The Golden Door

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.