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Posts Tagged ‘Consular Non-Reviewability’
29th April 2011
It recently came to this blogger’s attention that the discretionary powers accorded to Consular Officers at United States Missions abroad with regard to visa issuance are to be expanded to provide further latitude to Consular Officers with regard to the revocation of US visas. To quote directly from Justia.com:
This rule changes Department regulations to broaden the authority of a consular officer to revoke a visa at any time subsequent to issuance of the visa, in his or her discretion. These changes to the Department’s revocation regulations expand consular officer visa revocation authority to the full extent allowed by statute. Additionally, this rule change allows consular officers and designated officials within the Department to revoke a visa provisionally while considering a final visa revocation.
Clearly, this rule would expand the authority currently granted to Consular Officers in adjudicating American visa matters. For those who are unfamiliar with this topic it should be noted that Consular Officers currently maintain virtually un-reviewable discretion in matters pertaining to US visa application adjudication. This discretion occurs pursuant to a doctrine referred to as Consular Non-Reviewability (or colloquially referred to as Consular Absolutism). Pursuant to the philosophy underlying this doctrine Courts in the United States are unlikely to review the decisions of a Consular Officer at a US Embassy or US Consulate abroad unless the Consular Officer’s decision in the matter appears “facially illegitimate” to the Court of competent jurisdiction.
Bearing this in mind the announcement went on to point out the reasoning behind the recent decision to make this rule change:
On occasion, after a visa has been issued, the Department or a consular officer may determine that a visa should be revoked when information reveals that the applicant was originally or has since become ineligible or may be ineligible to possess a U.S. visa. Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) (INA) authorizes the Secretary and consular officers to revoke a visa in their discretion. Current regulations limit the circumstances in which consular officers may revoke visas. In light of security concerns, this amendment grants additional authority to consular officers to revoke visas, consistent with the statutory provisions of the INA. Although this rule eliminates the provisions that permit reconsideration of a revocation, it also allows for the provisional revocation of a visa when there is a need for further consideration of information that might lead to a final revocation. In cases where the person subject to a provisional revocation is found to be eligible for the visa, the visa will be reinstated with no need for reapplication. However, with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.
In this blogger’s opinion, this rule change could have significant ramifications for prospective visa applicants. That stated, it remains to be seen what the practical implications of this rule change will be. The administration of this web log strongly encourages readers to click on the above hyperlinks to learn more about this topic on Justia.com.
It should be noted that within the text of this memo it was pointed out that this rule is being promulgated pursuant to the Administrative Procedure Act. To quote one final time from the aforementioned document:
This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553 (a) (1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.
Those who have read this blog in the past may recall that the United States Department of State maintains a mandate to conduct the foreign affairs of the United States and one of the duties that is entailed within this mandate is the duty to adjudicate applications for a US visa. This can include applications for visas such as the B-2 visa (for those wishing to engage in recreational travel in the United States), the K-1 visa (a US fiance visa for the foreign fiance of a US Citizen), the CR-1 visa or IR-1 visa (for the spouse of an American Citizen or Lawful Permanent Resident), or, in increasingly rare instances, a K-3 visa (which is a non-immigrant spouse visa for the husband or wife of an American Citizen). It is even posited that this new discretion could have an effect upon adjudication of L-1 visa and EB-5 visa applications, as well as the possible aftermath thereof. In any case, increased Consular discretion is likely to have an impact upon visa applications across the categorical spectrum of American travel documents.
14th April 2011
This blogger recently came across a great deal of interesting information pertaining to issues surrounding the consular processing of United States visas and visa applications.
The first item of note involves a recent United States Federal Court decision which spoke to the issue of the Doctrine of Consular Non-Reviewability (sometimes referred to by the somewhat draconian sounding: Doctrine of “Consular Absolutism”). It would appear that one issue in that case revolved around the procedural usage of administrative designations made by interviewing Consular Officers at the US Consulate in Ho Chi Minh City (HCMC) which were then utilized as a basis for administratively establishing findings of misrepresentation by the United States Citizenship and Immigration Service (USCIS) thereby creating a grounds for revoking the underlying petition. It seems that the Judge in this case did not agree with the plaintiff that usage of so-called “P6C1” tags caused any “actual injury” as “natural expiration” of immigration petitions apparently does not rise to the level of “revocation” under the circumstances in that case. To quote directly from the PDF version of the official order dated March 29, 2011 as found on the Entry Law website at EntryLaw.com:
The F&R concludes that plaintiffs have stated a claim under the APA challenging 9 F.A.M. 40.63 N10.1 as unlawful and in excess of the agency’s statutory authority. F&R 25. That provision states that where a consular officer finds what she believes to be misrepresentation with regard to a family-based immigrant visa petition, the consular officer “must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.” 9 F.A.M. 40.63 N10.1. Plaintiffs allege that by placing a “P6C1” marker in a visa beneficiary’s record—indicating a perceived misrepresentation—the State Department saddled plaintiffs with a “permanent misrepresentation bar to any future immigration possibility” if USCIS revokes the petition. First Am. Compl. ¶ 158.4
I reject plaintiffs’ argument, and decline to follow the F&R, because plaintiffs have not properly alleged that a P6C1 marker has any effect on them. Importantly, 9 F.A.M. 40.63 N10.1 states that the materiality of a misrepresentation is only established “[i]f the petition is revoked,” and plaintiffs have not alleged that USCIS revoked the petitions. Therefore, plaintiffs have not stated a plausible claim that any future bar to immigration possibility would attach to plaintiffs as a result of the P6C1 marker. The F&R concludes that because USCIS does not act on petitions, and allows them to expire after denials, that inaction is equivalent to a revocation, and therefore would trigger the permanent misrepresentation bar. F&R 26. However, plaintiffs do not cite any authority for the proposition that the word “revoked” in 9 F.A.M. 40.63 N10.1 includes inaction that allows a petition to expire naturally. Nor have plaintiffs offered any support for the allegation that they are in fact barred from any future action. Thus, plaintiffs have not yet alleged any actual injury with respect to the P6C1 marker. Plaintiffs argue that they should not be required to show actual injury because they are entitled to assume the defendants will “enforce the law as written,” and any future action by plaintiffs would therefore be futile. F&R 27. Because I conclude that the law as written only bars petitioners whose petitions were “revoked,” and not those whose petitions expired naturally, I find no basis upon which to exempt plaintiffs from showing injury. Plaintiffs therefore do not have standing, and have not stated a claim, regarding the Department of State’s use of the P6C1 marker.
Those interested in learning more about the detailed facts of this case as well as issues pertaining to Consular Processing in general are well advised to click on the hyperlinks above to learn more about the seemingly ever evolving issues associated with the US Immigration process and the process of obtaining so-called “hybrid” family-based visas such as the K-1 visa or the K-3 visa as well as classic immigrant visas such as the CR-1 visa and the IR-1 visa from the various US Embassies, Consulates and Missions abroad.
These so-called “P6C1″ markers are not necessarily disagreeable to this blogger per se, but their usage can be troubling to those who study how the visa process works in a real-world environment. This blogger fully believes that Consular Officers are entitled to make factually based decisions which may have legal ramifications either in the form of a finding of a legal grounds of inadmissibility which may or may not be waivable through application for an I-601 waiver and/or an I-212 waiver (depending upon the situation). That said, why all of the redundancy? Where applicable, why not simply make the material misrepresentation finding of inadmissibility at the American Consulate or American Embassy abroad thereby providing a more streamlined opportunity for applicants to seek a remedy in the form of a waiver from the United States Citizenship and Immigration Service (USCIS), if applicable? Why would the application package be sent back to USCIS with a so-called marker? The Consular Officers at US Missions abroad are adjudicators of visa applications and both the wide latitude of their discretion as well as the virtually non-reviewable nature of their factual findings are legal creations designed to lend efficiency to visa processing because the Consular Officers are in the best position to make factual determinations. Why send the petition back to USCIS with the “misrepresentation marker” at all? The USCIS is not in any discernably better position to make a determination regarding the veracity of the application. Therefore, DOS is failing to make an actual decision while simultaneously placing USCIS in a position where they cannot really claim to be able to better review the facts of the case as it was the Consular Officer who actually interviewed the applicant and adjudicated the posture of the overall application. It has been this blogger’s experience that visa applicants and petitioners are looking for some degree of certainty in the visa process. If an applicant is possibly legally inadmissible to the USA do not the notions of efficiency and equity seem to dictate quick adjudication of a finding of inadmissibility, if applicable, and visa denial, if appropriate? From the point of view of the inadmissible applicant the argument in favor of quick visa denial may possibly stem from the desire to seek a waiver in a timely manner thereafter.
Many of the Founding Fathers who drafted the United States Constitution were involved in the creation of legislation which would lead to the establishment of the Department of State. It would seem to this blogger as though these gentlemen did so because they recognized that America would need a governmental entity to deal with affairs of State, international trade matters, and Consular affairs so that average Americans could get on with their personal business and so that those of foreign origin would have an organ by which to entreat with the government of the United States of America. In an effort at providing more clarity on this topic it may be best to quote directly from Wikipedia:
The U.S. Constitution, drafted in Philadelphia, Pennsylvania in 1787 and ratified by the states the following year, gave the President the responsibility for the conduct of the nation’s foreign relations. It soon became clear, however, that an executive department was necessary to support the President in the conduct of the affairs of the new federal government.
The House of Representatives and Senate approved legislation to establish a Department of Foreign Affairs on July 21, 1789, and President Washington signed it into law on July 27, making the Department of Foreign Affairs the first Federal agency to be created under the new Constitution. This legislation remains the basic law of the Department of State. In September 1789, additional legislation changed the name of the agency to the Department of State and assigned to it a variety of domestic duties.
These responsibilities grew to include management of the United States Mint, keeper of the Great Seal of the United States, and the taking of the census. President George Washington signed the new legislation on September 15. Most of these domestic duties of the Department of State were eventually turned over to various new Federal departments and agencies that were established during the 19th century. However, the Secretary of State still retains a few domestic responsibilities, such as being the keeper of the Great Seal and being the officer to whom a President or Vice-President of the United States wishing to resign must deliver an instrument in writing declaring the decision to resign.
Those wishing to better understand the history of the American State Department are strongly encouraged to click upon the hyperlinks noted above to read more on this engrossing topic.
Bearing the above legal opinion from the Federal Court for the District of Oregon’s Portland Division in mind, the reader may be interested to take note of the fact that some students of issues associated with Consular Processing of American visas are taking exception with some of the Department of State’s practices and proposing measures in an attempt to provide some sort of notification mechanism for complaints regarding Consular Officers at US Missions abroad seemingly aimed at curtailing what some feel are negative aspects of Consular discretion. To quote directly from Kenneth White in an article posted on ILW.com:
In contrast to other immigration-related agencies such as USCIS and CBP, the Department of State (“Department”) has no formal complaint system. The Department has a Customer Service Statement to Visa Applicants on its website,1 yet does not indicate how to pursue a complaint for a violation of the rights specified. The “How to Contact Us” page of the Department’s website mentions “inquiries” but not complaints. The Glossary page of the Travel.State.gov/visa section of the Department’s website indicates how to file a complaint with CBP, but not the State Department. Consular websites are silent on the issue of filing complaints.
In October 2009, the Department announced to the American Immigration Lawyers Association an address2 within the Visa Office to send complaints. However, the Visa Office does not investigate the complaints: it merely recites the consular officer’s version of events. Further, the mandate of the Department’s Office of Inspector General is limited to instances of fraud, waste, and mismanagement. It is abundantly clear that a genuine Complaint Procedure must be implemented.
The administration of this web log highly encourages readers to click on the above cited hyperlinks for further detailed information about consular processing and Mr. White’s opinions thereon. This blogger agreed with a great deal of the analysis presented in this article such as the author’s somewhat economic rationale in favor of at least the argument that some sort of complaint system may be beneficial to Consular processing, to quote further from the aforementioned posting:
dollars and sense – International visitors and students spend billions of dollars every year in the United States. Hundreds of thousands of American jobs are dependent on this spending by foreigners. Competition for the travel dollar is intense, with other countries not requiring visa interviews and utilizing visa procedures that are faster and cheaper than the US. Thus, it is incumbent upon the US government to ensure that consular officers treat applicants respectfully and professionally;
The American People in general, the States as well as all sectors of the Federal government should always be aware of the tremendous amount of economic activity that occurs as a result of foreign direct investment in the United States as well as tourist dollars spent in the United States of America. Streamlined visa processing and professional Consular staff are always a good idea, but this blogger did take some exception with at least one passage in the aforementioned article:
doctrine of consular nonreviewability – There is no formal administrative or judicial review of the overwhelming majority of visa decisions, meaning that consular officers are not accountable to applicants for the decisions they make. In the view of many, this non-accountability consciously or subconsciously emboldens consular officers, leading to a fiefdom mentality;
The administration of this blog highly recommends that readers click upon the above hyperlinks to read further from this detailed and well researched article so that all quotes cited above can be understood in context. This blogger would not say that he is unequivocally in favor of the Doctrine of Consular Non-Reviewability (also colloquially referred to as the Doctrine of “Consular Absolutism“) per se, as any time a significant amount of discretion is vested in a non-elected officer of the American government one should ponder the implications of such a state of affairs, but the argument for such a doctrine within the factual context of consular processing has to take into consideration the notion of “efficiency” which would seem to presuppose that there are some decisions which given the totality of the circumstances can only be efficiently made by an adjudicator on the ground in the applicant’s home country or country with appropriate consular jurisdiction. Presumably, there are unlikely to be a great many such adjudicators and those who do exist are likely to have a great many cases and/or applications to adjudicate. Therefore, there are reasonable arguments in favor of granting wide discretion to Consular officers in matters pertaining to factual adjudication of applications, but readers should not mistake this blogger to mean that he is in favor of unlimited discretion on the part of Consular Officers. The Doctrine of Consular Non-Reviewability provides that a great deal of deference will be paid to Consular Officers’ factual decisions by the US Courts, but that is not to say that the Courts do not have jurisdiction over visa denials especially when such denials are “facially illegitimate“. Bearing this in mind, as can be seen from the case above, American Courts are generally loathe to review visa denials as doing so could be viewed by some as a waste of Court resources and because it currently appears somewhat difficult for most Courts to sufficiently review a Consular Officer’s decision in a given case from a position that is qualitatively better than the unique perspective of the Officer on the ground in the country where the application is taking place. Proving that a Consular Officer’s decision is “facially illegitimate” could seem like a virtually insurmountable standard of proof, but fortunately it is not wholly impossible to receive judicial review of visa decisions as doing so would be a truly frightening concept from a due process perspective. That stated, having all Consular Officers’ decisions reviewed by the Court system seems equally as frightening if one considers how much time, energy, and resources would need to be expended in order to maintain such a docket.
To be clear, this blogger agrees with a great deal of Mr. Kenneth White’s analysis on many of the issues associated with Consular Processing, but where this blogger takes some degree of exception relates to the notion that officers have a “fiefdom” mentality. Although this blogger certainly cannot speak for everyone who has undergone Consular Processing, it has never been this blogger’s personal opinion that Consular Officers have a “fiefdom-mentality”. That stated, as an American Resident Abroad, this blogger must say that it does not seem like such a bad thing for American civil servants abroad, Consular Officers included, to take some pride in their position as a representative of America and the American people. As such, an Officer taking an interest in the efficiency and business of their US Embassy or US Consulate may also be prudent to take a personal interest in the overall impact of Post policies and procedures upon applicants, petitioners, and their families.
The notion of a Consular Complaint Box is something that should be pondered by interested parties long and hard especially in light of the fact that the Doctrine of Consular Non-Reviewability appears to still be as virtually unshakable as it ever has been. Therefore, the main question regarding a Consular Complaint Box that this blogger feels should be posed is: what benefit will the public receive from such an undertaking? If the Consular Officers continue to be endowed with virtually non-reviewable authority what good is it to be able to complain about it? What good would this do? This does not provide a tangible remedy to the applicant in the event of an adverse decision. Furthermore, would not the implementation of such a policy result in simply further paperwork for Department of State employees, but under such circumstances to no particularized end? In this blogger’s opinion, it is probably better that DOS use what resources it has with regard to Consular Processing to one end alone: efficiently adjudicating visa applications as that is clearly within their mandate. That stated, a complaint system to deter truly rude behavior as noted in Kenneth White’s article above may ultimately prove appropriate, but this blogger might make further suggestions. For example, how about something akin to an “Alien Miranda Warning”. Where American peace officers are required to Mirandize suspects so as to put them on constructive notice of rights like the right to remain silent and the right to an attorney it could prove beneficial for all concerned in the immigration process if Consular Officers made it clear that foreign applicants could seek the advice and counsel of licensed American attorneys regarding pending or prospective immigration matters pursuant to section 8 CFR 292.1, as amended. Such a suggestion should not be construed to be advocating attorney consultation regarding submission of complaints. Instead, attorneys may be best equipped to apprise prospective visa seekers of relevant immigration law as well as the regulations pertaining to application for various United States visa categories. One aspect of the issues surrounding Consular Processing that seems to be of little concern to the public-at-large involves doomed applications made by those who truly cannot overcome statutory presumptions such as that enshrined in section 214(b) of the United States Immigration and Nationality Act. The time and resources expended by Posts to adjudicate and deny visa applicants pursuant to section 214(b) of the INA and the time and resources needlessly expended by the applicants who are denied under this section of the INA could often be saved through effective assistance of counsel in providing advice and information regarding the likelihood of visa application approval based upon the unique facts of a given case. In short, perhaps informing applicants and petitioners of the issues associated with US Immigration rather than creating a mechanism to complain to what appears to be rather overworked Consular Officers is the appropriate course of action at this juncture. Hopefully, by thus informing concerned parties regarding US Immigration matters the negative overall impact from so-called “visa companies”, notarios, visa agents, and fake lawyers can be diminished to the benefit of the prospective immigrant community and the American People.
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