A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, October 6, 2014

U.S. Supreme Court to hear visa refusal case

A naturalized U.S. citizen filed an immigrant visa to bring her husband to the United States so that they can live together.  Things went well for the most part except the last step - the visa interview. After her husband was interviewed by a consular officer in Islamabad, Pakistan, he was told that everything was okay and he should expect to get his visa soon.  However, his visa was never issued despite repeated follow-up inquiries.  At the end, he was advised that his visa application was refused and his file was returned to the United States.

Hundreds of thousands of foreigners apply for U.S. visas every year.  Although many of them got their visas, there are also considerable number of applicants whose visas were refused.   According to the U.S. State Department's Report of the Visa Office 2013, 288,957 immigrant visas and 2,230,296 non-immigrant visas (e.g., tourist, business, student) were refused by U.S. consulates. When a visa application is denied, the applicant does not really have any recourse.  Until recently, that is.  

The above-mentioned U.S. citizen, Fauzia Din, took the visa refusal to court.  Legally speaking, the U.S. courts do not have much authority over visa issues because Congress was given "plenary power" to make rules regarding admission of foreign nationals by the Constitution.  Congress wrote several statutes which give almost unfettered power to the State Department and Consular Officers to issue and to deny visas.  Consequently, the courts rarely disturb the decisions of Consular Officers. Here, however, the Ninth Circuit Court of Appeal took side with Ms. Din and remanded the case to the State Department to provide more specific reasons for refusing visa to her husband. According to the Ninth Circuit, specific reasons need to be given to show that the decision was made in good faith and for legitimate reasons.

The Government appealed the Ninth Circuit's decision to the U.S. Supreme Court, which recently agreed to hear the case.  (John F. Kerry, Secretary of State, et al., v. Fauzia Din).  The Government argues that by law the Consular Officer only needed to provide a notice of refusal of the visa application without specifying the exact reasons for his decision.  Here, the Consular Officer already stated "terrorist activities" were grounds for inadmission.

It appears the the "terrorist activities" ground of inadmission was triggered based on the husband's employment at the Afghan government's Ministry of Social Welfare as a clerk before, during, and after the Taliban occupation.  Ms. Din argued that the visa refusal could not have been justified since her husband only worked as a low-level clerk for the government.

The Supreme Court will decide this case in the coming months.  To a large extent, the Supreme Court's decision will depend on whether Ms. Din's Constitutional rights have been violated.  Ms. Din has liberty interest in marriage and to live with her spouse in the United States.  If her rights have been violated, the question remains whether her rights trump the national security powers of the State Department regarding visa issuance.   However, other Constitutional issues and statutory interpretation issues may also affect the outcome of this extremely important case.  

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