NOID Rebuttal successful

[Dang Lang Thang 0]

Hello VJ friends,

I just got an update that my second K1 petition was approved. That implies that the rebuttal was successful challenged. It looks like it took six weeks to get processed. I am traveling in VN so I don't have the details from their mailed notification.

I will update when the petition moves forward to HCM Consulate.

-DLT

[BinhJerome 14]

Hello VJ friends,

I just got an update that my second K1 petition was approved. That implies that the rebuttal was successful challenged. It looks like it took six weeks to get processed. I am traveling in VN so I don't have the details from their mailed notification.

I will update when the petition moves forward to HCM Consulate.

-DLT

I guess we will be partying in Cambodia then!!!! We are so happy for you two!! Congrats!!!!!!! Jerome and Binh

[JimVaPhuong 4,863]

Very good news, so far. If Marc's theory pans out, this should mean that any P6C marker has been removed from your fiancee's file since a final decision was made, albeit indirectly, on the first returned K1 petition. This should mean that the first K1 petition can no longer come back to haunt you at the interview. In a roundabout way, this is the same as having the first petition reaffirmed. This way cost you more money than having the first petition reaffirmed, but might have taken less time.

I've been giving some thought lately about this new tactic the CSC has been using. I have a theory that this may simply be a way for CSC to try to reduce their workload. Previously, when a petition was returned with a recommendation that the approval be revoked, CSC would either put it into the queue to be adjudicated (which could take years), or just declare the petition dead because it had expired. I think they did the former if they thought there was a chance that the CO's accusations were valid, and took the second option if they thought the CO's accusations were petty or unfounded or they just didn't want to bother dealing with an investigation.

I think CSC may be assuming that a certain percentage of petitioners won't bother to file a second petition, especially if the relationship really was a sham for immigration. By saying the first petition is dead because it expired, they can essentially postpone making any decision on the first petition unless and until the petitioner decides to file another petition. This way, they only have to adjudicate returned petitions if the petitioner actually intends to go forward and try again, which cuts down on their workload.

Just a theory...

[BinhJerome 14]

Very good news, so far. If Marc's theory pans out, this should mean that any P6C marker has been removed from your fiancee's file since a final decision was made, albeit indirectly, on the first returned K1 petition. This should mean that the first K1 petition can no longer come back to haunt you at the interview. In a roundabout way, this is the same as having the first petition reaffirmed. This way cost you more money than having the first petition reaffirmed, but might have taken less time.

I've been giving some thought lately about this new tactic the CSC has been using. I have a theory that this may simply be a way for CSC to try to reduce their workload. Previously, when a petition was returned with a recommendation that the approval be revoked, CSC would either put it into the queue to be adjudicated (which could take years), or just declare the petition dead because it had expired. I think they did the former if they thought there was a chance that the CO's accusations were valid, and took the second option if they thought the CO's accusations were petty or unfounded or they just didn't want to bother dealing with an investigation.

I think CSC may be assuming that a certain percentage of petitioners won't bother to file a second petition, especially if the relationship really was a sham for immigration. By saying the first petition is dead because it expired, they can essentially postpone making any decision on the first petition unless and until the petitioner decides to file another petition. This way, they only have to adjudicate returned petitions if the petitioner actually intends to go forward and try again, which cuts down on their workload.

Just a theory...

Nice theory Jim, but what I think is going on is that people in CSC are simply denying the due process of USC, plain and simple. If your first petition was denied, and then closed with no fraud notice, and a USC files again for the same woman (and has still met the requirements to file) then they issue a NOID, in my opinion they say give us your money, here is the law where you can file, then when they get the money they say too bad so sad, you are getting a NOID, so now your only options are to never file again, or spend even more money in the hopes that we listen to you, and if we still do not listen to you then thanks again for the other $455 for the filing fee. This is my opinion on the matter, they might not be intentionally be trampling the rights of a USC, but instead of changing the requirements which would take much more time and other peoples approval, they can get away with these little amendments which in fact is changing the rules. Just like any bureaucracy to get things changed takes lots of time so they try to skirt the rules, but if this were everyday citizens making such acceptations to the rules we would all be arrested or fined, isn’t America grand? Jerome

[ScottThuy 140]

I think its a cash grab and a way to avoid some of the rebuttals.. rather than processing the rebuttal for the initial filing fee.. they found a way to get paid to do it... make them refile... get another filing fee, as well as visa fee... it boils down to an extra 455 and 131 that they otherwise would have not been paid for much the same process.

It also allows the petitioner to address the initial problem when addressing the NOI.. this way the consulate would have a hard time holding that against them given the fact that USCIS had addressed it..

It will be interesting to see if both CSC and VSC are doing the same thing now. Maybe Gary can ask his neighbor about it..

[hniHnitsuJ 8]

I think its a cash grab and a way to avoid some of the rebuttals.. rather than processing the rebuttal for the initial filing fee.. they found a way to get paid to do it... make them refile... get another filing fee, as well as visa fee... it boils down to an extra 455 and 131 that they otherwise would have not been paid for much the same process.

It also allows the petitioner to address the initial problem when addressing the NOI.. this way the consulate would have a hard time holding that against them given the fact that USCIS had addressed it..

It will be interesting to see if both CSC and VSC are doing the same thing now. Maybe Gary can ask his neighbor about it..

Good new.

[BinhJerome 14]

I think its a cash grab and a way to avoid some of the rebuttals.. rather than processing the rebuttal for the initial filing fee.. they found a way to get paid to do it... make them refile... get another filing fee, as well as visa fee... it boils down to an extra 455 and 131 that they otherwise would have not been paid for much the same process.

It also allows the petitioner to address the initial problem when addressing the NOI.. this way the consulate would have a hard time holding that against them given the fact that USCIS had addressed it..

It will be interesting to see if both CSC and VSC are doing the same thing now. Maybe Gary can ask his neighbor about it..

I am not sure about all the details with Franks case, or any other case for that matter. The problem I see with this is that Frank hired Mark to do his rebuttal of the NOID, this is something that should not have been needed, since his case was clear cut. I have spent time with them the last few weeks and my personal opinion is they are as real as it can get, but as I said I do not know the exact details. My big question and complaint about the issue is not knowing what they will accept, can an "average Joe" do a rebuttal and get it to work where they drop the NOID, this is in my opinion the most important aspect of the entire NOID issue, they make it sound so serious that if it goes through they will never let your SO get a visa, and if this is the case then the NOID is the government not giving a USC due process, no ifs, ands, or butts about it. It might be a way to make more money, but if any person can simply do a rebuttal on their own and get it to go through then as you said Scott it should be harder for the consulate to deny the second attempt. Either way, Frank and Phuong we are both pulling for you, may your interview come soon, and may your visa come easily you both truly deserve it!! Jerome and Binh

[JimVaPhuong 4,863]

Well, you could certainly make the argument that the process isn't fair for either the petitioner or the beneficiary, but due process doesn't really apply here. The due process clause of the Constitution applies to denial of life, liberty, or property. These are the only circumstances where a guarantee of due process can be applied.

Now, many people have made the argument that deportation constitutes a denial of liberty, and due process should apply. Congress and the Supreme Court have generally agreed with this. The INA has been carefully crafted (and modified over the years) to ensure that due process ONLY applies AFTER the liberty has been granted. In other words, once you are admitted legally in the US then you have been granted something that only a judge can take away. However, no liberty has been granted before you are admitted, and so nothing is being taken away by denying you entry to the US. Maintaining the status quo is not a denial of anything.

There has been an ongoing debate about due process and immigration law ever since the Illegal Immigration Act of 1996 was passed. That act authorized CBP officers to make a summary judgment against an applicant attempting to enter the US, and issue an order of expedited removal, which has the same consequences as deportation - immediate removal from the US along with a ban for at least 5 years. Lawyers have argued that this violates due process because it allows a CBP officer to make a judgment that had previously been reserved for immigration judges. The Supreme Court has upheld the law, saying that due process does not apply because no liberty has been granted yet. The debate is still going on because CBP is using expedited removal at checkpoints within 100 miles of the US border, which some immigration attorneys say violates due process because the person being removed had effectively already entered the United States. So far, this argument hasn't held up in court because they were dealing with immigrants who had entered illegally, and don't have a valid claim to a grant of liberty. Even so, the law makes specific exceptions in the cases of Cubans entering illegally (they are a "special" class), and those seeking asylum. The CBP is specifically required to ask if the alien is a Cuban or an asylum seeker before they issue an order of expedited removal. If either of these apply, then the case is given to an immigration court for due process.

Anyway, there are a lot of valid arguments against the tactics used by USCIS and the consulates to deny visas and revoke petition approvals, but denial of due process or denial of rights are usually not a valid legal basis to challenge them.

[BinhJerome 14]

Well, you could certainly make the argument that the process isn't fair for either the petitioner or the beneficiary, but due process doesn't really apply here. The due process clause of the Constitution applies to denial of life, liberty, or property. These are the only circumstances where a guarantee of due process can be applied.

Now, many people have made the argument that deportation constitutes a denial of liberty, and due process should apply. Congress and the Supreme Court have generally agreed with this. The INA has been carefully crafted (and modified over the years) to ensure that due process ONLY applies AFTER the liberty has been granted. In other words, once you are admitted legally in the US then you have been granted something that only a judge can take away. However, no liberty has been granted before you are admitted, and so nothing is being taken away by denying you entry to the US. Maintaining the status quo is not a denial of anything.

There has been an ongoing debate about due process and immigration law ever since the Illegal Immigration Act of 1996 was passed. That act authorized CBP officers to make a summary judgment against an applicant attempting to enter the US, and issue an order of expedited removal, which has the same consequences as deportation - immediate removal from the US along with a ban for at least 5 years. Lawyers have argued that this violates due process because it allows a CBP officer to make a judgment that had previously been reserved for immigration judges. The Supreme Court has upheld the law, saying that due process does not apply because no liberty has been granted yet. The debate is still going on because CBP is using expedited removal at checkpoints within 100 miles of the US border, which some immigration attorneys say violates due process because the person being removed had effectively already entered the United States. So far, this argument hasn't held up in court because they were dealing with immigrants who had entered illegally, and don't have a valid claim to a grant of liberty. Even so, the law makes specific exceptions in the cases of Cubans entering illegally (they are a "special" class), and those seeking asylum. The CBP is specifically required to ask if the alien is a Cuban or an asylum seeker before they issue an order of expedited removal. If either of these apply, then the case is given to an immigration court for due process.

Anyway, there are a lot of valid arguments against the tactics used by USCIS and the consulates to deny visas and revoke petition approvals, but denial of due process or denial of rights are usually not a valid legal basis to challenge them.

The petitioner is usually a USC, so you can say it is violating his/her due process since he/she is the one that starts the petition, that or you can call it fraud, in my opinion it is very fraudulent or a clear lack of due process. If any of them would pay for something with the letters being clearly laid out where it says you can file for this if you have bla bla bla then you will get this and this and this, but when you file and pay for their service, they simply send you a NOID, to me they promised that if you met certain criteria that you would be entitled to go further down the process, they never guarantee a visa, but as long as you have met with the last 2 years, if one of you is a USC, if you make a certain amount of money, and if you are willing and able to get married within 90 days of their arrival (for K1 visa of course) then you send in $455 and when the paperwork gets processed you will have the right to an interview and be able to plead your case, but with a NOID, they offer none of this, when you file, you prove that the criteria is already met, but because a old petition expired and they NEVER let you argue the reasons that it was sent back, they simply tell you they are probably going to deny you again without an interview, without a NOA1,2, without packet 3, or 4, that is fraud or depriving one of due process. Jerome

Edited May 10, 2010 by jeromebinh

[JimVaPhuong 4,863]

The petitioner is usually a USC, so you can say it is violating his/her due process since he/she is the one that starts the petition, that or you can call it fraud, in my opinion it is very fraudulent or a clear lack of due process. If any of them would pay for something with the letters being clearly laid out where it says you can file for this if you have bla bla bla then you will get this and this and this, but when you file and pay for their service, they simply send you a NOID, to me they promised that if you met certain criteria that you would be entitled to go further down the process, they never guarantee a visa, but as long as you have met with the last 2 years, if one of you is a USC, if you make a certain amount of money, and if you are willing and able to get married within 90 days of their arrival (for K1 visa of course) then you send in $455 and when the paperwork gets processed you will have the right to an interview and be able to plead your case, but with a NOID, they offer none of this, when you file, you prove that the criteria is already met, but because a old petition expired and they NEVER let you argue the reasons that it was sent back, they simply tell you they are probably going to deny you again without an interview, without a NOA1,2, without packet 3, or 4, that is fraud or depriving one of due process. Jerome

I understand your arguments, and I agree that it's not fair. The point I was trying to make is that they are not denying you due process because you have no right to demand it in this case.

As I said in my previous post, the constitutional guarantee of due process applies only in cases where you may be denied life, liberty, or property. In the case of a petition for visa, or a visa application, none of these things are being denied. The US citizen is not facing death, imprisonment, or seizure of property as a result of the decisions made by either USCIS or the consulate. USCIS could have been empowered by the law to make a summary judgment - your petition is denied - end of story, no due process, and no appeal. Likewise, the consulate could have been empowered by the law to make a similar summary judgment - your visa is denied - no due process, and no appeal. I even pointed out specifically that CBP is given the authority by law to make summary judgments by using expedited removal - you're kicked out of the country with a 5 year ban - no due process, no appeal.

In reality, immigration law does not provide limitless power to either USCIS or the consulates. Even though due process is not constitutionally required, it is provided for in the INA. Consulates can refuse to issue a visa, but that leaves them with an approved petition which they cannot do anything about. They can only recommend that USCIS revoke the approval of the petition. If USCIS decides to follow the consulate's recommendation, they are required to give the petitioner a chance to rebut. If the rebuttal fails, and USCIS revokes the petition approval, the US citizen can appeal to the Board of Immigration Appeals. If that fails, the US citizen can appeal to a federal appeals court. There have been many appeals of USCIS and BIA decisions that were won in a federal appeals court, even some that have made it as far as the US Supreme Court. Given that you have the option of eventually taking your case to the highest court in the land, it's difficult to see how you can make the argument that there is no "due process", even though it's not constitutionally required. There are no agencies of the US government which are above the federal appeals court system (although the IRS comes pretty damn close).

I understand your argument against the new NOID tactic being applied by CSC. Yes, it seems unfair that the US citizen petitioner has seemingly met the requirements for an approved petition, and is receiving a NOID instead. What your argument misses is that the beneficiary has a P6C marker for material misrepresentation in her file. The beneficiary has already had an interview, and the consulate has determined she's inadmissible. It seems like your main argument is that you may not get to appeal your case with the agency that made the decision. For example, consulates don't offer a process for appealing a denied visa. But, a denied visa doesn't end the process. You can continue to pursue it when the petition comes back to the US.

Previously, when CSC would allow a petition to expire, they would basically ignore the P6C marker and allow the petition to go to the consulate. According to Marc, this often left petitions languishing at the consulate indefinitely because USCIS had never formally made a judgment regarding the P6C accusation on the first petition. I haven't personally heard about any of these cases, but he's certainly seen a lot more cases than I have so I expect he knows what he's talking about when he says that this happens. Theoretically, this tactic would avoid that fate for the second petition because it would allow USCIS to make a final decision on the P6C accusation. If the second petition is ultimately approved, the consulate has no excuse to sit on it - they must schedule another interview.

[BinhJerome 14]

I understand your arguments, and I agree that it's not fair. The point I was trying to make is that they are not denying you due process because you have no right to demand it in this case.

As I said in my previous post, the constitutional guarantee of due process applies only in cases where you may be denied life, liberty, or property. In the case of a petition for visa, or a visa application, none of these things are being denied. The US citizen is not facing death, imprisonment, or seizure of property as a result of the decisions made by either USCIS or the consulate. USCIS could have been empowered by the law to make a summary judgment - your petition is denied - end of story, no due process, and no appeal. Likewise, the consulate could have been empowered by the law to make a similar summary judgment - your visa is denied - no due process, and no appeal. I even pointed out specifically that CBP is given the authority by law to make summary judgments by using expedited removal - you're kicked out of the country with a 5 year ban - no due process, no appeal.

In reality, immigration law does not provide limitless power to either USCIS or the consulates. Even though due process is not constitutionally required, it is provided for in the INA. Consulates can refuse to issue a visa, but that leaves them with an approved petition which they cannot do anything about. They can only recommend that USCIS revoke the approval of the petition. If USCIS decides to follow the consulate's recommendation, they are required to give the petitioner a chance to rebut. If the rebuttal fails, and USCIS revokes the petition approval, the US citizen can appeal to the Board of Immigration Appeals. If that fails, the US citizen can appeal to a federal appeals court. There have been many appeals of USCIS and BIA decisions that were won in a federal appeals court, even some that have made it as far as the US Supreme Court. Given that you have the option of eventually taking your case to the highest court in the land, it's difficult to see how you can make the argument that there is no "due process", even though it's not constitutionally required. There are no agencies of the US government which are above the federal appeals court system (although the IRS comes pretty damn close).

I understand your argument against the new NOID tactic being applied by CSC. Yes, it seems unfair that the US citizen petitioner has seemingly met the requirements for an approved petition, and is receiving a NOID instead. What your argument misses is that the beneficiary has a P6C marker for material misrepresentation in her file. The beneficiary has already had an interview, and the consulate has determined she's inadmissible. It seems like your main argument is that you may not get to appeal your case with the agency that made the decision. For example, consulates don't offer a process for appealing a denied visa. But, a denied visa doesn't end the process. You can continue to pursue it when the petition comes back to the US.

Previously, when CSC would allow a petition to expire, they would basically ignore the P6C marker and allow the petition to go to the consulate. According to Marc, this often left petitions languishing at the consulate indefinitely because USCIS had never formally made a judgment regarding the P6C accusation on the first petition. I haven't personally heard about any of these cases, but he's certainly seen a lot more cases than I have so I expect he knows what he's talking about when he says that this happens. Theoretically, this tactic would avoid that fate for the second petition because it would allow USCIS to make a final decision on the P6C accusation. If the second petition is ultimately approved, the consulate has no excuse to sit on it - they must schedule another interview.

I hear what you are saying, trust me I do. Most cases the USC does not have ANY opportunity to defend the denial, when they let the petition expire there is nothing to do a rebuttal with, and even when you can prove that the CO lied, or did not have all the facts it is still pointless, IF the petition did not get closed due to expiration then the p6 marker should go into the file, but when the USC does not have any right to rebut the reasons for denial, then they are in fact denying you due process. Where are the people’s rights to face the accuser (the CO of slander) the rules state that the consulate cannot deny any visa, only that they can recommend it for denial, so this means that by letting the case expire and not allowing the USC to rebut the ALEGED reason for denial they are either committing fraud, prejudice (not all cases are allowed to expire some people do get a chance of a rebuttal). I know life is not fair, but this new tactic is a bunch of BULL there is no way around the fact that they are denying people and discriminating against people, how can you argue that when some people get reaffirmed, and some are allowed to do a rebuttal and then get the petition reaffirmed this is not a form of injustice?? Point blank it is a serious injustice that the government is imposing against a USC, and if you or I was to do this to ANYONE in America we would be in a civil suit so fast your head would spin, and there would be no argument about it, we would end up paying because it is a crime. That is the point I am trying to make, regardless if you want to call it due process, discrimination, or whatever it is you want to call it, it is wrong, and very possibly in 99% of all jury’s would be considered a crime.

“Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

Due process has also been frequently interpreted^{[by whom?]} as limiting laws and legal proceedings, so judges instead of legislators may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. It is also stated that the government shall not be unfair to the people.”

Retrieved 5-10-2010 from http://en.wikipedia.org/wiki/Due_process

[ScottThuy 140]

The reason that the USC is not given the opportunity to respond to the visa denial, is that the USC is just a petitioner in the eyes of the Consulate.. almost as if we are a third party, the USC didnotapply for the visa.. the beneficiary is the one that is applying for the visa and they have no rights when it comes to the US system(until they enter the US), the DoS has a statement that they will treat them with respect and within the law, but the fact that it is a two phase sytem seperates the USC and SO to some degree... its almost like they look at it from the standpoint that ok, you filed a petititon asking us to allow the SO to apply for a visa.. we allowed her to apply and she got denied.... wanna try again? Whats next? a 3 for the price of 1 special on the 3rd friday of the month?

[Dang Lang Thang 0]

My take is that the USC has the right to petition. However, the beneficiary receiving a visa is only a privilege (akin to a driver's license).

The main issue I have is that both the Consulate (DOS) and USCIS often operate in a lawless fashion. They regularly do not practice what the law outlines. They skirt the application of the law with vague claims of "reasonable person standard" or expiration period stalling.

-DLT ... in Hue

[Dang Lang Thang 0]

I've been giving some thought lately about this new tactic the CSC has been using. I have a theory that this may simply be a way for CSC to try to reduce their workload. Previously, when a petition was returned with a recommendation that the approval be revoked, CSC would either put it into the queue to be adjudicated (which could take years), or just declare the petition dead because it had expired. I think they did the former if they thought there was a chance that the CO's accusations were valid, and took the second option if they thought the CO's accusations were petty or unfounded or they just didn't want to bother dealing with an investigation.

I think CSC may be assuming that a certain percentage of petitioners won't bother to file a second petition, especially if the relationship really was a sham for immigration. By saying the first petition is dead because it expired, they can essentially postpone making any decision on the first petition unless and until the petitioner decides to file another petition. This way, they only have to adjudicate returned petitions if the petitioner actually intends to go forward and try again, which cuts down on their workload.

Just a theory...

I suspect that it is a combination of stalling, work reduction and revenue generation scheme. Add a topping of incompetence to complete.

-DLT

[JimVaPhuong 4,863]

I hear what you are saying, trust me I do. Most cases the USC does not have ANY opportunity to defend the denial, when they let the petition expire there is nothing to do a rebuttal with, and even when you can prove that the CO lied, or did not have all the facts it is still pointless, IF the petition did not get closed due to expiration then the p6 marker should go into the file, but when the USC does not have any right to rebut the reasons for denial, then they are in fact denying you due process. Where are the people’s rights to face the accuser (the CO of slander) the rules state that the consulate cannot deny any visa, only that they can recommend it for denial, so this means that by letting the case expire and not allowing the USC to rebut the ALEGED reason for denial they are either committing fraud, prejudice (not all cases are allowed to expire some people do get a chance of a rebuttal). I know life is not fair, but this new tactic is a bunch of BULL there is no way around the fact that they are denying people and discriminating against people, how can you argue that when some people get reaffirmed, and some are allowed to do a rebuttal and then get the petition reaffirmed this is not a form of injustice?? Point blank it is a serious injustice that the government is imposing against a USC, and if you or I was to do this to ANYONE in America we would be in a civil suit so fast your head would spin, and there would be no argument about it, we would end up paying because it is a crime. That is the point I am trying to make, regardless if you want to call it due process, discrimination, or whatever it is you want to call it, it is wrong, and very possibly in 99% of all jury’s would be considered a crime.

Rights granted by the Constitution do not extend to foreigners on foreign soil, but let's presume that they did. What are the legal consequences for a foreign beneficiary if they are denied a visa because the consular officer believes they committed fraud? Do they have to stand trial? Are they being denied life, liberty, or property as a result of the consular officer's decision? Or, does their life continue essentially just as it did before, albeit without the privilege of receiving the visa they asked for?

The US citizen has not been accused of anything. The P6C marker is in the foreign beneficiary's file, and has no legal consequence for the US citizen. They don't stand trial, and don't receive any sort of criminal record. They aren't denied life, liberty, or property. Their life goes on, just as it did before.

The consulate CAN deny a visa. This is, in fact, the bulk of their authority in a visa case. What they can't do is revoke the approval of a petition.

“Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

Due process has also been frequently interpreted^{[by whom?]} as limiting laws and legal proceedings, so judges instead of legislators may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. It is also stated that the government shall not be unfair to the people.”

Retrieved 5-10-2010 from http://en.wikipedia.org/wiki/Due_process

Ok, the Wikipedia article broadly defines what due process is. I told you the circumstances in which it is constitutionally guaranteed. It does not apply to every single interaction you have with the government, especially if that interaction involves a request for a privilege. However, I bolded one part that you had previously highlighted, and which I think is significant. You DO have the right to bring your case in front of a judge. The federal appeals court allows you to challenge the decision of any federal agency, including USCIS or the Department of State. If you think you've been treated unfairly, then take it to court.

Again, it seems like your biggest objection is that you don't always get to argue it out with the guy who makes the decision. You sometimes have to wait until the decision is made, and then go to a higher authority to argue about it. Since the decision does not result in your having been denied life, liberty, or property, there is no constitutional due process violation. Now, if USCIS or the consulate could hit you with some sort of penalty - a fine or seizure of property - then you'd have a right to due process before the penalty was imposed.

If your argument is about fundamental fairness, then I agree entirely. The process is not fair at all. The consulate has developed a system which they believe helps weed out the bulk of the green card scammers, and they really don't care how many sincere couples get caught up in the system and have their lives upended as a result. If you want to tilt at that windmill, feel free. Ultimately, the visa scammers are to blame for this, and not the consulate. This sort of grossly unfair treatment doesn't happen in Vancouver or London.

The ancient Chinese warrior Sun Tzu said "Know your enemy". If you follow this advice, and do your research well in advance (sites like VJ are extremely useful here), you can shift the odds in your favor.