(Part 2 of 2)
APPLICANTS that have been denied an Immigrant Visa at an embassy or consulate abroad face either a soft refusal or a hard bar to future immigration. A soft refusal, which comes in the form of a Section 221(g) letter, means that the consular officer either requires further evidence to continue processing the visa, or the case must undergo additional administrative review, such as security checks. A 221(g) refusal can typically be overcome, once the necessary documents have been submitted or after administrative processing concludes.
By contrast, a denial under Section 212(a) means that a “hard bar” applies to immigration, which can only be overcome by successfully contesting whether the bar is proper, or succeeding in a request for a qualifying waiver. For example, a prior misrepresentation with respect to a visitor visa application will result in a lifetime ban under Section 212(a)(6)(C)(i), unless the ground of inadmissibility can be waived.
In Part 1 of this Article, we discussed these two types of immigrant visa denials, and the doctrine of consular nonreviewability—which prevents the appeal of immigrant visa denials. We also discussed the fact that a Motion (also known as “request”) to Reconsider is possible under Federal Regulations found under 22 C.F.R. Section 42.81. Problem is, although such a request is possible, processing delays and pessimism following a denial prevent many people from pursuing a valid reconsideration request.
However, the 9th Circuit Court of Appeals recently reminded visa officers that a request to reconsider should be properly considered and decided. This breathes new life into those applicants who have a legitimate basis for challenging an inadmissibility finding. Below, we discuss the important Rivas decision as well as its precursor, Patel v. Reno.
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 US 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.
Conclusion
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 US 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.
***
Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.
