Justice Delayed is Justice Denied – How Do I Get the U.S. Embassy to Make a Decision on My Case? by Mark C. Daly
One of the services we provide is to follow up on delayed cases, both at the USCIS and at U.S. Embassies. Many immigrants and their families complain that they have been waiting too long to get a decision on their case. When they ask the U.S. Embassy for a status update they receive a reply that says “The Embassy is conducting further review.” Sometime the family will learn that the Embassy is doing background checks on the intending immigrants. Other times they will say that they are holding up the case while waiting for the USCIS to revoke the petitioner’s status.
That was the case with Mohanbhai Patel, a naturalized US citizen who got his citizenship based on a marriage to a US Citizen in 1982. Shortly after he received his citizenship he divorced his first wife, travelled back to India and re-married, and then applied in 1988 for visas for his second wife and her two daughters in India. The Embassy in Mumbai believed that Mohanbhai had actually married his second wife back in 1976 and never divorced her. They conducted an investigation and concluded that Patel was naturalized under false pretenses by marrying an American citizen in 1982 while at the same time still being married to his wife in India. Based on this information, the Embassy returned the visa applications to USCIS to be revoked.
Lawyers for Patel made many inquiries to the Embassy. These inquiries either were not returned or answered with vague assurances that a decision would be rendered soon. So in 1993, five years after filing the original I-130s, the lawyers filed a writ of mandamus (hyperlink to writ) in US Federal Court demanding that the US Embassy make a decision on the case. Rather than take the case to trial, the USCIS agreed to send the visa petitions back to the consulate in Mumbai for a final decision, and the lawyers dismissed the complaint. This was a year later, in March of 1994.
When the USCIS sent the visas back to the Embassy, they also informed the Embassy that denaturalization proceedings had begun against Patel that would strip him of his citizenship and nullify the I-130 applications. Acting on this information, the consulate did not issue the visas. In fact, however, no denaturalization proceedings had begun against Patel. The USCIS had lied to the Embassy, apparently to prevent the applications from being approved.
When the lawyers followed up with the Embassy three months later in June of 1994, Christine Lee, the Chief of the Immigrant Visa Unit at the consulate in Bombay, responded with a letter which explained that the INS told them that denaturalization proceedings had begun against Patel and thus “the application is refused” until the denaturalization proceedings had been completed and Patel’s eligibility to petition had been firmly established.
The problem with that response was twofold: First, it was based on the falsehood that denaturalization proceedings had begun. Second, the agreement made in court said that the applications would be sent back to the Embassy for a decision, and now that agreement was being broken by the Embassy. So in June of 1995 the lawyers went back into Federal Court and reopened the case. They complained to the Judge that under the law the Embassy had to give them a decision on the visas. The Embassy replied by saying they had issued a letter refusing the visas and therefore had made a decision on the case.
In October of 1995 the USCIS made good on their threat and started the denaturalization proceedings against Patel. The Federal Court judge agreed with the USCIS and the Embassy and ruled against Patel! Despite this defeat, the lawyers filed an appeal with the 9th Circuit Court of Appeals in 1997, nine years after filing the I-130s.
Click here to read Patel’s Challenge against the U.S. Consulate.
Click here to read the U.S. Government’s Answer to Patel’s Challenge.
Click here to read Patel’s Reply to the U.S. Government’s Answer
The court ruled in favor of Patel!
In their ruling they stated very important rules for immigrants and their attorneys who are working with the USCIS and the Embassies:
- There is generally no right to appeal a decision of an Embassy in Federal Court, but there is a right to demand the Embassy make a decision. This demand is called a writ of mandamus. When the Embassy refused to make a decision while waiting for the USCIS denaturalization proceedings to complete, they acted illegally.
- The court did say that judicial review exists for an Embassy when they deny a visa if they do not act “on the basis of a facially legitimate and bona fide reason.” The Judges cited an older case, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).
- The USCIS and Embassy claimed that the letter stating “the visa applications are refused” was sufficient and the lower court agreed with them. However the Court of Appeal disagreed and pointed to the letter of the law at 22 C.F.R. § 42.81(b). This rule was created by Congress and sets out the “Refusal procedure” for visa applications:
When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available.
- In addition to the problems with the format of the letter, the Embassy had no right to hold an application in abeyance and wait until the denaturalization proceedings were completed. What if Patel wins the denaturalization case? It is not fair to stop working on a case like that and use a “wait and see” approach to family visa applications.
- Finally, the Embassy said that they had “suspended” the application based on fraud and that suspension is authorized by 22 C.F.R. § 42.43. However, suspension requires that the Embassy also returns the petition to the USCIS for a final disposition. The consulate did not return the petition in this case. “Consequently, its provisional refusal of the Patel’s application does not fit within § 42.43‘s exception to the requirement that the consulate either issue or refuse the visa.”
This case has many important lessons for immigrants and their families who are waiting for their visas to be approved by the Embassy. First is to never give up if you believe you are in the right – even if it takes 10 years like this case. Second is to demand a decision from the Embassy, and to take it to court if necessary. The third is to hire good lawyers who can file your case in Federal Court and to beware of entering into agreements with the USCIS based on their promise to take action – it might not happen!