Principle of Consular Non-Reviewability

[heyjimi]

This subject has come up many times, and Randy has brought up court cases that clearly support the Principle Consular Non-Reviewability. So that door is closed.

 

There is a back door though:

 

One thing that we are not made aware of is that all Visa Refusals are reviewed. According to '9FAM42.81PN1.5 Submit Case to Supervisor Review' All refusals must be reviewed by the Consular Supervisor (who us usually the IV Chief). It states that the Supervisor must review the refusal on the day of the refusal, or at least within 30 days. Based on the review, the Supervisor must either confirm the decision or disagree. If they disagree they must either send the case for an advisory opinion or assume personal responsibility for the case and reverse the refusal decision.

 

If you get a white slip, this is your only chance for a reversal before your case hits stateside, and you appeal with the USCIS. If you go this route you must be prepared to do your homework. Demand a meeting with the ConOff. Ask him/her specifically what are all the reasons for the decision.You and your SO have this right per 9FAM42l81PN1(show a copy to him/her) Alternately, grill your SO on exactly what where the questions asked so that you can prepare responses and provide documents if available. For example, let's say the ConOff said that she did not believe that you have a Bonifide Relationship because your SO cannot speak English. Go get a video cam and tape a conversation you have, and submit that as overcome evidence. Take a copy of the above mentioned Regulation, and also 9FAM42.81PN1(5).

 

Best of Luck

 

Stepbrow, this information about a conoff's decision being subject to a supervisory review-usually immediately on the same day of the decision or as soon as possible afterward-and it's legal basis was contained in the legal brief my attorney forwarded to the IV Chief as well as my congressional representative when my fiancee was denied the K1 visa on 8/21/08. The brief was ignored and not even acknowledged by the IV Chief. To date, there has been no response to the brief from GUZ. It was 'blown off' just like every complaint/concern about what takes place in GUZ everyday when our beneficiaries attend these interviews (more like interrogations) that we wait months to get and only moments to conclude.

 

Now, maybe if a USC is present in Guangzhou when the interview takes place they may have a SLIM chance to use this information to try and change a refusal, but I'm sure I recall one of your earlier posts mentioning about your meeting with the actual VO who conducted your SO's interview where you asked her 'how soon after a refusal is that refusal reviewed by the IV supervisor' and she told you that they are not reviewed. So, if there is ANY chance at all of getting this part of the FAM observed in any case, it can only be for those who are there in GUZ when the interview happens. Unfortunately, not everybody can do that. But every single one of us who petitions for our SO's to be granted a visa are entitled to the same treatment, whether or not we are in Guangzhou when the interview takes place.

 

So, that is GUZ procedural policy and although it violates the FAM it is obvious that GUZ violates that and the other regs, policy letters, directives, etc., with impunity because nobody is requiring them to adhere to the provisions of law when adjudicating petitions. Guangzhou is looking the other way, and the rest of the system is too.

 

This is exactly the nature of the Great Injustice that is happening everyday in Guangzhou, and this is EXACTLY what our congressional representatives are supposed to put an end to when we make them aware that it's happening. Not just roll their eyes and say, "Ohhh, GUANGZHOU!!!" when you tell them that's why you're there for their help.

 

And I also wonder, where is the DOS and the USCIS Inspector General's office in all this? They know it's happening because I am damn sure the statistics, as well as other information that's coming out of GUZ is telling them. Are our visits, emails, telephone calls, etc. to our congressmen saying anything different or are they just being ignored also because there's not enough of them to warrant an investigation? Why aren't the congressional representatives contacting the IG's office and asking them to look into what is happening at this consulate?

 

Maybe working on this aspect of the problem is better served once our SO has gotten a visa and is safely in the USA (but is there really a 'safe' time?) before we start pushing these buttons, but I don't believe there is one CFL member out there who DOESN'T think something needs to be done to change the way business is being conducted in Guangzhou.

 

I have a meeting Tuesday with a congressional aide and these are the things I intend to discuss with him. These are the problems I want his office, and his boss my Senator, to undertake. It won't give me any help to get my SO here, but it just might do some good for that poor, naive bastard who is just beginning his petition to bring his wife/fiancee here and has no idea of the world of shit that is about to hit him square in his face.

 

 

Good luck with your meeting.I had my congressman do an inquiry,guz basically sent to him,the white slip my wife recieved,but on a nice government letterhead"oh how nice it looks !!!!!"i also had my senator work on my case,and a week later he gets a letter from Guz,saying the petition was already sent to the states.Guz blew him off.......and he bought it,and this is the man(well his staff worker that actually said to me...ohhhhhhhhh,Guangzhou !!!! ) they know whats going on,they are playing "pontius pilate" washing their hands clean of this mess,funny politics never changes,does it?

anyway good luck.

 

Jimi

[BilLing]

jimi I think you have the same initial red flag I do. quick marriage after 1st meeting.

 

GUZ ID's this upon file review. looks for additional flags during interview. anything will do.

[splinterman]

Jimi, I've gotten 4 or 5 of those same letters from GUZ in response to the repeated inquiries by my congressman. They all say the very same thing, and that's the exact language I got in the white slip. I even requested help from Assistant Secretary Of State Maura Harty and her subsequent replacement, and got the very same language-repeatedly.

 

I have to say, to his credit, the one congressional aide I was dealing with, until he left for another job, really began to get a case of the ass. He called me one day to tell me that he got another letter from GUZ in response to another inquiry he had made. He was complaining to me that he wasn't getting the specific information that he was asking them for. My comment to him was, "Doesn't that just PISS YOU OFF? Now you know how I feel!"

 

Unfortunately, one week later he was gone and I was training his replacement.

[david_dawei]

If you get a white slip, this is your only chance for a reversal before your case hits stateside, and you appeal with the USCIS.

historically... this is what we have said here on CFL.... to get a lawyer ASAP as they can get the case held and submit rebuttal evidence. We have seen conflicting ability to so now.

[hopelives]

If you get a white slip, this is your only chance for a reversal before your case hits stateside, and you appeal with the USCIS.

historically... this is what we have said here on CFL.... to get a lawyer ASAP as they can get the case held and submit rebuttal evidence. We have seen conflicting ability to so now.

 

David, Maybe one step in our preparation could be arranging for consul ahead of time. In what may be the single most important circumstance in our lives, why leave anything to chance? I never considered such an option but I am more and more. No matter how obvious to me the bonafides of my case. I am not Guz

 

Jim

[IllinoisDave]

If you get a white slip, this is your only chance for a reversal before your case hits stateside, and you appeal with the USCIS.

historically... this is what we have said here on CFL.... to get a lawyer ASAP as they can get the case held and submit rebuttal evidence. We have seen conflicting ability to so now.

 

David, Maybe one step in our preparation could be arranging for consul ahead of time. In what may be the single most important circumstance in our lives, why leave anything to chance? I never considered such an option but I am more and more. No matter how obvious to me the bonafides of my case. I am not Guz

 

Jim

I hate to say it but the best lawyer and the best paperwork in the world will have a very hard time overcoming a short meeting>marriage timeframe. From the pattern I'm seeing in the interview de-briefings over the last six months or so it seems pretty obvious that GUZ has decided to make this an extra large red flag. This wasn't nearly the issue when we filed (K-1) as it seems to be now.

 

Unless couples can show a ton of communication before that first meeting AND have few of the other issues that may raise flags (divorces, large age differnce, little spoken English etc) they would be much better off putting some time between the meeting and the marriage. Just my two cents.

[Stepbrow]

And a very good two cents Dave. You are so right.

[Bryon_Tran]

I hate to say it but the best lawyer and the best paperwork in the world will have a very hard time overcoming a short meeting>marriage timeframe. From the pattern I'm seeing in the interview de-briefings over the last six months or so it seems pretty obvious that GUZ has decided to make this an extra large red flag. This wasn't nearly the issue when we filed (K-1) as it seems to be now.

 

Unless couples can show a ton of communication before that first meeting AND have few of the other issues that may raise flags (divorces, large age differnce, little spoken English etc) they would be much better off putting some time between the meeting and the marriage. Just my two cents.

I hate to say this but I think I'm in the same boat. I started talking to my fiancee online april of 07 we met dec of 07 and I proposed to her. Durning the interview they asked when we met and she said dec of 07 so that was one of the reasons they denied our visa.

 

Even though I have spoken to many of you on here I have never met anybody and it was the same with my fiancee we started talking almost every day online for six months before I met her in person and they said since I proposed after meeting her within the 2 weeks I spent with her in Ho Chi Minh they denied our K1. Even though we had emails, letters and phone calls prior to the meeting and in a notorized statement I said we started communicating april of 07.

 

Now when I marry her in a month from now and refile they might be able to throw that back in our faces if they want to still deny us but from what I have seen most people have been succesfull the second time and thats what I'm counting on and if your in the same boat as me you should be hopefull that your second time will get you the visa also

Edited January 28, 2009 by Bryon_Tran (see edit history)

[IllinoisDave]

 

I hate to say this but I think I'm in the same boat. I started talking to my fiancee online april of 07 we met dec of 07 and I proposed to her. Durning the interview they asked when we met and she said dec of 07 so that was one of the reasons they denied our visa.

 

Even though I have spoken to many of you on here I have never met anybody and it was the same with my fiancee we started talking almost every day online for six months before I met her in person and they said since I proposed after meeting her within the 2 weeks I spent with her in Ho Chi Minh they denied our K1. Even though we had emails, letters and phone calls prior to the meeting and in a notorized statement I said we started communicating april of 07.

 

Now when I marry her in a month from now and refile they might be able to throw that back in our faces if they want to still deny us but from what I have seen most people have been succesfull the second time and thats what I'm counting on and if your in the same boat as me you should be hopefull that your second time will get you the visa also

 

Some are of the opinion (and I agree) that one of the tactics GUZ uses is to deny in cases like these to see if the couple will come back a second time. The theory being that non-legitimate cases will likely give up and serious ones will keep at it. It sounds like you're definately in the latter category and should have a much better chance the second time around. Good luck.

Edited January 29, 2009 by IllinoisDave (see edit history)

[Bryon_Tran]

 

I hate to say this but I think I'm in the same boat. I started talking to my fiancee online april of 07 we met dec of 07 and I proposed to her. Durning the interview they asked when we met and she said dec of 07 so that was one of the reasons they denied our visa.

 

Even though I have spoken to many of you on here I have never met anybody and it was the same with my fiancee we started talking almost every day online for six months before I met her in person and they said since I proposed after meeting her within the 2 weeks I spent with her in Ho Chi Minh they denied our K1. Even though we had emails, letters and phone calls prior to the meeting and in a notorized statement I said we started communicating april of 07.

 

Now when I marry her in a month from now and refile they might be able to throw that back in our faces if they want to still deny us but from what I have seen most people have been succesfull the second time and thats what I'm counting on and if your in the same boat as me you should be hopefull that your second time will get you the visa also

 

Some are of the opinion (and I agree) that one of the tactics GUZ uses is to deny in cases like these to see if the couple will come back a second time. The theory being that non-legitimate cases will likely give up and serious ones will keep at it. It sounds like you're definately in the latter category and should have a much better chance the second time around. Good luck.

 

Thanks I don't plan ever to give up on Tran. We are both 43 so in 22 more years I will get to be with her no matter what I just hope it doesn't take that long. I will still be able to see her once a year.

 

This has not been said but I think if you have alot of money it is easier to get a visa. There was a big sting where they paid these people 30k each in utah to marry forgeiners from Vietnam. If your rich then you wouldn't marry anybody for 30K but if your at the poverty cut off I think you are under more suspect of fraud so it is alot harder for people like me.

 

I work in the IT field we have allot of outsourcers from India that work with me. My boss wouldn't give me a month off to go marry my fiancee in Vietnam however he gave the outsource person a month off and then he met somebody so he asked for an aditional month to marry her and got it granted meanwhile I have to make 2 trips of 2 weeks each to get married and I know his fiancee will be admitted before mine will. Kinda frustrating how the US favors non citizens over citizens. The guy is a good friend of mine we have 4 people from Inda that work with us that were able to bring there wives over no problems.

[defendo]

This subject has come up many times, and Randy has brought up court cases that clearly support the Principle Consular Non-Reviewability. So that door is closed.

 

There is a back door though:

 

One thing that we are not made aware of is that all Visa Refusals are reviewed. According to '9FAM42.81PN1.5 Submit Case to Supervisor Review' All refusals must be reviewed by the Consular Supervisor (who us usually the IV Chief). It states that the Supervisor must review the refusal on the day of the refusal, or at least within 30 days. Based on the review, the Supervisor must either confirm the decision or disagree. If they disagree they must either send the case for an advisory opinion or assume personal responsibility for the case and reverse the refusal decision.

 

If you get a white slip, this is your only chance for a reversal before your case hits stateside, and you appeal with the USCIS. If you go this route you must be prepared to do your homework. Demand a meeting with the ConOff. Ask him/her specifically what are all the reasons for the decision.You and your SO have this right per 9FAM42l81PN1(show a copy to him/her) Alternately, grill your SO on exactly what where the questions asked so that you can prepare responses and provide documents if available. For example, let's say the ConOff said that she did not believe that you have a Bonifide Relationship because your SO cannot speak English. Go get a video cam and tape a conversation you have, and submit that as overcome evidence. Take a copy of the above mentioned Regulation, and also 9FAM42.81PN1(5).

 

Best of Luck

 

Stepbrow, this information about a conoff's decision being subject to a supervisory review-usually immediately on the same day of the decision or as soon as possible afterward-and it's legal basis was contained in the legal brief my attorney forwarded to the IV Chief as well as my congressional representative when my fiancee was denied the K1 visa on 8/21/08. The brief was ignored and not even acknowledged by the IV Chief. To date, there has been no response to the brief from GUZ. It was 'blown off' just like every complaint/concern about what takes place in GUZ everyday when our beneficiaries attend these interviews (more like interrogations) that we wait months to get and only moments to conclude.

 

Now, maybe if a USC is present in Guangzhou when the interview takes place they may have a SLIM chance to use this information to try and change a refusal, but I'm sure I recall one of your earlier posts mentioning about your meeting with the actual VO who conducted your SO's interview where you asked her 'how soon after a refusal is that refusal reviewed by the IV supervisor' and she told you that they are not reviewed. So, if there is ANY chance at all of getting this part of the FAM observed in any case, it can only be for those who are there in GUZ when the interview happens. Unfortunately, not everybody can do that. But every single one of us who petitions for our SO's to be granted a visa are entitled to the same treatment, whether or not we are in Guangzhou when the interview takes place.

 

So, that is GUZ procedural policy and although it violates the FAM it is obvious that GUZ violates that and the other regs, policy letters, directives, etc., with impunity because nobody is requiring them to adhere to the provisions of law when adjudicating petitions. Guangzhou is looking the other way, and the rest of the system is too.

 

This is exactly the nature of the Great Injustice that is happening everyday in Guangzhou, and this is EXACTLY what our congressional representatives are supposed to put an end to when we make them aware that it's happening. Not just roll their eyes and say, "Ohhh, GUANGZHOU!!!" when you tell them that's why you're there for their help.

 

And I also wonder, where is the DOS and the USCIS Inspector General's office in all this? They know it's happening because I am damn sure the statistics, as well as other information that's coming out of GUZ is telling them. Are our visits, emails, telephone calls, etc. to our congressmen saying anything different or are they just being ignored also because there's not enough of them to warrant an investigation? Why aren't the congressional representatives contacting the IG's office and asking them to look into what is happening at this consulate?

 

 

Maybe working on this aspect of the problem is better served once our SO has gotten a visa and is safely in the USA (but is there really a 'safe' time?) before we start pushing these buttons, but I don't believe there is one CFL member out there who DOESN'T think something needs to be done to change the way business is being conducted in Guangzhou.

 

I have a meeting Tuesday with a congressional aide and these are the things I intend to discuss with him. These are the problems I want his office, and his boss my Senator, to undertake. It won't give me any help to get my SO here, but it just might do some good for that poor, naive bastard who is just beginning his petition to bring his wife/fiancee here and has no idea of the world of shit that is about to hit him square in his face.

 

 

splinterman,

 

Here is the reason that the IG is ineffective.

 

Inspectors General: Limitations of IG Oversight at the Department of State

GAO-08-135T October 31, 2007

 

Summary

 

GAO was asked to provide testimony about the effectiveness and reliability of the State Department's Office of Inspector General (State IG). We focused on the independence of the State IG, the use of inspections instead of audits to provide oversight of the department, and the effectiveness of the IG's investigative function. The testimony is based primarily on our March 2007 report, Inspectors General: Activities of the Department of State Office of Inspector General (GAO-07-138).

 

The effectiveness of the oversight provided by the State IG is limited by (1) a lack of resources, (2) structural independence issues, (3) gaps in audit coverage, and (4) the lack of assurance that the department obtains independent IG investigations. These limitations serve to reduce the credibility and oversight provided by the State IG. From fiscal years 2001 through 2006, the State Department's budgets have increased from $13.7 billion to about $24 billion, an increase of almost 75 percent (or 55 percent in constant dollars adjusted for inflation) in order to manage an expanding role in the global war on terrorism. During this same period, the State IG's budget increased from $29 million to $31 million, which when adjusted for inflation is a decrease of about 6 percent in constant dollars. In addition, of the 318 authorized staff in the State IG's fiscal year 2006 budget, the actual onboard staff averaged 182, or about 57 percent of the authorized level and about 20 percent less than in fiscal year 2001. We continue to identify concerns regarding the independence of the State IG that are similar to concerns we reported almost three decades ago. Independence is critical to the quality and credibility of all the work of the State IG and is one of the most important elements of the overall effectiveness of the IG function. Our concerns include (1) the appointment of line management officials to head the State IG in an acting capacity for extended periods, and (2) the use of ambassador-level Foreign Service staff to lead inspections of the department's bureaus and posts even though they may have conflicts of interest resulting from their roles in the Foreign Service. In addition, because the State IG provides oversight coverage of high-risk areas and management challenges primarily through inspections rather than audits, the department has significant gaps in audit oversight. Compared to audits, oversight provided by inspections is fundamentally limited. To illustrate, the Inspector General Act requires the State IG to follow Government Auditing Standards, while use of inspection standards are voluntary. In addition, unlike auditing standards, inspection standards do not require an external peer review of quality. The State IG's ratio of inspections to audits in fiscal year 2005 was 2 to 1 while the ratio for the statutory federal IG community was about 1 to 10. We reviewed 10 of the State IG's inspections performed over fiscal years 2004 and 2005 and found that they relied heavily on questionnaires completed by management at each bureau or post being inspected without verification or testing for accuracy. We also found that investigations of the State Department lack a formal written agreement between the State IG and DS. Such an agreement is critical to help ensure that investigations of internal department operations are performed by the IG and not by bureau investigators who report to department management.

[david_dawei]

 

I hate to say this but I think I'm in the same boat. I started talking to my fiancee online april of 07 we met dec of 07 and I proposed to her. Durning the interview they asked when we met and she said dec of 07 so that was one of the reasons they denied our visa.

 

Even though I have spoken to many of you on here I have never met anybody and it was the same with my fiancee we started talking almost every day online for six months before I met her in person and they said since I proposed after meeting her within the 2 weeks I spent with her in Ho Chi Minh they denied our K1. Even though we had emails, letters and phone calls prior to the meeting and in a notorized statement I said we started communicating april of 07.

 

Now when I marry her in a month from now and refile they might be able to throw that back in our faces if they want to still deny us but from what I have seen most people have been succesfull the second time and thats what I'm counting on and if your in the same boat as me you should be hopefull that your second time will get you the visa also

 

Some are of the opinion (and I agree) that one of the tactics GUZ uses is to deny in cases like these to see if the couple will come back a second time. The theory being that non-legitimate cases will likely give up and serious ones will keep at it. It sounds like you're definately in the latter category and should have a much better chance the second time around. Good luck.

good points dave... this is an argument from many years ago which left us wondering how true... I honestly think that it is probably more true in today's approval process.

[Sebastian]

Query - does GUZ have a DOS IG staffer?

[IllinoisDave]

this is an argument from many years ago which left us wondering how true... I honestly think that it is probably more true in today's approval process.

I agree. And maybe, as some other tactics/criteria seem to be, it's relative importance will be cyclical and fade with time.

[georgeandli]

Just got caught up on this thread. Post 24 brought up the same thing I was told when wading through the NOID stuff. Perfect logic by GUZ. If money[visa fraud] IS involved the parties will give up. Only legit couples will keep at it, right? IF the petitioner stands to make 30 or 50K one would think there is MORE incentive to keep at it.