Clash Of The Titan Bureaucracies - The Sequel
by Marc Ellis
Author's Note: When I use the acronym 'DOS', or the term "US Department of State", I am referring to its managers and rule-makers in Washington, D.C. I am not referring to line Consular officers and visa section chiefs who have to make sense of the rules that are passed down to them.
9 FAM 40.63 N10 MiscellaneousThe way DOS interprets this language is that any application for an immigrant or K visa which is later denied by an interviewing officer not satisfied by the evidence of the relationship, is a "…misrepresentation with respect to entitlement," and this triggers the entry of a preliminary 212(a)(6)(C) fraud marker in the applicant's file. If the supervisor concurs in the denial, the petition file is returned to USCIS with the recommendation that its approval be revoked.
Let that sink in for a minute. The mere act of submitting a visa application at a consulate that is later denied because an officer is not satisfied with the evidence - is a "misrepresentation with respect to entitlement". And a preliminary 212(a)(6)(C)(i) (aka a "P6C" marker), finding of material misrepresentation is noted in the visa applicant's file.
If USCIS revokes or denies the original approval, this "misrepresentation with respect to entitlement" becomes a hard 212(a)(6)(c)(i)  material misrepresentation finding, making the beneficiary/applicant inadmissible to the United States for life - unless the petitioner obtains a 212(i)  waiver for the beneficiary.
Lawyers and USCIS officers may be saying, "That can't be right. That's nutty."
No. It's not nutty. It's how DOS interprets 9 FAM 40.63 N10.1.
Other lawyers can correct me if I'm wrong. But I think this approach is novel in immigration law. The denial of an application for an immigration benefit, such as an I-130, I-765 or I-140 does not automatically result in USCIS entering a 212(a)(6)(c) finding against the beneficiary.
After reading 9 FAM 40.63 N10.1, one begins to see the source of DOS's complaint with the California Service Center. Consular officers have gone to all the trouble of placing a preliminary P6C marker in a visa applicant's file. The Visa Section Chief has gone to all the trouble of writing a return memorandum to USCIS. And CSC is ignoring all of it.
But I suspect it goes deeper than that. Seasoned USCIS adjudicators know that consulates send thousands of K-1 petitions back to service centers every year. Hundreds of these petitions do not meet the criteria set forth very specifically in "Matter of Arias". Why should USCIS waste its valuable resources reviewing petitions that should have never been returned in the first place?
III. Enter the Ombudsman:
On August 24, 2007, the USCIS Ombudsman issued Recommendation Number 33. It advocates among other things,
"B. Establish a nationwide standard for the re-adjudication of petitions returned by consular offices for revocation or revalidation and amend the Operating Instructions/Adjudicator's Field Manual accordingly; include a "REVOCATION" entry in the processing time reports. " That's a good idea. But it can require nothing from DOS.
DOS will remain free to return hundreds or perhaps thousands of petitions where the officers' conclusions are conclusory, speculative, equivocal, or irrelevant to the bona fides of the petitioned relationships. It can continue to be unaccountable to US Citizen Petitioners. And in those cases, US Citizen Petitioners will have to put their futures on ice in a massive bureaucratic deep freeze.
IV. "I'm mad as Hell and I'm not going to take this anymore!" 
Here is an extreme case of this turf war being played out at the expense of US Citizens. This poor guy has been trying for six years to bring his wife to the U.S.
This case is revelatory in more than one way. It illustrates what happens when a US Citizen Petitioner is caught between these two agencies. But it also shows that DHS is the agency that often gets sued for the actions for consular officers who are outside its control.
I'm not sure why this gentleman sued DHS. It approved all his petitions. It's DOS that keeps saying "no". But I have not read the pleadings and there might be a good reason not mentioned in the story.
A couple of "A" words came to mind when I read about that case. "Abuse" is one. "Accountability" is another. At what point can we say, this particular U.S. Citizen deserves better under the law? At what point do federal officers become accountable for actions taken under color of law?
V. A Mexican Stand-Off
So now we know that consulates are not happy that California Service Center isn't paying sufficient attention to their petition return memorandums. And CSC has chosen to manage its limited resources in other ways. Where does this leave US Citizen Petitioners? Unfortunately, you could say it leaves them and their beneficiaries between the proverbial rock and a hard place.
But DOS should be careful here. The case law is clear. Aliens outside the United States may have no rights. But US Citizen Petitioners do have rights. And these rights are actionable.
In refusing to adjudicate visa applications, DOS may be ignoring the plain language of the law. Adjudication of visa applications is not a discretionary function. Consulates do not have discretion to indefinitely delay the issuance or refusal of visa applications.
Further, the adjudication of visa petitions is clearly the sole domain of USCIS. And in demanding that USCIS adjudicate petitions in the way it desires, DOS may be violating the letter of the law yet again.
Now that one half the nation's K-1 petitions are being processed through CSC, DOS may be creating a class-action size group of US Citizen Petitioners who are desperate enough to seek redress in the courts.
And when that happens, they just might name the right agency as a defendant.
1 Quote from the movie, "Cool Hand Luke"(1967). A chain gang boss played by Strother Martin says those words to a convict, played by Paul Newman shortly after flogging him."
2 This article refers only to K-1 petitions. The approvals of K-1 petitions are "denied" not "revoked". Both service centers institute revocation procedures specified in 8 CFR 205.2 in the revocation of family petitions. DOS treats "denials" as revocations for the purposes of 9 FAM 40.63 N10.1 (cited below).
3 K petitions expire in 120 days if not revalidated by USCIS or a consular officer
4 IMBRA Imbroglio "Immigration Daily"
5 See "Matter of Arias"I&N 3049 , where the BIA wrote "…The observations made in the [consular] memorandum are conclusory, speculative, equivocal, and, in at least one instance…irrelevant to the issue of the bona fides of the petitioner's marriage to the beneficiary. The observations are those of the consular officer, not the words of the person who conducted the actual investigation. Such observations are more appropriately made by the RSC director or this board in reviewing the factual record. Specific, concrete facts are meaningful, not unsupported speculation and conjecture. Taken individually or collectively, the allegations as set forth in the memorandum did not provide a sufficient foundation for initiating revocation proceedings.
6 Part of creator Rod Serling's introduction every week to his TV show, "The Twilight Zone" that was popular in the late 1950's and early 1960's'.
7 When a Service Center approves a petition and grants an IMBRA Multiple Petition Waiver, it has already made two determinations. That the petition is approvable and that the Petitioner is eligible to file a second petition for the same beneficiary within the two year period specified by IMBRA.
8 Title 8 Chapter 12 Subchapter II Part 2, § 1182 (a)(6)(C)(i) "Inadmissible Aliens" (i) In general Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.
10 Title 8 Chapter 12 Subchapter II Part 2, § 1182(i)
11 Part II B Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation
12 From the movie, "Network"(1976), spoken by the character, Howard Beale, played by Peter Finch.
13 Perhaps some DOS officials can think of another "A" word to describe their opinions of the author after they've read this article
14 22 C.F.R. S 42.81 "[w]hen a visa application has been properly completed and executed before a consular officer in accordance with the provision of INA and the implementing regulations, the consular officer shall either issue or refuse the visa. Every refusal shall be in conformance with the provisions of 22 C.F.R. 40.6." In addition, the section is entitled, "Issuance or refusal mandatory." When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available."
Marc Ellis practices law in Houston Texas and Ho Chi Minh City Vietnam. His home is St. Tammany Parish, Louisiana. He is an immigration lawyer and AILA member. He is a former chat moderator for ILW.COM chats. He has been a composer, a published poet and a playwright. In France, he is known as the composer of The Fantomas Waltz".
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.