212(a)(5)(a) refusal - "Disqualifying Diversity Visa Entry"

[big_promise 2]

Thankfully, this is not a situation that directly affects my family - rather it is a situation that was brought to my attention by a family member who participates in a social media community for Iranian DV2017 winners that I was asked to inquire about here. A poor applicant had an interview at Embassy Abu Dhabi that seemed to go well, though the conoff noted that one of his photos seemed to be mixed up - a situation that sounds extremely similar to another Abu Dhabi case discussed here earlier this year. He was sent away for what he was told would be routine administrative processing. A week later he received a form refusal letter offering "212(a)(5)(a): Disqualifying Diversity Visa Entry" as the only reason for the refusal. I understand that 212(a)(5)(a) seems to be a blanket category for reasons not otherwise spelled out in the INA, even though it specifically deals with labor certifications that should not be of concern in DV cases.

In the previous thread the VJ community was quite pessimistic about the chances of a reversal, seeing as protocol seemed to be on the conoff's side. However, it sure feels like an argument could be made that a switched photo was an immaterial omission that was probably not fraudulent in intent. Does anyone know of any similar cases that led to any sort of administrative review through State's advisory opinions process or supervisory review in the field? If so, what was the outcome?

We are planning to advise the refused applicant that a legal case would be an epic long-shot in this instance given consular nonreviewability, though it is possible that someone, somewhere in the bureaucracy might hear him plead his case if he is persistent enough.

[Boiler 43,434]

I am not sure what there is to add, legal action where and against whom?

[JenniferNangel 137]

I remember seeing another case in Dv that was denied due to pictures being mixed up(honestly don't know how anyone can do that my husband application was pretty easy and self explanatory) from my understanding about the dv they can deny anyone so filing a lawsuit against uscis won't change anything when in fact your friend did give false information on the application.

Better luck next year

[SusieQQQ 11,584]

There is officially no appeal against a consular ruling. They can try; I have heard of cases where obviously mistaken refusals have been reversed. However, I'm not convinced at all this is one of those cases. Quite simply, the photo is one of the requirements of absolute proof that the entry belongs to the person in front of the CO. (In some countries, it is not that difficult to get a new birth certificate etc....but facial recognition is not something you can forge.) I'm not clear on what you mean by "mixed up" photo (mixed up with who?!) but because this protocol is put in place as one of the key fraud prevention mechanisms, I'd be pessimistic about the refusal being reversed. He can try of course, but it's not something I would spend money on or hold out much hope for.

Also: from reading what you said, they did not actually specify that the photo was the cause of the denial, correct? It might have been something else?

Edited November 17, 2016 by SusieQQQ

[big_promise 2]

Thanks for the replies. I'm actually a little uncertain of the exact nature of the mix-up myself, as I'm only getting second-hand accounts of what was posted on a Farsi-language social media group. SusieQQQ and Jennifer are basically confirming what I had surmised - it sounds like nobody is aware of a specific precedent of DOS contradicting itself in this sort of situation. It thus looks like they are in a very unfortunate situation indeed. Ah, consular nonreviewability (*sigh*)...

They are pretty distraught at the moment and are asking for my help, but not being an immigration or consular professional myself I fear that I can't really do anything more than candidly advise them of the costs involved if they want to spend the rest of the DV cycle fighting this one to the bitter end.

[SusieQQQ 11,584]

There is no point in them spending money on this IMO. An appeal to the consulate explaining what happened is the only thing that makes financial sense, assuming that the photo is indeed the problem. I doubt it's enough to say the intent wasn't fraudulent, because anyone would say that irrespective of the intent, right?

Stories like this make me so sad. It is such an easy visa to get and the rules really are so simple to follow. And it doesn't take very long to double check info on the entry form. Yet we see stories every year where someone didn't bother to read the rules or didn't bother to double check the info or photos, and then you get this.