Transcript of the above video: 

As the title of this video suggests, we are discussing a recent decision by the United States Supreme Court, so SCOTUS. We are dealing with a recent decision involving Immigration. When these cases pop up, it is wise to take heed of them when you're dealing with Immigration on a regular basis as we do here, specifically me, I have been doing this for almost 17 years now. That said, I thought of making this video after reading a recent article from the AP, that's apnews.com, the article is titled: The Supreme Court rules against California woman whose husband was denied entry to US. So quoting directly: "The Supreme Court on Friday ruled against a California woman who said her rights were violated after Federal Officials refused to allow her husband into the country in part because of the way his tattoos were interpreted. The 6 to 3 decision along ideological lines." I think that it is interesting that they made that as an aside. I don't view this as "ideological lines". This is jurisprudence; this is folks making decisions; these are the Supremes making decisions. They are making findings of fact and conclusions of law primarily; they are making conclusions of law even, not even findings of fact primarily. Again how is that ideological? I am really getting sort of tired of, especially the media and the media in the United States, constantly trying to politicize our legal process and then just takes no heed of when our criminal process gets massively criminalized. That is getting pretty old to watch that, even from abroad. Quoting further: "The 6 to 3 decision along ideological lines found that citizens don't necessarily have the right to participate in Federal Government decisions about whether immigrant spouses can legally live in the US." Well first of all yeah, I have done videos on this including one made contemporaneously with this one regarding this article specifically where we discussed, yeah you don't have an unfettered right as an American if you marry a foreign national to bring your foreign national spouse to the United States. You have a right to marry them, you can't be precluded from doing that under our Constitution and our Laws, but yeah a foreign national does not have an unfettered right to enter the United States whether they are married to an American or not. 

Now that said, what we are talking about in this video is Consular Processing and the notion of Reviewability. What are we talking about with regard to Reviewability? Well there's an old case regarding what is called the Consular, excuse me the Doctrine of Consular Absolutism or Consular Non-reviewability. Basically, way back in the early 1800s - I think the case is from 1803 - there was a case where somebody got denied a Visa; I think it was in Canada. They took the case up through the Federal Courts and said we want this reviewed and appealed and the Court said "hey we are not getting in the business of looking over the shoulder of fact finders in our State Department apparatus." What are we talking about here? Consular Officers who are mandated with the task of ascertaining and adjudicating whether or not someone should be granted a visa to the United States. Basically the Supreme Court at the time said we are not going to get in the business of second guessing them because we are not the boots on the ground. So they basically are given a great deal of latitude; again it's called the Doctrine of Consular ‘Absolutism’ or Consular Non-reviewability, and they are just granted a great deal of latitude with regard to their fact-finding.

Now in the context of this case, we are talking about a different section of the INA, the Immigration and Nationality Act. Consular Non-reviewability issues come up a lot when I talk to people especially out here who are applying for Tourist Visas primarily for spouses, Thai spouses and significant others, to go to the United States. Under that analysis, oftentimes the Consular Officer will cite section 214b of the Immigration and Nationality Act. They'll basically say ‘you haven't demonstrated strong enough ties to your home country and weak enough ties to the United States’. But people will say to me, "but they didn't back it up; they didn't cite any reasons or anything." At the end of the day, they don't have to. They are the primary fact finder and their fact-finding conclusions are really not subject to review. 

That said, and I'll get into this further, there's Consular Absolutism and then there's arbitrariness and capriciousness in the actual processing of cases. Let me explain what I'm talking about here. Quoting further: "The majority ruled against Los Angeles Civil rights Attorney Sandra Muñoz, who was last able to live with her Salvadoran husband nearly 10 years ago. The couple started the process of getting an Immigrant Visa after they married in 2010. Luis Asencio-Cordero, who had been living in the US without legal status,.." I love the terminology here. "Living in the US without legal status." No, that's not correct. This person was an illegal alien; they were unlawfully present in the United States, which I'm sure that that factored in mightily in the analysis by Consular Officers throughout this case. Meanwhile, not even getting to the issue, and we'll get to the procedural stuff here in a moment, if this person was unlawfully present in the United States for a prolonged period of time, that in and of itself, entering illegally in and of itself could be deemed a ground of inadmissibility. Again it would depend on the facts in the underlying case. I don't want to get into that directly but understand yeah, there are legal grounds of inadmissibility and oftentimes those who are barred or deported or subjected to what's called "expedited deportation" under IIRAIRA, an Act in the late 90s, those folks are banned for a certain period of time, overstayers as well, banned from returning to the United States and under those circumstances they have to seek a waiver. So even, and again I have some issues with the way that the Consulate processed this which I will get into in a moment, but it shouldn't lead people to be distracted from the fact that this was not exactly a 'clean hands' immigrant if you will. This was somebody who was previously illegally present in the United States, that is worth noting. Quoting further: "..had to travel to the Consulate in San Salvador to complete the process. But once there, the Consular Officer denied his application and cited a law denying entry to people who could participate in unlawful activity." Well interesting that that is brought up because the mere fact that this person was illegally present in the country previously, would lend itself to that inference. I mean again I'm not trying to argue against the people who lost his case, it's sad and I do sympathize with somebody who has to be separated from their spouse. But that said, at the end of the day a lot of the problems we are seeing especially along in Southern border in the United States, the primary source of all of this is the fact that US Immigration Law has been largely disregarded especially here recently, I mean acutely here recently. That said, quoting further: "The Consular Officer denied his application and cited a law denying entry to people who could participate in unlawful activity." Now, here is where I get a little bit peeved and I think that Department of State could do better about this stuff. Quoting further: "The State Department would not give a more specific reason but after filing a lawsuit they learned the refusal was based in part," - "In part!" Again, the way that this is framed is interesting to me because it seems to be trying to sort of gloss over the fact that this person was physically present in the United States for a prolonged period of time illegally. They are focusing on other things which are worth noting and I'll go into for the Consular Processing part of this analysis but again don't take your eye off that ball when you are reading these kind of reports. "..on a Consular Officer’s determination that his tattoos likely meant he was associated with the gang MS-13." Okay. Now there's a couple of things here. I don't know, I don't know, and maybe Consular Officers that are stationed in South America are given some sort of training course on identification of tattoos associated with various underground groups throughout South America. I kind of doubt it, but I don't know. They could be. That said, again I have seen this a lot in practice over the years. Consular Officers are very cagey and sometimes they are very, quite honestly, and this is kind of nice way to put it, non-confrontational and don't want to explain themselves when they make these determinations. I would say it would be very nice in the future if Department of State would stop falling back on opacity. You have the legal foundation to make the decisions you make. Make them, and be clear about why you are making them. Stop all of this kind of "oh, we want to keep it nebulous", I get it. I have to push cases through the log jam that is “Administrative Processing” and all this kind of thing quite frequently. Again I don't have any problem per se with the Doctrine of Consular Absolutism, I actually kind of agree with it. I think, and this was an early Supreme Court decision. We're talking Founding Father type people were on that Court that made that determination and I think the principle is a good one. Our Courts should not be clogged up with trying to second-guess what folks stationed at Embassies and Consulates abroad, what decisions they made with regard to applications for visas. Don't get me wrong. I agree with that. But one thing I would criticize here, because I've seen this in practice myself, is when Officers make a decision, they don't just come out with it, they don't just say "this is the decision, it is what it is, deal with it!" They sort of want to kind of obfuscate sometimes, or obfuscate might not be the right word, but they just don't want to have a confrontation. Well guess what? You are the adjudicator. Adjudicate. I remember at one point they transferred in here a young lady who was a Consular Officer for some years. She was quite nice, very professional. After she left, if I recall, back when I was on Facebook, I think she friended me on Facebook, we exchanged some messages after she was out of here, but one thing I told her at the time and something I have said ever after is one thing I really appreciated about her is she would just come right out to the window and say "no, denied on this." Well as an Attorney, I need a final decision in order to go back to the client and then make further decisions and strategize further about how to gain a remedy and up to that point, the issue we were having was often times here at the Consulate, now bear in mind this is like 15 years ago, but a lot of the Consular Officers they didn't want to go out on a limb and make an overt decision. This person happened to be legally trained. In fact I think if I recall correctly she went to an Ivy League Law School if I recall right. Again very good Consular Officer and frankly we had a lot of talks about Immigration Law over time and it was interesting to operate up against, not up against, but to be adjudicated and deal with adjudications by somebody who was very confident and knew what they were doing. Again we don't all, Consular Officers oftentimes will do maybe a year sometimes of their whole career in the Visa section; it's part of that “well-rounded” experience all those officers have to sort of undertake if you will. Make a decision. It's okay, you're protected by the law as the Supreme Court has noted. My big problem is when a decision is either not made or it's sort of made and then it's just like "well but we're not going to give you the underlying reasoning." That I have a problem with and I think the Supreme Court has effectively said in this case "well there's not really much you can do about it." Well fine but maybe not legally is this something that you can find a remedy to but one would think in terms of a public policy position, it would be a good idea if Department of State was transparent as to the reasoning behind why they deny applications for visas. What's wrong with that? That's good public policy; that's a good idea. In any event, quoting further: "Asencio-Cordero has denied any association with any gang and has no criminal history. The tattoos, including Our Lady of Guadalupe, theatrical masks and a profile of psychologist Sigmund Freud,.." I wonder what Freud has to do with Latin gangs, but okay. Quoting further: "..instead expressed his intellectual interests and Catholic faith, his lawyer said in court papers." Now it's interesting here because the quote: "The US 9th Circuit Court of Appeals sided with Muñoz and ordered the State Department to share the reason and reconsider the visa application. That ruling was tossed out by the Supreme Court after the State Department appealed." Let me just say I actually agree with the Supremes on the underlying holding which is "yeah sorry the Consular Officers get to make these determinations and the Courts will tend to defer to them". That said, I think it's worth noting, I think that the State Department should have to share and show full transparency with regard to the "why" of the denial. Now I get that they can deny and not be reviewed but again my answer in this would have been yeah, I'm not letting that person back in. They already were in the country illegally. I wouldn't even get into this analysis of tattoos and things of this nature.

Now again I don't know the facts in the underlying case and maybe this person was in for example Duration of Status the entire time they were in the United States and then maybe you don't have necessarily a legal reason to find them inadmissible because they might not have "technically" been in violation with the law. But that said, again my bigger issue here is not that Consular Officers can deny Visa applications. My issue with all of this is and has been for some years that oftentimes Department of State personnel for whatever reason, I don't know if again they are afraid of some sort of confrontation, there's some sort of hubris involved, or they just ‘I don't care, I don't want to share. My reasons are my own” or something of this nature. If it is arbitrary and capriciousness I don't know, but again I don't have any problem with the notion and the Doctrine of Consular Non-reviewability but failure to give a reason, failure to cite the reasoning for a denial, I don't think that's acceptable.