Challenging A Finding Of Inadmissibility
A recent article posted in ILW.COM discusses the possibility of a consular or USCIS officer "tempering justice with mercy" by recommending or granting an immigrant or nonimmigrant waiver to an alien who has been found to be inadmissible.1 But what happens when the finding of inadmissibility is wrong? Too often aliens (and their attorneys) do not challenge the finding, thinking it to be futile or settling for the possibility of receiving the proverbial "half loaf" - a waiver - when they are entitled to a visa. This article will discuss an alien's resolution of choice: challenging the consular officer's finding of inadmissibility when there has been an error, with a view towards having that finding overturned and the visa issued. In doing so, the need to undergo the gamut and risks of the waiver process, if it is even available, is obviated.2
Consular officers are not infallible. Due to limited time and resources, simple misunderstandings, language deficiencies, inadequate training, and the complicated nature of immigration law, consular officers around the world make factual and legal errors every day in rendering aliens inadmissible to the United States. These errors often have life changing consequences: an alien may be unable to join a US citizen spouse in the United States, work or study in the United States, or undertake an investment or open a business. Often the psychological consequences are just as traumatic: being called a liar or ejected from an embassy for trying to argue one's case; dealing with the embarrassment of being included in a US government "black list". In one tragic case known to the author, a Ukrainian immigrant visa applicant wrongly accused of a sham marriage by the US Embassy in Warsaw had a brain aneurysm and died the day after being denied an immigrant visa. While the granting of a waiver may remove the practical obstacle of entry to the United States, the finding of inadmissibility may continue to have immigration-related consequences3 and a waiver cannot cleanse the permanent stain a finding of inadmissibility leaves.
According to DOS statistics, four of the most frequently invoked inadmissibility provisions relate to unlawful presence (more than 40,000 applicants found inadmissible on these grounds in FY-2008); fraud/material misrepresentation (approximately 14,000); crimes involving moral turpitude (more than 6,000), and alien smuggling (3,000).4 In approximately 40% of these cases, the findings were overcome by the granting of waivers or by a subsequent review reversing the original finding. But of the waivers granted, how many were for cases in which the original finding was erroneous? For the other 35,000 individuals barred from the U.S. for 3/10 years or permanently, how many of these findings were erroneous and not challenged or were challenged and ignored or erroneously upheld by consular staff? Public DOS statistics, obviously, do not answer these questions.
Unfortunately, the cards are stacked against applicants with a legitimate basis for challenging findings of inadmissibility. Unlike with USCIS and DOL, there is no formal appeals process for denied applications within the Department of State. Judicial review is practically nonexistent because of the doctrine of consular nonreviewability. Some posts, particularly isolated ones, have been compared to fiefdoms, governed by caprice and personal agendas rather than laws and regulations.
The Department of State does, however, provide some tools to applicants to help ensure that an accurate decision has been made in their applications. According to DOS, the guiding principle in making visa determinations should be that every applicant be given a reasonable opportunity to establish his/her eligibility.5 With limited exceptions, consular officers are supposed to disclose the legal and factual basis of their findings to applicants.6 They must be "receptive to any further evidence the alien may provide in order to ensure that a proper finding has been made."7 In certain instances they must clear a finding of inadmissibility with Visa Office attorneys in Washington.8
To better illustrate the types of mistakes made and how to counteract them, several examples are provided below in the following cases:
As can be seen, one approach does not fit all: much depends on how open a consular officer and her superiors are to a request to reconsider the finding. Lawyers can request an advisory opinion from LegalNet for disputes of legal issues. Wronged applicants may also attempt to bring political and public pressure to bear.
As mentioned, aliens and their lawyers sometimes resign themselves to applying for a waiver, often egged on by consular officers.10 A post may tell an applicant that its decision is "final and not subject to reconsideration," deterring any further inquiries or challenges. Consular officers frequently attempt to "pass the buck," stating that all inquiries should be addressed to USCIS because the underlying petition has already been sent back with a consular recommendation of revocation.
When there has been an error, visa applicants and their lawyers need to redouble their efforts. For applicants subject to lifetime bars from the United States, the immigration stakes cannot be higher. For these individuals, persistence can pay off. Settling for a half loaf can leave one very hungry - hungry for justice.
End Notes1"Tempering Justice With Mercy: Waivers of Inadmissibility in Consular Processing," by Brian Bolton (ILW: September 22, 2009).
2This article will be confined to findings of permanent and long-term inadmissibility under Section 212 of the Immigration and Nationality Act. It does not discuss findings of temporary ineligibility, such as Section 214(b) of the Immigration and Nationality Act, which places the burden on the applicant to prove that he will depart the US in a timely fashion upon the completion of a legitimate, temporary visit. It also does not discuss visa denials because of violations of procedural rules, such as the failure to include a child in a DV-Lottery application, thereby disqualifying the applicant from a DV immigrant visa. 9 FAM 42.33 PN2.1.
3For example, the mother of a US citizen who has been found inadmissible under 212(a)(6)(C)(i) of the INA for a material misrepresentation may be granted a nonimmigrant waiver to visit her child in the United States. However, she would not be eligible to immigrate to the United States through her US citizen child because of the finding and the absence of an available immigration waiver to parents of US citizens inadmissible under this provision of the INA.
10An example letter sent to the author by one post: "If you feel that it is in the best interests of your client for us to forward the matter back to the Department for an advisory opinion [to challenge the finding of inadmissibility as a crime of moral turpitude], we will do so. Please note, however, that this could add considerable time to the processing of her case…. Once the application for a waiver is received, we will be happy to forward the waiver materials to USCIS in order to process the case to conclusion as expeditiously as possible."
Kenneth White (J.D. with honors, George Washington University National Law Center, 1990). Mr. White is a member of the Pennsylvania and District of Columbia bars, admitted to the D.C. and 9th Circuit Courts of Appeal, and a long-time resident of Moscow, Russia. He is the co-author of the Russian-language books "U.S. Nonimmigrant Visas" and "Handbook for Immigrants to Canada," and the soon-to-be-released book "Immigration to the United States." His law firm (www.bridgewest.com) specializes in consular matters and U.S. immigration issues.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.