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The Golden Door

News and views on immigration law

U visas – a little known benefit

January 20th, 2014 by Djung Tran

U visas are a little known benefit for many unauthorized immigrants.  It provides a route to U.S. lawful permanent resident status if you happen to be the victim of certain violent crimes, including crimes of domestic violence.

U visas are technically, most of the time, not visas at all.  It is a lawful nonimmigrant status usually granted to individuals already present in the United States, rather than granted abroad with the issuance of an actual visa.  This status is NOT permanent resident status, a.k.a. the green card.  But it does grant you permission to remain in the United States lawfully, with permission to work, for up to three years.  At the end of that three years, assuming you have not done anything unlawful in the meantime, you can adjust your status to that of permanent resident.  For a more detailed listing of U eligibility criteria, USCIS provides this information.

This U nomimmigrant status is only granted to up to 10,000 unauthorized immigrants per year.  The 2014 quota was actually reached in December 2013, according to the U.S. Citizenship and Immigration Services (“USCIS”), which is only about two and half months into the federal fiscal year which begins on October 1st.  This is because immigrant advocates are doing a better and better job in informing eligible immigrant victims of crime about this benefit and filing the application.  Applications that do not make the cut-off in the year filed are held over until the quota re-opens in the next fiscal year.

The U nonimmigrant status was created to help immigrant victims of crime, including specifically victims of domestic violence, and to encourage such victims to come forth to report the crime and to cooperate in the investigation and prosecution of the crime.  In exchange for the victim reporting and helping to prosecute the crime, a law enforcement agency must sign off on a formal certification of the victim’s helpfulness.  Without this law enforcement certification, the U visa application cannot move forth.  It is thus an indispensable condition of eligibility and in some cases the bulk of the work on applying for U status is finding a law enforcement agency willing to sign off on the certification.

This is because not all law enforcement agencies are aware of what U nonimmigrant status is, or the policy considerations behind it.  The personnel at such agencies may be wary of signing off on a form that they are not familiar with, in case it might come back later to bite them.  Or, in some cases, the leadership or personnel at these law enforcement agencies are anti-immigrant and simply do not want to help unauthorized immigrants, even those who are victims of crimes and are willing to come forth.  In the first instance, it is important to provide background information on why the U nonimmigrant status was enacted and to show that signing off on the certification does not have negative repercussions for the law enforcement agency.  In the second, if one’s powers of persuasion do not work in changing an anti-immigrant attitude then it is time to think creatively and look around for another law enforcement agency with jurisdiction over the crime.

U visas are a valuable tool towards obtaining lawful status for victims of crime.  It creates a benefit from an awful situation where an immigrant was physically harmed or threatened with physical harm.  If you know anyone who experienced this, or even certain relatives of victims who are without lawful immigration status, we can help evaluate whether a U visa application is viable.  Contact Tran Law Associates at (215) 690-1933 to discuss your specific situation.

 

Motions to Reopen/Reconsider

December 30th, 2013 by Djung Tran

The law is a codification of what is right and fair.  It may not seem that way sometimes, but that is what it is and should be.

Part of being a lawyer is keeping sight of this basic truth.  As an immigration lawyer, I deal with U.S. government agencies on a daily basis.  Sometimes my interactions with agencies are adversarial, such as when Immigration and Customs Enforcement is trying to deport my client because of lack of government permission to be present in this country, and I am trying to point out exceptions in the law that allow my client to stay and to become a lawful resident (or to prove that my client is already a citizen and therefore not deportable).  Other times my interactions are cordial, in that I am applying for a benefit that my client qualifies for, and my job is to know what the qualifications for the benefit are (all of them) and to clearly demonstrate that my client possesses these qualifications.  The government agency’s staffers’ job is to verify that my client does indeed qualify for the benefit sought and, once verified, approve that application in a timely manner.  The benefit, after all, is one that the United States Congress has pronounced is a desirable result, such as family reunification or providing foreign workers for U.S. businesses that cannot otherwise find qualified U.S. workers.

Not infrequently, applicants for immigration benefits (especially those not represented by an experienced immigration lawyer) make mistakes in their forms or fail to submit all necessary documents, despite being as diligent as possible in following the instructions provided by U.S. Citizenship and Immigration Services (“USCIS”) or other U.S. immigration agencies.  Even experienced immigration lawyers will occasionally make mistakes, being only human.  And, sometimes (or a lot of times, depending on who you talk to) USCIS makes mistakes, being only run by humans.  That’s when an I-290B Motion to Reopen or Motion to Reconsider comes in.

The I-290B Motion to Reopen and/or Reconsider codifies what should be common-sense fairness.  When an applicant believes that USCIS has made a mistake there must be some way to communicate this to USCIS and hold USCIS accountable for its mistakes.

This is what happened in one of my change of status cases, where my client entered the country on a B1/B2 tourist visa to visit with family and sight-see, and then decided she wanted to continue her education here.  Rather than going home and applying for an F-1 student visa she opted, as permitted by law, to apply for a change of non-immigrant status.  We researched schools for her, she chose one that fit her budget and career goals, applied and was accepted by the school, paid her first semester’s tuition fees, and was issued an I-20 by the school.  She had to prove she had the financial means to pay her tuition fees and cover her living costs here in the United States, and a good friend of the family generously agreed to be her financial sponsor.

My client’s situation was one that was explicitly contemplated and approved of by immigration law, and it was just a matter of proving the relevant factors:  non-immigrant intent upon admission; acceptance at a SEVIS-approved school and issuance of an I-20; and financial ability to pay for school and living costs.  We submitted her application for change of status along with all needed documents.  USCIS received her application but somehow lost most of the accompanying documentation.  In fact, USCIS informed me that although it had received my cover letter, which listed all enclosed documents, the documents themselves were not received.

Now, let me pause for a moment to reflect.  USCIS was telling me that I had submitted a cover letter with no enclosed documents.  For a lawyer, that’s ridiculous.  No lawyer would send just a cover letter and not include the 80+ pages of documents that the letter references.  I can understand forgetting a particular document among several documents, especially in a voluminous submission, but to just send a cover letter – what lawyer, or what applicant for that matter, would do that!?

In this particular case, USCIS misplaced voluminous document submissions three separate times.  In the same case.  Can you image how infuriating it was for me to receive the second and third notice that USCIS had not received documents that I took such care to deliver to it — especially after being told that the first submission had documents that went missing?  I could prove that I mailed a substantial packet of documents to USCIS in the matter, and I did so, sending along copies of the prior submissions to prove timely and complete submission of required information.

I notified USCIS of the fact that the relevant facts had been delivered, and delivered copies.  The application was then denied for failure to submit required evidence.  I wrote a strongly worded letter basically telling USCIS you can’t deny this application for losing documents I already submitted to you!  I also complained to my bar association and asked for liaison assistance.  The case was reopened by Service motion and then again denied, again citing failure to submit documents I had by this time submitted twice.  It was like the Service never read my letter in which I had so carefully proven that my client had met all her obligations, and again delivered the relevant evidence.  I wrote another strongly worded letter, sent another full copy of all prior submissions (several hundred pages by now) which got no response.  I also filed an I-290B Motion to Reopen and/or Reconsider, the formal protocol for complaints (which carries a hefty filing fee).  Then, when no response was forthcoming within 90 days, I sought assistance from the USCIS Ombudsman’s office, reciting the litany of lost documents and resubmissions.  The Motion was ultimately granted, and fairness in the case was preserved, although it took one and a half years rather than the two to three months it normally does for an application like this.

The moral of this story:  don’t forget that the law should result in what is right and fair.  Oh, and be a pain in the ass if that’s what’s needed to get things done.

The approval was sweet, but what would really be the icing on the cake is if USCIS refunds our filing fee.  I’m not holding my breath.

Lawyers for detained immigrants

August 9th, 2013 by Djung Tran

Immigration law is a strange beast.  Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country.  While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.

In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families.  It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations.  I’ve said it before on this forum, but it bears repeating:  Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused.  We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused.  Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.

Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem.  The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers.  Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government.  For low-income immigrants in proceedings this is a hollow right.  It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.

Like all sectors of the population, immigrants include good apples and bad apples.  For immigrants found to be dangerous to the community imprisonment is appropriate.  But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime.  Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations.  Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%.  Having a lawyer, and being free from detention, can increase the chances of success to 74%.

The estimated cost of providing competent counsel for a detained immigrant is $3,000.  If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.

I will keep an eye out to see how this pilot program fares.  It is a step in the right direction and I wish it the best.

Same-sex marriage cases post-Windsor

August 1st, 2013 by Djung Tran

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. WindsorThe Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

Eulogy for my Dad

July 16th, 2013 by Djung Tran

My father died recently.  Below is the eulogy I delivered at his funeral.  I wrote about him last year, a few months after it was clear that he was terminally ill:  see The Spirit of the Immigrant.  This, I guess, is the coda to that piece.

 

My dad is gone. I was wondering if it would be any less painful if dad died at a later age, after a very full and complete life? Maybe. I think part of the grief I feel is because dad was so vigorous and full of life before he got sick. His cancer robbed him of that vitality long before it took his life.

Dad was always there for us, opinionated, always ready to help, playful and grouchy in quick succession (like me, like my son). His love for his family, although almost never said in words, came through loud and clear in his actions. His last thoughts were what he could do to make sure my mother, my brother, my son, and I were taken care of. His last instructions to us were that we love and take care of each other.

It was sometimes hard to know, because dad rarely spoke about his own feelings, when he was proud of us or when he was disappointed. But in the end, I don’t think it really matters. He loved us, his children, whether we succeeded or failed in our endeavors.

As my mother has said in the days since his death, you cannot take any of your possessions with you when you go. What dad leaves behind are our memories – all of our memories – of a hard-working man who was always there for his family and friends. I have never known him to let anyone down, and I will miss his laughter, his bright smile, his stories that poked gentle fun at people, how he never complained about how unfair life can be, his strength of will, and his unconditional love.

Dad would want to thank many of his family and friends for their love and support over his lifetime, but particularly, since he became sick, I know that he would want to give special thanks to his good friends, Bac Bao and Bac Nhung, Di Ngoc Ha and Bac Chuong, and Bac Chan and Bac Thanh, and Bac Dich and Di Bich-Ngoc for caring for him in his time of need. Thank you for being good friends to my dad.

May his journey continue in peace and the knowledge that he is loved and deeply missed. Con tuong ba va nho ba nhieu.

Post Script to Consular Nonreviewability

July 7th, 2013 by Djung Tran

A few months ago, I wrote about a K-1 fiancé visa case of mine that was impossible to move forward and where repeated requests for information and clarity went nowhere.  (See The pitfalls of the K-1 fiance visa: Consular nonreviewability.)

A recent episode of National Public Radio’s This American Life illustrates this same frustrating experience perfectly.  The show put up a web page providing the email correspondence between an Iraqi interpreter for the U.S. government and the U.S. immigration office handling his case.  In the end, the applicant was killed before his employment with the U.S. government was verified to the (impossible standard of) satisfaction of the agency.  You have to read it to believe it:  This American Life – Taking Names.

Expungements: What you need to know before you expunge.

April 30th, 2013 by Djung Tran

For most people who acquire a minor criminal record that conviction becomes both a professional and a personal thorn in their side.  On the career-side, having a criminal record can make landing a job more difficult or might prevent you from doing the work you want to do altogether, whether that’s lawful on the employer’s part or not.  On the personal side, you may feel ashamed that you have this record that shows that you broke the law, or were convicted of breaking the law, and having to explain it whenever it comes up.

After experiencing the ramifications of having a criminal conviction, most people want to eliminate this from their record if they can, which usually means requesting that the record be expunged.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which it the record was generated should come up empty-handed.  Once an expungement petition is granted, the court administrator (usually the clerk of courts) where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  In reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files in a timely manner, so information about your conviction may still show up in other databases, such as the FBI database.

In terms of immigration, before you expunge your record you should know this:  USCIS and the federal immigration courts often require that you disclose whether you have ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, and what your sentence was if you were convicted.  They require this information regardless of whether the record has been expunged.  And they expect you to provide certified records of these events, or a statement from the relevant agency stating that no record is available.

This means that once you record has been expunged there is no way for the record-keeping agency to issue you a certified copy of that record.  And, not infrequently, when you then request a statement that the record is no longer available due to expungement, the agency may not comply with this request for various reasons, including not understanding the request, or due to a policy of declining to verify the prior existence of a record that has been expunged.

Then you are stuck.  You have admitted to immigration authorities (in the course of, for example, applying for citizenship or for cancellation of removal) to having a criminal record, as the law requires, and yet you cannot provide verification of what happened, also as required.  It is because of this conundrum that I often advise clients to delay having their criminal records expunged until after they become naturalized.  A “clean” criminal record procured through the expungement process can be a headache in immigration proceedings because of the requirement to disclose ALL, even expunged criminal records.

This is an example of when consulting an attorney earlier rather than later is the wiser course of action.  Sometimes you don’t know what you don’t know!  Sometimes a consult early on the process can alert you to potential pitfalls before you commit them.  At Tran Law Associates, we aim to make the immigration process as painless as possible, including warning you of actions that may negatively impact your application for benefits.

 

Review of “De Novo – mas alla de las fronteras (beyond borders)”

March 29th, 2013 by Djung Tran

I saw the play “De Novo – mas allas de las fronteras (beyond borders)” last night.  It was a beautiful, touching, realistic depiction of what some undocumented immigrant youth face when they are placed in deportation proceedings, produced by Houses on the Moon theater company.

There are so many different meanings of “de novo” that resonate throughout the play.  From a lawyer’s perspective, it is a term of art meaning review by a court from the beginning, without relying on prior adjudications, and assessing all evidence afresh rather than through the lens of another adjudicator’s decision.  In a more general sense, it means taking things from the beginning, or starting anew.  The play invites us to both look at the life of one undocumented immigrant youth from the beginning, and to think about the roots of the circumstances of his life, and the immigration system that we have and how it is should be reformed.  It made me think, “What controlled this person’s life?  What could he have done given his circumstances?  Could he have made different decisions?  What are our responsibilities for the circumstances of his life?  What is the U.S. government’s responsibility here?”

“De Novo” is about Edgar Chocoy-Guzman, a real person.  The play uses language taken from real documents, including letters, psychological evaluations, and court transcripts.  He was born in Guatamala in 1987.  He never really knew his father.  His mother left for America when he was an infant.  He lived in his grandfather’s house but no one really parented him.  He joins the gang Mara Salvatrucha and then leaves it, and leaves Guatemala because the gang has put a hit on him.  He joins his mother in Los Angeles and ends up joining another gang.  He is then placed in juvenile detention and then, after he has served his time, instead of being released he is transferred to immigration detention and placed in deportation proceedings, at age 15.  Knowing that he would still be a target of assassination back in Guatemala, he applies for asylum.

The scenes of immigration court proceedings were spot-on.  This is not your Law & Order polished court scene.  The court scenes in “De Novo” were just like the real thing.

There was a panel discussion after the play, and the moderator took the stage visibly emotionally affected by the performance.  I won’t tell you any more as it would spoil the play for you.  All of the actors were excellent.  The fact that the words used in the play were the actual words uttered or written as Edgar’s story unfolded in reality made the story even more affecting.  That this is a real story makes it even more immediate, compelling and thought-provoking.  This is about someone’s actual life and experience.  If you get the chance to see this, I highly HIGHLY recommend that you go.  If you know people who are hostile to immigrants, bring them along.  Let them see what it’s really like to be an unauthorized immigrant in America, instead of thinking of unauthorized immigrants one-dimensionally as nothing more than law-breakers who need to be deported.

 

Fraud or misrepresentation – a small mistake can derail a case

March 29th, 2013 by Djung Tran

I recently finished an adjustment of status case which should have been straight-forward.  It involved an elderly couple, both originally from Jamaica.  They had been married for decades, then divorced after wife moved to the United States and they grew apart.  She re-married, to a U.S. citizen, and got her permanent resident status and then her U.S. citizenship.  Her second marriage ended several years later, and several years after that she and her first husband grew close again and re-married.  She then applied for him to obtain his permanent resident status.

They were represented by prior counsel.  Everything seemed fine until they attended the adjustment of status interview.  At the interview, the officer asked about husband’s tourist visa application from 10 years ago.  Apparently, husband, who was recently divorced from wife at that time, had checked the “married” rather than the “divorced” box.  This was deemed by USCIS to be a fraud or misrepresentation and the adjustment of status application was denied.

“Fraud” or “misrepresentation” are words that you do not want to hear from USCIS.  They are definitely a sign that your application is in trouble, because it makes you inadmissible and/or deportable.  Luckily, “fraud” or “misrepresentation” are not as adverse a bar to obtaining immigration benefits as a false claim of U.S. citizenship, which is an immutable (non-waivable) bar unless you fall into a very narrow exception.  Still, it’s a very serious matter.

In this case, husband was illiterate and had not completed his visa application himself.  A stranger waiting in line with him at the visa office helped him.  So the first response to the charge of fraud or misrepresentation should have been that he had no intent to deceive and, further, the alleged deception would not have helped him get his visa.  Had he been married, as indicated on the visa application, to a U.S. lawful permanent resident, as his then ex-wife was by this time, this would have been an adverse factor in his visa application.  This is because having strong ties to the U.S., such as to a lawful permanent resident spouse, weighs against being able to establish strong ties to your home country, a condition of being issued a tourist visa.  So this misrepresentation would not have helped him get his visa approved.

Even had husband deliberately intended to deceive in his visa application, a waiver of this ground of inadmissibility is available if you can demonstrate that denial of the adjustment of status application would result in extreme hardship to a U.S. citizen spouse.  In this case, both husband and wife had serious health problems.  Husband was frail and in severe ill health.  In fact, he had suffered a serious medical emergency in Jamaica the last time he was there from which he could easily have died.  Part of what made that event so life-threatening was that after he arrived at the hospital he was not treated for 16 hours while the hospital demanded upfront payment for treatment.  If he were forced to return to Jamaica then the next time he needed acute medical care he would face the same lack of prompt service and he would be allowed to die waiting for care.  Deportation to Jamaica would be a death sentence.

Prior counsel in the case did not dispute the finding of fraud or misrepresentation, or submit information about husband’s or wife’s medical conditions and medical history.  In fact, the only thing prior counsel submitted to argue hardship was statements from husband and wife, and their friends and family, that they loved each other and had for decades, and now were reunited and could not bear to live apart.  Not good enough.

Long story short, I disputed that husband deliberately misrepresented his marital status, and we submitted medical records and information about hospital conditions in Jamaica, and the case was approved.  What really helped, I believe, was to show the human costs in the case.  This was an elderly man who would have died the next time he needed emergency medical care in Jamaica.  That would have caused an extreme hardship to his wife.

 

The pitfalls of the K-1 fiance visa: Consular nonreviewability

February 15th, 2013 by Djung Tran

Sometimes the law makes no sense. Sometimes it is unjust.

Take the case of consular processing for K-1 visas. For immigration neophytes, consular processing occurs when the intending immigrant is not physically in the United States and, thus, the individual must request a visa to lawfully enter the country. The visa application process is handled, usually, by the U.S. Department of State rather than the US. Citizenship and Immigration Services (“USCIS”), part of the U.S. Department of Homeland Security.

In my experience, consular processing of family based immigration is rife with opportunities for visa offices to exercise bias and apply inconsistent standards. That is because there is no system of external oversight for visa issuance decisions. The K-1 visa, where the applicant is a foreign national whose only tie to the United States is that he or she is engaged to marry a U.S. citizen, is particularly vulnerable to such abuses.

A K-1 visa case came to me, after the fiancée of the immigrant had filed the I-129F petition pro se, after the petition had been approved by USCIS, after applicant had the visa interview, and then… nothing. No news, no decision. Ten months after the visa interview in Kabul, Afghanistan, I started work on the case, requesting a decision or some direction as to what concerns were holding up the application. Unfortunately, due to a rule known as the doctrine of consular nonreviewability, there was no way to require a U.S. Department of State visa office to justify either its lack of action or rejection of a visa application. We cannot get a federal court to force a decision, because the courts will defer to the U.S. Department of State under this doctrine. The only way to get past this judicial deference to visa decisions is to prove that the visa office acted in bad faith, an impossibility in the vast majority of cases. This is because the applicant has no information from the visa office, much less information about what evidence the decision is actually based upon.

The rationale for the deference, according to visa decisions under the doctrine of consular nonreviewability, is that the United States government has broad powers to determine who it permits to enter its borders, and decisions to deny admission to foreign nationals, barring bad faith, will not be second-guessed by the courts. This sounds somewhat rational until you play out the consequences. The procedures used to evaluate applications lack transparency. While the Foreign Affairs Manual (the U.S. Department of State's operating manual) references the statutory and regulatory requirements for reviewing visa applications, it leaves broad discretion to the visa officer to make credibility determinations. In practice, denial letters never tell you why exactly the application was rejected, except to conclude that you failed to prove that you have a real relationship. In other instances, you may have failed to prove sufficiently strong ties to your home country (for tourist visas). There is no meaningful appeal process for such denials. When I have filed appeals to the U.S. Department of State visa office in the past, the result has been a pro forma affirmation, with no response to the mistakes in fact. Plus, there is no appeal of that decision, particularly no judicial appeal. The result is that applicants are denied permission to enter the United States, without the right to present additional evidence to rebut the grounds of the denial. That’s because our right of Due Process does not to apply to foreign nationals residing abroad. Apparently, it also does not matter that U.S. citizens are also deprived of due process as a consequence of the visa denial.

In my Afghan K-1 visa case, my client and her fiancée had participated in a ceremonial wedding and signed a nekah, a Muslim marriage contract, while waiting for the K-1 visa to be approved. Under Afghan law, the nekah must be registered with the family court and a marriage certificate must be issued by that court before a legal marriage is created. More than a year and a half after the visa interview, and over two years after the application was filed, my client's K-1 petition was denied because my client and her fiancée were deemed to already be married.

In my Afghan K-1 visa case, my client and her fiance had participated in a ceremonial wedding and signed a nekah, a Muslim marriage contract, while waiting for the K-1 visa to be approved.  Under Afghan law, the nekah must be registered with the family court and a marriage certificate issued by that court before a legal marriage is created.  More than a year and a half after the visa interview, and over two years after the application was filed, my client’s K-1 petition was denied because my client and her fiance were deemed to already be married.

Had my client filed an I-130 Petition for Alien Relative and attempted to bring her fiancée to the United States based on the same facts, that petition would have be denied for lack of proof of a valid, legal marriage, according to the Kabul U.S. Embassy website. Thus, this was a classic Catch-22 situation.

I had already pointed out the facts of the case and the applicable Afghan law of marriage to the Kabul visa office, pointing out that a wedding without a legal marriage had taken place and that the same standard should be applied for an I-130 petition as an I-129F petition in evaluating whether a legal marriage existed. The visa denial did not address any of my points.

The current state of the law accords deference to visa decisions under the doctrine of consular nonreviewability. Due to this long-standing doctrine, courts refuse to demand any sort of accounting in visa decisions. It is past time to scrap this outdated rule that allows bias and abuse to occur under the guise of protecting our borders. While I agree that the United States should have broad authority to decide who is eligible to enter the country, once the statutory and regulatory rules are enacted that define the limits of this authority, these rules should be followed. There should be a mechanism to evaluate that the statutes and regulations are, indeed, followed by visa offices. Under the doctrine of consular nonreviewability, there is no way to require visa offices to identify the evidence relied upon in issuing a denial. Thus, applicants are left stranded without any avenue for appeal or external review. In my Afghan visa case, my client is left without the ability to live with her fiancée in the United States. She is forced to confront the choice of moving to Afghanistan or some other country that will accept both her and her fiancée as residents with the right to work.