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Effects and remedies for US visa denial, others

Minister of Justice, Abubakar Malami

The sovereign authority of nations to determine the classes of non-citizens ineligible to receive visa and/or ineligible for admission into its territory is generally a function of its immigration laws.

The United States of America has a robost corpus juris dedicated to regulating the terms and conditions for which aliens or non-citizens are granted visas or to have the visa revoked or denied entry into the US upon arrival. It is common knowledge that there has been a great surge in the numbers of non-citizens whose visas have been revoked either in home country or at the port of entry in the US on arrival.

The advent of Donald Trump on the wings of a campaign promise to clamp down on both legal and illegal immigration has unleashed a new zeal and vigour in the application and enforcement of the immigration laws. With Trump, a new Sheriff is really in town and the Nigerian travelling community are on notice with increasing numbers whose subsisting visas have been revoked at the US Embassy in Lagos and Abuja or at the port of entry on arrival in the US.

The situation became a matter of national embarrassment in the early days of the Trump’s administration that the hapless Nigerian government issued an advisory for Nigerian travelers to the US to rethink their trips and be prepared for the worst if they must take the risk to travel.

Cases abound of Nigerians with subsisting visas who are invited to the US Embassy and have their visas cancelled. In other cases, the visas are cancelled electronically with or without notice to the holder who may learn of this situation for the first time on landing in the US. Numbers are many of others who on arrival with a valid visa are denied entry, have their visas cancelled and made to depart the US. In many cases of cancellation of visa and/or denial of entry, the hapless alien is not given any or adequate information and is often left to speculate as to the reason, the consequence or remedy that may be available.

In most cases that an applicant is denied non-immigrant visa, the refused is anchored on Section 214(b) of the Immigration and Nationality Act (INA). This Section presumes that every applicant for non-immigrant visa intends not to leave the US. The burden is therefore on the applicant to overcome this presumption by providing evidence of sufficiently strong ties in Nigeria to satisfy the Consular Officer that only a short visit is intended. A refusal under Section 214(b) does not, on its own, carry any consequence of ineligibility and the applicant so affected can reapply at any time and will have the new application assessed on its merit.

Where a visa refusal is not based on Section 214(b), or where an existing visa is cancelled, or where there is denial of entry, the person so affected is likely in for a very bumpy ride because in such situations, there are often severe consequences, which often take the form of a period of time within which the applicant is placed on visa ban. This period of ban or ineligibility is often calibrated to range from 3, 5, 10, and 20 years, depending on the reason behind the decision.

In many cases, the period of ban is permanent and cannot be extinguished by passage of time. Thus whereas a person who overstayed his visa for a period of more than 180 days but less than 1 year is ineligible for a period of 3 years or a period of 10 years for overstay for 1 year or more, a period of permanent ban applies to those found to have engaged or attempted to engage in such activities including misrepresentation, alien smuggling, money laundering, human trafficking, terrorist activities etc.

In cases where a visa has been revoked, (not without prejudice) or visa denied for a reason other than Section 214(b), an applicant is best advised to seek the guidance of a competent person to find the best approach in the circumstance. A lot of the remedies often preferred by the uninitiated such as an appeal, a review, protest letter, petition, apology letter or some form of legal challenge are not likely to work and no number of reapplications would help. No connection with anyone, no matter how highly placed will help. There is no discretion in a Consular Officer in cases of a finding of ineligibility.

We are aware of cases of our citizens who are denied entry for reasons that are unsustainable and under circumstances that violate their human dignity. We are also aware that in many of such situations, the most basic tenets of natural justice are jettisoned as the officials of the Department of Homeland Security combine in themselves the tripartite role of accuser, prosecutor and judge. Often our compatriots are forced back into the plane after hours or days of harrowing detention and harassment. Many are not given any documentation in explanation of their situation. Those who are given such documentation often reject the answers ascribed to them and complain of being made to sign the Record of Proceedings without reading. The Immigration and Nationality Act gave wide powers to Consular or Immigration Officials to determine the fate of non-citizens and because their conducts and decisions are not generally challengeable or appellable have been known to be abused.

It is important to stress that a visa does not guarantee entry into any country that issued it. For the US, officials of the Department of Homeland Security who are authorized to administer the immigration laws can revoke the visa, deny entry and order the removal of any visa holder from the country. An arriving alien who is considered as a person of interest is usually put through a proceeding under Section 235(b)(i) of the INA. The DHS official would obtain a Sworn Statement from the arriving alien regarding his mission in the US. If the person affected is found to be inadmissible, then he will be liable to denial of entry and removed to his home country without a hearing and may be barred from recently for a period of 5 years or longer or permanent. The proceedings under Section 235(b)(i) does not give the affected person the privilege of a hearing and the decision is not open to appeal or a review. The US law provides protection to certain persons who face persecution, harm or torture upon return to their home country. Arriving aliens, who fear persecution, harm or torture upon return to their home country should express their concerns and the DHS would take this into consideration in deciding whether the person should remain in the US and possibly go through a proper asylum process.

Section 212 of the Immigration and Nationality Act made provisions for a long list of circumstances where a non-citizen is liable to have his visa revoked, is ineligible to be issued visa or liable to be denied entry into the United States. These include:
Applicants with communicable disease of public health significance
Convicts of crime of moral turpitude (other than a purely political offence)
Illicit traffickers in controlled substances
Practitioners of prostitution or commercialized vice.
Foreign officials guilty of serious criminal offences who have exercised right of immunity from US jurisdiction
Certain violators of religious freedom
Significant traffickers in persons
Money laundering offenders
Security and other related grounds such as espionage and sabotage.

OTHER GROUNDS OF INADMISSIBILITY INCLUDE:
Non-nationals present without admission or parole
Absentees at removal proceedings
False claimants to US Citizenship
Stowaways
Subjects of certain civil penalties
Student visa abusers
Any immigrant who is permanently ineligible to citizenship
Draft evaders
Any alien coming to the US to practice polygamy
Unlawful voters
Persons supporting abductors
Former citizens who renouned citizenship to avoid taxation

From records available to us, a majority of our citizens with cases of visa ban, or who have their visas revoked or who are denied entry in the US are caught in the web of the laws relating to
MISREPRESENTATION
OVERSTAYING
ALIEN SMUGGLING
INTENT TO SETTLE IN THE US WITHOUT APPROPRIATE IMMIGRANT VISA
MONEY LAUNDERING

Under Section 212(a)(6)(c)(i) “any alien who by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission into the United States or other benefits under this Act is inadmissible”. The scope of this law is very wide and covers amongst others applicants who used false/fake documents or information in seeking to procure a visa or admission into the country. A lot of our citizens who have entered or attempted to enter the US to give birth but who procured visas or secured entry for totally unrelated reasons have been charged for misrepresentation and declared inadmissible. As for Alien Smuggling, the law provides that “any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United State in violation of law is inadmissible”.

This law catches a lot of applicants who had attempted to assist others by passing them off as family members, as employees or other capacity that they are not. A finding for inadmissibility for alien smuggling is permanent, as the law does not provide for a waiver. Also caught in large numbers are those who at the port of entry are considered to be immigrants who are not in possession of valid unexpired immigrant visas. Thus if at the port of entry, an applicant who holds a regular B1/B2 visa is found to be with one way ticket or with documents such as CV, job offers in the US or such implicating documents or information, the natural conclusion would be that the alien intends to settle down in the US but not in possession of the appropriate visa. Visitors to the US must be prepared to explain their mission to the officials of the DHS because the slightest doubt could lead to visa revocation and ban on the claim that the alien is an intending to settle down permanently in the US.

The consequences of visa revocation, or denial of entry could be harsh. There are situations where visas could be revoked without prejudice. Thus the person concerned could reapply with assurance that the application would be treated on the merit. Severe consequences however follow in other cases of revocation or denial of entry on any of the circumstances listed in Section 212. The consequences come by way of long periods of time in which the person so affected is inadmissible. Unfortunately in many other cases, the period of inadmissibility is permanent. There are generally no appeal processes to challenge the propriety of the decision of US Immigration Officials. And this is poor indeed. Where a period of ban is imposed, it is the law that in appropriate cases, an application could be filed to seek the consent of the Attorney General to permit an affected person to reapply before the expiration of the ban. In other appropriate cases, an affected person could apply for Waiver of inadmissibility.

An application for Waiver of Grounds of Inadmissibility is an application for legal entry to the United States made by an individual who is otherwise inadmissible on one or more grounds. Many grounds of inadmissibility allow applicants to apply for a waiver. Different grounds of inadmissibility have different waiver requirements. Waiver application is complex and the success is anything but automatic. Not everyone can apply for a waiver. It is best for an applicant to consult with an experienced US Immigration attorney for the best outcome. Honesty, candour and full disclosure of information is advised in all dealings in quest for immigration benefit.

Onyeka is the founding Partner, Harvard Chambers, a leading Immigration Attorney in Nigeria.

In this article:
Abubakar MalamiINA
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