White but Not Done

[Stepbrow]

Last day and fifth trip to consulate resulted in an interview with the acting Immigrant Visa Chief. He is reviewing the documentation that I submitted. It was quite detailed, and specific to the regs that the Conoff violated, and disregarded.

 

He is to email me the results of his review, and I will post the results when I am back. Feeling cautiously optimistic.

 

All the best, and thanks for the support.

[splinterman]

Is there now a new Acting Immigrant Visa Chief in GUZ? I thought the Acting Immigrant Visa Chief was Karin Lang, a woman. I have a congressional inquiry reply signed by her with the signature block certifying her as the Acting IV Chief in GUZ.

[Sebastian]

Stepbrow - hang in there !!! You're staying in Guangzhou till you get a response? Or were you headed out to jump the plane in the afternoon? (sorry, seems vague). If you are staying - hei - Kick Em Hard, and Kick Em Often ! I pray all is resolved in your favor, with no further time delay.

Edited January 8, 2009 by Darnell (see edit history)

[chilton747]

Stepbrow - hang in there !!! You're staying in Guangzhou till you get a response? Or were you headed out to jump the plane in the afternoon? (sorry, seems vague). If you are staying - hei - Kick Em Hard, and Kick Em Often ! I pray all is resolved in your favor, with no further time delay.

 

http://candleforlove.com/forums/index.php?...st&p=466868

 

He is on his way home now.

[Sebastian]

Chilton - ya - I just read that too - I was reading his prior posts right after I made my response. Man - that's gotta suck, if he could actually have it re-evaluated this afternoon, he's already on the plane. Mondo Suck.

[Sebastian]

Some interesting comments I found in the FAM, about re-applying:

(snip)

Randy - take a look here? http://candleforlove.com/forums/index.php?...st&p=465245

 

From what I could glean, the ConOff's behavior was illegal PLUS the white slip made reference to a non-existent statute. (Quoted the wrong chapter number).

[chilton747]

Chilton - ya - I just read that too - I was reading his prior posts right after I made my response. Man - that's gotta suck, if he could actually have it re-evaluated this afternoon, he's already on the plane. Mondo Suck.

 

Yeah but he is giving it one helluva try. Gotta admire that!

[HKG]

Do you remember when you were young or maybe not so young and a couple of bigger kids or friends got your ball and threw it to each, other with you in the middle? Well here is my point you are in the middle, I think if all is legal with your request, then very possible a racist decision is being made in your case. Study this 1967 Civil Rights ruling it may emcompasse your case. Supreme Court ruling. Loving v. Virginia, 388 U.S. 1 (1967), which focused on an anti-miscegenation statute.

[Randy W]

Some interesting comments I found in the FAM, about re-applying:

(snip)

Randy - take a look here? http://candleforlove.com/forums/index.php?...st&p=465245

 

From what I could glean, the ConOff's behavior was illegal PLUS the white slip made reference to a non-existent statute. (Quoted the wrong chapter number).

 

My quote was a side note that I came across - the parts that caught my eye are highlighted:

Some interesting comments I found in the FAM, about re-applying:

9 FAM 41.121 PN1.4 Nonimmigrant Visa

Reapplication Procedures

(CT:VISA-1079; 10-17-2008)

a. Previously refused visa applicants may reapply any time, using the same

procedures as first-time applicants. Posts are not authorized to institute

a written re-application procedure. Such procedures interpose an

unnecessary step in the visa process, which does not result in a visa

adjudication and for which no fees are collected.

b. Post may want to consider the following strategies to manage workload

from previously refused applicants:

(1) Ensure that post is collecting MRV fees according to policy. A

214( B ) refusal is a final adjudication. Using 221(g) to avoid

decisions or hold open reapplication invites abuse. A new

application and new fee is required for reconsideration;

(2) Stress NIV statutory requirement and explain 214( B ) during

outreach. Dispel the notion that there is an element of luck in visa

processing and that applicants may be lucky the following weeks

and be issued a visa. Emphasize the importance of facts. This

may be a particularly useful tactic in countries aspiring to the Visa

Waiver Program. Emphasize that repeat refusals contribute to the

overall refusal rate in a country;

(3) Use the appointment system to triage previously denied applicants

by limiting the number of slots for them;

(4) Alternatively, schedule previously refused applicants on only a few

days a month or only during traditionally lower-volume periods of

the year (i.e., not during summer work-travel season or preholidays

peak season);

(5) Revise the 214( B ) handout (see exemplar in 9 FAM 41.121 Exhibit

IV) and review practices to make sure every refused applicant gets

a copy. Train officers to emphasize the need for applicants to wait

until there has been a significant change in circumstances before

re-applying;

(6) Leave re-applications until all the day's new cases are complete;

and

(7) Possibly assign one experienced officer to all reapplications who can

move through these promptly once new applications are complete.

That may indicate more than a little bit of manipulation of re-applications, although it's not clear that it applies to family visas.

 

5A, though, apparently IS a real Section SOMEWHERE - we just don't know where - http://candleforlove.com/forums/index.php?...st&p=323570

 

The Visa Officer is ALWAYS a party to "substantial evidence relevant to petition validity not previously considered by DHS" - the P3 and P4 information, and the interview with the applicant herself.

 

"Therefore the Consulate has failed to give proper notice as required by law" - the white slip itself is generally interpreted as satisfying this requirement.

 

Anyone who feels they were wronged by the consulate has no recourse - there is simply no avenue through which their concerns could be addressed.

[Stepbrow]

Here is what took place in GZ. After the interview, and refusal we went back to the apartment and tried to calm down. As you can imagine, we were pretty freaked out.

 

Asked the wife a few questions: what did the conoff(consular officer) look like,(female, asian, 30ish) what questions did the conoff ask. Went to GZ website for some info, and saw pic of asian conoff. Asked wife, and she said yes, that is her. I'm not going to post her name here. Went to ACH that afternoon (wife's date was Monday 29th). I was still in shock from the refusal, and I was unsure what questions to ask. Posts on the GZ website say that you can only ask general questions, so I was a little unsure of what I was allowed to ask. Actually it turns out that you can ask specific questions about your case. Guess who I got to talk to? You guessed it, my wife's conoff. The first thing she did was pull up the case file on her computer. I told her I didn't understand how she came to the finding that we did not have a "Bonifide Relationship." She said that there were some red flags and specifically mentioned two. Then she stated that China is a high fraud area, and when there are red flags the conoff must consider the possibility of fraud, although her determination was not from just one thing. There were some other questions but I can't remember them right now.

 

I went back to the apartment feeling angry and frustrated. So, I got on the web and started my research. Based on this research I sent the conoff an email objecting to her findings and stating that the red flags that she referred to were all previously known and approved by the USCIS, that I felt that this was an error on her part to due the fact that these red flags were not from new information that the USCIS was unaware of. {This is per "Visa Policy Telegram dated Feb/04} I also asked the conoff for an appointment with her and the Chief of Consular Affairs, who is the overall supervisor of the Consular Section.

 

I didn't get a reply so the next day, Tuesday, I went to the other consulate. The secret one that they don't tell you about. It is the real one where all of the official offices are. I went in, showed them my passport and asked for an appointment with Chief of Consular Affiairs and mentioned his name. (that got their attention) after a few minutes a lady came out to inquire about my need to see him and to inform me that he was out of the country. she told me that she would get back with me about an appointment.

 

On New Years day we planned on going to a park, and my camera was not working so well, and I decided to get the wife a new digital one. Wendy was so wonderful in helping us. She had planned on going to visit a friend, but delayed that to help us. She knew the place where you can get good prices on electronic things, so we went shopping for a camera. It took about 2 or 3 hours, but we got the one my wife wanted. And I might say at a great price. I'm in sales so I know a little about negotiating, I've never seen anyone as good at it as Wendy. I tell you that Dylan is a smart guy for falling in love with her. I felt bad that we had taken up so much of Wendy's day, but also greatfull for her help. With the camera in hand my family and I went to a famous park which I cannot remember the name of, but we had a great time. Our daughter was a little disappointed until we got to the section of the park with the amusement rides. After that everything was great. Went home feeling tired, but in good spirits.

 

Over the long weekend I did a lot of research on the web. Spent lots of time looking at the INA (Immigration and Nationalization Act) and the FAM (Foreign Affairs Manual) that prepared me for the ACH on Monday the 5th. Guess who my conoff was? You guessed it our conoff again! What a fluke. My questions this time were a little more specific.

 

1. Is it consular policy to list the provisions of law under which an alien is inadmissible? This is per INA 221(b)She stated no, which is a violation of this reg. ( I asked this question because the white slip did not fulfill this requirement, and in my belief is not valid.)

2. What is Section 5A of the INA (this is the regulation quoted on the white slip) and where can it be found? She stated that she didn't know exactly where in the regs this was, and that it was perhaps a subsection of some other reg.

3. How soon after a refusal is the refusal reviewed by the IV supervisor. She stated that they are not reviewed. This violates 9FAM 41.121 RELATED STATUTORY PROVISIONS © )Obviously supervisorial review is done in order to ensure that conoffs have properly applied the regs, and if not their decisions must be corrected because of the legal ramifications if they are not.

4. Is it consular policy to allow re-adjudication of K-3 USCIS approved petitions. She stated, "no they did not." ( My feeling here is that by going over the same ground [red flags] she was re-adjudicating the petition and then overruling the USCIS, which she clearly did not have the authority to do. ( per Visa Policy Telegram of Feb, 04 " In Section6. it states, " the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition;" In sectiion 7. it continues with, " In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval." In the previous section 6. it states "

5. Is it consulate policy for the conoff to provide the alien with a factual basis for the refusal? She replied, "No." In 9FAM 42.81 Procedural Notes she is required to do this.

 

Isn't this all astounding? So many clear violations of the regs. and U.S. Immigration Law.

 

I'm worn out now-jet lag I guess. I'll write more later. This is enough for you guys to do some research on what I have quoted. Check and see if it looks correct in you opinions.

Also, I will never let this go until two things happen. On a personal basis when my wife and daughter are here with me in the U.S. Second, on a general basis when the DOS makes their decisions based upon U.S. law. All you guys that are in the same boat. PM me I hope to work on this at many levels. personal, political, and legal. We can only win these battles if we join together in sufficient numbers to get noticed. We can only win if we use the combined brains and talents of all of us. If we stick together, and work hard, we cannot lose.

[Randy W]

I think we'll find out (someday) that Section 5A simply defines "bona fide" as being entirely up to the discretion of the Visa Officer.

 

I believe the FAM states that up to 20% of a particular VO's cases should be reviewed, depending on the experience level of the VO.

 

"Red flags" and "reasons for denial" are not the same thing.

 

I hope you're not simply running into dead ends.

Edited January 9, 2009 by Randy W (see edit history)

[chilton747]

I commend you on all of the action(s) you have and are taking. I wish you the best of luck.

 

Charles

[Stepbrow]

I think we'll find out (someday) that Section 5A simply defines "bona fide" as being entirely up to the discretion of the Visa Officer.

 

I believe the FAM states that up to 20% of a particular VO's cases should be reviewed, depending on the experience level of the VO.

 

"Red flags" and "reasons for denial" are not the same thing.

 

I hope you're not simply running into dead ends.

 

Randy, I hope that I am not running into dead ends either, but I will pursue things until I am certain that I have reached that point. I appreciate your support, and help with comments and research.

[Randy W]

I think we'll find out (someday) that Section 5A simply defines "bona fide" as being entirely up to the discretion of the Visa Officer.

 

I believe the FAM states that up to 20% of a particular VO's cases should be reviewed, depending on the experience level of the VO.

 

"Red flags" and "reasons for denial" are not the same thing.

 

I hope you're not simply running into dead ends.

 

 

Perhaps this is it -

9 FAM 41.81 N6.5 Marriage Bona Fides

(CT:VISA-756; 07-27-2005)

a. If a consular officer finds that the fianc¨¦(e) or marital relationship is not

bona fide but is a sham entered into solely for immigration benefits, post

should return the K-1 or K-3 petition with a recommendation for

revocation to the national visa center (NVC) under cover of a

memorandum detailing the specific, objective facts giving rise to the

post¡¯s conclusion.

b. All immigrant and K-1/K-3 visa revocation cases are to be returned to the

following address:

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801

U.S. Department of State Foreign Affairs Manual Volume 9¨DVisas

9 FAM 41.62 Notes Page 6 of 13

Attn: Fraud Prevention Manager

 

That would be 9 FAM 41.81 N6.5a

[Tom and Ling]

I think we'll find out (someday) that Section 5A simply defines "bona fide" as being entirely up to the discretion of the Visa Officer.

 

I believe the FAM states that up to 20% of a particular VO's cases should be reviewed, depending on the experience level of the VO.

 

"Red flags" and "reasons for denial" are not the same thing.

 

I hope you're not simply running into dead ends.

 

Randy, I hope that I am not running into dead ends either, but I will pursue things until I am certain that I have reached that point. I appreciate your support, and help with comments and research.

 

Hi Stevebrow,

 

What were the two red flags that the consulate officer mentioned???

Not only am I curious but I would like to know..since they may have passed me on one of these.

 

Tom and Ling