There is no worse feeling than being denied a visa after an interview at an embassy or consulate. While applicants denied nonimmigrant visas (such as a visitor, student or temporary worker) are faced with a setback to their short-term plans, those applying for permanent residency (immigrant) visas are in an even tougher position. Often, immigrant visa applicants have waited many years for their turn in line when they attend their embassy interview, whether the immigration is based on a family petition or employment. Immigrant visa applicants often travel far and at great expense to attend the embassy interview, and have made life-altering plans in anticipation of immigrant visa processing.
Clearly, many denials are proper, and immigrant visa applicants face the consequences of their past actions. However, in other situations, denials are issued improperly, and appropriate legal remedies should be considered. While Appeals of embassy denials are typically impossible, a Motion to Reconsider is specifically provided for in the Federal Regulations under 22 C.F.R. Section 42.81. Further, under the 9th Circuit’s recent holding in Rivas v. Napolitano, embassies have a “nondiscretionary, ministerial duty to reconsider” certain decisions following the submission of a request to reconsider.
Soft Refusals Under Section 221(g)
First, it is important to point out that there are generally two types of denials. Put simply, there are “hard denials” under Section 212(a) and “soft refusals” under Section 221(g) of the Immigration and Nationality Act (“INA”). A Section 221(g) soft refusal is somewhat analogous to the Request for Evidence (“RFE”) that immigration applicants receive when applying for immigration benefits in the U.S.
A soft refusal essentially means that the Embassy is requesting further documents or must undertake further administrative internal processing of the case. If sufficient documentation is provided or administrative processing is complete, the refusal can be overcome. Typical examples of documents requested can include: tax documents; affidavits of support; job offer confirmation; police certificates; proof of local employment, and court records relating to criminal convictions. The Federal Regulations allow one year for documents to be submitted. If the applicant takes longer than that, she or he will need to reapply for the visa and pay the application fee again.
Hard Denials Under Section 212(a)
Unlike Section 221(g), section 212(a) denials are much more difficult to overcome. The “hard refusal” under Section 212(a) means that a bar to re-entry (“inadmissibility”) applies. Some bars—such as a bar due to a previous overstay or misrepresentation—can be pardoned if a waiver is granted. Some bars are semi-permanent—for example, a bar due to a previous attempt to illegally enter the U.S. after a deportation causes a ten-year hard bar, with a waiver attempt only possible after spending 10 years outside of the U.S. Other bars are simply permanent, with no waiver available—such as a false claim to U.S. citizenship made on or after September 30, 1996.
The determination of whether a bar applies is typically made at the embassy interview by an officer within the Immigrant Visa Unit. As with all laws, the immigration laws leave some room for interpretation. Unfortunately, if an officer’s decision is incorrect, there is little room for argument. According to the doctrine of “consular non-reviewability”, the denial decision cannot generally be appealed. Many applicants and attorneys alike have heard of this doctrine and believe that they have reached the end of the road if a visa is denied. It is thought that either a permanent bar is applied, or a waiver—which may or may not be approved—must be submitted.
However, where new evidence or legal arguments exist, a Motion (request) to Reconsider can be submitted to the embassy. Under 22 C.F.R. Section 42.81, the Motion can be filed, and the embassy must consider the case. Although the regulations permitting a reconsideration have long been in place, only a small percentage of denied visa applicants ever invoke them. While some applicants should not invoke them because there truly exists no legal basis on which to request reconsideration, other legitimate cases do not challenge the bar either because they misunderstand the doctrine of non-reviewability, or because they are pessimistic anything will happen if they ask for reconsideration.
Challenging Visa Denials Under Recent Case Law
In its recent holding in Rivas v. Napolitano, the 9th Circuit Court of Appeals found that “embassies” (to include the Consulate General in Ciudad Juarez, in that case) must issue a decision in response to a Motion to Reconsider. The decision reaffirms the Court’s previous holding in Patel v. Reno, in which it held that while the court cannot compel an officer to grant or deny a visa, it can compel the officer to finally make a decision in a long-pending visa case. Next week, we will discuss Rivas and Patel in more detail, including how these holding may help visa applicants.
An immigrant visa applicant denied under Section 212(a) should discuss their case with an attorney experienced in consular matters. The case must undergo a 4-part analysis: 1) Determine whether the application of the Section 212(a) bar is correct, and if not; 2) Determine whether a Motion to Reconsider is possible, and if not; 3) Determine whether a waiver is available; and if so; 4) Determine the strength of the possible waiver in a given situation.
Nonreviewability vs. Ministerial Duties
Consular nonreviewability is an estabilshed doctrine. In its 1986 holding in Li Hing of Hong Kong Inc. v. Levin, the 9th Circuit Court of Appeals found that “Federal courts are generally without power to review the actions of consular officials.” However, the Court’s 1997 ruling in Patel v. Reno stood for the notion that while the Court cannot tell the visa officer how to decide a case, the Court can review the case where the officer fails to issue a decision. The ruling carried significant meaning, as it means that a denied applicant’s request to reconsider will be heard. Visa officers face an enormous daily workload of visa applications and administrative processing, and it is true that long processing delays do sometimes occur.
Patel is significant in that administrative delays should not equal lack of adjudication. Patel was recently invoked by the majority in the 9th Circuit’s recent holding in Rivas v. Napolitano. In Rivas, petitioner Hilario Alfonso Rivas (“Rivas”) submitted an application for an immigrant visa based on an approved I-130 petition filed by his daughter. The U.S. Consulate in Ciudad Juarez, Mexico, denied Rivas’s immigrant visa application due to his purportedly admitting to alien smuggling activities. Thereafter, Rivas filed: 1) a Waiver of Inadmissibility (I-601) application (which was rejected) and; 2) a request for reconsideration (which the consulate did not act on).
Rivas filed an appeal with the district court, which relied on consular nonreviewability in dismissing the case on the grounds that it lacked subject matter jurisdiction. Upon review, the 9th Circuit agreed with the district court’s reasoning with regards to the I-601 application, finding: “Federal courts are generally without power to review the actions of consular officials”. However, with regards to the Motion to Reconsider, the Court held that the consulate could not fail to adjudicate Rivas’ request for reconsideration.
The Court found that under 22 C.F.R. § 42.81(e) the consulate has a “nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility.” Moreover, the Court ruled that the district court has jurisdiction under the Mandamus Act, as well as the Administrative Procedures Act, to order such reconsideration requests to be decided, upon a finding that the petitioner presents additional evidence.
In Rivas, the applicant filed a request to reconsider within one year of visa denial. The Court noted that the filing placed upon the visa officer a duty to reconsider, finding he “must” take action. Further, the Court stated that under 22 C.F.R. § 42.81(e) an additional visa application should not be required.
Denied visa applicants often feel hopeless when it comes to requesting reconsideration of a Section 212(a) visa denial. To be sure, if the legal grounds for the denial are sufficient, a frivolous request for reconsideration is improper and a burden on U.S. government resources. However, as the legal precedent described above indicates, certain courts do have jurisdiction to order that legitimate requests for reconsideration be adjudicated.
An immigrant visa applicant denied under Section 212(a) should discuss their case with an immigration attorney experienced in consular matters. The case must undergo a 4-part analysis: 1) Determine whether the application of the Section 212(a) bar is correct, and if not; 2) Determine whether a Motion to Reconsider is possible, and if not; 3) Determine whether a waiver is available; and if so; 4) Determine the strength of the possible waiver in a given situation.