New York Lawyer's Legal Updates

Spousal Visa Denial: What’s Next?

Author: US Visa Attorney Alena Shautsova

Every year, thousands of U.S. citizens get married to foreigners and if they thought that the marriage and wedding is the most tiring part, they were bitterly mistaken. After the wedding, the happy couples have to “deal” with the maze of the U.S. immigration laws. Some brave hearts attempt to do it on their own, and sometimes they are lucky and their loved ones do join them in the Land of the Free. Some, however, “get stuck” in limbo between the consulate denial, inability to see each other and wasted time and money.

A spousal immigrant visa can be denied and the consul can refuse to provide an explanation for it, except for citing a general reference to the U.S. immigration laws and stating “the decision is not appellate … and there is no waiver…” Is it all over in this case?

Not so fast. It is true that an alien has “no constitutional right of entry” to the United States. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). The Supreme Court “without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’” Id. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)). Accordingly, “[f]ederal courts are generally without power to review the actions of consular officials.” Rivas v. Napolitano, 677 F.3d 849, 850 (9th Cir. 2012) (citing Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986)).

However, it is not the alien who can exercise his/her rights, but the U.S. citizen spouse! Courts review such denials for “a facially legitimate and bona fide reason.” Bustamante v. Mukasey, 531 f.3d 1059 at 1062 (2008). A U.S. citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse’s visa. Id. 531 F.3d at 1062. However, there is a “catch”: This inquiry is extremely narrow. Once the Government offers a facially legitimate and bona fide reason for the denial, courts “have no authority or jurisdiction to go behind the facial reason to determine whether it is accurate.” Chiang v. Skeirik, 582 F.3d 238, 243 (1st Cir. 2009). It means that the arguments must be factually and legally persuasive, and must withstand strong opposition from the government.

Most importantly, the complaint must be properly filed with the Federal court, and shall present appropriate request for relief (for example: a request for writ of mandamus plus a declaratory judgment).

Spousal visa denial can be a devastating event and it will require a prompt and correct reaction. Do not get discouraged with the scary notations such as “no appeal” and “no waiver.” Consult with an Immigration attorney to explore your options.

New York Immigration attorney Alena Shautsova is a principal at the Law Office of Alena Shautsova, a full service Immigration Law Firm in Brooklyn, New York. The author can be reached through shautsova.com or 917-885-2261 and encourages her readers to contact her with questions.

01 June 2013
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