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Losing The "Matter of State" Cloak
by Jose Latour

Greetings, folks. I hope that the sun shined (as I wished it) upon you this weekend. We're starting off this week's Port of Entry with something that I heard on CNN last week and an article that Maddy sent me regarding the possible modification to the way the State Department handles the paperwork collected from visa applicants at U.S. Consulates and Embassies all over the world. Before I get into the specifics of that, let me give you some background and insight as to what I have experienced in my early years (in the pre-Jurassic period) as a consular officer.

While I didn't realize it at the time - because I was years away from private practice - the decisions that I was making as a young visa officer in denying cases were not subject to the ordinary patterns of review and appeal that are available in most systems of U.S. adjudication. Specifically, to immigration attorneys (representing foreign nationals in an immigration process) filing an application before a U.S. consular officer, an applicant is submitting a case before the only executive branch officer whose decisions are not subject to any form of appellate review.

What does this mean? It means simply this: when even a first tour junior visa officer at a high-volume visa post (such as my own first tour in Ciudad Juarez, Mexico) makes a visa denial (right or wrong) he or she cannot be legally overridden through an appellate process. Through the State Department's Office of Legislation and Regulation, decisions involving a misapplication of law will indeed be overturned. However, if it is a matter of fact, the consul's decision stands. Even in cases of gross injustice, there is no appellate review. Only if a supervisory officer chooses to intervene and "persuade" the officer to change his or her mind will the decision be overturned. In the politics of a consulate, this rarely happens, and as I have told you before, an officer can often choose to present something that truly is a matter of "law" as a matter of "fact," for the purpose of withstanding review of the denial.

So what does this have to do with the immigration data issue as it relates to last week's news? A lot! Washington is abuzz in heated debate over what can be done with the millions of unsuccessful visa applications containing personal details and photographs of visa applicants throughout the world who are denied visas by U.S. consuls.

In the past, all of these unsuccessful applications were held for varying periods of time and then shredded. To the chagrin of private immigration practitioners who seek a review of the basis of denial of a visa application, the explanations are often unavailable. While the Foreign Affairs Manual (F.A.M.) offers specific consular guidance as to how an officer should handle an inquiry for the basis of refusal, in reality, such guidance is often ignored. Ultimately, when attorneys seek to press a consular officer and force the hand as to disclosure for the basis of a visa denial, the consular officer can simply refuse to provide that information. The denial of a visa is not subject to discovery via the usual forms of discovery available to immigration attorneys through the INS, such as the Freedom of Information Act request, motions to compel discovery, etc. The reason: the consular officer is under the auspices of the U.S. Department of State, and the U.S. Department of State is ultimately the "foreign ministry" of the United States, these are diplomatic matters. Because they are "matters of state", they are matters of national interest and, ergo, not subject to discovery.

You with me so far?

Okay, after September 11, we ask ourselves collectively: wouldn't it be wonderful if we could keep track of all of the information of the persons denied visas so that we can monitor and see what kind of "bad guys" might be applying for U.S. entry? Obviously, the vast majority of visas being denied are for innocent folks who simply don't meet the qualifications of U.S. entry, meaning, more than likely, the consular officer believes they're going to come to the U.S. as a tourist and remain working illegally. However, there certainly would be applicants denied visas who would be of interest to us, such as potential terrorists.

According to a recent Associated Press article, Rep. George Gekas, the Chairman of the House Judiciary Committee's Immigration sub-committee stated:

All the people in Homeland Security should eventually have the capacity to sift through these [unsuccessful visa applications.]

In reality, Rep. Gekas was referring to the visa lottery applicants, but the logic applies to visa applications worldwide. In the visa lottery, almost nine million applications are received worldwide. But, once again, it's that great big government "gun" firing off a shotgun in any direction whatsoever in the sake of "homeland security" without any intelligent analysis preceding the decision.

The truth is simply this, folks: we can collect all the information from all the visa applications - immigrant or non- immigrant - that we want, and it is not going to help us one iota in terms of preventing a terrorist act. One of the brightest minds in immigration law concurs vigorously with this sentiment. Stephen Yale-Loehr, the man formerly behind the venerable Interpreter Releases (the immigration attorney's weekly bible), is now an immigration law professor at Cornell University. In the Associated Press article, Mr. Yale- Loehr described the storing of information from these unsuccessful visa applications as "yet another ineffective database." He went on to say:

A terrorist is not going to be applying for a green card through the lottery. In terms of trying to find a needle in a haystack, there's no need to make that haystack that much bigger.

As a lifelong Republican, I find it infinitely humorous that our own party's leadership - led by the sword-waving Mr. Ashcroft - has so unceremoniously assumed the post-September- 11th position that more government intervention is better. How sad.

About The Author

Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice working primarily with the IT industry and foreign investors. The above represents Mr. Latour's Editorial opinion. JELPA is an A/V rated firm whose web site,, is one of the Internet’s most visited immigration sites. The firm was named “ONE OF AMERICA’S TOP TEN INTERNET/VIRTUAL COMPANIES” in the 1999 Inc. Magazine and Cisco Systems “Growing with Technology Awards.” Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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