USN&WR - DHS Seeks Sanctions on Countries that Refuse Deportees

Alan Neuhauser at U.S. News & World Report (" a multi-platform publisher of news and information") did a nice job of laying this out:

Money quote(s):

"immigration authorities have been forced to release people who are in the U.S. illegally because their home countries declined to issue the necessary travel documents for their return"

CAA commented on another article that was more specific but this one does a better job explaining the whys and hows.

"Lapan would not identify which nations are facing sanctions, but they are among a list of 12 so-called "recalcitrant countries" identified by DHS: Burma, Cambodia, China, Cuba, Eritrea, Guinea, Hong Kong, Iran, Laos, Morocco, South Sudan and Vietnam.

The letter from DHS could effectively suspend travel to the U.S. from the four designated countries. Section 243(d) of the Immigration and Nationality Act requires the State Department to stop granting travel visas in recalcitrant countries when it such a request to do so from the Homeland Security secretary."

CAA gathers there's quite a bit of back and forth between DOS and DHS as to precisely how each country's visa sanction will shape-up in practice, tailoring it to the circumstances.

"Countries can get removed from the list if they cooperate with U.S. efforts. Iraq, for example, was on a list of some 22 countries considered recalcitrant, but it was removed after high-level government negotiations led to an agreement to again begin accepting deported nationals, Lapan said."

It's unfortunate when you have to use a club like this to leverage another country into action, but if you get a record and a reputation for doing it from time to time, simply the threat will come to suffice as a motivator.  Inaction on the part of these countries was a product of their years of experience in us not acting.

re: "The "Natural Born Citizen" Issue Rides Again: Revisiting Wong Kim Ark"

Kepha at Uncle Cephas (" A blog devoted to an American's ramblings on religion, culture, and politics. ") revisited the "birther" issue, but with some legal inaccuracies.

Money quote(s):

"Once again, in questions posed to candidate Rick Perry, the issue of whether or not President Barack Obama is a "natural born citizen" has surfaced. It strikes me that the birther movement, our conservative answer to the truthers, has gone out of control and has derailed many.

I have said before that to prove that President Obama is not a "natural-born citizen" would require proof that his mother, Stanley Ann Dunham, was not a US citizen with eligibility to transmit citizenship, even if, by some hook or crook, it could be proven, as Obama's grandmother claimed,that Barack Obama, Jr. was indeed born in Mombassa, Kenya. Never, to my knowledge, has the birther movement offered statutory or case law proof that "natural-born" means anything other than being born a US citizen by either jus soli or jus sanguinis." (Bold typeface added for emphasis. - CAA.)

Mrs. Barack H. Obama, Sr. (née Dunham) was a U.S. citizen, which no one (to my necessarily incomplete knowledge) disputes.

However, Uncle Cephas' knowledge of current U.S. nationality law does not take into account what the requirements necessary to transmit U.S. citizenship as the law existed prior to amendment in 1986.

And since Pres. Obama was born some decades prior to 1986, this puts the hypothetical question into a different perspective.

"Wong Kim Ark (the Hoisan Yue pronunciation of Huang Jinde) was born in San Francisco, Chalifornia, to Chinese parents who were not naturalized as US citizens. His return to the US after a youthful visit to China was not questioned, even after passage of the Chinese Exclusion Act of 1882, due to his birth in the USA. However, in 1895, after returning from another trip to China, he was detained at San Francisco due to the fact that his parents remained subject to the Emperor of China, and were not citizens at the time of Wong's birth in the 1870's. Wong therefore sued for habeas corpus.

His case ultimately reached the US Supreme Court, which, in 1898, ruled in a 6-2 decision that Wong was indeed a US citizen. It was observed that his parents had been involved in commerce rather than official business on behalf of the emperor of China; that they were legally in the USA during the 1870's; they were subject to the jurisdiction of US law (the language of the 14th Amendment); they clearly were not connected to a hostile occupying power in wartime; and that they were clearly not of a recognized Indian tribe (then theoretically their own jurisdictions and separate "nations" rather than officially part of the USA). Wong's citizenship later became the basis for allowing three of his own sons born in China whose relationships could not be questioned to enter the US during the period of Chinese Exclusion (in those days, many Overseas Chinese maintained wives in their ancestral places in China, and only occasionally visited)." (Bold typeface added for emphasis. - CAA.)

This was a very nice two-paragraph summary of the Ark case, which had an extremely determinative impact on the subsequent interpretation and implementation of U.S. nationality law.

"(T)he USA, as an independent power, had the right to establish its own rules for citizenship."

Yer darn tootin'!

This is something I've had to explain more than once, usually in conversation with those who think that the actions of Pres. Obama's Indonesian step-father, Mr. Soetoro, somehow tainted or obviated the president's standing as a U.S. citizen.

Repeat after me:

Other countries don't get to tell us who our citizens are.

Obama's step-father, no matter what his actions, had no legal right under U.S. law to do anything which would have altered the citizenship status of his American citizen minor child step-son in the slightest sense.

"The Wong case has long been understood to ensure the jus soli citizenship of children of legal immigrants or other foreign parents not in diplomatic or visiting head of state status (the children of foreign students, for example). Indeed, in view of the language of the 14th Amendment, which defines those born in the USA and under the jurisdiction thereof, it is very hard to justify the denial of citizenship to such persons.

The issue of whether the Wong decision allows the US-born children of those illegally in the USA to be counted as citizens has been disputed in legal journals. However, until now, it does not seem that the citizenship of US-born children of illegal immigrants has been challenged either by statute or case law." (Bold typeface added for emphasis. - CAA.)

There's a case, at least politically if not judicially, to made that illegal aliens, as unlawful invaders intent on evading U.S. law in most respects (except where it is to their benefit), aren't really under U.S. jurisdiction in a way meaningful enough that their U.S.-born children deserve American citizenship.

(It might fly, or it might not.)

"As for our president, it seems that as the US-born child of a US citizen parent (Stanley Ann Dunham), Barack Obama's citizenship cannot be questioned; and it is unlikely that anyone would be ready to deny citizenship to countless out-of-wedlock children sired by visiting foreigners (tourists, students, etc.) and born to US citizen mothers. Further, given that the requirements for jus sanguinis citizenship to children born abroad to US citizen parents (the citizen parent needs to have been resident in the USA for five years, two of which have to have been over the age of fourteen years) would have guaranteed Obama citizenship even if Stanley Ann Dunham had given birth to him on a trip to Kenya." (Bold typeface added for emphasis. - CAA.)

See above.

Under INA Title III "Nationality and Naturalization," Sec. 301g (8 U.S.C. 1401), which applies to persons "born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States" the U.S. parent had to have completed a "required period of United States residence" of ten years, at least five of "which were after attaining the age of fourteen years."

The problem with the Dunham/Obama hypothetical is that the former-Miss Dunham was not yet nineteen years old when Pres. Obama was born, so that it's mathematically impossible for her to have resided anywhere for five years after her fourteenth birthday.

10/28

re: "Barack Obama: Anti-Terror Warrior?"

MikeM. at Confederate Yankee ("Because liberalism is a persistent vegetative state.") still has a liberal friend (or two).

Money quote(s):

"(H)e was also exercised that al-Awlaki, an American citizen, was not given a proper civilian trial before being executed. Irony challenged, my acquaintance.

As to Awlaki's citizenship, the facts are clear. Awlaki was an American citizen, but a citizen who took up arms against America. We know this because he explicitly told us, many times, that he was at war with America. We know that he was a top enemy commander and that he was directly involved in the planning and execution of attacks against America, American interests and Americans, attacks resulting in American deaths, the Fort Hood attack being only a single example.Arguably, this would make Awlaki guilty of treason, and if captured, he could be tried for that offense. However, capture and trial were not required for one very powerful and well understood—legally speaking—reason: we are at war.

It is hard for most Americans to understand this simple fact: we are at war and have been since at least the first attack on the World Trade Center on Feb. 26, 1993 and probably since the Islamic takeover of Iran in late 1979. Because most Americans have to make no sacrifice, because the ongoing war does not disrupt or directly affect their lives in any way, the very concept of war seems a matter of semantics, a debating topic, not a deadly, personal or national reality. We will almost certainly be at war for a generation or more. We may not consider ourselves to be at war with our Islamist enemy, but he does not share our peaceful convictions.

In war, our declared enemies may be killed whenever and wherever they are found. This simple fact does not change because of the nationality of the enemy. This too is a well-settled fact of law. There are no clear demarcation lines on a worldwide battlefield. Americans have, in past wars, gone over to the side of America's enemies and have as a result become indistinguishable from any other enemy soldier or leader. We have killed them when necessary and captured them when possible. When captured they were tried by military commissions." (Bold typeface added for emphasis. - CAA.)

These are facts, stated plainly and without adornment. It pains me how many of my fellow citizens, even some of my FS colleagues, seem not to understand them.

"Some have suggested that due to the unique nature of our current world wide conflict, the Congress should enact standards for stripping Americans of citizenship so that they may be killed without trial when acting as an enemy of America, but this is unnecessary and likely designed to impede rather than assist America in her war fighting efforts. American and international laws and standards are quite clear on all of the issues involved and have been since the early 1900s."

Standards already exist for expatriation (i.e., loss of citizenship) as part of the public law, incorporated as part the Immigration and Nationality Act of 1952. I'm sure I don't understand why this hasn't been utilized, but I'm not sure it's ever even been considered in cases like these. Perhaps the legal bar is simply too high, would provide a public soapbox for avowed enemies of the U.S. as they (or their lawyers; i.e., lawfare) appealed such measures, and it's purely simpler (and just as legal) to kill them.

10/2

re: "The Margins of the Upper Limits"

Sass and Sweet ("In Search of a Better Exchange Rate... Observations about life as a Diplomat.") has finished her consular assignment.

Money quote(s):

"I *love* Visa work. I find it fascinating. I enjoy the contact with different people from different walks of life. One of my co-workers self-refers to himself as a "rules based life form". I get that. I like doing a job where I can "interpret the law"."

That is kind of cool. There's the law. 8 U.S.C. The INA. There's the Foreign Affairs Manual (FAM). Plus Department cables providing explanatory guidance.

But "at the end of the day," it's just you, your understanding of the laws and regulations, the visa applicant, and your assessment of how that person's (and you should never forget that applicant's personhood and individual dignity) unique situation and purpose of travel. So it comes down to exercising your powers of judgment.

Sass goes on to provide some humorous indicators.

"You know you're on your home stretch when....

1.) Every time you ask someone why they are travelling to the US and to explain their plans - and they answer: "to travel" - you begin to imagine having a red button next to your desk which, when pushed, opens up a shoot below the applicant leading to a shark pond.

2.) Every time you ask someone about their previous refusal they answer: "not enough document" - you begin to imagine a red button next to your desk which, when pushed, opens up a shoot below the applicant leading to a shark pond.

3.) Every time you ask someone to describe the work they do they answer: "business" - you begin to imagine... well, you get the idea.

4.) Every time the "interpreter" refuses to interpret because they think the question is dumb - you begin to imagine ......

5.) Every time someone says "that [crime] shouldn't count, I'm only going to Vegas..."

6.) Every time someone says ...

Ok, I'll stop now - I think I've reached the burn out point and it's time for a break. Plus, I'm committed to following and obeying the law - I suppose "dropping people into shark pits" is probably outside the bounds of the law.

I will absolutely miss Visas. Probably. Maybe. Someday. (Oh, I will - they are in my blood....) - but not for a while."

We used to say that it's a good thing the bullet-resistant windows work both ways.

WT - LETTER TO THE EDITOR: Don't issue visas to terror-group supporters

From my archive of press clippings:

Washington Times

LETTER TO THE EDITOR: Don't issue visas to terror-group supporters

Friday, February 26, 2010

All of the Sept. 11 terrorists and the Christmas Day bombing suspect were issued visas by U.S. consular officers in the Middle East or Europe.

Read the whole article here.

Snippet(s):

"Before the Immigration Act of 1996, foreigners who were a security risk were denied tourist, student and business visas to the United States. This 1996 legislation was enacted into law by members of both major political parties and signed by the president.

Sponsored by the late Sen. Edward M. Kennedy, who wrote immigration legislation for 40 years, the Immigration Act stated that "mere membership" in a terrorist organization was not a sufficient basis for denying an applicant a visa. On June 10, 2002, then-Deputy Secretary of State Richard Armitage wrote that believing "an applicant may pose a threat to national security ... is insufficient grounds for a consular officer to deny a visa to an applicant.""

_____

MARGARET NAST
Las Cruces, N.M.

CT - Pall lifts along with AIDS travel ban

From my archive of press clippings:

Chicago Tribune

Pall lifts along with AIDS travel ban


Patients, families cheer lifting of U.S. AIDS travel ban

By Bonnie Miller Rubin Tribune reporter

December 1, 2009

Senora Desiree cries when she talks about her only son, who is HIV-positive. The fact that the 18-year-old has been barred from visiting Chicago only heaps humiliation on top of her pain.

Read the whole article here.

Snippet(s):"

"President Barack Obama recently announced that the 22-year-old ban on entry into the United States for anyone infected with HIV/AIDS will be lifted in January, making life a bit easier for mothers such as Desiree, who did not want her full name used because of the stigma of having an HIV-positive relative."

"(T)he Immigration and Nationality Act denied visas to anyone with a "communicable disease of public health significance," adding HIV to the list, alongside other travel-restricted conditions, such as tuberculosis and leprosy."

"The ban meant those with HIV and AIDS were not allowed to enter the U.S. and noncitizens already here could not stay, dividing families and upending lives.

While Immigration officials have granted special waivers to some people with the illness, the process is complicated and expensive, attorneys say.

Only about a dozen countries -- including Saudi Arabia, Iraq and Libya -- have similar HIV travel restrictions."

"The CDC, however, was required by statute to uphold the ban, said Cetron, director of the Division of Global Migration and Quarantine."

&

"The process started during the Clinton administration, but picked up momentum under George W. Bush, eager to build a legacy around his HIV work. As a candidate, Obama pledged to keep up the fight, culminating in the White House ceremony a month ago when it was announced the ban would end Jan. 4."

_____
brubin@tribune.com

re: "Not just visas"

Digger at Life After Jerusalem ("The musings of a Two-Spirit American Indian, Public Diplomacy-coned Foreign Service Officer") deconstructs Joel Mowbray's piece in the Washington Times.

Money quote(s):

"(I)ssuing the visa was the appropriate decision. However, even had State revoked the visa the moment his father raised concerns, this would not have affected his ability to get onto the flight because he still had in his passport a visa that looked valid. Airlines don't have access to our visa records for understandable security reasons, and we don't have DHS agents at every overseas airport in the world. So the first place that it could have been noticed that his visa had been revoked would have been at the U.S. border. and his attack occurred long before that."

Which doesn't fit Mr. Mowbray's normal default position of finding State at fault.

"When I took con-gen (the training course for consular officers), I was told that for tourist visas you start at no. All applicants are to be presumed to be intending immigrants until they can prove otherwise."

Under Section 214(b) of the Immigration and Nationality Act of 1952 (as amended), every applicant for a non-immigrant visa (NIV) must be considered to be an intending immigrant (and thus inelible to receive a non-immigrant visa) unless they convince the interviewing consular officer of their qualifications and non-immigrant bona fides. Period.

There are specific categories of NIV where this doesn't apply (such as fiancee visas for persons who're traveling to the U.S. in order to marry their U.S. citizen intended and who will adjust status to Legal Permanent Resident once the ink's dry on their marriage certificate), but for tourism and business travel it's square one.

"I think this is the default position for every officer working the visa window, especially those of us who joined after 9/11. Because no one wants to be part of letting that happen again. We all jumped through a lot of hoops to join the Foreign Service because we love this country and wanted to serve it."

re: "The Art of the Visa Adjudication"

NoDoubleStandards at Calling a Spade a Spade ("Rants of a Foreign Service Officer on the things that matter to you -- and matter to you not at all") provides some insights into visa interviewing.

Money quote(s):

"I've heard consular officers deny they profile visa applicants; then, when they describe exactly how they adjudicate, you're left with the impression that profiling is exactly what they're doing."

"I don't ask a single question I don't already know the answer to. Why? Credibility. I don't care how much an applicant makes, how often he's traveled or what kind of dirt he has under his fingernails. My sole concern is this: is the applicant in front of me going to return to his country of residence when he says he will."

This is true, but only in terms of overcoming the presumption of being an intending immigrant, "two-fourteen-bee" in other words (referring to Section 214b of the Immigration and Nationality Act). There are lots (and lots) of other grounds for visa ineligibility, ranging from everything from being a public charge to having committed crimes of moral turpitude, but this is far and away the most common grounds for visa refusal.

"The vast majority of documents provided aren't material to the adjudication, in any case. If I make a show of reviewing the documents before rendering my decision, it's because I'm heading off an inquiry at the pass: "The officer didn't even look at my documents.""

If a document can be forged (and just about any document can be forged), it has been forged. Or be genuine but chock-full-o' false and misleading information, because the issuing authority was bought or otherwise corrupted.

"How can any human being make an accurate snap judgment in two minutes? You wouldn't think it was possible, but it is. I wish I had a dollar for every time I refused an applicant who earned a great salary and demonstrated a sound travel history, and I was later provided with derogatory information. Why did I refuse these guys? Primarily ambiguity regarding purpose of travel. I don't give a damn what you make or where you've been. Post 9/11, if you can't tell me EXACTLY what you'll be doing in the U.S., I won't issue you a visa. I don't have that luxury."

&

"(W)hen you look at the percentages, I and my colleagues are good, very good at what we do. This is why post-9/11 discussions over removing the visa function from State and giving it to DHS were so misguided. You can't replace experience. You simply can't. Good consular officers develop these skills over years and thousands of interviews; you can't teach these skills, to a large extent, through classroom simulations. They have to be developed through experience. And let me suggest this: if you could teach it in a classroom, it would be much easier for terrorists to break it down."

The obvious objection to the immediately above is the 9/11 hijackers. Bear in mind that prior to 9/11, not every visa applicant was required to have an interview with an adjudicating officer. That has changed. There are vanishingly few exceptions to the interview requirement nowadays, and it'll be important to hold that line when, as will inevitably occur, someone promotes the idea that it's a waste of resources to interview all those applicants.

Don't fall into that trap.

S&S - Widow’s residency battle hits little snag

From my archive of press clippings:

Stars and Stripes

Widow’s residency battle hits little snag

Officials: Proxy marriage never consummated, therefore it’s not official


By Natasha Lee, Stars and Stripes


Pacific edition, Sunday, January 25, 2009


The Japanese widow of a slain Marine and new mother to the couple’s 2-week-old son faces another speed bump in seeking U.S. residency after the government denied her petition, saying the marriage wasn’t legal, her husband’s family said.

Read the whole article here.

Snippet(s):

"U.S. immigration officials said since the marriage by proxy between Hotaru Ferschke, 24, and Sgt. Michael H. Ferschke Jr., 22, was never consummated, it was never official, the Marine’s mother, Robin Ferschke, said Friday.

Hotaru Ferschke’s application was denied in November, stalling her plans to raise the child in Tennessee, her mother-in-law said."

&

"Michael Ferschke, a team leader with the 3rd Reconnaissance Battalion, 3rd Marine Division, had been in the Middle East about a month when the couple learned in May that Hotaru was pregnant.

The couple were married by proxy July 10 during Michael Ferschke’s deployment in Iraq.

One month later, Michael Ferschke was killed during door-to-door searches in a town north of Baghdad.

The couple’s son, Michael "Mickey" H. Ferschke III, was born Jan. 7 at a Japanese clinic near Kadena Air Base."

"Under the U.S. Immigration and Nationality Act, marriage by proxy must be consummated to be recognized for immigration purposes, said Kevin O’Connor, a consular officer at the U.S. Consulate in Naha.

Approval for such visas and green cards is granted by the U.S. Department of Homeland Security, he said."

__________

NOTE: See a subsequent article here for a happier update.

T&TE - Pregnant? No US visa

From my archive of press clippings:

Trinidad & Tobago Express

Pregnant? No US visa


Camille Bethel cbethel@trinidadexpress.com

Monday, December 7th 2009

Non-immigrant visa officers working out of the United States Embassy in Port of Spain were being trained, up to February of this year, to refuse visas to certain groups of applicants.
Among those who had virtually no chance of getting a visa were pregnant women, women who already had a child in the US, and locals going to America for job training.

Read the whole article here.

Snippet(s):

"The actions of the US Embassy officials were illegal, according to an internal inspection done by the US State Department’s Office of the Inspector General. The visa officers were told to follow US visa application laws.

The investigation was done over a two-week period from late January. The inspection took place shortly after former US ambassador to Trinidad and Tobago Roy Austin completed his tenure."

"The report detailed the daily operations of the embassy and commented on its strengths and weaknesses. The reported stated, ’Consular section management currently teaches non-immigrant visa officers to refuse visas to certain categories of applicants who should not be refused under visa law.’

It stated, ’Of special sensitivity are routine refusals for newly hired employees of known local and American companies going to the United States for training. These knee-jerk refusals have damaged relations with those companies, many of which do daily business with the embassy.’"

&

"’However, section 214(b) of the Immigration and Nationality Act clearly states that, ’every alien’ shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a non-immigrant status’, the investigators stated.

’Further,... if you determine an applicant is qualified under the law for a visa, that decision should apply to future trips as well. Suspicion that an alien, after admission, may be swayed to remain in the United States because of more favourable living conditions is not a sufficient ground to refuse a visa as long as the alien’s current intent is to return to a foreign residence,’ the report stated.

The inspectors stated that immigration officers should issue a visa based on an applicant’s travel intentions and not what the application might do in future."