and your office can be told what these facts really are. If so then I'm sure that you would see that my petition was erroneously returned in violation of the regulations and you might better understand my anger over being put though this pain for unjust causes. Could you find out these facts for me, tell me them if you can or keep them to yourselves if you must, but at least become aware of them so you can see my viewpoint?

Further, I have already spoken with both of my fiancée's ex husband's. Neither of them feel that their marriages were entered into solely for the purpose of frauding the INS for an immigration benefit. My fiancée states that the purposes of her marriages were not solely for an immigration benefit, the record shows she didn't even apply for a visa for her second marriage and she even left the country on her own accord in good terms with the hopes of someday finding her true love and returning to America. She's found her true love in me. And now we are waiting for my government to allow her to return. You can help correct this wrong I feel that has been perpetrated on us.

I await your response.

Very truly yours,

Andrew DeFaria