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"Don't it always seem to goThat you don't know what you've got'Til it's gone"The Joni Mitchell lyrics to Big Yellow Taxi came to mind as I read today's announcement from the Department of State. The agency published in the Federal Register an interim final rule that eliminated as "obsolete" the Board of Appellate Review (BAR). The BAR -- housed in State's Office of the Legal Adviser -- provided U.S. citizens and applicants for U.S. passports a time-honored way to appeal consular officer determinations of loss of U.S. nationality or Passport-Office refusals to issue an American passport. The BAR's rules of practice were heavely laden with procedural due process protections, such as the right to a hearing, the right to attorney representation and the right to seek reconsideration, all contained in, but soon to disappear from, 20 CFR Sec. 7.1 et seq.
In place of the BAR, State has conferred discretionary authority upon the Bureau of Consular Affairs to review passport refusals and loss-of-nationality determinations. These are the same secretive folks who operate in the shadowy world in which attorney representation at consular interviews is barred, and refusals to share the contents of advisory opinions on questions of law issued to U.S. consular officers are countenanced. I'm not optimistic that we'll see much due process with Consular Affairs. State has not published any rules of practice or procedure for Consular Affairs to honor. Everything will apparently be decided behind closed doors.
On the other hand, discretionary review at the administrative level is an option not a duty. Passport refusals and the determination that a citizen has lost U.S. nationality can now be directly considered in Federal Court, since there are no longer any administrative remedies to pine for or to exhaust.
Meantime, dear citizens, step up to the bar and raise a toast to BAR for its historic adherence to procedural due process. Alternatively, you have until September 16, 2008 to offer State your comments on its interment of BAR.
May BAR R.I.P.
On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn't enough room for the couple to go through that unjust portal. Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrine that the courts will not consider visa refusals based on a factual decision of an American consular officer.
The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that "when a 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." The Ninth Circuit rested this slim right of review on the citizen's liberty interest in marriage: [We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband's visa application. The Supreme Court has deemed "straightforward" the notion that "[t]he Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures." 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, 414 632, 639-640 (1974).The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.
In many other situations, however, the "reason to believe" standard does not apply. In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal. Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith. I suspect that some cases of this type are out there. Build the argument and the clients will come.
Congratulations to the Bustamantes' lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.
Sometimes, for no apparent reason, a word or phrase bubbles up from deep within the realm of memory. As I studied the excellent 2008 USCIS Ombudsman's Report to Congress, out from my cerebral hard drive popped "Hello Out There!" -- the title and opening and ending lines of William Saroyan's outstanding 1942 one-act play. The play is about angst, the existential cry of the human spirit beset by a world of injustice, but also about hopeful beginnings. (In high school I played the smallest of bit parts -- the jailer -- a ten-second walk-on with no lines.)
As I wondered why this phrase suddenly popped in my mind, into my consciousness came another meaning of "hello," pronounced with an adolescent sing-song intonation that stresses the last two syllables, as in "HellOOo." This slang meaning of "hello," as confirmed in www.SlangSite.com, expresses astonished incredulity at another person's naivete.
Pondering the two meanings of this common salutation, I at last made the connection to the Ombudsman's report. On one hand, his report is a deep-throated "Hello Out There!" -- an earnest clarion call alerting us in detail to the many problems and dysfunctions of USCIS, and a hopeful urging to our nation's leaders for resolute action. On the other, the report may well evoke a skeptical and smarmy reaction from members of the public and the immigration cognoscenti whose hopes have been dashed repeatedly by countless broken promises and initiatives that failed.
I take the quixotic view of the Ombudsman's report. If he can help in achieving even a glass half-full of his many worthy recommendations, and earlier unanswered suggestions to his predecessor, our country will be well served.
If Congress were my dear departed Mom, and I were the Department of Homeland Security (DHS), there would be purgatory to pay if I brought home a report card like DHS produced in 2007. To put it another way, If the President were Sister Donavita, my eighth grade parochial-school nun, and she issued me the 2007 DHS report card, I would have been (metaphorically) bloodied and bowed before I left her class, and my Mom would still provide (not quite so metaphorical) wooden-spoon discipline when I got home.
Regrettably, however, disciplinary standards of the past do not persist in the present. DHS Employee Morale a grade of "F,"Port Security a "C-/D+," Management & Organization, and Critical Infrastructure, both "Incompletes," and Chief Privacy Officer, an overly generous "B-," despite revolving-door leadership and an average three-year ranking of last place among all federal entities in "privacy trust" score, according to the Ponemon Institute's report (2007 Privacy Trust Study of the United States Government).
Why do we tolerate this abysmal lack of protection?
I lost a great friend this weekend, Steve Fischel, but America lost a patriot. Stunned and tearful as the news of his passing spread, I walked aimlessly through the Vancouver Convention Center last Saturday afternoon, realizing in awe how many AILA members likewise cherished a close friendship with him.
Steve and I were to share an EB-5 panel last Wednesday, but he never made it. A passenger on his flight took ill and the plane was diverted. His last emails to me were classic Steve. He wrote to be sure we both were ready so that we would give our audience good value. In reply I'd emailed him my portion of the presentation on best practices in EB-5 risk management, ironically entitled: "Stress Relief and Blissful Sleep." He replied by email: "Thanks. This is helpful. Look forward to see you. S"
I never saw Steve at the AILA conference, but learned right away that he had been felled by a ruptured aortic aneurysm as he sat chatting with friends.
My loss, even when amplified by the heartfelt grief of so many of Steve's friends in AILA and his colleagues in government, does not tell the full story of America's loss of this marvelous fallen patriot. Steve served honorably and well in the State Department for 31-plus years, but we in AILA first came to know him in 1981 as he articulated eloquently the Department's positions on a host of immigration issues. Unlike so many of the current crop of government officials who administer and enforce the immigration laws, Steve appreciated and respected immigration lawyers. He saw us not as adversaries but as participants in a legal process that brought profound blessings to America. Steve, like other officals of his era (Cornelius "Dick" Scully at State, and Jackie Bednarz and Larry Weinig at INS -- all thankfully still alive), believed that his job was to help lawyers, newcomers and veterans alike, understand the immigration law and the government's interpretations. He never had an axe to grind; his approach was always to achieve the correct legal answer and the just result.
To be sure, we didn't always agree, especially on consular nonreviewability, but I never walked away from an exchange with Steve feeling that he'd denied me a fair hearing or a thoughtful response. With a *****le in his eye, a wide smile and a deadpan, comedic retort, Steve could joust with the best of us.
He made a great, positive impact on immigration law, helping to craft the NAFTA TN provisions, improving the J-1 waiver process, and reconciling the conflicting E-1 and E-2 interpretations of INS and State, to name but a few. And then he retired from State, the deserving recipient of awards aplenty, and crossed the aisle to practice immigration law, always with success and gusto. The American Immigration Law Foundation, which he served as a member of the Board of Trustees, awarded him its Distinguished Public Service Award in March 2006. The video of his acceptance speech will bring a tear or several to your eyes but it's worth watching.
Although most Americans and millions of immigrants to our country may never have known Steve, his impact on their lives, the benefits he helped confer, the American Dreams fulfilled with his aid, will be remembered sadly and proudly by all of the many close friends who mourn his passing.
Although your life was cut short, you can now enjoy stress relief and blissful sleep. May you know, in the words of Ralph Waldo Emerson, that you lived life successfully indeed:"Those are a success who have lived well, laughed often, and loved much; who have gained the respect of intelligent people and the love of children, who have filled their niche and accomplished their task, who leave the world better than they found it, whether by a perfect poem or a rescued soul; who never lacked appreciation of the earth's beauty or failed to express it; who looked for the best in others and gave the best they had."