Hit With CR1 Denial... CIS This can't be good!

[HKG]

 

The USCIS does not issue visas. Nor do they (or the coutr system) order the consulate to do so. TheUSCIS hearing (if there is one) is strictly about whether to revoke the approval and/or enter a finding of fraud which may result in a 10 year bar for your spouse.

 

The Doctrine of Consular Nonreviewability says that the decision of the consular officials is final, and may not be reviewed by the courts.

 

See pg. 5 of the DOJ's Immigration Litigation Bulletin of Aug. 2006

Courts

have held that decisions made by consular officers to issue or reject a visa are not subject to judicial review. The preclusion of judicial review over a consular officer¡¯s decision is known as the doctrine of consular nonreviewability

 

. . .

 

The courts first recognized the nonreviewability of consular determinations in the 1920s

 

. . .

 

[T]o allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right when, in fact, a right does not exist. Permitting review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws . . . [T]he question of granting or refusing immigration visas to aliens should be left to the sound discretion of the consular officer.

 

Does that mean just the courts cant turn over the decsion of the consulate or does it mean that the USCIS cannot turn over the decision either?

 

 

 

Both - if the USCIS disagrees with the denial, they can only re-affirm the petition, and send it back for a second chance. Usually, however, this seems to result in an approval by the Visa Officer.

 

They (the USCIS) are apparently under no obligation to take any action whatsoever on returned visa petitions.

 

Some light in the tunnel"

800 F.2d 970, 971 (9th Cir. 1986), that ordinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review. However, when a U.S. citizen's constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason. In this case, the consular official offered a facially valid reason for denying the visa:

 

Doctrines are not laws. One court rules something one way, which gets cited over and over again in other court cases, and before long, you have a doctrine.

Edited February 18, 2009 by HKG (see edit history)

[Palladin]

Been following this thread since my wife's CR1 visa denial in early November. Any update guys?

[dnoblett]

Been following this thread since my wife's CR1 visa denial in early November. Any update guys?

 

This thread is fairly cold, the OP has not posted much in a long time so a simple search results in nothing.

 

You may get something if you PM them.