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The Golden Door

News and views on immigration law

Posts Tagged ‘immigration law’

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

Friday, February 15th, 2013

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.

Words matter: unauthorized immigrant versus criminal alien invader

Tuesday, November 1st, 2011

Being a practicing immigration attorney and someone who routinely interacts with immigrant communities on a pro bono basis, certain themes and questions recur in my experience of dealing with immigrants and the policy issues that immigration law raises.

One recurring theme that may seem technical and boring but  plays out in important ways is the status of immigration as civil rather than criminal law.  Immigration violations are not generally criminal violations, and thus foreign nationals who fail to maintain their lawful immigration status or who enter the country without permission are not per se criminals.  Although in the past I have tried to equate immigration violations to other civil penalties like a parking violation such as an expired meter, or not maintaining a proper business license or zoning permit, such as running a hair salon on property zoned for office use, this never felt accurate.

The fact is, an immigration violation is a different animal than a parking or zoning violation.  Although each type of regulatory regime – immigration, motor vehicle, and zoning – purports to regulate individuals for the greater public good, regulation of the use of personal property such as cars or regulation of the use of real property is different from regulation of where people can live and work.  The latter regulatory scheme can have a much more significant impact on people’s lives, controlling whether you can live with your spouse if you happen to fall in love transnationally, or whether you can work for a company that is more attractive to you than those in your home country.  Immigration laws have prevented clients of mine from attending a wedding in the United States, from working for a mom-and-pop business where the owners want to bring a foreign-national family member into the workforce, and from living in the United States with a foreign-national spouse.  Immigration laws have mandated the deportation of clients who have lived here since early childhood, established families here and sunk down deep roots here such that being returned to their “home” country would be akin to moving to a foreign country.

In addition to the way that immigration law regulates where foreign nationals can live in this country and whether they can can lawfully work here, once a foreign national falls out of lawful immigration status (or maybe never had lawful immigration status) he or she can be “detained,” a watered-down way of saying “thrown in jail.”  Although immigration detention is supposedly merely a means to an end, that is, making sure that the detainee is available for deportation if warranted, detention is a punishment – taking away an individual’s freedom – that is criminal in nature.  Some immigrant detainees are even housed with a prison’s criminal population.  Being detained means you don’t have  access to your important documents and cannot collect evidence to help build your case for relief from deportation but rather must rely on the goodness in the hearts of friends or family to act for you, and the effectiveness of your attorney.

But immigration laws in America maintain the fiction that detention is a civil penalty, and thus detainees do not have the rights of criminal defendants such as the right to counsel, regardless of ability to pay, or the right to confront adverse witnesses.  It’s a Catch-22.  You can be treated as a criminal, demonized as an “illegal” human, but once you are in custody the fact that immigration is a civil scheme of laws is used as the reason why you cannot claim such rights as are routine for criminal defendants.

Another recurring question in immigration is what to call foreign nationals who are present in America without proper authorization.  Some of these foreign nationals entered the country lawfully but then overstayed their temporary visas.  Others entered unlawfully, bypassing all checkpoints.  Others lost their permanent resident status due to a variety of reasons, including criminal convictions, findings of fraud on their original applications, etc.  If you an advocate for immigrants, you refer to this population as “undocumented immigrants” or “unauthorized immigrants” or, simply, people “without papers.”  If you feel that unlawful immigration is a scourge that is dragging our country down, you call this population “illegal aliens” or, more dehumanizingly, “alien invaders.” These latter labels suggest that this whole population becomes something to be eliminated, end of discussion.

Words matter.  Someone without papers is a very different person than an alien invader.  A person without papers can exist in a broad range of circumstances, and can be a good person or a bad person, or, like most of us, a complicated combination of characteristics, some admirable, others not.  An alien invader or an illegal alien is a person – or rather a thing, a criminal, a bad element – that should be summarily ejected, and need not be treated with basic human decency.  If we label this population “illegal” aliens, why do we not call parking violators “illegal” drivers and zoning violators “illegal” business owners?  The use of the word “illegal” acts to deem the entire person “illegal,” and therefore disposable, rather than just the person’s actions.  There is a difference between being unlawfully present and being an illegal human being.