We recently finished an engagement that started as a mandamus lawsuit to compel the adjudication of a long delayed family petition on behalf of a US citizen mom to bring her 7 year old child to the US. The mandamus lawsuit was successful and compelled a decision. Unfortunately that decision was refusal under INA 212(a)(3)(B). In other words, the Department of State was refusing a visa for a 7 year old on the basis of providing material support to terrorism. Hard to believe, but true.
At that juncture, the case morphed into a potential litigation where we would have to challenge the refusal and, in the process, overcome the doctrine of consular nonreviewability. In much of the existing case law, courts are reluctant review consular decisions for error except in some narrow circumstances. This is starting to change, but it is still a major hurdle.
Fortunately, the mandamus lawsuit allowed us to build a sympathetic channel of communication and some rapport with the AUSA that defended the mandamus case. Our negotiations with her (coupled with a thorough demand and legal brief) allowed for some face saving additional evidence to be provided to the consulate and the refusal to be reversed before needing to file another complaint. The child is now on his way to America. The AUSA deserves some credit for this result as well.
To me, the main takeaways are:
1) While challenging, consular denials CAN be reversed if the consulate gets things egregiously wrong. If you have a denial that seems wrong, run it by an attorney that has experience in this area before accepting the result. The recent Munoz decision in the Ninth circuit gives even more reason to be hopeful in the face of a consular denial.
2) Cases like this make immigration litigation a great area to practice. This lawsuit positively changed the lives of an entire family, especially the child. What a job when you get to play a small role in helping that happen. I couldn’t be more grateful to the family that showed such tremendous trust in allowing my firm to be their advocate here and to the immigration lawyer that suggested they do so. Thank you.