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Clash Of The Titan Bureaucracies? The Battle Between DHS And US Consulates

by Marc Ellis, Esq.

It is hard to imagine a bigger bureaucratic blunder than granting fifteen Saudi hijackers tourist and student visas to enter the United States. But that is exactly what happened in Saudi Arabia in 2000 and 2001.

More than any other Federal agency, the US Consular Corps is responsible for allowing the 9-11 hijackers into the United States. In the months following September 11th, periodicals like the National Review posted photos of the DS-156 forms submitted by the hijackers. They were so scribbled and incomplete, as to be facially unapprovable. Yet, Consular Officers in Saudi Arabia approved them without even scheduling interviews!

As a result of September 11th, the US Consular Corps now find themselves subject to the oversight of a government agency outside the State Department, perhaps for the first time in their two-hundred plus year history. The Department of Homeland Security now has the final authority over the issuance of visas at the US Consulates. Consular Officers cannot issue a visa without DHS signing off on it.

DHS is also responsible for adjudicating visa petitions filed inside the United States. This is a historic and structural change in US immigration law. For the first time, a single agency plays a major role in overseeing the immigration process at both the consular level and at the CIS Service Centers inside the United States. The implications and consequences of this change are yet to be fully understood by practitioners and perhaps by the agencies themselves.

The focus and the priorities of DHS and DOS are quite different. Consulates focus on fighting visa fraud. DHS is focused on fighting terrorism and strengthening national security. Mundane visa fraud in family and fiancee petitions while important, is less important than preventing terrorists with weapons of mass destruction from entering the United States.

Yet, for US consulates, fighting visa fraud is still Job One. And the priorities of consular officers don't appear to be completely aligned with the priorities of the DHS. As an example, consular officers in Saudi Arabia approved Mohammed Atta's visa without a single fraud inquiry. Yet in Moscow, Guanxi, and Ho Chi Minh City, fiancees, spouses and their US Citizen petitioners must pass through a Kafkaesque gauntlet of obstacles and interrogations, the tactics of which at times are reminiscent of totalitarian governments.

Are we safer as a nation, with a consular corps that fights valiantly to protect us from foreign fiancées and yet issues Mohammed Atta a visa without making a single fraud inquiry?

I know of a case where consular officers in Ho Chi Minh City forced a beneficiary to sign a confession to marriage fraud. The officer told her if she did not sign this confession, she would never be allowed to enter the US. The officer was making a misrepresentation of the law - or else it was not translated correctly to the beneficiary. The officer did not mention the IMFA, which provides that any person who has been found to commit marriage fraud would never be eligible for an immigration benefit. The frightened beneficiary dutifully wrote out her confession, believing she still might have her visa approved, if she just did what the consular officers ordered her to do.

In another HCM case, a consular officer issued a 221(g) letter demanding a divorced US citizen petitioner obtain copies of the birth certificates of his former in-laws! I wonder, how many divorced consular officers would be comfortable requesting copies of their former in-laws' birth certificates? It is a shame consular officers did not exercise similar vigilance in Riyadh, Saudi Arabia in the months leading up to September 11th, 2001.

Because DHS is now ultimately responsible for the adjudications of visa petitions filed by US Citizen petitioners inside the United States, it is also the agency which finds itself sued as a defendant in Federal District Court for the actions of consular officers.

Try to understand the dynamics of this relationship. DHS is legally responsible and must answer for the actions of consular officers. And yet, DHS has no direct operational control over what consular officers do, or how the consular corps sets its own priorities. The operational control of consular officers still resides with DOS. Yet DHS is held legally accountable when a consular officer crosses the line and violates a petitioner's constitutional rights.

A relationship like this is bound to create a little friction. Perhaps as a result of this inherent conflict, we see advisory cables periodically issued by DOS, cautioning consular officers that DHS/CIS approval of a petition is prima facie evidence of eligibility and that a CO must meet a high evidentiary standard before he or she can recommend revocation of that approval.

Perhaps the most recent evidence of a skirmish between the two agencies can be seen in a February 4th guidance cable issued by the Department of State to all consulates. I have included the entire memo and added emphasis where appropriate.

Every immigration lawyer should copy this cable and keep it handy. We'll be using it a lot in the months and years to come. This cable also announces some important changes to the revocation procedure.

One of the changes is that all recommendations for revocation will now be forwarded to the National Visa Center, and not to the CIS Service Center directly. The NVC will forward them to the CIS Service Centers. The NVC Fraud Unit will track the progress of the revocation in an attempt to minimize delays or the loss of the petitions. Also, the NVC Fraud Detection Unit says that it will "...utilize the data obtained from revocations to track trends for future intelligence dissemination....".

Every immigration lawyer should make note of this language from paragraphs 5,6,7 and 8.

5. "...The Department is regularly named as a co- defendant with DHS in cases involving the return of immigrant or nonimmigrant petitions to DHS. Therefore, it is particularly important that consular petition adjudications are well documented and clearly state the basis for the petition return.

6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial. No readjudication of petitions

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition.

8."...DHS regulations require DHS/BCIS to provide the petitioner notice of intent to revoke, and to allow the petitioner an opportunity to rebut the grounds for revocation. DHS regulations require that, in the case of nonimmigrant petitions, the revocation must be based only on grounds specified in the regulations. Those grounds include evidence that the statement of facts in the petition was not true and correct, or that the approval involved gross error....".

Immigration lawyers should take note of that language. However, I wish consular officers would take note of this language:

"...conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions. In addition, conoffs should return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedure...".

I have attended dozens of immigration interviews all over the United States. I have never seen an INS/CIS officer who was not knowledgeable in the laws at issue in the case being adjudicated. And I have never seen INS/CIS issue a request for evidence demanding a petitioner obtain copies of his former in-law's birth certificates! Sadly, at the consular level, I have seen both.

A Modest Policy Proposal:
I am not the first to recommend this. But it bears repeating. A good step toward both improving national security and giving visa applicants fair treatment overseas, would be to take visa issuance authority away from the Department of State and give it to Homeland Security.

This change will have at least three salutary effects.

(1) It will make the officers who issue visas legally accountable to Bivens' actions in Federal court, as they will no longer be 'consular officers'. They will be DHS adjudicators.

(2) It will allow allow DHS operational control over the people who issue visas. The priorities of the two agencies can at last be brought into alignment.

(3) It will improve our national security by allowing the officers who issue visas to focus on preventing terrorists from entering the United States, rather than spending their days terrorizing law-abiding US citizens and their fiancées and spouses.

There is no constitutional problem with this proposal. The US Constitution does not grant consular officers a degree of immunity. The doctrine of non-reviewability of consular decisions is statutory and found in the Immigration and Nationality Act. Nor does the Constitution require that the persons who adjudicate visas in US Consulates be called "Consular Officers". They could just as easily be working for DHS. And the United States would probably be safer if they did.

The battle lines are drawn between these two agencies. Immigration lawyers should be prepared to use this latest advisory cable on our clients' behalf at the US Consulates, and also use it at the DHS/CIS Service Centers, if we represent a client whose petition has been recommended revoked by a Consular Officer.

_________________________________________________

[ All Emphasis Supplied ]

Department of State Announces Guidelines for Returning for Revocation Approved NIV & IV Petitions to DHS.

R 251642Z FEB 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY BUJUMBURA
UNCLAS STATE 041682

VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / BCIS APPROVED IV AND NIV PETITIONS

1. Summary. Effective immediately, all immigrant, K-1 and K-3 visa petitions being returned with a recommendation to the DHS Bureau of Citizenship and Immigration Services (BCIS) for revocation will be forwarded to the National Visa Center (NVC). This cable provides guidance to posts on proper processing of DHS petitions submitted in support of immigrant or nonimmigrant visa applications. It cites and provides supplemental material to already existing FAM procedural instructions. End Summary

2. Effective immediately, posts should forward all immigrant and K-1/K-3 visa petitions being returned to the BCIS with a recommendation for revocation to the NVC. The NVC has developed a system for tracking all immigrant and K-1/K-3 visa petition cases returned from posts with recommendations for revocation. There are two reasons for the change in procedure. First, many petitions returned to BCIS with recommendations for revocation have been lost. In other cases, post has not received any information from BCIS on the status of the revocation request. The NVC will track all cases returned to BCIS and ensure that the cases are sent to and received from BCIS in a timely manner. Second, the NVC Fraud Prevention Unit intends to utilize the data obtained from revocations to track trends for future intelligence dissemination.

3. Revocation cases will be forwarded to the NVC for review and data collection, and forwarded by NVC to the appropriate BCIS Service Center. Cases will be returned from the BCIS Service Center to the NVC and then routed back to the post of origin. The NVC will follow up on cases lacking information from BCIS in a designated timeframe. Please note that conforming changes will be made in the relevant section of 9 FAM 42.43, N2, "When to Return Petitions," N3 "Returning Petitions" and PN1 "Returning Petitions for Possible Revocation" and 9 FAM 41.81 N6.6 "Additional Factors That May Raise Questions in K-1 Cases." Nonimmigrant visa petitions other than K-1/K-3 petitions returned with a recommendation for revocation will continue to be sent to the appropriate BCIS Service Center.

4. All Immigrant and K-1/K-3 Visa Revocation cases are to be returned to the following address:

National Visa Center
32 Rochester Ave.
Portsmouth NH 03801
Attn: Fraud Prevention Manager

5. Unlike consular determinations regarding visa eligibility, which are not subject to judicial review, actions relating to DHS petitions are potentially subject to administrative and/or judicial review. The Department is regularly named as a co-defendant with DHS in cases involving the return of immigrant or nonimmigrant petitions to DHS. Therefore, it is particularly important that consular petition adjudications are well documented and clearly state the basis for the petition return.

6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

No readjudication of petitions

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition.

8. When a petition is returned to DHS, if DHS concurs with the officer's recommendation, DHS regulations require DHS/BCIS to provide the petitioner notice of intent to revoke, and to allow the petitioner an opportunity to rebut the grounds for revocation. DHS regulations require that, in the case of nonimmigrant petitions, the revocation must be based only on grounds specified in the regulations. Those grounds include evidence that the statement of facts in the petition was not true and correct, or that the approval involved gross error. The FAM often only summarizes the petition approval criteria because they are too lengthy and complicated to reproduce fully (the H regulations, for example, contain about 25 pages of double column material). Absent access to the full DHS regulations, conoffs may not be aware of all of the factors considered by DHS in approving a petition. In addition, conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions. In addition, conoffs should return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedures.

Sufficiency of evidence

9. 9 FAM '42.43, Procedural Note One states that when returning petitions for possible revocation, "The original petition, along with all supporting documents, shall be returned under cover of a Form DS-3096, Consular Return/Case Transfer Cover Sheet, and a memorandum supporting the recommendation for revocation. The report must be comprehensive, clearly showing factual and concrete reasons for revocation. The report must be well reasoned and analytical rather than conclusory. Observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant." The criteria cited in this note derive from the Board of Immigration Appeals case, Matter of Arias, in which the Board determined that the memorandum supporting a petition return did not constitute "good and sufficient cause" for petition revocation, because it consisted of "observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship".

10. Memoranda supporting petition returns should be scrutinized carefully and objectively, bearing in mind that they may become relevant in litigation. The memoranda should be based on specific factual evidence, rather than conclusions, and should be clearly reasoned. For example, a statement that unnamed neighbors told a fraud investigator that a couple was not married is likely to be viewed as of relatively little value compared to a statement that names the neighbors, explains the nature of their relationship to and knowledge of the couple, and sets out the specific facts that led to the conclusion that the couple was not married. Signed statements are of greater value than second hand reports. Where a statement is prepared in English by a non-native English speaker, it should be proofread carefully. Posts can consult with CA/VO/L/A on cases where there are questions or concerns over the sufficiency of evidence cited in the memo supporting a petition return.

Notice to Applicant

11. INA 212(b) requires the conoff in most cases to "provide the alien with a timely written notice that- (A) states the determination, and (B) lists the specific provision or provisions of law under which the alien is inadmissible." 9 FAM 42.81 Procedural Note one instructs the conoff to provide: "1) The provision(s) of law on which the refusal is based; (2) The factual basis for the refusal (unless such information is classified); (3) Any missing documents or other evidence required; (4) What procedural steps must be taken by the consular officer or Department; and (5) Any relief available to overcome the refusal."

12. There are legitimate reasons why in some cases a conoff should not release all information relating to a visa refusal; such reasons could include classification of the information, confidentiality concerns, the need to protect an informant, or the "third agency rule" (information from another agency should only be released with that agency's permission). However, absent such considerations, conoffs should provide the applicant with the full factual basis for a visa refusal, as well as a reasonable opportunity to overcome the finding. This is particularly important to ensure that the Department's interests are protected in any subsequent litigation. It is important that conoffs maintain a record at Post showing that Post provided a written notice of the legal ground for refusal to the applicant, and, if possible, the factual basis for the refusal (this will normally consist of a copy of the OF-194). Conoffs are also reminded that in accordance with 9 FAM 42.81 Procedural Note 9, and 41.53 Note 2.3, copies of returned petitions and all other relevant material must be retained at Post.

Additional Considerations

13. Post's requests for petition revocation are often based upon investigation results. Consular managers should ensure that their fraud prevention programs actively tie investigations to legally-pertinent factual questions, and that they are likely to produce concrete evidence. In other words, if an investigation that confirms conoff's suspicions will not serve to allow DHS to revoke the petition, post is not managing its investigations effectively. Posts can find useful guidance on managing investigations and other aspects of fraud prevention at CA/FPP's intranet site at http://intranet.ca.state.gov/fpp/fpphome.htm. In accordance with the guidance in 9 FAM 40.63 Note 10.1, where there is evidence that the petition was approved based on fraud, the fraud cannot be considered to be material until the petition is revoked, and therefore while post can enter such cases into CLASS as P6CI, post should not pursue a 6C finding until the petition is revoked or abandoned. As stated in 9 FAM 40.4 note 10.1, post should be aware that any evidence presented to DHS in support of a petition revocation may be passed to the petitioner as part of the petition revocation procedures. Finally, Posts should review 9 FAM 40.51 Note 10 on the handling of petitions where there is evidence that a labor certification was obtained by fraud or material misrepresentation.


About The Author

Marc Ellis is an immigration attorney in New Orleans. He is the chat moderator for ILW.COM and also an editorial advisory board member for ILW.COM. In France, he is known as the composer of "The Fantomas Waltz". Mr. Ellis served two tours during the Vietnam War with the US Army, 1971-73. He can be reached at ellis@nternet.com.


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


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