Liberal Judges Meet Section 214b of the INA

By David Seminara, February 17, 2017

In upholding the suspension of Trump's executive order to temporarily ban refugees and travelers from seven predominantly Muslim nations, the U.S. Court of Appeals for the 9th Circuit isn't simply guilty of judicial overreach. It has also demonstrated a deep ignorance of U.S. immigration law, and how visa screening works at an operational level at embassies and consulates around the world. It appears as though the Trump administration will unveil a new executive order, perhaps as early as next week, but this shouldn't be necessary and I'm afraid that the courts have now established a very dangerous precedent by conferring due process rights for citizens of other nations who have never before had them.

As a former consular officer with extensive experience interviewing visa applicants, I had broad powers to issue or refuse foreign nationals applying for various types of non-immigrant visas, including tourists, students, prospective exchange visitors, performers, and so on. Before being sent off to screen visa applicants at embassies and consulates around the world, every Foreign Service Officer (FSO) takes a class called CON-GEN. One of the first things new consular officers are taught in this class is about Section 214 (b) of the (1952) Immigration and Nationality Act (INA.)

Section 214b states "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 nonimmigrant status." This section of the law gives consular officers wide latitude to refuse any applicant who cannot overcome the presumption that he or she intends to immigrate (i.e., remain illegally after the temporary permission to stay has expired). The law places the burden of proof squarely on applicants — meaning that they are guilty until proven innocent, rather than vice versa.

214b is so legendary among consular officers that it is often used as a verb, as in "I didn't believe the guy, so I 214b'd him." 214b is by far the most common reason non-immigrant visa applicants are refused; in 2015, more than 2.2 million applicants from around the world were refused under this provision of the law. It's important to stress that consular officers do not need to prove that the applicant intends to violate U.S. laws in order to refuse them under 214b. The decision is typically made based upon the totality of the person's situation and their likelihood of overstaying their visa. But an applicant can also be refused if they appear to be evasive or come across as dishonest.

Refused visa applicants can write letters of complaint, and try again if they want to, but there is no appeal and they have no "due process". The fee they paid to apply is not refunded even if they don't get the visa. Despite having a tremendous amount of discretion, do FSOs abuse this power? The answer is largely no, and, in fact, I have long argued that non-immigrant visa issuance is far too lax. (The fact that about half of the illegal immigrant population in the United States is visa overstayers bears this out.) Refusal rates vary from year to year and post-to-post, but, even though the law is stacked against applicants, the global refusal rate for tourist visas is only about 25 percent. And remember that citizens of the world's richest countries come here under the Visa Waiver Program, so they aren't included in these tourist visa stats.

Even though refused visa applicants have no due process or right to appeal, many posts have to hire dedicated staff who do nothing but respond to letters and emails from refused visa applicants, their friends and relatives, and, often times, the congressional representatives of their U.S. contacts. Now, imagine if these interested parties — it could be a U.S. citizen with a girlfriend overseas, an American university that is aggrieved because a prospective student was refused, or any American with a contact or friend abroad — were allowed to sue in a U.S. court because their foreign contact was refused a visa. Take a look at these excerpts from the court decision:

The procedural protections provided by the Fifth Amendment's Due Process Clause are not limited to citizens. Rather, they "appl[y] to all 'persons within the United States, including aliens,' regardless of 'whether their presence here is lawful, unlawful, temporary, or permanent.'" These rights also apply to certain aliens attempting to reenter the United States after travelling abroad.

They also include "non-immigrant visa holders who have been in the United States but temporarily departed or wish to temporarily depart" (such as foreign nationals working in the U.S. or attending American universities) and "applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert."

I can confirm based upon my experience as a consular officer that this broadly worded language could apply to millions of foreign nationals from all over the world. We think of tourists in the classic sense — people who stay in hotels, rent cars, and see the sights. But in my career, I found that an overwhelming number of visitors coming from developing countries aren't tourists who have no connection to anyone here. Most simply don't have the resources to stay in hotels and incur those costs. Most are coming here because some interested party in the United States wants them to come. They stay with a friend or relative, and often arrive for a specific purpose — to visit a college or university, look for a job, and so on. And so, in most visa cases, the applicant has an existing "relationship with a U.S. resident or institution" that could confer due process rights for them.

U.S. embassies and consulates around the world already struggle trying to respond to the inquiries from refused applicants and those in the United States who are disappointed by their visa refusal decision. But conferring due process rights on foreign visa applicants and their American contacts, and perhaps allowing Americans to sue in order to try to overturn non-immigrant visa refusals, would create chaos and would cost U.S. taxpayers a fortune.

Most U.S. embassies and consulates around the world have what they call "American citizen services" hours whereby Americans can come into the consular section and talk to an FSO about anything they want. It's fairly common for Americans to come in during these hours to complain that a friend, relative, or colleague had a visa application refused.

I have fielded many such complaints, and I always gave the American citizen a printed copy of section 214b. I would explain this provision of the law, and some Americans would express shock, occasionally saying things like, "But my taxes pay your salaries here! I can bring over whomever I want," or similar sentiments. I sincerely hope that my former colleagues never have to respond to similar complaints by telling the American citizen, "Well, you could sue us if you like."