I need urgent advice

[Golden Gate 530]

Well i am a bit confuse about the degrees of cousin. My mother and her father are bother and sister.

You are first cousins then.

[together4evr 360]

1st cousins are denied in some states

So this might be the reason for extended AP

You may get a denial notice when you file the Writ but that is better then 4 more years of AP

Edited April 11, 2012 by togetherforever13

[catknit 144]

I think they are ok in California...it's on the list of states that ok 1st cousin marriage. I'm not sure how that works though, as it is illegal in some states too. So, in this type of case, does the case just stay in limbo [ap] forever?

Is the wife a USC from birth or did she get her citizenship somehow else?

[jaycali 415]

First cousins, arranged marriage and young age of the petitioner when they got married, coupled with being from the border region between Afghanistan and Pakistan sounds like AP to me.

[Tygrys 143]

First cousins, arranged marriage and young age of the petitioner when they got married, coupled with being from the border region between Afghanistan and Pakistan sounds like AP to me.

I would agree that 4 years AP is kind of extensive, though

[Adnan&Liane 8]

4 years is absurd! They should be able to tell you whether or not you are approved or denied within a year!

[J&N* 68]

Are you positive you're still in AP?? Are you sure you didn't get denied (or approved) until now?? I've never heard of AP lasting 4 years.

[Sandra G. 5,016]

Your wife can file a "Writ of Mandamus" in the District Court where she resides. The Court of Appeals, 9th in 1998 issued a Writ of Mandamus to US Consulate Consulate in Bombay, India because one person was under administrative review for eight (8) years without decision and the Court ordered the consulate to either grant or deny the visa applications.  Check it out

http://caselaw.findlaw.com/us-9th-circuit/1200229.html

Edited April 12, 2012 by sandranj

[robert&thuong 0]

Hi everyone, as i said i need urgent advice it's bcoz that i am on AP Since 11 JUNE 2008 and it's about 4 years so now i came to realize that i need to go for MANDAMUS law suit as soon as possible,can anyone suggest or tell me if it's the right option for me or not.Actually till now i was unaware of mandamus and i thaught that this would be the usual or normal waiting time for visa or u can say that i was asleep.

Interview date 11 june 2008.

Spouse visa.

every thing was fine in interview but i guess the region in which i live mattered for so long AP i.e Swat- Khyber pakhtonkhwa.

but i think it's too much time so kindly guide me and also if someone know best immigration lawyer in Islamabad? or i shod process the case through US attorney?

Thanks alot.

try to read some of the mandamus cases and see lawyer prior file of intend. keep post it and good luck.

[EAbbas 213]

A member on VJ just went thru this and she said that One of the requirements of the Writ of Mandamus is that you have to show you tried every avenue to obtain information about your case thru congressman/senator offices, information sent to the embassy trying to find out about your AP prior to filing the Writ.

If you have never asked for help from the congressman/senator and you haven't tried to contact the embassy do that now while your researching the Writ. Save all the information to be able to add to the case file if you decide to go that direction.

[Boiler 43,430]

Has your wife been to the local Consulate to enquire?

[Lisamarie 79]

You are 30 and she is 20 now, or when you married?

No i am older than her, i am 30 and she is 20.

[msheesha 548]

No age was not a problem, she was 20 and 18 z minimum age limit,Thanks.

You said she is 20 and you are 30. Is that now or at time of marriage?

[Sandra G. 5,016]

Here is the case of someone that the visa application was before the United States Consulate in Bombay, India for eight years without action.I posted the link before, but I got a few messages saying the link is not opening, then here is the decision.

PATEL v. RENO INS

Jyotika PATEL;  Mohanbhai Patel, Petitioners-Appellants, v. Janet RENO, Attorney General;  Immigration and Naturalization Service;  Clifton J. Rogers, INS, Acting District Director, Los Angeles, Respondents-Appellees.

No. 96-55359.

Argued and Submitted July 10, 1997. -- August 01, 1997

Before:  CANBY and THOMAS, Circuit Judges, and KING,Senior U.S. District Judge.*

Michael J. Carrozzo, Law Offices of Steven D. Karp, Beverly Hills, California, for the petitioners-appellants.Michael C. Johnson, Assistant United States Attorney, Los Angeles, California, for the respondents-appellees.

The Patel family's visa application has been pending before the United States Consulate in Bombay, India for eight years without action.   The Patels filed this mandamus action to force the consulate to make a decision.   Because we agree that the applicable regulations require the consulate to act, we reverse the district court's grant of summary judgment.   We affirm the district court's issuance of summary judgment as to non-consulate parties who are without any power to issue visas.

I

Mohanbhai Patel, a naturalized United States citizen, seeks visas for his wife and her two daughters in India.   The Immigration and Naturalization Service suspects Patel was naturalized under false pretences by marrying an American citizen while still being married to his wife in India.   On the urging of the INS, the consulate in Bombay, India has refused to act on the Patel family visa applications, even though Patel remains a naturalized citizen.

Patel, a native of India, arrived in the United States on a nonimmigrant visitor's visa in 1981.   Patel and Judy Brewington, an American citizen, were married on April 23, 1982.   They resided together for less than two months before separating.   On May 9, 1982, Patel was apprehended in Las Cruces, New Mexico, by the INS because he had failed to depart.   Patel filed an Application for Status as Permanent Resident on June 8, 1982, based on his marriage to Judy Brewington.   On his application he did not answer the question whether he had any prior marriages, and listed only Judy in the space provided for identifying one's spouse.   Patel put “N/A” in the space for identifying his children.   On August 9, 1982, Patel was granted lawful permanent resident status based on his marriage to Judy. Judy filed for divorce on July 18, 1983, which was granted on August 24, 1983.

Five years later, after having achieved the requisite five years as a lawful permanent resident, Patel applied to naturalize.   In his naturalization petition and at a subsequent interview under oath, Patel swore he had only been married once, to Judy, and swore that he had no children.   His application to naturalize was granted on May 25, 1988.

Patel filed an I-130 petition in October of 1988 on behalf of a current alien spouse, plaintiff Jyotika Patel, whom Patel claimed to have married in India in July 1988.   Patel also petitioned on behalf of Jyotika's two children in India.   These petitions were approved by the INS and forwarded to the U.S. Consulate in Bombay.

The U.S. Consulate in Bombay conducted an investigation of Patel's marriage and uncovered indications that he actually had married Jyotika Patel in 1976, had registered their marriage in 1980, and had never divorced her.   This, of course, suggested that Patel's marriage in 1982 to Judy was bigamy, and was null and void for purposes of bestowing naturalization on him.   The consulate forwarded the visa petitions back to the INS for further action to be taken against Patel.

Counsel for Patel and Jyotika Patel, meanwhile, made numerous inquiries regarding the status of the visas.   These inquiries either were not returned or answered with vague assurances that a decision would be rendered soon.   The Patels filed a complaint seeking mandamus relief on November 18, 1993.   To settle the suit, the respondents stipulated that the visa petitions would be transmitted back to the consulate in Bombay and the complaint was dismissed without prejudice.

The INS did send the visa petitions back to the consulate in Bombay around March 2, 1994, but they also informed the consulate that denaturalization proceedings had begun against Patel.   Acting on this information, the consulate did not issue the visas.   In fact, however, no denaturalization proceedings had begun against Patel.

Counsel for the Patels wrote to the consulate regarding the status of the visa applications on June 28, 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 Patels filed a motion to reopen their complaint for mandamus action, which was granted.   The Patels filed an amended and supplemental complaint on June 20, 1995, which, in addition to the original respondents (Janet Reno, the INS, and Clifton Rogers (the INS acting director)), named the United States Consulate at Bombay, India, Christine Lee (the Chief Counsel at the Immigrant Visa Section at Bombay), and the Secretary of State as respondents.

In October of 1995, the INS finally acted to initiate denaturalization proceedings against Patel by filing a complaint in the district court.   No judgment has been issued in that case and the action is still pending.

The parties filed summary judgment motions, and the district court granted summary judgment in favor of the respondents.   The Patels appeal.

II

 Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if:  (1) the individual's claim is clear and certain;  (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.  Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir.1986).

 Normally a consular official's discretionary decision to grant or deny a visa petition is not subject to judicial review.  Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986);  Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir.1981).   However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists.1  See Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir.1988) (judicial review is appropriate to consider a challenge to the Secretary's authority to place temporal limits on processing non-preference visa applications).

 The Patels are challenging the consul's authority to suspend their visa applications, not challenging a decision within the discretion of the consul.   Therefore, jurisdiction exists to consider whether the consulate has the authority to suspend the visa applications.

 A consular office is required by law to act on visa applications.   Under 22 C.F.R. § 42.81, “[w]hen a visa application has been properly completed and executed before a consular officer in accordance with the provision of INA and the implementing regulations, the consular officer shall either issue or refuse the visa.   Every refusal shall be in conformance with the provisions of 22 C.F.R. 40.6.”   In addition, the section is entitled, “Issuance or refusal mandatory.”

 Respondents argue that Lee's letter to the Patels' counsel dated July 16, 1994, was a refusal.   We disagree.  22 C.F.R. § 42.81(b) 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.

Although Lee's letter complies in part with these requirements by stating the law under which the applications were denied (section 221(g) of the INA), and by having a date and signature by a consular official (Christine Lee), it does not comply in other respects.   It is not on a “form prescribed by the Department,” and it does not state statutory provisions under which administrative relief is available.   Most importantly, it is not a final decision.   As respondents' counsel admitted during oral argument, the consulate is holding the visa applications in abeyance.   Additionally, respondents' counsel stated that should the denaturalization procedures conclude favorably for Patel, the Patels would not have to fill out new visa applications;  these ones would be reactivated.   No provision for suspension of the visa applications or for a temporary refusal is provided in 22 C.F.R. § 42.81.2 “There are no exceptions to the rule that once a visa application has been properly completed and executed before a consular officer a visa must be either issued or refused.”   10 Charles Gordon et al., Immigration Law & Procedure § 42.81 n.1 (1994).   We therefore conclude that the consulate's letter is not a refusal within the meaning of 22 C.F.R. § 42.81.

 Nor can we accept the district court's characterization of the consulate's action as a permissible suspension of the Patels' application.   Suspension is authorized upon discovery of misrepresentation or fraud, see 22 C.F.R. § 42.43, but only if the consulate also returns the petition to the I.N.S. 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.

Therefore, we find that the consulate had a duty to act and that to date, eight years after application of the visas, the consulate has failed to act in accordance with that duty and the writ should issue.   Resolution of this issue makes our consideration of the Patel's constitutional claims unnecessary.

III

 However, summary judgment was appropriately granted in favor of the Attorney General, the Secretary of State, the INS, and District Director Rogers.   As acknowledged by the Patels during oral argument, it is uncontested that only State Department consular officers have the power to issue visas.   8 U.S.C. §§ 1101(a)(9), (16);  1201(a).   Not even the Secretary of State has the power to review a consular official's visa decision.  Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986).   Therefore, summary judgment against all entities and officials without power to issue a visa was properly granted by the district court.

 The Patels contend that mandamus is still appropriately granted against these respondents to “mandate them to refrain from hindering the State Department's issuance of the immigrant visas.”   Such relief does not involve a nondiscretionary, ministerial duty, as required before a writ of mandamus can issue.  Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir.1986).   Therefore, mandamus is an inappropriate remedy with regard to these officials and entities.

CONCLUSION

We affirm the district court's grant of summary judgment in favor of respondents Janet Reno, Madeline Albright (substituted for Warren Christopher pursuant to Rule 43©, Fed. R.App. P.), the INS, and Clifton Rogers.   We reverse the district court's grant of summary judgment in favor of the United States Consulate at Bombay and Lee, and remand for the district court to order the consulate to either grant or deny the visa applications.   Given the lengthy delay which has already occurred, the consulate's decision on the visas should be rendered no later than thirty days from the date this order is filed.   Petitioners are awarded their costs.

REVERSED AND REMANDED.

FOOTNOTES

1.  We do not suggest that this is the only exception to the general rule or that it represents the limitation of judicial review of visa denials generally.   For example, we note that judicial review exists when the government has denied a visa if the government did not act “on the basis of a facially legitimate and bona fide reason.”  Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).   In addition, as government counsel noted at oral argument, judicial review may also exist under certain circumstances pursuant to the Administrative Procedure Act. However, neither situation is presented in this appeal.

2.  Rejected visa applicants may, however, request that the consulate retain their documents for one year if the grounds of ineligibility can be overcome by the presentation of additional evidence, and they may demand reconsideration of their application if they produce such evidence within that year.   See 42 C.F.R. § 42.81(b) and (e).   This exception, however, would not authorize the “provisional refusal” issued by the consulate in this case.   The consulate's stay of the finality of its refusal was not initiated by the applicant's indication of an intention to present further evidence, as required by § 42.81(b), and the one year limit, which began to run on July 16, 1994 with consular officer Lee's purported letter of refusal, has long since expired.

THOMAS, Circuit Judge:

Edited April 12, 2012 by sandranj

[bestluck 71]

There`s nothing wrong with age u still marry her and u got to show and prove that to embassy I am so sorry to hear that Something wrong in your case you need to contect to congressman/senator My wife is Older them me but i guess this is not a problem I wish u good luck and Hope you get this Horrible Porcess Done Please pray Hard to Allah Thank you