Supreme Court Considers Visa Case For Foreign Spouses

[Janelle2002 3,865]

Wow. Working hard FOUR days this month.

That's why we need to bombard the court with emails and faxes supporting this case.

[LibCampFireClub 635]

Have a read of this beginning at the top of page 13. Let me know your thoughts:

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/13-1402_reply_pet_UnitedStates.authcheckdam.pdf

It reads to me like the US government will always have the "ace in the hole" because the beneficiary is not a US citizen and therefore not entitled to due process. It doesn't matter if the American spouse is being affected, because the US government can reject the foreign person and say, national security. Doesn't appear much that can be done about it/

Edited February 25, 2015 by ExExpat

[LibCampFireClub 635]

By expanding the scope of review to include a requirement that the government explain the legal and factual basis for a visa denial, the Ninth Circuit has rendered Congress’s judgment in Section 1182(b)(3)— that when a denial is based on national-security grounds no specific reason need be provided to the alien—essentially meaningless for any alien with a U.S.-citizen spouse. See 8 U.S.C. 1182(b)(3); see also 8 U.S.C. 1202(f) (mandating confidentiality of visa records). The new requirement also would work an end-run around this Court’s decisions permitting information relating to the entry of aliens to be withheld if it would “endanger the public security.”

Knauff, 338 U.S. at 544. Respondent virtually ignores those authorities; she says (e.g., Br. 49) that they do not apply directly to a claimant like her, without grappling with the fact they do not contemplate that a claim like hers could ever be permitted to proceed in the first place. See, e.g., 338 U.S. at 544 (permitting security analysis based on “confidential information”); id. at 547 (stating that when “members” of the “armed forces” married abroad, their alien spouses “had to stand the test of security”).

Although respondent attempts (Br. 46-52) to downplay any national-security risks that would result from ignoring established bars to disclosure and judicial review, such risks, and the intrusion on the responsibilities of the political Branches, are very real indeed. The fact that this Court has allowed certain other constitutional claims to proceed in the face of national security concerns (see Br. 46-47) says nothing about judicial scrutiny and procedural oversight of the denial of a visa to an alien outside the United States who has no constitutional rights in seeking admission. See Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) (stating that “when it comes to collecting evidence and drawing factual inferences” with regard to “national security and foreign policy concerns,” the “lack of competence on the part of the courts is marked, * * * and respect for the Government’s conclusions is appropriate”) (citation and internal quotation marks omitted); see also Reno v. American Arab Anti-Discrimination Comm., 525 U.S. 471, 490- 492 (1999) (stating that “[t]he Executive should not have to disclose its ‘real’ reasons” for removing an alien believed to be a member of a terrorist organization, thereby “disclos[ing] * * * foreign-policy ob-jectives and * * * foreign-intelligence products and techniques,” and noting that courts are “ill equipped” to evaluate such reasons and “utterly unable to assess their adequacy”).

Requiring the kind of disclosure detailed by the Ninth Circuit would carry a significant risk that classified or sensitive information would fall into the wrong hands. It would also likely discourage the sources of such information from providing it to the State Department in the first place, thus increasing the chances that terrorists would gain admission to the United States. See Gov’t Br. 45-50. Respondent’s primary answer (Br. 47-51) is to suggest that the government can protect classified (or other sensitive) information by filing under seal or asserting privilege and that courts can review such information in camera and ex parte. But even if such procedures were appropriate, courts may be willing to employ them only in limited circumstances. See Gov’t Br. 51. Because consular officers are required to deny a visa if they have reason to believe an alien falls within an inadmissibility category in Section 1182, the government could not, through the use of discretion, avoid having particularly sensitive cases brought to court. In addition, even if appropriate safeguards existed and were in place, there would be a danger that they would fail, which alone could have a chilling effect on sources that provide the United States with intelligence critical to enforcement of Section 1182(a)(3)(B). All of these considerations lead to one conclusion: if the Court were now to fashion a judicial exception to the long-established consular-nonreviewability doctrine, review should be no more expansive than that found sufficient in Mandel. In that case, the Court 2 made clear that a balancing of the government’s interests against the citizen’s interests was not permitted.

See 408 U.S. at 765-769 (describing the “dangers and the undesirability” of such balancing). Respondent traveled to Afghanistan to marry Berashk knowing that there was no guarantee that he could obtain an immigrant visa; her interest in the visa decision is indirect and derivative of the interest of a person who has no constitutional rights at all in connection with his request for the privilege of admission to the United States. In contrast, the government’s sovereign interest in controlling admission of aliens to the United States and ensuring that terrorists are excluded is an “urgent objective of the highest order,” Humanitarian Law Project, 561 U.S. at 28, and one that the review envisioned by the Ninth Circuit would threaten. Moreover, any additional scrutiny of a visa denial would be of little benefit. Although amici suggest that consular officers “frequently” make errors in cases like Berashk’s, that is pure speculation. See NIJC Amicus Br. 11-12 (citing law review articles, including several pointing to an analysis of procedures in 1978); see also Mackey v. Montrym, 443 U.S. 1, 14 (1979) (stating that consideration of “risk of error” should look to “the generality of cases” and not “rare exceptions”) (citation omitted). Consular officers employ a statutory “reason to believe” standard that is designed to err on the side of caution and can be applied in an ex parte manner. Cf. Gerstein v. Pugh, 420 U.S. 103, 121-122 (1975) (contrasting probable cause with preponderance standard and emphasizing reliability of ex parte determination of probable cause); Florida v. Harris, 133 S. Ct. 1050, 1055 (2013). The statutory grounds for national-security-related inadmissibility are broadly stated. See 8 U.S.C. 1182(a)(3); Pub. L. No. 107-56, 115 Stat. 272 (broadening grounds in wake of 9/11 attacks);

see also, e.g., Singh-Kaur v. Ashcroft, 385 F.3d 293, 298-299 (3d Cir. 2004). And a reviewing court could not order the issuance of a visa, as respondent concedes (Br. 41); at most, the court could remand for further consideration, and might do so (in respondent’s view, Br. 51-52) based on ex parte submissions that a plaintiff would never see or evaluate. If the narrow “facially legitimate” standard applied in Mandel were applied to this case, the reason for visa denial that the consular post provided to Berashk—a citation to Section 1182(a)(3)(B), indicating that the denial was based on terrorist activities— clearly suffices.

Respondent’s plea for disclosure of evidence underlying a reason to believe that Berashk fits within the Section 1182(a)(3)(B) admissibility bar is contrary to the very limited scope of the facial legitimacy review that disposed of Mandel, and would impermissibly “look behind” the consular officer’s decision, opening the way to substitution of a court’s assessment for the expert officer’s. Mandel, 408 U.S. at 770. So, too, would an attempt to assess interpretation of the statutory criteria, since that would occur in the abstract and lack the very analysis of underlying facts in which the Mandel Court refused to engage.

Edited February 25, 2015 by ExExpat

[Janelle2002 3,865]

Have a read of this beginning at the top of page 13. Let me know your thoughts:

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/13-1402_reply_pet_UnitedStates.authcheckdam.pdf

It reads to me like the US government will always have the "ace in the hole" because the beneficiary is not a US citizen and therefore not entitled to due process. It doesn't matter if the American spouse is being affected, because the US government can reject the foreign person and say, national security. Doesn't appear much that can be done about it/

This is just a reply brief. They are supposed to reply. Thuh!! Stop whining and start acting.

[luckytxn 2,263]

It is almost like they are throwing in a red herring by making the terrorism part highlighted but then they throw this in a paragraph or two later.

In addition, a large class of other persons only indirectly affected by government action against third parties would be free to assert similar claims in a wide variety of circumstances. There is no warrant for altering existing law in that dramatic fashion, at the steep cost of weakening the protections that keep terrorists from our shores.

The wide variety of circumstances is what the majority of the people here are seeing. I think they are saying here that if judicial review is opened for these cases then it will weakern their attempts at keeping terrorists out. So again they throw in the terrorism aspect. I read of no reasoning they have about having the ability to correct an error if they wrongly deny a visa based on incorrect info that denied the visa due to terrorism concerns. They don't want review of the majority of cases because that will affect their abilities to concentrate on the few cases that are legitimate concerns.

Have a read of this beginning at the top of page 13. Let me know your thoughts:

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/13-1402_reply_pet_UnitedStates.authcheckdam.pdf

It reads to me like the US government will always have the "ace in the hole" because the beneficiary is not a US citizen and therefore not entitled to due process. It doesn't matter if the American spouse is being affected, because the US government can reject the foreign person and say, national security. Doesn't appear much that can be done about it/

[LibCampFireClub 635]

This is just a reply brief. They are supposed to reply. Thuh!! Stop whining and start acting.

I know it's the reply brief. I am looking at their position to see what we are facing. It's typical of what I've read before, but more inclusive of the chance of terrorism. Also, I just heard on the news that the regime in washington wants to delay SCOTUS rulings due to the current threats of terror and is using today's arrest in New York as cover.

[Boiler 43,425]

There is a waiver process for misrep.

The issue is more significant with non immigrant visas.

[Janelle2002 3,865]

I know it's the reply brief. I am looking at their position to see what we are facing. It's typical of what I've read before, but more inclusive of the chance of terrorism. Also, I just heard on the news that the regime in washington wants to delay SCOTUS rulings due to the current threats of terror and is using today's arrest in New York as cover.

But this doesn't apply to misrepresentation and non bona fide claims. And still the u.s.citizen deserves to know what proof the embassy has. Just like with any other court case.

[Janelle2002 3,865]

There is a waiver process for misrep.

The issue is more significant with non immigrant visas.

But every person doesn't qualify for a waiver even though they have hardships. They should be able to go to court and demand the embassy show what proof of misrepresentation they have and not just claim they suspect it.

Edited February 25, 2015 by Janelle2002

[LibCampFireClub 635]

But every person doesn't qualify for a waiver even though they have hardships. They should be able to go to court and demand the embassy show what proof of misrepresentation they have and not just claim they suspect it.

Obviously I'm not a lawyer. But, I've talked to several who view this doctrine as a brick wall. It's just there and they don't want to move it. Please understand that I'm with you, and I know you perceive me as whining and no action. This is a very complex issue that the best lawyers of America have faced several times and had their behinds handed to them.

The ace in the hole is national security, and it rests on the shoulders of the non citizen. Each and every case I've seen the Judge takes a hands off behavior when the state department warns of saying too much in the event of national security. They don't want our enemies to know how they decide cases. That's all they need to say, and the case is closed.

Make no mistake that if this court even budges a wee bit it will be earth shattering. Every single lawyer involved in this case is aware of cases like you and me, and so many others. Brent Renison faced the 9th district court and won a landmark decision for married foreign women whose US citizen dies before the case is decided. Something about the widow clause. He's sees a crack in the armor, but it something needs to change big time before they will move on this.

Edited February 25, 2015 by ExExpat

[Janelle2002 3,865]

Even more the reason we should try to support this case.

[elmcitymaven 9,711]

Obviously I'm not a lawyer. But, I've talked to several who view this doctrine as a brick wall. It's just there and they don't want to move it. Please understand that I'm with you, and I know you perceive me as whining and no action. This is a very complex issue that the best lawyers of America have faced several times and had their behinds handed to them.

The ace in the hole is national security, and it rests on the shoulders of the non citizen. Each and every case I've seen the Judge takes a hands off behavior when the state department warns of saying too much in the event of national security. They don't want our enemies to know how they decide cases. That's all they need to say, and the case is closed.

Make no mistake that if this court even budges a wee bit it will be earth shattering. Every single lawyer involved in this case is aware of cases like you and me, and so many others. Brent Renison faced the 9th district court and won a landmark decision for married foreign women whose US citizen dies before the case is decided. Something about the widow clause. He's sees a crack in the armor, but it something needs to change big time before they will move on this.

I think your analysis is unfortunately correct here, in every regard.

[luckytxn 2,263]

As long as they focus on the terrorism aspect they will win.

Obviously I'm not a lawyer. But, I've talked to several who view this doctrine as a brick wall. It's just there and they don't want to move it. Please understand that I'm with you, and I know you perceive me as whining and no action. This is a very complex issue that the best lawyers of America have faced several times and had their behinds handed to them.

The ace in the hole is national security, and it rests on the shoulders of the non citizen. Each and every case I've seen the Judge takes a hands off behavior when the state department warns of saying too much in the event of national security. They don't want our enemies to know how they decide cases. That's all they need to say, and the case is closed.

Make no mistake that if this court even budges a wee bit it will be earth shattering. Every single lawyer involved in this case is aware of cases like you and me, and so many others. Brent Renison faced the 9th district court and won a landmark decision for married foreign women whose US citizen dies before the case is decided. Something about the widow clause. He's sees a crack in the armor, but it something needs to change big time before they will move on this.

[LibCampFireClub 635]

Even more the reason we should try to support this case.

Several months back I had a long talk with Brent Renison. I have another attorney now, but nevertheless my talk with him was very helpful. It's his view that the ONLY way to change immigration is to get the media to tell your story and tell it a lot and every day. But how? Whether people like him or not, Dennis Michael Lynch gave it a helluva go. I spent the 40 bucks or so and bought his videos which were quite helpful in seeing how the politicians and media view legal and illegal immigration today. Because his videos include him walking about and talking to people without a script, you can get the idea. For the record, I think Dennis is a little whacky, especially since he decided to actually run for prez. Still, he's clever and dug where others won't go.

In short, today's media is just not interested in people who obey immigration law. Their viewers don't care, so they don't care. Politicians also run away whenever they have to talk about anything other than middle of the road touchy feely stuff. Taking one side or the other is political suicide.

So, how to approach it? Okay, letter writing may make you feel like you're doing something, but what?

Edited February 25, 2015 by ExExpat

[Boiler 43,425]

I forget the term but if your lawyer has a belief that a ban has been imposed incorrectly they have a route to submit an appeal.

The case does not look that sympathetic.