These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
visa petitions
The Supreme Court has determined that federal courts lack jurisdiction to review the agency’s revocation of an approved visa petition. In so doing, the Court indicated that the revocation statute defines a purely discretion decision by the agency - that the agency is not obligated to revoke the approval of a petition that was approved in error.
The full text of Bouarfa v. Mayorkas can be found here:
The Board of Immigration Appeals (BIA) rejected U.S. Citizenship and Immigration Services' (USCIS) unofficial rule that any birth certificate registered more than one year after the subject's birth is insufficient to establish the family ties of the person. "Even if a birth certificate does not reflect that its registration was contemporaneous with the birth, an adjudicator may conclude that it is sufficiently reliable to establish parentage, depending on the circumstances. In making this determination, the adjudicator should consider all relevant factors, including, but not limited to, (1) information in the FAM regarding the availability and reliability of birth registrations in the country of birth during the time period at issue; (2) the length of time between the birth and the registration; (3) any credible explanation proffered by the petitioner as to the personal, societal, or historical circumstances that prevented a particular birth certificate from being registered contemporaneously, and any evidence in support of that explanation; (4) any credible explanation for why a particular birth certificate was lost or destroyed; (5) any evidence that the parental relationship was independently corroborated prior to the registration of the birth; (6) the length of time between the birth registration and the filing of the visa petition; and (7) information regarding whether the document was based on facts that were contemporaneous with the birth or on facts that were more recently established."
The BIA also enumerated the following of secondary evidence that a petitioner may submit to establish his or her relationship with a sibling beneficiary: (1) governmental, medical, religious, school, financial, employment, insurance, or residential records that reflect the names of the parent(s) and child; (2) family photographs with notations indicating the persons photographed, as well as the date and place they were taken; (3) correspondence, preferably with the original envelope, showing the date written and referring to the parent(s) and child; (4) affidavits by persons who have personal knowledge of the birth; and (5) the results of DNA testing conducted in a prescribed manner, as explained to the petitioner by USCIS. Given the advances in DNA testing in recent years, the USCIS should encourage petitioners to pursue this option, particularly if little other secondary evidence is available. Secondary evidence that was created contemporaneous with the birth will be the most persuasive.
The full text of Matter of Rehman can be found here:
Typically, a child adopted by a U.S. citizen seeking to be classified as the immediate relative of that citizen for the purpose of procuring an immigrant visa must be legally adopted before the age of 16. In a decision issued last week, the Board of Immigration Appeals determined that it would give effect to adoption decrees entered after a child's 16th birthday, but retroactively dated to a time prior the child's birthday, so long as state law permitted such a retroactive decree and the initial adoption petition was filed in the appropriate state court before the child's 16th birthday.
The full text of Matter of Huang can be found here: http://www.justice.gov/eoir/file/627476/download
Din is a U.S. citizen, married to an Afghani national. Din filed an immigrant petition on her husband's behalf, which was approved. However, when Berashk (Din's husband) went to the U.S. consulate, his request for an immigrant visa was denied on account of the State Department's determination that Berashk had engaged in terrorist activities. The consular officer did not provide any further details as to how that determination had been reached. Din sued in federal court, alleging that the consular official's decision (and failure to adequately explain that decision) impinged on her constitutional right to live with her husband in the United States. The Supreme Court determined, unfortunately for Din, that there is no such constitutional right.
The Court first addressed whether the denial of Berashk’s visa application deprived Din of any life, liberty, or property interests. "Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the [] historical understanding [of the Fifth Amendment right to due process], a claim that it deprived her of liberty is equally absurd. The Government has not 'taken or imprisoned Din, nor has it 'confine[d]' her, either by 'keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.' Id. Indeed, not even Berashk has suffered a deprivation of liberty so understood."
Din had specifically alleged that her liberty interest in her marriage, her right of association with her spouse, her liberty interest in being reunited with certain blood relatives, and her liberty interest as a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on her right to live with her spouse had been violated by the consular official's determination. Turning to the question of whether any of Din's fundamental rights had been violated, the Court acknowledged that "Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest. She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Government must first provide her a full battery of procedural due-process protections."
The Court determined that nothing in its jurisprudent "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship." Moreover, "a long practice of regulating spousal immigration precludes Din’s claim that the denial of Berashk’s visa application has deprived her of a fundamental liberty interest."
Finally, the Court concluded Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.
Justice Kennedy, concurring with plurality opinion, would not address whether Din has a fundamental right that is implicated in the immigration process of her husband, but would instead decide that any due process rights she has were satisfied by the process provided by the consular official (i.e. the denial notice stating that he had participated in terrorist activities).
The full text of Kerry v. Din can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf
