Supreme Court Considers Visa Case For Foreign Spouses

[Janelle2002 3,865]

If anyone will be out there, it's me and you. It's torture every moment of every day to endure it never knowing if, when, or what you will hear anything. For all practical purposes, our spouses may as well be on death row.

Well, when I leave work I am going to work on an email we can send the Supreme Court and NPR news and post it for suggestions. I am going to go through with this and so should everyone else who is going through this process.

[TBoneTX 45,287]

Where is the kiss button?

See avatar photo. Smoooooooooch!

[Janelle2002 3,865]

Okay. Here is what I want to email to the Supreme Court and to NPR news. What do you think and do I have your support? We really need to support this woman's case.

The Doctrine of Consular Non-Reviewability deprives U.S. citizens of one of their main Constitutional rights, the right to petition their government for redress of grievances. Lengthy, unnecessary delays and the denial of a visa for the spouse of a U.S. citizen directly affects the U.S. citizen. In everyday life this is called cause and effect. Everyday, thousands of U.S. citizens are forcibly separated from their spouses and even children during this process of legally petitioning for their family members to join them in the U.S.

The Doctrine of Consular Non-Reviewability takes away the option of redressing the grievance of a U.S. citizen, especially for an individual who is unable to move abroad due to certain hardships.

Visa petitions pass through the hands of humans, in other words, human errors are bound to occur. Once biasedness, discrimination, stereotyping, burnt out workers and racism are factored into the scenario, denied petitions can occur. There are laws in place to protect USCIS, DOS and Consulates abroad, but there are no laws in place to protect the U.S. citizens who are struggling through the immigration system, with no help and no answers. If we are unable to petition our government when in need, are we really a country built on democracy?

Please repel the Doctrine of Consular Non-Reviewability.

[TBoneTX 45,287]

"Please repeal"

[LibCampFireClub 635]

It's tough to know what exactly or how to write it. I would like to personally punch each one of the bastards who deliberately and unfairly tortures Americans and their spouses. I made a few changes, but wish there was a lawyer involved to shove it down their throat

The Doctrine of Consular Non-Reviewability deprives U.S. citizens of one of their main Constitutional rights: The right to petition their government for redress of grievances. Every year, thousands of U.S. citizens endure lengthy and unnecessary delays including visa denials that directly affects the U.S. citizen and his or her spouse. During these lengthy delays thousands of U.S. citizens are forcibly separated from their spouses and even children causing heartache and financial difficulty.

The Doctrine of Consular Non-Reviewability completely and fully removes the U.S. citizen’s option of redressing grievances, especially for those who are unable to move abroad due to certain hardships.

All Visa petitions pass through the hands of humans, which creates countless opportunity for human error. Chances of Visa problems increase when Visa workers are burnt out, biased, discriminatory and so on. Human factors like these exponentially increase chances for losing, misplacing, or misinterpreting critical Visa paperwork.

Current laws protect the USCIS, DOS and our Consulates abroad, but these same laws fail to provide necessary protections to the U.S. citizens who are currently struggling or stuck in the immigration system. Every day, these struggling and stuck U.S. citizens are unable to receive even the most basic relief or hope from this immigration system. For these reasons, all Americans deserve the right to petition our government to promptly and fairly address these major and tortuous Visa issues

Please repeal the Doctrine of Consular Non-Reviewability.

[Karmalicious 60]

How about "....stuck in the legal immigration system."

[LibCampFireClub 635]

YES! Good point.

It makes one wonder how long of a story to tell. For sure everyone who is stuck in the legal system has wondered whether to just sneak their spouse across the border like the tens of thousands of latinos are doing now. As I wrote that word, "Latino" I realized just how knee-jerk that not only I, but everyone else has become at pointing out the blatantly obvious. The overwhelming majority of illegals streaming across our borders are of latin descent. But, if one writes that, or says it out loud they may face a cavalcade of radicals. It's not slander if it's true.

By the same token, it would be mean to point out someone's pimples on the school yard. They know they have pimples and they are much more obvious than being a walking criminal alien in the US. Maybe there should be a law against pimple profiling.

[LibCampFireClub 635]

Janelle, there is a lot of good information in the link you provided in your OP. I want to comb through it carefully as the case is outlined very well there. This for example:

Argument preview: The doctrine of consular non-reviewability – historical relic or good law?

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law’s exceptional “plenary power” doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government’s reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

The courts, including the Supreme Court, have created a number of exceptions to the doctrine of consular non-reviewability. In Kleindienst v. Mandel, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered – that the applicant had violated the terms of visas on previous visits to the United States – was a “facially legitimate and bona fide reason” for the executive action.

Next Monday, the Supreme Court will hear oral arguments in Kerry v. Din, a case that provides it with the opportunity to provide much-needed guidance on judicial review of consular officer visa decisions. It also could offer some hints about the future of the plenary power doctrine.

Facts

The facts of the case could have been ripped out of the cable television series Homeland.

In 2006, Fauzia Din, a naturalized U.S. citizen, married Kanishka Berashk, a citizen of Afghanistan. A consular officer at the U.S. Embassy in Pakistan denied Berashk’s visa application. The denial simply cited a detailed, complex, and broad provision of the immigration law that bars the admission into the United States of non-citizens who have engaged in “terrorist activity.” The consular officer failed to identify the alleged conduct that triggered the exclusion.

The district court dismissed Din’s suit challenging her husband’s visa denial. The Ninth Circuit reversed. A majority concluded that (1) “a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse’s visa”; (2) the reason offered for the denial was not “facially legitimate”; and (3) the consular officer should have explained “what [he] believed [berashk to have] done” that justified the visa denial.

Arguments in the briefs

Relying heavily on plenary power precedent, the Solicitor General argues that Din lacks a constitutionally protected interest in her husband’s visa application and that the Ninth Circuit erred in finding that she has a right to judicial review of his visa denial. The government seeks to limit Kleindienst v. Mandel to its facts and further contends that the State Department should not be required to offer a specific explanation in denying a visa on national security grounds. The government specifically contends that judicial review à la Mandel will have “the steep cost of weakening the protections that keep terrorists from our shores.”

This case is one of the few occasions in which the Obama administration has asked the Supreme Court to deny judicial review of an immigration decision. Indeed, in recent years it has refused to defend two lower-court decisions – including one accepted for review this Term holding that the immigration statute barred judicial review of a Board of Immigration Appeals ruling.

Din emphasizes that, like the plaintiffs in Mandel, she is a U.S. citizen challenging the visa denial and a violation of her rights, rather than an alien on foreign soil seeking initial entry into the country. She claims (1) a constitutional right to marry and live with one’s spouse; (2) that the denial of her spouse’s visa infringed that right; and (3) that due process requires that the government provide a facially legitimate and bona fide reason for the denial.

Several groups filed amicus briefs, all in support of Din. In one brief, a number of former consular officers argue in favor of judicial review on the ground that many contemporary visa denials are not discretionary judgments, as was historically the case, but are instead based on whether the person appears on various database and other watchlists. And in another brief, seventy-three law professors question the conventional understanding of foundational cases of the doctrine of consular non-reviewability. They contend that Kleindienst v. Mandel requires judicial review and that such review is consistent with the immigration statute.

Analysis

The Court in this case has the opportunity to narrow the doctrine of consular non-reviewability. Besides the possible doctrinal effects of a decision – including further limitations on the doctrine – the case has the potential for great practical significance. Consular officers stationed in U.S. embassies around the world annually deny hundreds of visa applications. The specific judicial review question is complicated in the case before the Court by the consular officer’s blunt invocation of terrorism as the basis for denial of the visa application.

The ultimate outcome largely depends on how the Court applies Kleindienst v. Mandel. Given its contemporary inclination toward some modicum of judicial review of immigration decisions, the Court might be expected to find that judicial review of visa denials – even if limited in scope – is justified. But how limited should the scope be? Should courts accept the U.S. government’s mere citation to the terrorist activity provision of the immigration law without any explanation, even if that would effectively deny an applicant a meaningful opportunity to rebut the charge? Or should the courts require further explanation from the government – for example, in this case, how and why the consular officer found Berashk inadmissible. How the Court resolves this issue may be the key to the case.

[LibCampFireClub 635]

This particular case however doesn't cover the majority of couples who are rejected with the broad brush:

1. Non bona fide relationship

2. Misrepresentation of material information

These two tags are used by self important conoff snobs who cannot be touched for making these allegations, and never have to present details for making them. Further, the couples may endure months and and even years of nothingness. Nowhere to turn, no-one to help. The ruling is final and they will rarely be provided the opportunity to present their side of the story.

[Janelle2002 3,865]

Okay you guys. We better hurry. I want to bombard the court with emails before they make a decision. What do you think?

The Doctrine of Consular Non-Reviewability deprives U.S. citizens of one of their main Constitutional rights, the right to petition their government for redress of grievances. Lengthy, unnecessary delays and the denial of a visa for the spouse of a U.S. citizen directly affect the U.S. citizen. In everyday life this is called cause and effect. Every day, thousands of U.S. citizens are forcibly separated from their spouses and even children during this process of legally petitioning for their family members to join them in the U.S.

The Doctrine of Consular Non-Reviewability takes away the option of redressing the grievance of a U.S. citizen, especially for an individual who is unable to move abroad due to certain hardships.

All Visa petitions pass through the hands of humans, which creates countless opportunity for human error. Chances of Visa problems increase when Visa workers are burnt out, biased, discriminatory and so on. Human factors like these exponentially increase chances for losing, misplacing, or misinterpreting critical Visa paperwork. Consulates abroad are denying applicants mainly under two categories, non-bona fide relationship and misrepresentation. They understand these two categories are hard to overcome and there is no recourse.

Current laws protect the USCIS, DOS and our Consulates abroad, but these same laws fail to provide necessary protections to the U.S. citizens who are currently struggling or stuck in the legal immigration system. Every day, these struggling and stuck U.S. citizens are unable to receive even the most basic relief or hope from this immigration system. For these reasons, all Americans deserve the right to petition our government to promptly and fairly address these major and tortuous Visa issues

Please repeal the Doctrine of Consular Non-Reviewability.

Edited February 25, 2015 by Janelle2002

[LibCampFireClub 635]

There is a lot of meat in the following document. Need to finish reading

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/Kerry-v-Din-Pet-5-23-14.pdf

[Janelle2002 3,865]

There is a lot of meat in the following document. Need to finish reading

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/Kerry-v-Din-Pet-5-23-14.pdf

This is 110 pages. I don't know if I will be able to read all of this. I'm at work. I will try.

We should also email the Justice Department too.

[LibCampFireClub 635]

I've been reading about the doctrine of consular non-reviewability for several months now. There are hundreds of pages of cases that have attempted to challenge it. Because this doctrine affects my life and my family, I spend a lot time searching and reading. But, I have never found another case like ours that has been documented, despite having two attorneys tell me they have heard of it happening.

Our case started with filing a K1, which was approved by the USCIS and sent to the NVC. The NVC assigned a case number and sent it on to the consulate in China. My fiance, her daughter, and I were eagerly awaiting her P3, but it never came. I wrote the consulate several times from the website, via email, and one day received a short message: "Your petition is returned to USCIS. You may contact them for more information."

That was the end of it. No explanation from anyone. To this day our case remains in the NVC queue, and the USCIS states our case is in the hands of the consulate. The consulate denies it. Our attorney told us that there was no hope for the K1 and to marry. So, we did last year, and I filed again.

I lived in China for six years and was badly injured there. Two of those six years I spent in hospitals and endured more than ten surgeries to my leg. It's been a living hell coming back to America.

As for the doctrine, it appears to be rooted in "national security." We are the only country on planet earth that allows a single human being to give a thumbs up or down for a marriage visa. Julius Ceasar is another.

Edited February 25, 2015 by ExExpat

[Janelle2002 3,865]

I've been reading about the doctrine of consular non-reviewability for several months now. There are hundreds of pages of cases that have attempted to challenge it. Because this doctrine affects my life and my family, I spend a lot time searching and reading. But, I have never found another case like ours that has been documented, despite having two attorneys tell me they have heard of it happening.

Our case started with filing a K1, which was approved by the USCIS and sent to the NVC. The NVC assigned a case number and sent it on to the consulate in China. My fiance, her daughter, and I were eagerly awaiting her P3, but it never came. I wrote the consulate several times from the website, via email, and one day received a short message: "Your petition is returned to USCIS. You may contact them for more information."

That was the end of it. No explanation from anyone. To this day our case remains in the NVC queue, and the USCIS states our case is in the hands of the consulate. The consulate denies it. Our attorney told us that there was no hope for the K1 and to marry. So, we did last year, and I filed again.

I lived in China for six years and was badly injured there. Two of those six years I spent in hospitals and endured more than ten surgeries to my leg. It's been a living hell coming back to America.

I'm sorry ExExpat. I don't like having to come back to the U.S. either, but I had to. Now I just wish I can get my husband here with me.

I didn't know my case was returned either. USCIS says the consular refused it, the Consulate is stating they didn't. USCIS is telling me they will make a decision in 90 days, but they have had it since 09/2014.

Just freaking pathetic how they do us.

[asisflyer 47]

I agree with Expat, my tolerance of the illegals is reduced in the face of the stresses of legal immigration. The wound is then salted with the media's absolute priority of pro-illegal, even to the point of trying to chastise people for saying "illegal" which is utter brainwashing. Next a "bank robber" will be an "involuntarily fiduciary transfer agent".

There remains a difference between 500 page filing packets, interviews, filings, fees and sneaking across the border and swiping someone else's social, identity, even health insurance and then not asking but demanding your rights.