Consular Corner: January 2010
From the Foreign Service Officer at "Calling a Spade a Spade" (reprinted with permission):
"A couple of quotes on Haiti from FS colleagues:
At Consular Corner on Facebook, the administrator recently posited the following question:
For the FSO's out there: Why did you get into this line of work? ... it obviously wasn't for the money.
I know for every consular colleague I have ever met, the answer is, 'For such a time as this.' My guess is that most consular officers would be working in NGOs, if they weren't in the Foreign Service. Individuals who gravitate toward CA just seem to be wired a certain way. We just want to help. We just want to make a difference. It isn't the money, it sure isn't the lifestyle, and it isn't the flattering media attention (as so starkly illustrated by coverage of the Christmas Day incident).
I remember back in 2006 huddled around a television with about 20 colleagues to watch then-Assistant Secretary Maura Harty deliver a press conference on the unfolding crisis in Lebanon, as thousands of Americans trapped in the middle of a war turned to their country for help. As Maura described the situation and what we were doing to meet that need, the sentiment most often expressed was, 'Man, I wish I was there.'
I think that says pretty much everything about what sort of people I work with."
Highlighted in Tragedy
The tragedy in Haiti has served to indirectly highlight some of the things that are just so remarkable about the Department of State. One small example: compare the following account of the treatment of some Brazilian nationals by their Embassy in Port-au-Prince with parallel actions by the U.S. Embassy.
"A group of Brazilian aid workers and researchers made homeless after the earthquake had an unpleasant reception by the Brazilian ambassadress at the Embassy in Port-au-Prince, where they had gone to seek support and shelter so that they could stay and help. The group left the place embarrassed:
'She didn't ask us anything. She did not know who we were, or what we had been doing there. When she heard we were a group from the University of Campinas [UNICAMP] she did not hesitate: 'THE EMBASSY HAS NO COMMITMENTS TO UNICAMP. THE AMBASSADOR HAS FORBIDDEN PEOPLE TO BE SHELTERED IN OUR FACILITIES. HE IS THE AMBASSADOR, HE COMMANDS; IF WE HOST YOU, WE WILL HAVE TO HOST EVERYONE.' And it was followed by this: 'THE EMBASSY WILL NOT EVACUATE ANYONE BECAUSE I WILL NOT GET OUT OF HERE. YOU MUST RETURN TO BRAZIL IN THE SAME WAY YOU CAME. YOU KNOW WHERE THE AIRPORT IS, BUY A TICKET, YOU KNOW WHERE THE BUS STATION IS, THERE ARE BUSES TO THE DOMINICAN REPUBLIC.' She went on: 'WE DO NOT HAVE ANY LIABILITY FOR YOU. YOU WERE IN THE WRONG PLACE AT THE WRONG TIME, I'M SORRY.'" http://globalvoicesonline.org/2010/01/18/brazil-viewing-the-haitian-earthquake-from-without-and-within/
"Within just one hour after the earthquake struck on January 12th, the Department of State mounted an around-the-clock task force to coordinate rescue and relief efforts and respond to the needs of American citizens. The Bureau of Consular Affairs staffs two task forces in Washington and two call centers where we have received more than 350,000 calls since our toll free line was opened. Our colleagues at the Embassy in Port-au-Prince have also been responding to thousands of requests for assistance.
We evacuated more than 9,000 U.S. citizens within the first 10 days after the earthquake.
Our task force continues to work around the clock in partnership with our Embassy staff in Haiti to locate American citizens and, if needed, provide assistance."
This comparison between Brazil (which probably represents what's ordinary in the community of nations) and the U.S. (which definitely represents the extraordinary) is not mean as knock on Brazil; rather, it is a simple reminder of how phenomenal it is to be an American citizen.
Fredrick Douglass on Haiti
Born into slavery in 1818, Fredrick Douglass - noted abolitionist, author and statesman- served as Minister-Resident and Consul General of the United States to Haiti from 1889 to 1891.
Not long after completing his diplomatic posting to Port-au-Prince, Douglass delivered a speech to mark the opening of the Haitian pavilion at the Chicago World's Fair. Although given nearly 120 years ago, the speech takes on renewed relevance - and offers some much needed inspiration and hope - in light of the current tragedy which has befallen the people of Haiti.
The following are selected quotes from Douglass's speech; you can read the entire presentation here: http://www.webster.edu/~corbetre/haiti/history/1844-1915/douglass.htm
"While representing the United States in Haiti, I was repeatedly charged in certain quarters, with being a friend to Haiti. I am not ashamed of that charge. I own at once, that the charge is true, and I would be ashamed to have it otherwise than true. I am indeed a friend to Haiti, but not in the sense my accusers would have you believe. They would have it that I preferred the interest of Haiti, to the just claims of my own country, and this charge I utterly deny and defy any man to prove it. I am a friend of Haiti and a friend of every other people upon whom the yoke of slavery had been imposed."
"In just vindication of Haiti, I can go one step further. I can speak of her, not only words of admiration, but words of gratitude as well. She has grandly served the cause of universal human liberty. We should not forget that the freedom you and I enjoy to-day…is largely due to the brave stand taken by the black sons, of Haiti ninety years ago."
"Though she creeps, rather than walks; stumbles often and sometimes falls, her head is not broken, and she still lives and grows, and I predict, will yet be tall and strong."
"Though we have a thousand years of civilization behind us, and Haiti only a century behind her; though we are large and Haiti is small; though we are strong and Haiti is weak; though we are a continent and Haiti is bounded on all sides by the sea, there may come a time when even in the weakness of Haiti there may be strength to the United States."
"I will not, I cannot believe that her star is to go out in darkness, but I will rather believe that whatever may happen Haiti will remain in the firmament of nations, and, like the star of the north, will shine on and shine on forever."
Last month's column reported on the OIG's scathing criticism of consular management at Embassy Port of Spain in Trinidad and Tobago.
The OIG report did also contain some praise for consular management and the section as a whole. See, for instance, this introductory comment by the OIG inspectors to their discussion of consular operations at POS:
"In many ways, Embassy Port of Spain serves as a model for effective consular management. Upon arrival in September 2008, the section chief initiated significant reforms that brought consular operations into compliance with Department regulations and norms for the first time in years. Most prominent among these reforms was consular management's curtailment of local staff access to the nonimmigrant visa data system. Hitherto, contrary to consular management handbook instructions, every local staff member in the section, regardless of rank or responsibilities, had enjoyed 'senior nonimmigrant local employee' access. Thus, all local staff could read officers' interview notes on visa issuances and refusals."
My apologies if last month's item caused hurt or offense to the excellent officers working under difficult conditions at Embassy POS.
This Is Not America
In October 1961 the United States Attorney General published guidance on the issue of whether misrepresentation used in connection with procurement of a visa leads to automatic exclusion of the foreign national from the United States. The Attorney General acted out of concern that the numerous decisions on this question by judicial and administrative panels were not wholly clear or consistent. This guidance was published in the Attorney General's decision in Matter of S- and B-C (http://www.justice.gov/eoir/vll/intdec/vol09/1168.pdf).
The ruling in Matter of S- and B-C includes a two-part test set forth by the Attorney General for determining whether a misrepresentation is "material" with respect to INA 212(a)(6)(C)(i). This legal test has been used as the benchmark in a long string of judicial and administrative decisions, and in consular guidance.
The Attorney General's test of "materiality" is set forth at page 447 of Matter of S- and B-C:
"A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either (1) The alien is inadmissible on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded."
A new FAM update to 9 FAM 40.63 N6.1 retroactively changes what the Attorney General wrote. Citing to page 447 of Matter of S- and B-C, the FAM now attributes the following quote to the Attorney General:
"A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either (1) The alien is inadmissible on the true facts, or (2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible." http://www.state.gov/documents/organization/87011.pdf
This quote misrepresents the true words of the Attorney General. Adding the "or she" is a case of PC run amok, and substituting "inadmissible" for "excluded" is unacceptable. We do not live in a country in which the government gets to alter the text of published judicial or administrative decisions because it believes certain words or phrases are distasteful or incorrect.
Thank You, Kolkata
Thank you, Consulate General Kolkata, for reminding us that January marks "a historic event in human civilization: the Emancipation Proclamation issued by President Abraham Lincoln on January 1, 1863."
The core principle of the Emancipation proclamation: All persons held as slaves within the rebellious states are, and henceforward shall be free. http://kolkata.usconsulate.gov/uploads/images/-E_psGdIvTqGWrcP408hGQ/BulletinJan2010.pdf
Visa Wait times at the United States Interests Section (USINT) in Havana, Cuba have broken the 900 day mark. That's two and a half years of wait time for an interview for a first-time tourist visa. A wait time this long is not so much a reality, but a symbol which indicates that challenges dating back to the Kennedy presidency still remain unresolved.
Visa Diplomacy is defined as "the use of visa issuance or denial at an individual, group or interstate level, to influence another state's policies." http://www.clingendael.nl/publications/2004/20040300_cli_paper_dip_issue91.pdf Yes, Cubans have a 900 day wait time, but the exercise of Visa Diplomacy here definitely works both ways. A 2007 report on USINT by the Office of the Inspector General (OIG) reported that the Cuban government had thrown up all kinds of visa-related obstacles, including:
1. Holding up issuance of a visa for the incoming DCM for many months;
2. Stalling on issuing a visa for a Public Affairs Officer;
3. Failure to act upon visa applications for official visitors to post;
4. Refusal to grant visas in a timely fashion to DHS officers for temporary rotations through Havana;
5. Delay in the issuance of a visa to the regional medical officer.
Per the OIG, the Cuban government has obstructed and violated the terms of the agreement for operating USINT in Havana (and its Cuban counterpart in Washington). For example: the Cuban government prevents U.S. consular officials from obtaining information from local or municipal officials to verify family relationships or the authenticity of civil documents. Perhaps for this reason, USINT requests to DOS for visa issuance to Cuban artists were "stymied" by the Bureau of Western Hemisphere Affairs.
In 2007, the OIG noted that the then-existing visa wait times 18 months were "daunting." In 2010, rising wait times now exceeding 30 months may soon equal the entire duration of the Kennedy presidency.
Embassy Art and Little Uglies
The National Archives and the Nixon Library have just released previously unseen documents from the Nixon presidency, including a 40-year-old memorandum advocating that U.S. Embassies be "cleaned" of modern art. In the memo, dated January 26, 1970, President Nixon writes to Bob Halderman in part:
"I want a check made with regard to the incredibly atrocious modern art that has been scattered around the embassies around the world….We, of course, cannot tell the Ambassadors what kind of art they personally can have, but I found in travelling around the world that many of our Ambassadors were displaying the modern art due to the fact that they were compelled to because of some committee which once was headed up by Mrs. Kefauver and where they were loaned some of these little uglies from the Museum of Modern Art in New York. At least, I want a quiet check made - - not one that is going to hit the newspapers and stir up all the troops -- but I simply want it understood that this Administration is going to turn away from the policy of forcing our embassies abroad or those who receive assistance from the United States at home to move in the direction of off-beat art, music and literature."
"Mrs. Kefauver" refers to Nancy Kefauver, the first director of the Art in Embassies program. The purpose of the program: to place a "cultural footprint that can be left where people have no opportunity to see American art." The quality of Embassy Art was apparently an issue of such great national concern that President Nixon saw fit to address it with his closest advisor a scant four days after giving the State of the Nation Address, in which the President declared America's first priority as to be as follows: "to bring an end to the war in Vietnam in a way that our generation will be remembered not so much as the generation that suffered in war, but more for the fact that we had the courage and character to win the kind of a just peace that the next generation was able to keep." http://www.infoplease.com/t/hist/state-of-the-union/183.html
We can't end this item without time-transporting back to 1970. Imagine yourself being dragged into Manhattan on a Sunday afternoon by parents who think it important that you see the latest exhibit at the Museum of Modern Art. What "little uglies" await you? One example: the amazing "White Flag" by Jasper Johns.
Changes to 9 FAM - Monthly Report
Updates to 9 FAM (Visas) of the Foreign Affairs Manual this month include more Political Correctness gone awry: Foreign Officials are permitted to travel with same-sex partners, but not with opposite-sex partners. Another FAM update restricts the discretion of consular officers in certain 212(a)(6)(C)(i) cases, while another effects a major shift in legal policy through the creative use of double negatives.
Foreign Officials - Members of Household (9 FAM 41.21 N5.1-2)
Revised FAM guidance clarifies that the "members of immediate family" of a foreign official may include not only a legal spouse and unmarried children, but also individuals who reside regularly in the foreign official's household. According to this new guidance, such individuals may include:
(1) Any other relative of the principal alien or of his or her spouse;
(2) A domestic partner;
(3) A relative of the domestic partner.
The new guidance further defines the term "domestic partner" for the purpose of this section as "a same-sex domestic partner."
But wait - why has the Department limited the term "domestic partner" to same-sex couples? Surely Foreign Officials with opposite-sex partners (common law spouses, for example) are also entitled to have their loved ones considered as members of their immediate family?
The limitation of this provision to same-sex partners is definitely not something envisioned in the Final Rule published in the Federal Register:
Immigrant Visa Classification Symbols (9 FAM 42.11)
Update to the "SQ1" classification symbol to indicate that certain Afghans employed by or on behalf of the U.S. government may qualify as Special Immigrants.
Update to indicate the Special Immigrant status of the accompanying family members of U-1 nonimmigrants (SU2 for spouse, SU3 for child, SU 5 for parent). How, you might ask, may the family members of a nonimmigrant be considered Special Immigrants? Section 245(m) of the INA provides that a victim of crime who has been in the United States for at least three years as a U nonimmigrant may adjust status and then bring children, a spouse, or parents (for minors only), either on immigrant visas or through AOS.
Inadmissibility Criteria (9 FAM 40.63 N2)
Revised FAM guidance on one of the possible grounds for a finding of inadmissibility provides an exercise in the English tense system.
In pertinent part, the revised FAM guidance provides as follows:
"The alien used fraud to seek to procure, has sought to procure or has procured a visa, other documentation for admission into the United States or to receive other benefit (referring to marriage fraud) provided under the INA."
How to make sense of this sentence structure? Here's one lawyer's best guess:
"To seek to procure" (infinitive verb + infinitive verb) refers to the use of fraud in an open visa case;
"Has sought to procure" (present perfect aspect + infinitive verb) refers to the use of fraud in a closed case that was refused;
"Has procured" (present perfect aspect) refers to the use of fraud in a closed case that was issued.
Parenthetically, the term "other benefit" as used in the above provision is defined at 9 FAM 40.63 N9.2. In three short subparagraphs, the definition neatly divides up the universe of immigration benefits that a foreign national can request, receive or lie about: (1) benefits that helps one stay in and/or reenter the U.S.; (2) benefits that help one obtain and maintain student status; and (3) benefits arising from petition-based requests, such as employment and family unity.
Labor Department Regional Offices (9 FAM 40.51 Exhibit VIII)
Updated list of addresses of U.S. Department of Labor Regional Offices.
Nonimmigrant Visa Classification Symbols (9 FAM 41.12)
Update to the list of nonimmigrant visa classification symbols to include reference to new visas arising from the extension of U.S. immigration laws to the Commonwealth of Northern Mariana Islands:
CW1: Commonwealth of Northern Mariana Islands Transitional Worker
CW2: Spouse or child of CW1
E2C: Commonwealth of Northern Mariana Islands Investor, Spouse or Child
Rule of Probability (9 FAM 40.63 N7.1)
A visa applicant who has resorted to a willful misrepresentation of a material fact in seeking a visa may be found inadmissible to the United States under INA 212(a)(6)(C)(i). As per the Attorney General's declaration discussed above, a fact misrepresented is material if it "tends to shut off a line of inquiry which is relevant to the alien's eligibility."
The notion of a misrepresentation shutting off a line of inquiry has been the subject of a series of judicial and administrative decisions that have evolved into "the rule of probability" (This rule is defined in detail at 40.63 N6.3.)
The FAM has long emphasized to adjudicating officers that applications involving "the rule of probability" are "cases where the exercise of further consular judgment is required."
New FAM guidance suggests that the State Department is now seeking to restrict this exercise of consular judgment.
The guidance, at 40.63 N7, mandates consular officers to submit pertinent cases decided against the applicant to the Department for an Advisory Opinion. This new mandate is said to be handed down "in view of the judicial and administrative uncertainties surrounding the rule of probability, and in order to achieve uniformity in the application of the rule throughout the world."
New related guidance at 40.63 N7.2 describes the information which consular officers must include in a request for a "Rule of Probability" Advisory Opinion. This information includes, inter alia:
(1) An explanation of the nature of the misrepresentation;
(2) A description of the applicant's explanation for why the misrepresentation was given;
(3) A justification for the consular officer's finding of materiality;
(4) Confirmation that the applicant was offered an opportunity to present additional evidence to overcome the effect of the misrepresentation.
Unlawful Presence and Minors (9 FAM 40.92 N4.1)
In revised guidance, the Department provides as follows:
"No period of time unlawfully in the United States while an alien is under the age of 18 does not count toward calculating the accrual of unlawful presence."
Either there has been a major shift in legal policy while no one was looking, or else the Department is creatively employing double negatives to emphasize that minors cannot legally accrue periods of unlawful presence in the United States.
Are You Smarter Than A Junior Consular Officer?
1) Who is the most senior Foreign Service Officer in the State Department?
2) A State Department cable providing new visa guidance advises that more specific information will be provided septel. What does the reference to "septel" indicate?
3) The three posts with the longest reported visa wait times for Europe in January 2010 were Podogorica, Chisnau and Skopje. Name the host countries of these posts (hint: they all begin with the letter "M").
4) Who is considered the "father of the American Foreign Service"?
5) The United States Interest Section in Havana operates under the umbrella of which nation's Embassy?
6) A visa applicant referring to himself informally as a "Pinoy" is probably applying at which consular post?
7) True or false: An applicant's misrepresentation of the fact that he or she was previously denied a visa is not, in and of itself, a material misrepresentation.
8) With which of the following entities does the United States has formal diplomatic relations?
9) True or false: When a visa applicant possesses more than one nationality, a visa may be issued only in the passport of the country of his or her primary place of residence.
10) Who is the current U.S. Ambassador to Haiti?
Top Ten Visa Wait Times at U.S. Consular Posts, January 2010
Watch for increased wait times as some consulate managers decide to temporarily reduce the number of daily visa interviews in the ramp-up to implementation of the DS-160. On a related note: the incidence of 221(g) denials is bound to rise as some DS-160 data-entry errors compel applicants to return to their computers to make necessary corrections to the form.
2) That more specific information will be provided in a separate telegram.
3) Montenegro, Moldova and Macedonia (respectively).
4) Benjamin Franklin.
7) True. 9 FAM 40.63 N6.3-3
9) False. 9 FAM 41.113 N3.4
10) Kenneth Merten.
Quote of the Corner
"The 'low risk' applicant is a myth. We don't have dipsticks into the human soul, nor do we have crystal balls. You can issue a five-year, multiple-entry visa to a happy, healthy, prosperous and well-adjusted human being; and three years later, something happens in his life that alters his circumstances or his attitude; this leaves you with someone who has two years and multiple entries remaining, a chip on his shoulder, and explosives in his clothing." FSO Margaret Judy Pride on Consular Corner's Facebook page (reprinted with permission).
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