Court Orders Priority Date Changed after Termination
Posted Jul 18, 2008
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A Federal Court recently ordered the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) to use a 1986 priority date for an immigrant visa application that was incorrectly terminated by a U.S. consulate. Extensive information on issues at U.S. consulates can be found on MurthyDotCom, under our NewsBriefs on Consulates.
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Termination of Visa Application was Incorrect
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The U.S. District Court for the Southern District of California issued a March 17, 2008 decision finding that the U.S. Consulate in Ankara, Turkey did not follow U.S. Department of State (DOS) regulations in denying the immigrant visa application of an individual who was unable to leave Iran to attend the visa interview. This case is Mitra Amidi v. Michael Chertoff, et al. (S.D.C.A. March 17, 2008). The Murthy Law Firm did not participate in any aspect of this case, however, it is reported here to help MurthyDotCom and MurthyBulletin readers gain a better understanding of how the legal system works.
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Ms. Amidi, a U.S. citizen, sponsored her brother for a family-based immigrant visa in 1986. The visa became available in 1996 or 1997. She was sent two letters, the second of which notified Ms. Amidi that her brother had one year to appear at the U.S. Consulate in Ankara to apply for his visa. Ms. Amidi notified the Consulate that her brother was unable to obtain permission to leave Iran. There were several other such notifications and responses, due to Mr. Amidi's inability to leave Iran, which was considered by the Consulate to be a condition beyond his control. In April 2002, the Consulate scheduled yet another interview for Mr. Amidi, his wife and child. The spouse and son traveled to Ankara, Turkey for the interview, explaining that Mr. Amidi was still unable to leave Iran and requesting that the interview be postponed again.
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Consulate's Notice of Termination
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The Consulate sent a letter a year after the interview, in 2003, stating that Mr. Amidi's visa application had been terminated because he failed to appear for his visa interview, as scheduled in April 2002. Ms. Amidi claims that she did not receive this letter.
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In 2004, the Consulate claims, yet another letter was sent, notifying Ms. Amidi that the visa application was terminated and could no longer be reinstated. Ms. Amidi claims she did not receive this letter, either.
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In 2005, Ms. Amidi notified the Consulate that her brother was now able to leave Iran. However, she was informed that the case had been terminated due to failure to appear for the 2002 interview or respond to the prior letters. Later in 2005, Ms. Amidi filed a new immigrant visa petition and requested that her 1986 priority date be utilized. The petition was approved, but her request for the 1986 priority date was denied. The loss of the priority date would extend the waiting time for a visa number by approximately 10 to 20 years.
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Lawsuit Challenges Refusal of 1986 Priority Date
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Ms. Amidi filed a legal challenge to the Consulate's decision to cancel the visa application and, thus, cause the loss of the 1986 priority date. The U.S. District Court agreed with some of her claims. The Court ruled that, while there generally is not judicial review available for matters within the Consulate's discretion, a lawsuit may properly challenge the authority of a consulate to take or fail to take an action. This challenge extends to whether the termination of the visa application was an abuse of discretion.
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The Federal Court found that the Consulate failed to comply with DOS regulations and standard procedures when it terminated Ms. Amidi's brother's visa application. While there are provisions for terminating registrations for failure to appear for a visa interview, there are also provisions for reinstating where there are circumstances beyond the applicant's control. The Court found that the Consulate accepted the notification given by Ms. Amidi regarding her brother's inability to depart Iran on several occasions. Additionally, at the interview in question, Mr. Amidi's wife appeared and advised the Consulate of the ongoing inability of Mr. Amidi to leave Iran. This explanation had been accepted on prior occasions. Since the file was destroyed by the DOS in March 2005, there was no evidence to the contrary.
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The Consulate failed to follow proper procedures after the interview. The Court found that the Consulate should have reset the interview and allowed an additional year, rather than starting action to terminate the visa application. Thus, it abused its discretion. The Court then ordered that the new application be processed with the original 1986 priority date.
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Conclusion
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This well-reasoned decision provides a basis for individuals to challenge some nondiscretionary decisions or actions by U.S. embassies and consulates. While the ultimate discretionary decision to grant or deny a visa application, especially for factual matters, often cannot be challenged in a U.S. court, errors under the law or failures in the procedures involved in processing visa applications can successfully be challenged using legal means. This information should help readers gain an understanding of the legal system and when consular decisions may be challenged in a court of law.