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.

3

4

general applicability to all approved INS visa petitions, which provides that: 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.

22 C.F.R. §§41.90, 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,

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

cers.

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."

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, §103(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 reexamination 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

letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 6, 1979 (hereafter cited as Harper Letter).

⚫ Immigration and Nationality Act of 1952, §212(a)(15), 8 U.S.C. §1182(a)(15) (1976).

10 Barbara Hines, testimony, Texas Open Meeting Transcript, vol. 3, pp. 143-44; and McDonald Testimony, Texas Open Meeting Transcript, vol. 3, 99-100. PP.

11 McDonald Testimony, Texas Open Meeting Transcript, vol. 3, 07.

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 in 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."

9914

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:

12 Harper Letter.

13 Hines Testimony, Texas Open Meeting Transcript, vol. 3, pp. 140-42.

14 Steven Mukamal, testimony before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 14-15, 1978, p. 243 (hereafter cited as Washington Hearing Transcript).

18 McDonald Testimony, Texas Open Meeting Transcript, vol. 3, pp. 97100.

16 Hines Testimony, Texas Open Meeting Transcript, vol. 3, p. 143.

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.

" Harper Letter.

1 Elizabeth Harper, Deputy Assistant Secretary of State for Visa Services, testimony, Washington Hearing Transcript, pp. 199–200.

1 President Dwight D. Eisenhower stated:

In the State of the Union Message I pointed out that "existing legislation contains injustices." Among the administrative provisions of the law which it is claimed may operate with unwarranted harshness are the following:

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 discretionary judgment.

President Eisenhower, letter to Senator Arthur V. Watkins, Chairman of the Immigration and Naturalization Subcommittee of the Senate Judiciary Committee [prior to its 1953 hearings], Apr. 6, 1953, as reprinted in Milton R. Konvitz, Civil Rights in Immigration (1953), appendix III, p. 190.

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. §§41.90 (1979).

21 Association of Immigration and Nationality Lawyers, Visa Practice Committee, Report of Meeting with Visa Office, U.S. Department of State, Sept. 28, 1978, p. 5.

22 Ibid.

23 Ibid. "The Visa Office indicated that for the time being it would adhere to the position that centralized review at the Visa Office of 212(a)(15) refusals could not and would not be implemented. However, it did agree that discrepancies and differences in attitude and decision exist between the various Posts. . . .Accordingly V[isa] O[ffice] proposes to issue more specific guidelines to the field. . . ."

24 Ibid. The AINL report of that meeting stated that “[t]he subject was fully explored and concluded with the reiteration by the V[isa] O[ffice] of the fact that it appreciated that there is a lack of uniformity of decision and that it is in the process of taking vigorous direct action to correct this." 35 U.S., Department of State, "Report of the Consular Functions of the Department of State" (December 1977), p. 7.

including a "special effort" to improve the training provided to officers. 26

The Consular Officers' Association, an informal organization of Foreign Service and GS consular specialists, has stated that the training provided to consular officers is insufficient, particularly in the areas of language training and area studies.27 Although the State Department has taken a "forwardlooking attitude" towards training and has greatly improved the basic training course for junior officers, it has apparently not placed enough emphasis on the importance of foreign language proficiency and a familiarity with area culture and politics in consular work.2 28

Reviewability of Consular Visa
Decisions

Witnesses at the Commission's State Advisory Committee open meetings and at the Washington hearing of the United States Commission on Civil Rights expressed dissatisfaction with the current visa application procedure. According to testimony, one of the worst problems encountered in the entire immigration process is an inadequate system for review of consular visa decisions. Benjamin Gim, a New York immigration attorney and former president of the Association of Immigration and Nationality Lawyers, stated at the Washington hearing:

26 The report stated:

The quality of the consular work force needs to be strengthened. While most consular officers are dedicated professionals who are performing their responsibilities in an exemplary manner, there are some who are not as effective. The basic reason for this unevenness can be traced to shifting personnel policies over the years as regards the consular force. This in turn is attributable to the previously widely held attitude that consular work did not require the high degree of professionalism necessary in other functions. Thus, the Department has at times used the consular function for the placement of officers unsuccessful in other functions. There has also been a tendency to place into the consular cone most of the officers who enter the Service laterally. Some of these have been handicapped by lack of background, sufficient training, and sensitive supervision.

The Department is initiating a concerted program to remedy this quality problem. Greater emphasis will be placed on higher qualifications for officers appointed to consular activities. Once they have entered on active duty the Department will make a special effort to provide regular training to these officers to expand and update their skills; and to assure that they benefit from careful supervision and career development opportunities. Finally, there will also have to be an improved selection-out process for those officers whose performance over a period of time and in more than one work environment does not measure up to the high standards required of the consular function in the current situation.

For those officers now in consular work the expanded training programs discussed elsewhere in this report will give them needed opportunities to improve their skills. We also will place greater emphasis on more effective supervisory attention.

"Wayne S. Leininger, chairman, Consular Officers' Association, letter to the Office of the General Counsel, U.S. Commission on Civil Rights, Dec. 11, 1978.

I would say that the most serious thing is the power which is vested in the American consul to issue or refuse a visa, and that decision is not reviewable by even the Secretary of State, and it certainly is not reviewable in the courts. Congress has, by implicit legislation-I think it's Section 104-has excluded the consul. A relatively petty official, a vice consul, for instance, his decision on whether to issue a visa or not is not reviewable by the Department of State Visa Office, except as to questions of law, but a question of fact is not reviewable by the Secretary of State, and it cannot be overturned, no matter how unjust, even in court. And I think that's one crying area where there is such a potential for abuse, and it is being abused, that it needs reform.29

Sister Adela Arroyo, director of Catholic Services for Immigrants in San Antonio, Texas, testified:

[M]any times the gravest and greatest problems are with the U.S. consuls who are under the State Department. The consuls operating in a foreign land become like kings in their own domain. Even the Secretary of State does not have the authority to direct a consular officer to grant or refuse a visa. And in addition, a refusal by a consular officer to issue a visa is not reviewable by the U.S. court system.30

28 Ibid., pp. 2-3. Mr. Leininger, on behalf of the COA, stated: The Department has, in our opinion, taken a forward-looking attitude toward the training of consular officers. More consular officers are now in university training, economic training, or at various senior government seminars than ever before. The Foreign Service Institute now offers three times a year an advanced consular course to midcareer officers that focuses heavily on managerial topics, and will soon begin a series of overseas consular workshops and supervisory seminars. Junior officer basic training has been vastly improved with the experimental "ConGen Rosslyn" approach.

Yet, consular officers still have difficulty in acquiring the necessary amount of language training and area study before going to post. Work pressure plays a part in this: there is simply not enough time to devote to another six or 12 weeks of language training when the post needs another visa officer now. Further, the designation of certain positions at posts abroad as requiring the incumbent to have a certain degree of language proficiency-the "language-designated position" (LDP) program-is left in the hands of senior DCM's or Ambassadors who themselves have an incomplete grasp of the complexities of consular work in the 1970's.

Lastly, the Department's traditional view of consular work as a technical and functional specialty-as opposed to a "substantive" one, such as political analysis-has for some reason led it to conclude that area specialization is not in order. This attitude seemingly ignores the cultural and political differences in the host country milieu that make consular work in Santo Domingo a distinctly different activity than consular work in Amsterdam [emphasis supplied in the original].

29 Benjamin Gim, testimony, Washington Hearing Transcript, p.

24.

30 Sister Adela Arroyo, testimony, Texas Open Meeting, Transcript, vol. 5, p. 17.

When an application for a visa is denied, State Department regulations provide for a rudimentary system of review of that denial,31 generally consisting of a reevaluation of the case by the principal consular official or supervisory consular officer. That officer, under the regulations, can reach one of three decisions: (1) concur with the junior consular officer in denying the visa, in which case the visa application is retained in the permanent files of the consular office and no further action is taken, (2) conclude that the denial is unwarranted and assume responsibility for the particular case and issue the visa or discuss the conclusion with the junior officer to persuade him to reverse the original decision, or (3) disagree with the determination and request guidance from the State Department in making a decision. If guidance is requested, the case would be forwarded to the Visa Office of the State Department in Washington for an advisory opinion or for a departmental ruling from an appropriate official of the Bureau of Consular Affairs.

Even without a specific consular request, the State Department may initiate a review of a visa application32 and issue an advisory opinion to the consular officer for consideration. However, regardless of who initiates the review, rulings of the State Department are only binding as to questions of law. Questions of fact are left to the absolute discretion of consular officers. 33

31 For nonimmigrant visas, State Department regulations provide:

(b) Review of refusals at consular offices. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or an alternate whom he may specifically designate, shall review the case of an applicant who has been refused a visa and shall record his decision over his signature and the date on a form prescribed by the Department. If the ground of ineligibility may be overcome by the presentation of additional evidence, and if the applicant has indicated that he intends to obtain such evidence, a review of the refusal may be deferred for a period not to exceed 120 days. If the principal consular officer, or his alternate, does not concur in the refusal, he shall (1) refer the case to the Department for an advisory opinion or (2) assume responsibility for the case himself.

22 C.F.R. §41.130(b) (1979). For immigrant visas, State Department regulations provide:

(b) Review of refusals at consular offices. The principal consular officer at a post, or an alternate whom he may specifically designate, shall review without delay the case of each applicant who has been refused a visa and shall record his decision over his signature and the date on a form prescribed by the Department. If the principal consular officer, or his alternate, does not concur in the refusal, he shall (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for the case himself.

22 C.F.R. §42.130(b) (1979).

32 Although it is not stated in its regulations, the State Department has indicated that such a review may be upon "its own initiative or at the request of interested parties." Harper Letter.

33 State Department regulations provide:

(c) Review of refusals by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if a nonimmigrant visa has been refused. The

Other than this limited supervisory review, the Secretary of State is clearly prohibited by statute from considering the issuance or denial of visas in individual cases. The Secretary of State is given supervisory authority over consular activities in administering and enforcing the immigration laws "except [for] those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas" (emphasis added).34 A party aggrieved by a consular decision is also denied access to Federal court to seek redress, since courts have consistently held that, without explicit statutory language authorizing such review, visa refusals are immune from judicial scrutiny.35

Elizabeth J. Harper, Deputy Assistant Secretary of State for Visa Services, testified that the review process begins when the supervisory consular official, normally the chief of the consular section, reviews the paperwork of each visa denial case, looking at the case anew by examining the files and other materials presented by the junior consular officer to determine whether "good judgment" was exercised. If necessary, the consular officer will request additional information from either the applicant or the junior officer prior to making a determination, but such requests are rare, according to Ms. Harper, because "most denials are well-documented."36 She acknowledged that applicants who have been denied visas receive no notification of the

Department will review such reports and may furnish an advisory opinion to the consular officer for his assistance in giving further consideration to such cases. If upon the receipt of the Department's advisory opinion the consular officer contemplates taking action contrary to the advisory opinion, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, shall be binding upon consular officers.

22 C.F.R. §41.130(c) (1979) (although this section applies only to nonimmigrant visas, 22 C.F.R. §42.130(c) (1979) provides for similar review of immigrant visas in almost the identical language). Although advisory opinions may not be binding on consular officers, the State Department asserted that:

In practice the consular officer in the field is considered to be the best judge of the facts of the case and the Department's advisory opinions are restricted to advice as to the application of the law to the facts. While in a legal sense an advisory opinion is not controlling on the individual consular officer's action, we have experienced only rare and isolated instances where the Department's opinion was not accepted. Harper Letter.

34 Immigration and Nationality Act, §104(a), 8 U.S.C. §1104(a)(1976). 95 Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir. 1929), cert. denied, 279 U.S. 868 (1929) (holding that consular visa decisions are nonreviewable absent an express statutory provision); Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D. III. 1960) (holding that the statutory scheme provided by Congress for excluding aliens, whatever it is, is due process, citing Knauff v. Shaughnessy, 338 U.S. 537 (1949), and that only congressional action could remedy the statutory scheme); Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961) (where the court recognized in a footnote the immunity of consular visa decisions from review, citing Ulrich v. Kellogg).

36 There is evidence, however, that there is insufficient documentation of