Foreign nationals may be denied immigration benefits based on mere allegations. Or, where do you go to get your reputation back? Part I.
You may be denied entry to the US based on mere allegations. This may come as a complete shock and surprise, because you may believe you have a clean record. However, if the US government suspects you of a wide range of activities or associations, your visa, entry or adjustment to permanent residency may be denied. What can you do under such circumstances? Or, where do you go to get your reputation back?
It may surprise you, but you may be prevented from entering the U.S. or getting a green card based on mere allegations, even if you have no criminal record. The U.S. State Department may deny your visa application, or CBP (Customs and Border Protection), may deny your entry into the U.S. without you being informed fully of the facts on which they base their denial. If you are already in the U.S., USCIS may deny your adjustment to permanent residency.
There are a number of grounds of inadmissibility (meaning, you are barred from entry to the U.S.) in the INA (Immigration and Nationality Act), which are based on mere suspicion or feared future behavior, although you may have no prior arrest record.
For example, anyone who the Consular Officer or the US Attorney General (the Department of Justice, and also includes Department of Homeland Security):
1) “knows or has reason to believe” is a drug trafficker or has aided drug traffickers, as well as the close family members of drug traffickers;
2) “knows or has reason to believe” has engaged or will engage in money laundering, or an aider or abettor of money launderers;
3) “knows, or has reasonable ground to believe, seeks to enter the” US to “violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information”;
4) Suspected of being a gang member is included under “knows or has reasonable ground to believe” seeks to enter the U.S. to engage in “any other unlawful activity”;
5) An alien whose entry or proposed activities in the US, the US State Dept “has reasonable ground to believe would have potentially serious adverse foreign policy consequences”.
This is a partial list of basis for which a foreign national may be inadmissible to the U.S., based on “reason to believe” or a “reasonable ground”, will not be allowed to enter the U.S., or even if already in the U.S., not allowed to adjust status to permanent residency.
How to deal with these very nebulous grounds for denial of your immigration application when the US government is not providing any factual basis, or extremely minimal factual basis for the denial?
First, is the difficulty obtaining details of the allegations or any purported evidence against you. If the US Consulate has denied your visa, and you do not have the basis for the denial in writing, you may request a written denial. USCIS when denying an application for adjustment to permanent residency may provide some minimal factual basis without providing any of the details.
The foreign national in such a situation may file FOIA (Freedom of Information Act) requests with all the DHS agencies and the US State Department, but even so, the responses are likely to be less than adequate with the various agencies claiming exemptions to FOIA and responding by a file with large numbers of the pages totally or partially blanked out, and so one does not receive any of the information one was searching for.
Second, is the difficulty of pinpointing the source of the derogatory information. This is because of the multiple databases to which the US State Department and DHS have access.
For just one example, if one is accused of association with a gang, there are myriads of local, state and federal databases that may be the source of the denial. ICE’s Homeland Security Investigations’ (HSI’s), National Gang Unit (NGU) develops intelligence on gang memberships, associates, activities and international movements.
The FBI runs the National Gang Intelligence Center (NGIC), which integrates intelligence from federal, state and local law enforcement. Alcohol, Tobacco and Firearms (ATF) is another federal agency with a gang database.
GangNet is another gang database that contracts with state and federal agencies in the US as well as Canada, and has personal information about suspected gang members, such as street address, physical description, identifying marks and tattoos, photos and nationality, etc.
Because this plethora of federal agencies is vacuuming up information from local police and other authorities both within the US and abroad, it may be extremely difficult to locate the source of the allegations against a person seeking admission into the US., or looking to obtain their green card.
The criteria for being included in a gang database is often very broad. For example, in California, a person “identified as a gang member by a reliable informant/source”, or “identified as a gang member by an untested informant” or seen frequenting gang areas or affiliating with gang members, may be included in their gang database. Thus, many young men from minority neighborhoods may be included in gang databases simply because they reside in or have to walk through the same neighborhoods, where there are gang members.
Persons included in gang databases are not provided notice or a way to challenge the determinations, and many databases do not purge information after the statutory period. Many people are included due to error by police or government workers.
Additionally, many databases have information on persons who have never been fingerprinted, and so it is not possible to show that there is no match with the individual for whom they have derogatory records.
Third, the foreign national will have to engage in a long and arduous process, first disputing the supposed information with whichever agency or department had initial responsibility and then proceeding up the chain of command. For example, if a visa is denied, the first step is following up with the US Consulate, and if that is not successful, then requesting a legal opinion from the US Department of State’s Visa office for a legal advisory opinion.
Fourth, after what is called “exhaustion of administrative remedies”, the foreign national may file a complaint in federal court. Exhaustion of administrative remedies just means you have tried your best to resolve the issue with the agency, and pursued any appeal. In federal court, you may include all related claims, so for example, in addition to challenging the denial of a marriage petition under the Administrative Procedures Act, you may also include a FOIA claim, if DHS failed to provide the entire file along with the derogatory information. If you have a good case, the U.S. Attorney’s Office may want to settle with you, and you may be able to get the result you wish.
If the foreign national is outside the U.S., he or she will need the US petitioner to file in federal court on their behalf, and it will be much more difficult to obtain a positive result, because of the doctrine of consular nonreviewability. For example, in the U.S. Supreme Court case, Kerry v. Din, 576 U.S.__ (2015), the wife, Ms. Din, filed on behalf of her husband in Afghanistan, who was denied an immigrant visa, with no explanation other than 8 U. S. C. §1182(a)(3)(B), the inadmissibility provision for “terrorist activities”. In that case, the husband knew the factual basis for the denial, because he himself had admitted to the US Consular Officer that he had worked for the Taliban as a clerk. Justice Scalia wrote the plurality opinion, which held that Ms. Din had no protected liberty interest in their marriage, and that the notice she received regarding why the visa was denied was sufficient. The Ninth Circuit, in Cardenas v. United States, 826 F.3d 1164, has held that Justice Kennedy’s concurring opinion in Kerry v. Din controls, and that all the US State Department has to give for a denial is a “facially legitimate and bona fide reason”. Of course, the Din case is different, because it was not just an allegation, but rather was definitely true and was admitted to by the applicant himself.
So, the best strategy for someone outside the U.S., may be to try to find the source of the incorrect allegation, and have it corrected.
Applicants who are already in the U.S. are in a much stronger position to contest their cases in federal court. We will further discuss this topic in Part II.