Consular processing is the means by which noncitizens obtain immigrant and non-immigrant visas (at U.S. embassies or consulates abroad), if they are unable or choose not to obtain the visa or adjust status within the United States.  All the various requirements to obtain the various visas are beyond the scope of this book.  However, in every case, if a noncitizen falls within a criminal ground of inadmissibility, the consulate may deny the visa application.  Aggravated felonies do not in themselves trigger inadmissibility, but the same conviction may trigger inadmissibility if it also constitutes, for example, a crime of moral turpitude or drug offense.  See § 2.2, supra.  There are a number of criminal grounds of inadmissibility,[79] and counsel should determine whether any apply before making a visa application.    

 

If the noncitizen needs to apply for a waiver of inadmissibility, s/he will need to wait until after the consulate interview has been completed, and inadmissibility has been formally established.  Any application for a waiver will be forwarded to a USCIS office having jurisdiction over the consular post to decide whether the waiver may be granted.  Waivers of inadmissibility that may be used in conjunction with an application for an immigrant visa include INA § § 212(d)(11) (alien smugglers), 212(h) (certain criminal grounds), and 212(i) (false statements), and former 212(c).  See § § 2.44-2.46, infra.[80]  For non-immigrant visa applicants, a general waiver is available under INA § 212(d)(3).  See § 2.46(E), infra.  The ultimate decision whether to grant the visa, however, lies with the consulate.[81] 

 

Administrative[82] and judicial review[83] of consulate decisions is possible, but rare.  “A federal agency is obligated  to follow circuit precedent in cases originating within that circuit.”[84]  There does not appear to be any case applying this doctrine to a case involving a consular post, but inasmuch as the consular post is an office of a federal agency, the Department of State, and a case originated in a circuit, with an I-130 or I-485 filed there, then the this rule should apply.[85]

 

Title 22 of the Code of Federal Regulations dictates who should be found inadmissible for crimes of moral turpitude,[86] controlled substances offenses,[87] multiple criminal convictions,[88] and prostitution.[89]  These regulations generally track the requirements in the INA.[90]

[79] See generally INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).  For a checklist of crime-related grounds of inadmissibility, see N. Tooby, Criminal Defense of Immigrants, Appendix G (2003); N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, Appendix G (2005).

[80] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005) (adjustment of status in combination with a waiver under INA § 212(c), 8 U.S.C. § 1182(c) permitted even where the offense waived is also an aggravated felony); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (adjustment of status in combination with a waiver under INA § 212(h), or 212(c), is available as a defense to deportation).

[81] INA § 104(a), 8 U.S.C. § 1104(a).

[82] 22 C.F.R. § 42.81.

[83] See, e.g., Abourezk v. Reagan, 785 F.3d 1043 (D.C. Cir. 1986), aff’d mem., 108 S.Ct. 252 (1987) (per curiam) (visa may not be refused in violation of law).

[84] Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995).

[85] Thanks to Rick Coshnear.

[86] 22 C.F.R. § 40.21(a).

[87] 22 C.F.R. § 40.21(b).

[88] 22 C.F.R. § 40.22.  See INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).

[89] 22 C.F.R. § 40.24.  See INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D).

[90] One interesting thing to note, however, is that the regulations state that U.S. executive and certain German pardons are effective to avoid inadmissibility on account of a CMT conviction, 22 C.F.R. § 40.21(a)(5), or multiple criminal convictions.  22 C.F.R. § 40.22(c).

Second Circuit

RELIEF - CONSULAR PROCESSING
Am. Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. Jul. 17, 2009) (district court had jurisdiction to consider claim that visa denial by consular officer violated the First Amendment claim, despite the doctrine of consular nonreviewability: "We conclude that, where a plaintiff, with standing to do so, asserts a First Amendment claim to have a visa applicant present views in this country, we should apply Mandel to a consular officer's denial of a visa. Since the First Amendment requires at least some judicial review of the discretionary decision of the Attorney General to waive admissibility, we see no sound reason to deny similar review to the decision of a consular officer to deny a visa. It seems counterintuitive to review a cabinet officer's discretionary decision, but not a consular officer's decision as to statutory ineligibility. We agree with the explicit view of the Ninth Circuit and the implicit views of the First and D.C. Circuits supporting at least limited review where a visa denial is challenged on First Amendment grounds").

Ninth Circuit

OVERVIEW " CONSULAR PROCESSING " CHOICE OF LAW POST CONVICTION RELIEF " EXPUNGMENT
Dept of State Cable re Application of Lujan-Armendariz to Applicants Entering in Ninth Circuit POE, AILA InfoNet Doc. No. 13012240. (Posted 1/22/13) (Ninth Circuit law applies to immigrants entering the U.S. at a Port of Entry within the Ninth Circuit if the Immigrant intends to reside within the Ninth Circuit).

RELIEF " VISAS " JUDICIAL REVIEW " CONSULAR PROCESSING
Rivas v Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) (court had no subject-matter jurisdiction to review consular official's discretionary decisions to deny an immigrant visa; the district court also had no jurisdiction under the Mandamus Act, 28 U.S.C. 1361, the Administrative Procedure Act, 5 U.S.C. 551, et seq., or the Declaratory Judgment Act, 5 U.S.C. 702). CD4:15.12;AF:2.7;CMT3:3.7

RELIEF " VISAS " JUDICIAL REVIEW " CONSULAR NONREVIEWABILITY OF DISCRETIONARY DECISION TO DENY VISA " STANDARD OF REVIEW
Rivas v Napolitano, 677 F.3d 849, 850-851 (9th Cir. Apr. 25, 2012) (Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.3d 970, 971 (9th Cir. 1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion. Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997). Second, the court has jurisdiction to review a consular official's actions when the government denies a visa without a facially legitimate and bona fide reason. Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008).).

RELIEF " CONSULAR PROCESSING " CONSULAR NONREVIEWABILITY " JUDICIAL REVIEW
Rivas v. Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) ("Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions 'when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.' Patel v. Reno, 134 F.3d 929, 931"32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official's acti5ons when the government denies a visa without a 'facially legitimate and bona fide reason.' Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008)."; the Mandamus Act, at 28 U.S.C. 1361 give the court jurisdiction to require Government take action to consider request to review denial of an I-601 waiver).

INADMISSIBILITY - CONSULAR PROCESSING
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. July 9, 2009) (noncitizen must allege State Department visa denial was not facially legitimate, not for a bona fide reason, and entered in bad faith to obtain judicial review of the denial of a visa via consular processing).

RELIEF - CONSULAR PROCESSING
Bustamante v. Musakey, 531 F.3d 1059 (9th Cir. Jul. 9, 2008) ("We hold today, as we did twenty-two years ago in Li Hing of Hong Kong, Inc. v. Levin, 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."; "Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); see also Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir.1986).").

OVERVIEW - CONTACT WITH IMMIGRATION AUTHORITIES - CHOICE OF LAW RELIEF - CONSULAR PROCESSING - CHOICE OF LAW
The Secretary of State, in an unclassified Advisory Opinion to the U.S. Embassy in Montevideo, stated that an expunged Washington state misdemeanor "first time, minor controlled substance offense relating only to possession" will not trigger inadmissibility as long as the alien intends to enter the U.S. from a port of entry in the 9th Circuit, following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Thanks to the firm of Gibbs, Houston, Pauw in Seattle.

Other

RELIEF " CONSULAR PROCESSING
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf Nov. 20, 2014 DHS Memorandum directing USCIS to issue new regulations and policies on the use of the I-601A provisional waiver. Requests additional guidance on definition of "extreme hardship."

RELIEF " WAIVERS " UNLAWFUL PRESENCE PROVISIONAL WAIVERS
Starting Mar. 4, 2013, there is a new process for qualified immigrants who need a waiver of unlawful presence in the U.S. Under the new process, immigrant visa applicants in the immediate relative category may apply for a "provisional waiver" before departing for the consular interview if they are (a) inadmissible solely based on unlawful presence, and (b) can show extreme hardship to a USC spouse or parent. We want to alert you to resources on the provisional unlawful presence waiver available through the Immigration Advocates Network (IAN), our partners and other advocates. On Immigration Advocates Network: In the Library: - A public statement by the U.S. Citizenship and Immigration Services (USCIS) reminding applicants that they may begin filing Form I-601A, Application for Provisional Unlawful Presence Waiver at http://www.immigrationadvocates.org/link.cfm?21029. - A practice alert by the American Immigration Lawyers Association at http://www.immigrationadvocates.org/link.cfm?21030. - An informational flyer by USCIS on eligibility and how to request a provisional unlawful presence waiver at http://www.immigrationadvocates.org/link.cfm?20742. - Guidelines from the Department of State on who can apply for a provisional unlawful presence waiver at http://www.immigrationadvocates.org/link.cfm?20743.

RELIEF - CONSULAR PROCESSING - CIUDAD JUAREZ - DUIS
9 FAM 40 requires referral to a panel physician of an immigrant visa applicant has prior DUIS. A 2004 CIS memo states that DUIs may be the basis of finding of a mental disorder that is harmful to others. Counsel may therefore want to provide proof (to the extent possible) that the person either is no longer drinking and/or has rehabilitated to where alcohol is not a problem in creating risking behavior, such as evaluation from substance abuse center or therapist and attendance AA meetings.

CONSULAR PROCESSION"CHOICE OF LAW"EXPUNGED DRUG CONVICTIONS
The Foreign Affairs Manual, 40.21 acknowledges Lujan-Armendariz, and even includes discussion of Nunez-Reyes and provide that it applies to pre-July 14, 2011 convictions only. However, the FAM requests an advisory opinion in each case to sort out "complications." Thanks to Kathy Brady

RELIEF"CONSULAR PROCESSING"CHOICE OF LAW
Immigration counsel should establish the circuit in which the applicant intends to reside, and in addition show that the applicant will cross the border at a port of entry into the circuit containing the intended residence. http://xa.yimg.com/kq/groups/6503708/200574580/name/FAM_40.21_Notes_on_CIMT_CS_conviction.pdf