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and retrieving files, most INS offices are not computerized. Recommendation 3.3: a. INS should develop and implement specific procedures by which applicants can obtain accurate information concerning the status of their applications. b. INS should modernize and make more efficient its system for filing applicants' records. INS should computerize all of its offices to enable its employees to locate files and records quickly. Finding 3.4: Large backlogs exist in the number of applications for immigration benefits awaiting adjudication by INS.
Long waiting periods, which can stretch from several months to several years, often interfere with the reunification of families, including those of United States citizens. Although the Service has tried to reduce the backlog, a large number of applications still await adjudication. Recommendation 3.4: Congress should appropriate additional resources to increase INS adjudications staff positions. Finding 3.5: The absence of clear Service guidelines and vigilant firstline supervision results in inconsistent or erroneous decisions under the extensive discretionary authority of INS adjudicators to grant or deny applications. Moreover, in such areas as the public charge provision where some guidelines exist, INS adjudications are often perceived by the public as inconsistent. To reduce arbitrary exercises of discretion by INS adjudicators, the INS has recently adopted a Service-wide program for quality control of adjudications. Recommendation 3.5: To ensure effective quality control of adjudications under its new program, the INS should:
a. Publish precedent decisions and unusual or difficult cases as they arise and make them available to all adjudicators. b. Hold supervisory adjudications officers responsible for reviewing and ensuring the accuracy and consistency of all decisions.
Provide supervisors, upon appointment, with further training in immigration law and supervisory techniques to enable them to review all decisions adequately. d. Implement guidelines clarifying Service policy on difficult sections of the law, such as the public charge provision, specifying the proper interpretation of the law and the evidence to be considered in making such determinations. Finding 3.6: The combining of both adjudicative/service and enforcement responsibilities in INS results in a subordination of the service function to the enforcement function.
Although INS has established satellite offices in Los Angeles and New York to provide information and services to the public in an attempt to separate its adjudicative/service functions from its enforcement responsibilities, problems continue to exist at other INS offices. Recommendation 3.6:
Congress should create a Border Management Agency within the Department of Treasury and then transfer the INS enforcement function to that agency. Such legislation would enable INS to concentrate all its resources on its service activities and thereby provide the public with improved service. b. INS should also totally separate its service functions from its remaining enforcement activities, preferably by establishing more satellite offices.
supporting evidence, including documents, must be submitted to the consular officer. The applicant has the complete burden of establishing his or her eligibility for a visa through the presentation of this documentary or other supporting evidence. As provided in the statute:
The Consular Visa Process
Under existing law any person seeking to enter the United States lawfully is required to obtain official permission to apply for entry, termed a "visa,” from an American consulate abroad.' In most cases where a consular official declines to issue a visa, the prospective immigrant is not the only aggrieved party. The denial can also adversely affect American citizens or legal residents and American businesses who are seeking to bring family members or skilled employees into the country. To these people, the denial of a visa prevents the reunification of a family or causes the loss of needed professional or technical skills, yet a person seeking to overturn an unfavorable ruling will encounter a relatively informal and very limited review process in the State Department.
Whether the applicant seeks to be admitted permanently or on a temporary basis, that is, on immigrant or nonimmigrant status, a variety of
Whenever any person makes application for a visa. . .the burden of proof shall be upon such person to establish that he is eligible to receive such visa. . .and, if an alien, that he is entitled to the non-immigrant, quota immigrant, or nonquota immigrant status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa. .no visa. . .shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not subject to exclusion under any provision of this chapter (emphasis added].?
? Under current immigration law, a prospective entrant seeking admission to this country must pass through a double-check system of entry. Initially, either an immigrant or nonimmigrant visa must be applied for and obtained from an American consulate abroad. Visa applicants, in order to obtain visas must prove to the satisfaction of the consular officer that they are eligible to receive visas and entitled (therefore, admissible to the United States) to visas under the immigrant or nonimmigrant status claimed. Once a visa has been secured, the person is entitled to present himself or herself at a United States port of entry where a determination of admissibility is made by the Immigration and Naturalization Service. 8 U.S.C. $$1201, 1225 (1976). • Immigration and Nationality Act of 1952, $291, 8 U.S.C. $1361 (1976). State Department regulations underscore the discretionary authority of consular officers to deny visas unless the visa applicant has met the burden of proof of eligibility for a visa to the satisfaction of the consular officer. For nonimmigrant visas, 22 C.F.R. $41.10 (1979) provides, in pertinent part, that:
An applicant for a nonimmigrant visa shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is entitled to a nonimmigrant status. . . .The burden of proof is
upon the applicant to establish that he is entitled to the nonimmigrant classification and type of nonimmigrant visa for which he is an
applicant. Visa applicants seeking preference immigrant status based upon their relationship to an American citizen or legal resident are required initially to obtain an approved visa petition from the Immigration and Naturalization Service. The receipt of these petitions by the American consulate abroad, however, does not automatically entitle the visa applicants to a first, second, fourth, or fifth preference immigrant status. In addition to the approved visa petition, 22 C.F.R $$42.30, 42.31, 42.33, 42.34 (1979) require that:
The consular officer is satisfied that the alien has the relationship to the
U.S. (citizen or resident alien) indicated in the petition. Those seeking to enter the United States based upon job or labor skills must also acquire an approved petition from INS. Again, these petitions do not automatically entitle the visa applicant to a third or sixth preference visa. Under 22 C.F.R. 842.32 (1979), a third preference visa still requires that the visa applicant "establishes to the satisfaction of the consular officer that he is within the class described." Sixth preference places a similar burden of proof on the visa applicant in 22 C.F.R. $42.40 (1979), a regulation of general applicability to all approved INS visa petitions, which provides that:
frequent public complaints. Testimony received from attorneys and other immigration practitioners regarding the exercise of discretionary authority alleges that, in many cases, there was an arbitrary exercise of that discretion.
An immigration attorney testified that consular officers have denied benefits to applicants even though the applications were based on certificates of citizenship issued by the Immigration and Naturalization Service. These certificates are usually issued only after an extensive investigation by the citizenship section of the Service, which is staffed solely with attorneys responsible for determining citizenship claims. Thus, that attorney questioned the second-guessing of INS decisions by consular offi
A visa applicant is barred from legally entering the United States without a visa. The statute and State Department regulations make it all too clear that obtaining a visa from a United States consulate abroad depends primarily upon whether the applicant "satisfies” the consular officer that the visa should be granted. “Satisfaction of the consular officer," the statutory standard, vests a high degree of discretion in the consular officer, and, as will be seen, there is little possibility for relief from an abuse of discretion.
Although a consular officer has authority to grant or refuse a visa depending on whether he or she is “satisfied” or not as to the eligibility of a visa applicant, that authority is not completely unbridled since a visa may technically be denied only where the consular officer has “reason to believe” that the applicant is ineligible for a visa. "Reason to believe" requires that "a determination [be] based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible" for a visa. Therefore, "satisfaction of the consular officer” is not a standard granting absolute authority but rather a reasonable person standard requiring the consular officer to exercise a high degree of discretion in deciding whether to issue or deny a visa.
To assist in making determinations, the State Department publishes a visa manual with guidelines for the exercise of discretion in certain specific areas or regarding some types of applications, but these are guidelines only. The decision in each individual case is ultimately left to the discretion of the consular officer. This authority of consular officers and the system of review have been the subject of
The legality of such redeterminations was considered by the United States Attorney General, who issued a written opinion finding that INS certificates of citizenship were binding on the State Department, as only the Attorney General has authority to institute cancellation proceedings to void a citizenship certificate. Determinations and rulings by the Attorney General on questions of law with respect to immigration and naturalization are controlling and must be adhered to by the State Department." But attorney Laurier McDonald testified that, despite the consular officers' relative lack of experience in determining citizenship claims and the binding effect of the Attorney General's opinion, consular officers have denied benefits to applicants on the ground that the petitioners may not be American citizens notwithstanding their INS certificates of citizenship.8
Consular officers are authorized by the Secretary of State to grant, upon receipt of, and within the validity period of, a petition filed with and approved by the Immigration and Naturalization Service, the immediate relative or preference status indicated in the petition. The approval of a petition by the Immigration and Naturalization Service shall not relieve the alien of the burden of establishing to the satisfaction of the consular officer that he is eligible in all respects to receive a visa.
ea • 22 C.F.R. $841.90, 42.90 (1979). • U.S., Department of State, Foreign Affairs Manual, vol. 9, pts. 2-3. • Laurier McDonald, testimony before the Texas Advisory Committee to the U.S. Commission on Civil Rights, Open Meeting, San Antonio, Sept. 12-14, 1978, vol. 3, pp. 92-94 (hereafter cited as Texas Open Meeting Transcript). • 41 Op. Att'y Gen. 452 (1960). In finding that the applicant's possession of a citizenship certificate issued by the INS precluded the State Department from challenging, for passport purposes, the applicant's citizenship, the Attorney General stated that:
In my opinion, Congress, in providing for the issuance of certificates of citizenship by the Attorney General and theretofore by the Commissioner and Deputy Commissioners of Immigration and Naturalization,
and in specifying that in all public offices of the United States such a certificate should have the same effect as a judicial certificate of naturalization or citizenship, meant to put the matter at rest and to deprive all other administrative officers of the United States of the power to put in issue the citizenship status recognized by a certificate
regular on its face. Id. at 461.
Immigration and Nationality Act of 1952, 8103(a), 8 U.S.C. $1103(a) (1976). • McDonald Testimony, Texas Open Meeting Transcript, vol. 3, pp. 93-94. The State Department informed this Commission after our Washington hearing that it believed this issue had been resolved. They stated:
The testimony of Mr. Laurier McDonald concerning the certificates of nationality issued by the Immigration and Naturalization Service presents an issue which we understood to have been settled to the satisfaction of all parties. The Department has advised all posts that such certificates should be given presumptive weight, but that, in those unusual cases where the post has strong identifiable reason to believe that the person is not a United States citizen, the case should be referred back to the Immigration and Naturalization Service for re
examination and final determination. Elizabeth J. Harper, Deputy Assistant Secretary of State for Visa Services,
Frequently cited as examples of abuse of discretion are cases where a consular officer denies a visa on grounds that the applicant is likely to become a public charge once he or she enters the United States. While the public charge provision is a proper basis for denying visas where there is reason to believe that aliens will not be able to support themselves, there were complaints that consular officers may sometimes improperly rely on this provision in a visa denial. Two immigration attorneys, Barbara Hines, a managing attorney with the Legal Aid Society of Central Texas, and Mr. McDonald, testified that consular officers deny visas on public charge grounds even though the applicants have lived in the United States and have established a record of not receiving welfare benefits. 10 Mr. McDonald alleged that public charge visa denials may be based on such ethnic characteristics as skin color." However, the State Department asserted that “any statements that visa refusals are made on ethnic grounds are false."12
In a recent case handled by Ms. Hines involving a family of eight, one child was a United States citizen by birth, the mother had a claim to derivative United States citizenship, and the father and five children had been born in Mexico. The father and the five Mexican-born children were interviewed for visa eligibility by a consular officer. All of the applications were approved except that of the oldest child, who was 20 years old, unmarried, and 8 months pregnant. Notwithstanding her pregnancy, she was, by statute, a part of the family unit as long as she was unmarried and under the age of 21. The consular officer, however, declared her ineligible to immigrate to the United States with her family, reasoning that since she was pregnant she was, therefore, not part of the family unit. He further found that her eligibility for AFDC benefits upon the birth of her child, per se, would make her a public charge. There was substantial evidence, however, that she and her family were able to support themselves without public assistance-for the daughter had an offer of employment in the United States and the family had been living in the
United States for 7 years without receiving welfare. If a Senator had not successfully requested an expedited review of the legal conclusions of the consular officer, the daughter would have been permanently separated from her family and when she reached the age of 21 would not have been legally eligible for a visa as a member of the family.13
Another case involved an 8-year-old Pakistani child who applied for a nonimmigrant visa because of a need to have heart surgery in the United States. The consular officer denied the visa on the grounds that the child was likely to become a public charge and that her actual intent was to remain permanently
the United States. A visa was finally obtained after several Congressmen intervened in the case, although the visa was issued from another consular post. Steven S. Mukamal, past president of the Association of Immigration and Nationality Lawyers and the attorney handling the case, concluded, "[t]hat's how powerful that American consul is when he sits at that post. He's the law."14
One of the primary purposes of the immigration laws is to maintain the integrity of the family unit. The denial of a visa on public charge grounds sometimes results in the separation of families, which may create new welfare recipients. Where a consular officer has denied a visa to an American family's foreign-born breadwinner, the visa denial may cause that family to seek welfare benefits in order to survive. 15
A family immigrating to the United States may also leave some of their children behind in the care of others when the family income would not be enough to satisfy the consular officer that the family would not become public charges.16
The public charge provision is a difficult one to administer, requiring a consular official to make a determination based on indirect evidence and uncertain future events. Elizabeth J. Harper, Deputy Assistant Secretary of State for Visa Services, disagreed with this analysis and stated in a letter to the Commission:
letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights,
12 Harper Letter.
The evidence on which public charge determinations is made is not indirect and uncertain. Applicants must present documentation which demonstrates that they will be able to support themselves and their family in the United States. Consular officers are of all educational backgrounds, almost always with a college degree and frequently with advanced degrees. They do not rely solely upon their own judgment, education, or experience in administering the public charge provisions of the law, as they have access to cost-of-living indices published by other U.S. Government agencies as well as Department of State guidelines. The Department stresses world-wide uniformity in these and all other cases through training programs, consular conferences, visa workshops, and Departmental instructions. 17
She did testify, however, that the determinations to be made regarding the financial or economic status of applicants, or the possibility that they may become a public charge in the future, generally require the expertise of economists or social scientists, while some consular officers may have only high school educations. 18 President Eisenhower in the early 1950s criticized this law, which burdened consular officers with forecasting unpredictable events, and recommended that Congress explore the possibly harsh consequences of a provision which allowed consuls so much discretion. 19
By providing that a consular officer shall exercise discretion in acting upon visa applications, and by defining the limits of that discretion in terms of a “reasonable person,”20 the State Department recognized that a reasonable exercise of discretion is necessary to a fair determination of the merits of each case, based upon equities and facts that an individual consular officer can determine in a faceto-face interview with the applicant.
However, the Visa Office has acknowledged that discrepancies and differences in consular officers' attitudes and decisions concerning interpretation of the public charge provision do exist between various consular posts. It has attributed such inconsistent decisions to insufficient guidelines for public charge cases and to the subjective attitudes of consular officers.21 Thus, the Visa Office is considering corrective changes, including issuing more specific guidelines, workshops to train officers in the proper handling of the public charge provision, and a short survey of visa denials by supervisory officers.22
To bring accountability, consistency, and due process to the consular decisionmaking process, the Association of Immigration and Nationality Lawyers (AINL) has argued for a more adequate review of visa refusals. The State Department, although conceding that "discrepancies and differences in attitude and decision exist,” opposes centralized review by the Visa Office and favors issuance of more specific guidelines.23 As of September 1978, however, this problem remained uncorrected. 24
The lack of uniform decisionmaking in the visa issuance process is attributable in part to the quality of the consular work force itself. The State Department, after conducting "a comprehensive review of the consular functions in the Department" in 1977, submitted to the House Committee on International Relations a report that recognized the "unevenness” in the performance of consular officers.25 The report concluded that inadequate training, lack of “sensitive supervision,” insufficient qualification standards for the appointment of consular officers, and an inadequate "selection-out-process” for consular officers who perform unsatisfactorily are some of the factors contributing to the variance in consular officers' performance. The Department stated that it would initiate a program to remedy this problem,
20 22 C.F.R. 9841.90 (1979).
17 Harper Letter.
In the State of the Union Message I pointed out that "existing
1 The provisions which make inadmissible any alien who, in the opinion of the consul, is likely to become a public charge at any time in the future. This places upon the consul the burden of forecasting events which cannot be predicted and, it is claimed, would permit abuse of
3 Ibid. “The Visa Office indicated that for the time being it would