There are countless stories of visa applicants going to their interviews at the U.S. Embassy, only to be denied their immigrant visas. Most of the time, they are given a blue piece of paper stating they been found ineligible without much explanation save for a check mark next to an unfamiliar section of US Immigration law. If the reason for denial does not actually exists, how can a visa applicant request for review of the decision? Is there a legal basis for the applicant to proceed to court and appeal the visa refusal?
Amy was divorced for more than 10 years and it was difficult for her to enter into another relationship because of the traumatic experiences of abuse that she suffered in the hands of his first spouse. Last year, she was introduced to James, the brother of her high school classmate. James and Amy became intimate and decided to marry in Manila. A visa petition was then filed by Amy, a U.S. citizen, on behalf of James. The U.S. Citizenship and Immigration Services approved the spousal petition. The National Visa Center forwarded the petition to the US Embassy in Manila and a date was set for James interview. During his interview, James was asked about his prior visa issuances. He revealed to the consular officer that many years ago his application for tourist visa was denied because it was discovered that he submitted fake employment documents and bank certificates. According to James, a travel agent, whom he paid a substantial amount of money to assist him, provided the fake documents to him. Thereafter, he was told to wait for a letter from the embassy. After two weeks, James received a letter where it stated that his visa was denied. This denial letter devastated Amy and she wanted to find out what steps may be taken to reverse this decision in court.
Visa Refusals
The typical reasons for denials of visas are misrepresentation of facts or lying on the immigrant visa application or at the interview, visa or marriage fraud, lack of documents or evidence of eligibility, prior unlawful presence in the United States, convictions of certain crimes, serious and contagious diseases, terrorist activities or support to terrorist organizations, drug use or drug trafficking, and public charge, to name a few. Generally, if a consular officer refuses a visa, he or she is required to inform the applicant of the denial orally and then provide a decision in writing citing the specific section of law under which the visa was refused.
With a few exceptions, decisions by consular officers are not subject for judicial review and the consular officers may not be sued for decisions they render. One of the basis cited in a case law for precluding judicial review of visa refusals is the fact that the decisions are made outside the territorial limits of the United States. Another reason that is usually cited for non-judicial reviewability of visa refusals is that foreign nationals do not have a constitutional right of entry to the United States
Limited Review
There are very limited exceptions to consular non-reviewability. Judicial review of a consular officer’s decision may be exercised when the denial of a visa implicates the constitutional rights of an American citizen meaning the U.S. citizen petitioner. In the recent decision, Din v. Kerry, (9th Cir. May 23, 2013), the Ninth Circuit Court of Appeals held that a consular officer must provide factual reasons for a visa denial when the denial impinges on the constitutional right of a US citizen to family life. The Court in Din found that the consular officer failed to provide factual allegations for the denial, and the citation to a broad section of law pertaining to terrorist activities did not constitute a facially legitimate and bona fide reason.
Although US Courts have the ability to review consular officer’s decision under this very limited exception, judicial review will only be exercised when the US citizen proves that the foreign relative’s visa denial visa refusal infringes on the US citizen’s constitutional rights. This inquiry is extremely narrow, and does not apply to foreign applicants, who have no constitutional rights. In addition, it is very difficult to prove that the consular officer’s decision is facially illegitimate and is in bad faith, and because of this, the majority of denials remain final.
Reconsideration of Visa Refusals
So what can applicants who have been denied visas do? Instead of filing a lawsuit to contest a visa refusal, the visa applicant may seek review at the consular post or at the U.S. Embassy. But before taking any steps to request a review one must determine whether the consular officer was just seeking additional information or whether the officer simply declined to decide on the application. In the case of James above, his application for immigrant visa was refused but it was not an absolute denial. What the consular officer wanted to see is submission of a “waiver” of the ground of inadmissibility. Instead of seeking judicial review, James should submit the proof of filing of the waiver and the subsequent approval of his application.
For non-immigrant visa applicants, except in limited cases of INA Section 221(g) refusals, a review of the refusal means resubmitting a new applications and paying a new application fee. For immigrant visa cases such as that of James, the applicant has one-year after refusal to request reconsideration and need not pay a new application fee.
The costs associated with an application for an immigrant visa are very high and sometimes applicants wait for several years of the interview just to receive a refusal. To avoid visa refusals, visa applicants should be fully prepared before their visa interview. Therefore, it is in the applicant’s best interest to ensure that his or her application contains true and correct information and that all supporting documents are submitted and available prior to the interview for the consular officer’s review of visa eligibility.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or call 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)
