Thứ Tư, 12 Tháng Mười Một 201400:00(Xem: 16215)

Sometimes the law makes no sense. Sometimes it is unjust. Consular processing of family based immigration allows many opportunities for officers to use bias or apply inconsistent standards. That is because there is no system of external oversight for visa issuance decisions.

The rule of consular non-reviewability began more than a hundred years ago in order to limit or prevent Chinese immigrants from entering the United States.

At present, if a US citizen is sponsoring his wife for a Green Card while she is already in the States, and if CIS denied her application without sufficient explanation, the US citizen could sue the CIS in Federal Court to challenge the decision.

However, if a consular officer outside the States denied the application without explaining why, the US citizen sponsor would not be able to bring the matter to US Federal Courts. That is the meaning of consular non-reviewability. A Federal court in the US has no jurisdiction over the decision of a State Department consular officer.

Decisions made by consular officers may not be challenged in the US courts. In other words, you cannot sue the Consulate in the hopes of having your visa application approved.

The most common refusal is the Section 221 (g), which means that additional documentation or information is needed. At the conclusion of the interview, the officer will issue a letter, the OF 194, indicating what is required.

If a case is continued under 221(g) for the purpose of further “administrative processing”, this usually indicates that required security clearances are still pending.

If additional documents are submitted with a request for reconsideration, and the case is still denied, Administrative review may be necessary. This review is done by the Department of State’s Visa Office in Washington D.C., but only if the Consulate feels that it is appropriate. If the Consulate does not agree to this, then the applicant has no way to ask Washington for a review. 

State Department regulations require that consular officers inform each applicant of the legal reasons for denying the visa, but many times the denial letters never tell you why exactly the application was rejected. They just say that you failed to prove that you have a real relationship. There is no way to require consulates to identify the evidence that is used in issuing a denial.

Or, for tourist visas, the consulate may say that you have failed to prove sufficiently strong ties to your home country. There is no appeal process for such denials.

Rejected visa applicants have the right to request that the consulate retain their documents for one year and allow the applicants to present additional evidence overcoming the alleged grounds of ineligibility. This process has a relatively high success rate: It is estimated that they are eventually successful in almost fifty percent of all immigrant cases after initial refusal, and in sixty percent of all cases after refusal for insufficient documentation.

There are people in favor of continuing this rule of consular non-reviewability. They say that our system for admitting foreigners would collapse if thousands of unsuccessful visa applicants had the right to challenge that refusal in U.S. courts.

But in fact, there is no reason to believe that the federal courts would be flooded with cases filed by denied applicants. Only a small percentage of visa applicants would actually seek judicial review even if it were available. Seeking judicial review is an expensive process—in terms of money and time.

A number of European countries allow judicial review of visa denials, and their court systems have not come to a grinding halt. For instance, in Germany, judicial review is guaranteed, but it is seldom invoked.

And allowing judicial review makes consular officers accountable and therefore often leads to better consulate decisions in the first place: the possibility of judicial review in Europe encourages the consular officer to examine cases more carefully before reaching a decision.

Some US consulates, such as the ones in Cambodia and Taiwan, are more open than others and have provided us with explicit reasons for denial. That may be due to the fact that their workload is small compared to the US Consulate in Saigon.

Q.1. If it is necessary to appeal a denial, what is the best way to get started?
A.1. You should choose an immigration practitioner who has a good relationship with the consulate and who can communicate effectively (not confrontationally) with the consulate.

Q.2. What kind of appeals are most successful?
A.2. The most successful appeals are those which provide documents or information that were lacking at the time of the interview. Appeals based on emotion or just requests for understanding are usually not successful.

Q.3. How can I make sure that the Consulate will give me the required one year to submit additional information?
A.3. You or your service agent should contact the Consulate at regular intervals to let them know you are still pursuing the case and to ask them to keep the case open and not send the petition back to the US CIS.

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