IJ,S. `,~171 ~J,, IN THE UNITED STATES DISTRICT

Transcription

IJ,S.’,~171
~J,,
IN THEUNITED
STATES
DISTRICT
COURtt~]ER?~!
[]?,~ i i’lC i ~ ’,’fl
FOR THE EASTERNDISTRICT OF WISCONSIN~- t t~ E D
JOCELYN ISADA BOLANTE
Alien No. 095 719 764
KenoshaCounty Detention Center
)
)
)
)
Petitioner,
)
)
V,
)
)
GLENN
TRIVELINE,Field Office Director,
)
Chicago, U.S. Immigration and Customs
)
Enforcement; DAVIDG. BETH,Sheriff of
)
Kenosha County; GARYPRESTON,Detention
)
Division Commander
of the KenoshaCounty Jail; )
MICHAEL
MUKASEY,
U.S. Attorney General;
)
MICHAEL
CHERTOFF,
Secretary of the Dept. of )
Homeland Security; and CONDOLEEZZA
RICE, )
U.S. Secretary of the State,
)
)
Respondents.
)
NOTICE OF FILING
To:
See Attached Service List
PLEASE
TAKENOTICE
that on August 14, 2008, we caused to be filed a Petition for
HabeasCorpus, a copy of whichis attached hereto, with the Clerk of the Court, United States
District Court for the Eastern District of Wisconsin,located at 517 East WisconsinAvenue,
Milwaukee, Wisconsin 53202.
AZULAYSEIDEN
LAWGROUP
Attorneys for the Defendant
205 North Michigan Avenue- 40th Floor
Chicago, Illinois 60601
Tel. (312) 832-9200
Case 2:08-cv-00698-CNC
Filed 08/15/2008
Page 1 of 45
Document 1
SERVICE LIST
Steven M. Biskupic
U.S. Attorneyfor the Eastern District
of Wisconsin
517 E Wisconsin Avenue, Suite 530
Milwaukee, WI 53202-4580
Michael Mukasey
U.S. Attorney General
10th & Constitution Ave. NW
Room 5111
Washington, D.C. 20530
Michael Chertoff
Secretary of the DHS
Office of General Counsel
Department of HomelandSecurity
David G. Beth
Sheriff of KenoshaCounty
100055th Street
Kenosha, WI 53140
Gary Preston
Detention Division Commander
of KenoshaCounty Jail
Kenosha County Detention Center
4777 88th Avenue
Kenosha, WI 53144
Condoleezza Rice
U.S. Departmentof State
2201 C Street NW
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Document 1
IN THE UNITED STATES DISTRICT COURTEAS1
FOR THE EASTERN DISTRICT OF WISCONSIN
JOCELYN ISADA BOLANTE
Alien No. 095 719 764
KenoshaCounty Detention Center
’OBAUB15P 2 .’O2
Petitioner,
Docket No.
J(]~
~Y,St\14FILtPPO
GLENN
TRIVELINE,Field Office Director,
Chicago, U.S. Immigration and Customs
Enforcement; DAVIDG. BETH,Sheriff of
Kenosha County; GARYPRESTON,Detention
Division Commander
of the KenoshaCounty Jail;
MICHAEL
MUKASEY,
U.S. Attorney General;
MICHAEL
CHERTOFF,
Secretary of the Dept. of
Homeland Security; and CONDOLEEZZA
RICE,
U.S. Secretary of the State,
Respondents.
PETITION FOR HABEAS CORPUS
The Petitioner,
JOCELYN
ISADABOLANTE
("Bolante"), by and through his attorneys,
AZULAYSEIDEN
LAW
GROUP,hereby respectfully petitions this HonorableCourt for a writ of
habeas corpus to enter an order granting him release from custody under all appropriate
conditions pending. In support thereof, Bolante alleges as follows:
PRELIMINARY STATEMENT
This case raises the fundamentalquestion of whether the REAL
ID Act violates the
SuspensionClauseof the HabeasCorpusProvision, Article I, §9, CI. 2 of the United States
Constitution where U.S. Immigration and CustomsEnforcement ("USICE")has detained
Bolante for a period in excess of two years without allowing for adequatereviewin front of a
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neutral decision makerof the legality of his detention, the underlyingcause of his detention, or
the AttorneyGeneral’spurportedinterest in his detention.
Underthe U.S. SupremeCourt’s recent decision in Boumedienev. Bush, 128 S.Ct. 2229
(2008), Bolante is entitled to meaningfulhabeas revie~v of his unlawfultwo-yearincarceration
by the United States. The Attorney General’s continued and prolonged detention of Bolante
violates substantive and procedural due process rights accordedto himby the Fifth, Sixth and
Fourteenth Amendments
of the Constitution of the United States and violates the Suspension
Clause and the Separation of Powersframeworkof the United States Constitution.
JURISDICTION
1.
This is a civil action brought pursuant to 5 U.S.C. §704 and 28 U.S.C. §1331and
1361 and the Fifth and Fourteenth Amendment
of the Constitution to compel Respondents,
GLENN
TP~IVELINE,Field Office Director,
Chicago, USICE; DAVIDG. BETH,Sheriffof
Kenosha County; GARYPRESTON,
Detention Division Commanderof the Kenosha County
Jail;
MICHAEL
MUKASEY,
U.S. Attorney General; MICHAEL
CHERTOFF,
Secretary
of the
Dept. of HomelandSecurity ("DHS"); and CONDOLEEZZA
RICE, U.S. Secretary of the State,
to accord Bolante the due process of law to whichhe is entitled under the Fifth, Sixth and
to the Constitution of the United States.
2.
Bolante invokes the jurisdiction of the Court under the general grant of habeas
corpus jurisdiction at 28 U.S.C. §2241,et seq., and the All Writs Act at 28 U.S.C. § 1651.
Section 2241,et seq., confers jurisdiction uponfederal courts to grant writs of habeascorpusfor
persons in custodyin violation of the Constitution or laws of the UnitedStates and for personsin
custody under, or by color, the authority of the United States. "[T]he statute accommodates
the
necessity for fact-finding that will arise in somecases by allowingthe appellate judge or Justice
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to transfer the case to a district court of competentjurisdiction, whoseinstitutional capacity for
fact-finding is superior to his or her own." Boumediene,128 S.Ct. at 2266.
3.
Bolante is guaranteed the privilege of a Writ of HabeasCorpusunder the
SuspensionClauseof Article I, §9, C1.2 of the Constitution of the UnitedStates.
4.
Bolante is guaranteedthe right of due process of law under the Fifth and
to the Constitution of the United States, which requires "adequate
procedural protection" to ensure that the government’sasserted justification for physical
confinement"outweighsthe individual’s constitutionally protected interest in avoiding physical
restraint." Zadvydasv. Davis, 533 U.S. 678, 690 (2001) (internal quotation marksomitted).
5.
Bolante is granted certain rights under Article 36, subparagraph1 of the Vienna
Conventionon Consular Relations.
6.
Section 106(a) of the REALID Act of 2005, Pub. L. t09-13, 119 Star 231,310-11
(2005) ("REALID Act"), adding the newsubsection (a)(5) to 8 U.S.C. §1252, which expressly
prohibits the resort to 28 U.S.C. § 2241for habeascorpus reviewin removalproceedings, states,
in relevantpart:
For purposes of this Act, in every provision that limits or
eliminates judicial review or jurisdiction to review, the terms
"judicial review" and "jurisdiction to review" include habeas
corpus review pursuant to section 2241of title 28, United States
Code, or any other habeas corpus provision, section 1361and 1651
of such title, and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C.1252(a)(5). Section 101 (f), Pub. L. 109-13,119 Stat 231, 305, clarifies that the
stripping provision included in 8 U.S.C.1252(a)(2)(B),relating to denials of discretionary relief,
applies regardless of whetherthe discretionary decision is madein removalproceedings:
Except as provided in this section and notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241
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of title 28, United States Code, or any other habeas corpus
provision, and sections 1361and 1651of such title, no court shall
have jurisdiction to hear any cause or claim by or on behalf of any
alien arising fromthe decision or action by the AttorneyGeneralto
commenceproceedings, adjudicate cases, or execute removal
orders against any alien underthis chapter.
8 U.S.C. 1252(g). Thejurisdiction-stripping provisions of the REAL
ID Act do not divest this
Court of jurisdiction to review the lawfulness of Bolante’s detention in accordancewith § 2241
of title 28, becausethe REAL
ID Act is unconstitutional in that it provides no adequateor
effective substitute for habeasrelief.
VENUE
7.
Venuelies in this Court pursuant to 28 U.S.C. § 1391(e) in that Bolante currently
resides in the custody of Captain GARY
PRESTON,
Detention Division Commander
of the
KenoshaCountyDetention Center in Kenosha,Illinois. Noreal property is involved in this
action, and the Respondentsare the United States of Americaand an agencythereof.
PARTIES
8.
Bolante is a citizen of the Philippines.
9.
Bolante arrived in the United States on July 7, 2006, as a nonimmigranton a valid
Philippine passport beating a B1/B2visa.
10.
RespondentsUSICEand DHSare federal agencies organized and existing under 8
U.S.C. §1551.
11.
Respondent, GLENN
TRIVEL1NE,
is Field Office Director of the Chicago Office
of the USICEwhoseduties include the administration and enforcementof all functions, powers
and duties of the USICE.GLENN
TRIVELINE
is being sued in her official capacity only.
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12. Respondent, DAVIDG. BETH,is the Sheriffof Kenosha County whose duties
include the administration and enforcementof all functions, powersand duties of law
enforcementin KenoshaCountyis being sued in her official capacity only.
13. Respondent, GARYPRESTON,is the Detention Division Commanderof the
KenoshaCountyJail whoseduties include the supervision of the Kenoshacounty detention
facility within which the Bolante is currently detained. GARY
PRESTON
is being sued in his
official capacity only.
14. Respondent, MICHAEL
MUKASEY,
is the Attorney General of the United States
of America,whoseduties include the administration and enforcementof all functions, powers
and duties of the Departmentof Justice. RespondentMUKASEY
is being sued in his official
capacity only.
15. Respondent, MICHAEL
CHERTOFF,
is the Secretary of DHSwhose duties
include the administration and enforcementof all functions, powersand duties of DHS.
MICHAEL
CHERTOFF
is being sued in his official
capacity only.
16. Respondent, CONDOLEEZA
RICE, is the U.S. Secretary of State whose duties
include the supervision of the Departmentof State whichis responsible for issuing and revoking
visas. CONDOLEEZA
RICEis being sued in her official capacity only.
FACTS AND SPECIFIC
ALLEGATIONS
17. Bolante is a citizen of the Philippines. Heis the former Philippine Departmentof
Agriculture Undersecretary for Finance and Administration under President Arroyo, whotook
over the presidency from Joseph Estrada in 2001.
18. Hc arrived in the Los Angeles International Airport ("LAX")on or about July
2006on what appearedin cvery aspect to be a valid Philippine passport bearing a multiple entry
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B1/B2visa. However,immediately upon arrival, he was detained and taken into USICE
custody. Hehas remainedin jail since that time and has been denied his right to a meaningful
reviewby an Article Ill court of the AttorneyGeneral’sauthority or cause to detain him.
19. Bolante intended on staying in the United States for approximately two months
for the purpose of visiting his son and daughter whowereundergoingoptional practical training
followingtheir studies in the UnitedStates, to receive dental care, and to submitan expense
report to RotaryInternational in Chicago,Illinois.
20. Bolante was not an intending immigrant. His non-immigrant intention was
evidencedat the time of his arrival by a return ticket in his possession.
21. Immediatelyupon Bolante’s arrival to the United States, two U.S. Customsand
BorderProtection officers detained himfor questioning. At that time, Bolante presented his
passport bearing a B1/B2visa.
22. On that same day, Bolante provided a sworn statement before Officer Rene
Arambulo.Officer Rene Arambuloinformed Bolante that his B1/B2visa had been revoked by
the UnitedStates consularOffice in Manilaprior to his arrival and that "records indicate that
there is an arrest warrantissued to youby the Philippine Senate." After learning that his B1/B2
had been revokedwithout his notice, Bolante expressed a credible fear of being returned to the
Philippines.
23. Just a few monthsbefore the last 2004Philippine presidential election, "fertilizer
funds" were released by the Departmentof Agriculture, promptingsuspicion from Estrada
loyalists in the Senate that the funds were misappropriatedfor Arroyo’selection campaign.
Bolante wasamongthose implicated by the Senate as taking part in the purported"fertilizer
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scam"and wascalled to testify in hearings conductedby the Senate. Despite his cooperation, the
Senateapparently issued a warrant for Bolante’s arrest, the validity of whichhe challenged.
24. Bolante did not have prior notice of the revocation of his U.S. visa. The U.S.
governmentmaintains that the Manilaconsular officer allegedly sent two letters to Bolante in
Februaryand Marchof 2006advising himthat his visa wasno longer valid. Theletters state that
Bolante’s nonimmigrantvisa had been revoked under INA§ 214(b) [presumption of immigrant
status], because he wasa nonimmigrantwhointended to remain in the U.S. indefinitely. Bolante
did not receiveeither letter.
25. While in custody on July 20, 2006, DHSserved Bolante personally a Notice to
Appear (hereinafter "NTA")before the EOIRin San Pedro, California. The NTAwas issued
July 13, 2006,
26. The NTAcharged Bolante as an arriving alien whois inadmissible to the United
States pursuant to INA212(a)(7)(A)(i)(I), because he wasnot in possession of a valid
visa whenarriving in the UnitedStates.
27. Bolante appeared for his master calendar heating before the Immigration Court in
San Pedro, California on July 31, 2006and requested a changeof venue.
28. OnAugust 3, 2006 Immigration Judge Sitgraves ordered the venue for the
immigrationproceedings to be changedfrom San Pedro, California to Chicago, Illinois upon
consentof the trial attorney and orderedBolante’scase to be transferred to Chicago,Illinois.
29. Bolante was transferred to the KenoshaCounty Detention Center, located at 4777
88th Avenue,Kenosha,WI53144, on August9, 2006, where he has remained illegally in
custody of the AttorneyGeneralfor a period in excess of two years.
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30. Onor about September27, 2006, Bolante filed an application for asylum and
withholdingof removalwith the ImmigrationCourt on the groundsthat he had a fear of future
persecution based uponhis political opinion and membership
in a particular social group.
31. On or about November9, 2006, a hearing was held before an Immigration Judge
("IJ") and continued for completionon December14, 2006in support of Bolante’s applications.
Prior to the asylumhearing, the IJ informedBolantethat he did not have jurisdiction to hear
issues related to the visa revocation.
32. On February 9, 2007, the IJ issued an opinion denying Bolante’s request for
asylumpursuant to 8 U.S.C. § 1158(a) and denied Withholdingof Removalpursuant to 8 U.S.C.
§ 123l(b)(3), despite finding Bolantewasa credible witness in support of his application.
33. Onor about February 20, 2007, Bolante filed a notice of appeal with the Board of
ImmigrationAppeals("BIA") from the IJ decision denying his application for asylumand
withholding of removal.
34. The BIAupheld the IJ’s decision and Bolante remained in the custody of the
Attorney General.
35. Onor about July 3, 2007, Bolante timely filed a Petition for Reviewwith the
SeventhCircuit Court of Appeals, which to date remains pending.
36. In addition, on or about August23, 2007, Bolante filed a motion for bond pending
the outcomeof the Petition for Reviewbefore the SeventhCircuit. Onor about October31,
2007, the SeventhCircuit denied Bolante’s request for bond. See Bolante v. Keisler, 506 F.3d
618, 621 (7th Cir. 2007). It held that Bolantewasnot entitled to bail pendinghis appeal of the
Board’s determination ordering removal, because 8 U.S.C. § 1252(a)(2)(B)(ii), as amended
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106(c) of the REAL
ID Act, strips federal courts of the authority to reviewthe Attorney
General’sdiscretionary decision not to parole a detained alien./d.
ARGUMENT
I.
THE REAL I.D.
ACT HAS UNCONSTITUTIONALLY
SUSPENDED
BOLANTE~S RIGHT TO CHALLENGE BEFORE A NEUTRAL DECISION
MAKER THE ATTORNEY GENERAL’S AUTHORITY TO DETAIN HIM AND
THE UNDERLYING FACTS PERTINENT TO THE CAUSE OF DETENTION.
37. Habcascorpus is a writ employedto bring a person b&orca court to ensure that
the party’s imprisonmentor detention is not illegal. Boumediene,128 S.Ct. at 2243.
38. The Suspension Clause is an "exception" to the "power given to Congress to
regulate Courts." Boumediene,128 S.Ct. at 2246 (quoting 3 Debates in the Several State
Conventionson the Adoptionof the Federal Constitution 460-464(J. Elliot 2d ed. 1876)).
protects against arbitrary suspensionof the writ and guaranteesan affirmative right to judicial
inquiry into the cause of detention." Id.
39. To satisfy the mandateof the Suspension Clause, the habeas court must have
sufficient authority to conducta meaningfulreview of both the Executive’s powerto detain and
the cause for detention. Id. at 2269. The REAL
ID Act does not avoid the SuspensionClause
mandatebecause Congresshas not provided adequate and effective substitute procedures for
habeas corpus. /d. at 2275.
40. Congress cannot use principles of exclusion under immigration law to strip
personslocated within U.S. jurisdictions of the right to petition a federal judiciary for full habeas
review. Id. at 2259-60. Bolante entered the United States at LAX.LAXis within the constant
jurisdiction of the United States. BecauseBolante entered the UnitedStates in fact and remains
physicallypresent withinits constantjurisdiction, he is entitled to full constitutional protections,
including the SuspensionClauseand the benefits of the Separation of Powersdoctrine.
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Boumediene,128 S.Ct. at 2246(the Separation of Powersdoctrine protects foreign nationals
located within the constant jurisdiction of the UnitedStates).
A.
Bolante Is Entitled To The Privilege Of HabeasCorpusTo Challenge The
Legality Of His Detention.
41. Wherea person is detained by executive order rather than after being tried and
convictedin a court, the need for collateral reviewis most pressing. Boumediene,
128 S.Ct. at
2269.
42. The AttomeyGeneral is holding Bolante in custody pursuant to 8 U.S.C. 1226(a),
whichauthorizes the Attorney General to detain an alien "pending a decision on whetherthe
alien is to be removedfrom the United States." 8 U.S.C. § 1226(a). It is within the Attomey
General’s discretionary authority to detain Bolante, thoughhe has not been tried and convicted in
a criminal court.
43. The Seventh Circuit has held that 8 U.S.C. § 1252(a)(2)(B), as amended
REAL
ID Act, bars the court of appeals from ordering a habeas petitioner’s release from
detention pendingjudicial review of the final order of removal. Hussainv. Mukasey,510 F.3d
739, 742 (7th Cir. 2007); relying on Bolante, 506 F.3d 618 (7th Cir. 2007).
44. To satisfy the mandateof the Suspension Clause that the habeas court must have
sufficient authority to conducta meaningfulreviewof the Executive’spowerto detain, the
habeas court must have the meansto correct errors in the underlying detention proceedingssuch
that it has the authority to: (a) hear relevant exculpatoryevidenceby supplementingthe record;
(b) review relevant law and facts; and (c) order the release of the detainee. Boumediene,128
S.Ct. at 2270-71.
45. The REALID Act forecloses an Article III court from considering questions of
fact related to discretionary decisions of the AttorneyGeneral,xvhichis in direct contraventionto
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the SupremeCourt’s holding that the "judicial officer must have adequateauthority to makea
determinationin light of the relevant law and facts." Id. at 2271(emphasisadded).
46. The REALID Act unlawfully prevents Bolante from challenging his prolonged
detention to the extent mandatedby the SuspensionClause, because it constrains the court of
appeals to consider only Constitutional claims and questions of law concerning the Attorney
General’sdiscretionary decisions without an adequatesubstitute for the fact-finding required to
afford full protection of the writ. See Kucanav. Mukasey,_~F.3d __, 2008 U.S. App. LEXIS
14478, *’8-11, 2008 WL2639039,*3 (July 7, 2008) (holding a petition to review the BIA’s
discretionary decision not to reopen the underlying removalproceeding maynot be considered
unless petitioner raises Constitutional claims or questions of law).
47. Once the court of appeals determines the immigration judge followed appropriate
and lawful procedures, it has reached the limits of its jurisdiction under the REAL
ID Act. As a
result, the provisions of 8 U.S.C. § 1252, as amendedby § 106(c) of the REAL
ID Act, fall short
of being a Constitutionally adequatesubstitute for habeascorpus.
48. Evidencerelated to the revokation of Bolante’s visa is critical to his argumentthat
the governmenthas no authority or cause to detain or deport him. Yet, an immigrationjudge
maynot review the consular officer’s decision to revoke his visa. Moreover,the REAL
ID Act
has disadvantagedBolante by limiting the scope of habeas review to a record that maynot be
accurate or complete. Boumediene,128 S.Ct. at 2273.
49. The lack of judicial authority to conduct fact-finding of relevant exculpatory
evidence discovered after the close of immigrationproceeding but during the pendencyof
judicial review is a violation of the Separation of Powersand the Suspensionclause. See 8
U.S.C. § 1252(a)(Z)(B)(ii).
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50. Assuminga decision to revoke a visa could be reviewed at the administrative
level, a potential motionto reopenat the administrativelevel with the possibility of judicial
review thereafter does not provide Bolante the due process necessary to alleviate Suspension
Clause concerns where(a) that modelof review ignores the inherent urgencyof a habeas
petition; (b) a motionto reopenbefore the BIAfor fact-finding pursuant to a habeaspetition does
not satisfy the SupremeCourt’s mandatein Boumedienethat the habeas court must be able to
decide relevant questions of fact; and (c) the BIA’sdiscretionary denial of a motionto reopen
unreviewableby the SeventhCircuit wherethe habeaspetitioner has not raised a Constitutional
claim or question of law.
51. The court that "conducts the habeas proceeding must have the meansto correct
underlying errors." Boumediene,128 S.Ct. at 2270. In order to correct the underlyingerrors in
the revocation of his visa, Bolante must have the meansto supplementthe record on review and
the opportunity to present to the habeas court relevant exculpatory evidencenot introduced
during the earlier proceedings, ld. Anotherattribute of constitutionally adequatehabeascorpus
proceedingis that habeascourt must havethe powerto order the conditional release of an
individual unlawfullydetained, ld. at 2266.
52. The abovementionedelements are constitutionally required, id. at 2270, yet the
REAL
ID Act provides neither the district court nor the court of appeals with the subject matter
jurisdiction to overseethe judicial administration of these rights as they pertain to Bolante. See
Bolante v. Keisler, 506 F.3d at 621 (holding that the AttorneyGeneral’sdecision not to release
an alien on parole is not judicially reviewable); see also Bolante v. Achim,457 F.Supp.2d898,
903(E.D. Wis. 2006)(holdingthat since the district court lacks jurisdiction to grant a writ, it
no inherent powerto grant bail as a meansof makingthe habeas remedyeffective).
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53. The REALID Act’s amendmentsto 8 U.S.C. § 1252 do not provide an adequate
and effective alternative to habeasrelief previouslyavailable under 28 U.S.C. §2241,et seq., and
the All Writs Act at 28 U.S.C. §1651,becausethey strip the federal judiciary of subject matter
jurisdiction to (a) reviewthe factual basis of the AttorneyGeneral’sauthority to detain Bolante
pendingremovalfromthe United States; and, (b) order his release.
54. Accordingly, the REALID Act’s amendmentsto 8 U.S.C. § 1252, which strip
federal courts of habeasjurisdiction in detained alien cases must be declared unconstitutional.
Furthermore, habeas review must be reinstated pursuant to the mandateof the SuspensionClause
in order that Bolante maydemonstratebefore the judiciary the unlawfulnessof his prolonged
detention.
B.
The UnderlyingCause Of Bolante’s Detention, The Revocation Of His Visa,
Is UnIawful.
55. NoCourt or immigration officer has reviewed or had jurisdiction to review the
arbitrary revocationof Bolante’svisa.
56. The court of appeals must review the BIA’s decision to deny asylum as long as
Bolante raises a Constitutional claim or question of law in challenging that decision. Thebasis
for his detention, i.e. the revocationof his visa, is inextricably tied to his claimfor asylum.
57. Bolante can demonstrate that he is being held in custody by the Attorney General
pursuant to the erroneousapplication or interpretation of relevant law. To date, the purported
basis for the consular officer’s revocation of Bolante’s visa remainsunclear. Since there is no
obviousbasis for the visa revocation, the consular officer’s decision to revokeBolante’svisa intransit is arbitrary. Furthermore,the AttorneyGeneral’scause of detention is unlawfulbecauseit
stems from the underlying erroneous visa revocation.
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58. Bolante’s continued detention as an arriving alien is unlawful in that the
revocation of his visa wascontrary to material and formal requirementsthat a revocation must
not be arbitrary. See 9 FAM
41.122 Note 2 (attached here to as Exhibit 1).
59. Bolante was never informed about the reasons for the revocation of his visa,
However,statements by Officer ReneArambulomadein the course of taking the aforementioned
swornstatement indicate that the consular officer revokedBolante’s visa becauseof an
outstanding "arrest warrant" issued by the Philippine Senate (see Recordof SwornStatement in
Proceedingsunder Section 235(b)(1) of the Act, Form1-831 at Exhibit
60. Theconsular office allegedly sent two separate letters to Bolante dated February
15, 2006and March20, 2006 (attached hereto as Exhibits 3 and 4). Theletters, provided
Bolante for the first time during his request for asylumand withholdingof removalproceedings,
demonstratethat the cause for the visa revocation inexplicably evolvedover time. Theletters
cite a basis for revocationentirely inapposite to the alleged "arrest warrant" issue, whichthe
consularofficer initially relied uponin revokingBolante’svisa in-transit. Instead, the letters
suggest that Bolante’s visa was revokeduponthe consular officer’s belief that Bolante wasan
intending immigrantto the United States.
61. In accordance with 9 FAM41.122 Note 2, which provides instructions to consular
officers with regard to visas, the authority to revokea visa shouldnot be used arbitrarily. The
fact that the consularofficer’s basis for the visa revocationhas changedover time points directly
to the arbitrariness of the revocationand to the unlawfulnessof Bolante’sresultant detention.
62. The revocation on either basis was not in complianee with Volume9, Section
41.122 PN1.1of the Foreign Affairs Manual(see Exhibit 1), because neither of the two
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purported basis of revocation falls under the narrowand limited circumstancesjustifying
revocation.
63. According to Volume9, Section 41.122 PN1.1 of the Foreign Affairs Manual, a
consular officer mayonly revoke a nonimmigrantvisa under four circumstances. These
circumstancesare limited to when:(1) a consular officer determinesthat the alien is ineligible
under INA212(a), or INA222(g) to receive such a visa; (2) the alien is not eligible for
particular visa classification; (3) the alien has beenissued an immigrantvisa; or (4) the visa
been physically removedfrom the passport in whichit wasissued (see Exhibit 1).
64. Aconsular officer maynot revoke a visa based on a suspected ineligibility.
Rather, a consular revocationmustbe based on an actual finding that the alien is ineligible for
the visa pursuant to one of the four enumeratedgrounds. See 9 FAM
41.122 PN1.3 (Exhibit 1);
Wongv. D.O.S., 789 F.2d 1380(9th Cir. 1986) (Exhibit 5).
65. An"arrest warrant" issued by a legislative branch of a foreign governmentdoes
not establish a groundfor inadmissibility pursuant to INA212(a). Accordingly,it does not
providethe material basis for a visa revocation.
66. The Senate’s "arrest warrant" is merely a contemptcitation calling for Bolante’s
immediatearrest and detention for failure to appear at a Senate Committee
hearing to facilitate
legislation. ThePhilippine governmenthas neither indicted nor otherwise formerly charged
Bolante with a crime.
67. Irrespective of the fact a Senate issued contemptcitation does not provide a legal
basis for the Bolante’sarrest withoutconfirmationby a judge, it still does not qualify as a ground
that renders an alien inadmissible pursuant to INA212(a) becausea warrant is not coveredby the
enumeratedgroundsfor inadmissibility.
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68. The alleged arrest warrant against Bolante is not enforceable for lack of
confirmation by a judge and wouldnot render Bolante inadmissible under INA212(a). Thus,
determinationthat Bolante wasinadmissible is arbitrary, becauseit is based upona suspected
ineligibility.
69. Bolante has never stayed beyond the authorized period of admission to the United
States; therefore, he cannot be found inadmissible according to INA222(g).
70. Bolante is eligible for the B l/B2 visa classification, becausehe is not an intending
immigrant. Pursuant to INA214(b), all aliens are presumedto be intending immigrantsunless
and until they satisfy the consularofficer at the time of the application for visa issuanceor at the
time of the application for admissionto the UnitedStates that they qualify for one of the
nonimmigrantvisa categories defined in INA101 (a)(15).
71. Bolante cannot be detained as an intending immigrant because the U.S. Consulate
in Manilahad already determinedthat he qualifies for the B l/B2 nonimmigrant
visitor visa under
whichhe sought admissionto the United States whenhe arrived on July 7, 2006. That visa was
revokedunlawfullyand arbitrarily without prior notice and while Bolantewasin-transit, i.e. after
the determination had already been madethat he was not an intending immigrant. Whenhe
arrived at LAX,he did so on a facially valid visa. As such, he should not have beendetained as
an intending immigrant,becausenothing had occurred in-transit so as to alter Bolante’s status.
72. Furthermore, in addition to the above-mentionedregulations, 9 FAM41.122 note
2, (1)-(3), requires the consularofficer to (a) notify the alien of the intent to revokea visa;
allow the alien the opportunity to showwhythe visa should not be revoked; and, (c) request that
the alien present the travel documentin whichthe visa wasissued. (See Exhibit 1).
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73. Bolante never received prior notification or written confirmation as to the time
and basis of the consularofficer’s decision to revokehis visa.
74. As Bolante had not received notice that the U.S. Consular Office in Manila
intended to revokehis visa before he applied for admissionto the United States, Respondents
denied Bolante the opportunity to showwhyhis visa should not be revoked, thereby providing an
additional basis for the instant petition.
75. For the foregoing reasons, Bolante can demonstrate that he is being held in
custodypursuant to the consular officer’s erroneousrevokation of his visa.
II.
BOLANTEHAS THE RIGHT TO CONTEST BEFORE A NEUTRALDECISION
MAKERWHETHERTHE ATTORNEY GENERAL’S PURPORTED INTEREST
IS ACTUALLYSERVED BY DETENTIONUNDERTHE FACTS OF HIS CASE.
76. The government maynot detain Bolante for a prolonged period without providing
him a neutral forumin whichto contest the necessity of his continued detention. Prieto-Romero
v. Clark,
77.
F.3d ,2008 U.S. App. LEXIS15934, 2008 WL2853396 (gth Cir. 2008).
TheFifth Amendment
entitles aliens to due process of law in deportation
proceedings. Procedural due process requires the governmentto makean individualized finding
that detention is justified by a legitimate governmentinterest. Zadvydas,533U.S. at 690-91.
78. Bolante has been in detention in excess of two years without receiving a bond
heating to determinewhetherthe AttorneyGeneral’s interest is actually served by detention
underthe facts of his case.
79. Congress cannot authorize the detention of aliens pending a decision on whether
the alien is to be removedfromthe UnitedStates as a class without providingthe individual alien
with an opportunityto showthat his detention is not necessaryto secure his presence at the time
of removal.Tijani v. Wt’llis, 430F.3d 1241, 1242(9th Cir. 2005).
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80. Bolante’s prolonged detention without an individualized determination of his
dangerousnessof flight risk is Constitutionally doubtful. Thus, the Attorney Generalmust
providehima bondheating unless the government
establishes that he is a flight risk or will be a
danger to the community.
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PRAYER FOR RELIEF
If the continueddetention of Bolanteis allowed, he and his family will suffer grievous
and irreparable harm. Thegovernmentwill suffer no harmful consequencesif this Court grants
the Writ of HabeasCorpusin light of Bolante’s application for relief.
WHEREFORE,
Bolante,
JOCELYN
BOLANTE,
by and through the undersigned
counsel, prays that this HonorableCourt grant the followingrelief:
A.
Acceptjurisdiction over this action;
B.
Find the Real I.D. Act of 2005violates the SuspensionClause of the Habeas
CorpusProvision, Article I, §9, CI. 2 of the UnitedStates Constitution;
C.
Declare the jurisdiction stripping provisions of 8 U.S.C. § 1252, as amended
by the Real I.D. Act of 2005, unconstitutional;
D.
Grant Bolante a Writ of HabeasCorpus;
E.
Order the Attorney General provide Bolante an individual bondhearing;
F.
Order the Respondentsto release Bolante from custody;
G.
Grant such other and further relief as this Court deemsnecessaryand just in
the premises.
Respectfully submitted,
Dated: August 14, 2008
Y. Judd Azulay
AZUALYSEIDEN
LAWGROUP
Attomeysfor the Defendant
205 N. MichiganAvenue- 40th Floor
Chicago,Illinois 60601
Tel. (312) 832-9200
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Page 1
Immigration LawService, Second Edition
Database opdated May2008
PARTII.
41.122.
NONIMMIGRANT
VISAS (22 CFR Part 41)
PROCEDURAL
NOTES
PN1. Revocationof Visas by Consular Officers
PN1.1. Revocation WhenAlien FoundIneligible After Visa Issuanee(TL: VISA-553;06-25-2003)
There are four circumstances under which a consular officer mayrevoke a nonimmigrantvisa:
(1) Consularofficer determinesthat the alien is ineligible under INA212(a), or INA222(g) to receive
visa;
(2) The alien is not eligible for the particular visa classification (this includes ineligibility under
214(b));
(3) The alien has been issued an immigrantvisa;
(4) The visa has been physically removedfrom the passport in whichit was issued.
PN1.2. Entering Revocations into CLASS(CT:VISA-663;12-22-2004)
The lookout code, "VRVK,"must be entered into the Consular Lookout and Support System (CLASS)name
check systemwhena visa that is revokedat post cannot be physically canceled.
PN1.3. Whena Consular Officer MayNot Revokea Visa(CT:VIS.4-663; 12-22-2004)
a. A consular officer does not havethe authority to revokea visa basedon a suspectedineligibility, or based
on derogatory informationthat is insufficient to support an ineligibility finding. A consular revocation must be
basedon an actual findingthat the alien is ineligible for the visa.
b. Underno circumstances should a consular officer abroad revoke a visa whenthe alien is in the United
States, or after the alien has commenced
an uninterrupted jonrney to the United States. This mayonly be done
by the Visa Office (CA/VO/L/A)or (CA/VO/L/C).
PN2. WhenDerogatory Information Received
(CT: VISA-663;12-22-2004)
If a consular officer receives derogatory information on an alien outside the context of a pendingvisa application, and the informationis sufficient to render the allen ineligible for a visa, the officer shmddfirst check
the Consular Consolidated Database(CCD)to determine whether the alien maybe in possession of a valid visa.
If not, the alien’s nameshould be entered in CLASS
under the appropriate "P" (quasi) ineligibility code, pending
somefuture visa application by the alien. The CATl or CATII file should be created to back up the lookout
entry. If the alien does havea valid visa, the post should follow the required proceduresfor processingvisa revocation, in accordancewith this section.
PN3. Seeking Advisory Opinions
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(CT:V1SA-663;12-22-2004)
In makingany newdeterminationof ineligibility as a result of information whichmaycometo light after issuance of a visa, the consular officer must seek and obtain any required Advisoryor Security AdvisoryOpinions
(AOor SAO).This applies, for example,to findings of ineligibility under INA212(a)(6)(C)(i), "misrepresentation"; INA212(a)(3)(B) "terrorist activity"; or INA212(a)(3)(C), "foreign policy." Pendingreceipt
partment’s advisory opinion, the consular officer must enter the alien’s namein CLASS
under a quasi-refusal
code, if warranted.
PN4. Commnnicatingwith Alien
PN4.1. Informing Alien of Intent to RevokeVisa(TL:V1SA-277;05-10-2001)
22 CFR41.122~.b)requires the consularofficer to notify the alien of the intent to revokea visa, if such notification is practicable. The notice of intent to revokea visa affords the alien the opportunityto demonstratewhy
the visa should not be revoked.Anafter-the-fact notice that the visa has already been revokedwouldnot be sufficient, unless prior notice of intent to revokewasfoundnot to be practicable in the particular case.
PN4.2. WhenIntent to RevokeNot Practieabte(TL:VISA-277; 05-10-2001)
Aprior notification of intent to revokea visa wouldnot be practicable if, for instance, the post did not know
the whereaboutsof the alien, or if the alien’s departure is believed to be imminent.In cases wherethe alien can
be contacted and travel is not imminent,prior notice of intent to revoke the visa wouldnormallybe required, unless the consular officer has reason to believe that a notice of this type wouldpromptthe alien to attempt immediate travel to the UnitedStates.
PN5.Physical Cancellation of Visa
(CT: VISA-663; 12-22-2004)
tfa decision to revokethe visa is reachedafter the case has beenreviewed,the consularofficer must print or
stamp the word "REVOKED"
in large block letters across the face of the visa. The consular officer must also
date and sign this action and enter any new ineligibilities or derogatory information into the ConsularLookout
and Support System(CLASS).Timelyentry into CLASS
is essential. If located at a post other than the one
whichthe visa wasissued, the title and location of the post should be written belowthe signature.
PN6. FormDS-4047,Certificate of Revocation of Visa by Consular Officer
(CT:VlSA-663; 12-22-2004)
a. Exceptin a case wherea visa is revokedbecause an immigrantvisa has been issued to the alien, the consular officer must complete the FormDS-4047,Certificate of Revocationof Visa by Consular Officer, for the
file whena visa is either canceled or revoked, and makethe appropriate entry into CLASS.
If the visa was issued at another post, a signed copy of the FormDS-4047,should be forwardedto the issuing post.
b. Since a consular revocation is a formal adjudication of eligibility, posts shoold use a definitive refusal
code, rather than a "P" (quasi) lookout entry. This distinction is importantbecauseCATI refusal codes pass into
the Departmentof HomelandSecurity (DHS)lookout systems, whereas, most CATI "P" codes do not.
PN7. Whento Notify Department Regarding Revocation
(CT:V1SA-663;12-22-2004)
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a. If a visa is physically cancelledprior to the alien’s departureto the UnitedStates, then there is no needto
report the revocation to the Department,except in cases involving A, G, C-2, C-3, or North AmericanTreaty Organization (NATO)visas.
b. As required by 22 CFR41.122fe), the Department (CA/VO/L/A,CA/VO/P/D,S/CPR, and the appropriate country desk), as well as Departmentof HomelandSecurity (DHS), Washington, D.C. should be promptly
notified wheneverany diplomatic or official visa, or any visa in the A, G, C-2, C-3, or NATO
classification is
formally revoked.
c. As required by 22 CFR41.122(d) and 22 CFR41.122(e), in any case in which a visa is revoked but
consular officer is unable to physically cancel the visa, the consular officer must notify the Department
(CA/VO/L/Cfor cases that fall under INA212(a)(3)(A) and INA212(a)(3)(B), and CA/VO/L/A
cases), local carriers, and the appropriate DHSport(s) of entry. Notice to the Departmentshould be in the format
prescribed in 9 FAM41. 122 PNI4.2.
PN8. WhenDepartment Revokes a Visa
(CT: VISA-663; 12-22-2004)
a. Whenthe Departmentrevokes a visa, a front channel cable will be sent to post notifying themof the revocation whenpossible, and furnish a point of contact in the Visa Office.
b. Althoughthe Departmentis not required to notify the alien of a revocation done pursuant to the Secretary’s discretionary authority, unless instructed otherwise, posts should do so, especially in cases wherethe revokedvisa was issued to a governmentofficial. Posts should then send a front channelcable to the Department’s
point of contact and provide information on any action taken.
PN9.Visa Revocationswith Political, Public or Police Implications
PN9.1. Keeping the Department Informed(CT: VISA-663; 12-22-2004)
a. Consular officers are responsible for keeping the Department (CA/VO/L/A
and/or CA/VO/L/C
and the
appropriate country desk) informedof visa actions that mayaffect our relations with foreign states or our public
diplomacy,or that mayaffect or impedeongoingor potential investigations and prosecutions by U.S. and other
cooperating foreign law enforcementagencies.
b. This is particularly true whenconsular officers use the powergranted themunder INA221(i) as implementedin 22 CFR41.122 and this section, to revoke the visas of officials of foreign governments,prominent
public figures, and objects or potential objects of Americanand foreign criminal investigations.
c. In such cases the Department’sguidanceshould be sought prior to any visa revocation unless unusual and
exigent circumstances prevent such a consultation. In the rare cases whenadvanceconsultation is not possible,
the Departmentshould be informed as soon as possible after the revocation. Suchcables should be directed to
CA/VO/L/Cor CA/VO/L/A,and the appropriate country desk.
PN9.2. Revocations That MayHave Repercussions(TL:VISA-277;05-10-2001)
Consularofficers should be alert to the political, public relations, and law enforcementconsequencesthat
can follow a visa revocation, and should workwith the Departmentto ensure that all legally available options
are fnlly and properly assessed. The revocationof the visa of a public official or prominentlocal or international
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person can have immediateand long-term repercussions on our political relationships with foreign powers, and
on our public diplomacygoals in a foreign state. The visa laws must be applied to such persons like any others,
recognizingthat certain visa categories, particularly A’s and G’s, are not subject to the samestandards of inadmissibility as others. Precipitant action must nevertheless be avoided in such high profile visa cases. Consultation both within the mission and with the Departmentmayresult in a decision that the Department,rather than
the consular officer, should undertake the revocation, since Departmentrevocations pursuant to the Secretary’s
revocation authority provide moreflexibility in managingthe relevant issues.
PN9.2-1. WhenRevocation Subject is Object of Criminal lnvestigation(TL: VISA-277;05-10-2001)
a. In cases wherethe subject of a revocation is also the object of a criminal investigation involving United
States law enforcementagencies, action by a consular officer without prior Departmentconsultation and coordination may:
I. Jeopardize an ongoinginvestigation;
2. Prejudice an intended prosecution;
3. Precludeapprehensionof the subject in the UnitedStates;
4. Put informantsat risk; or,
5. Damage
cooperative law enforcementrelationships with foreign police agencies.
b. Whena consular officer suspects that a visa revocation mayinvolve U.S. law enforcementinterests, the
consular officer should consult with law enforcementagencies at post and inform the Department(CA/VO/L/C
or CA/VO/L/A)
as applicable, of the case and of the post’s proposed course of action, to permit consultations
with potentially interested entities before a revocationis made.
e. In deciding what cases to report in advanceto the Department,posts should err on the side of prudence.It
wouldbe in the best interest to report cases requiring no Departmentaction rather than havingto inform the Department after the fact in a ease that has adverse consequencesfor Americanlaw enforcementor diplomatic interests. Posts should contact CA/VO/L/C
for security-related cases, and CA/VO/L/A
for others. Posts maywish
to notify other functional bureaus, as appropriate.
PN9.3. If Alien in Possession of AnotherValid U.S. Visa(TL:VISA-277;05-10-2001)
Whena consular officer has taken action to revoke a visa, the officer should determine whetherthe alien
holds another current U.S. visa in the sameor another passport. Theofficer should proceed to revoke that visa as
well, provided the groundsfor revokingthe first visa apply to any other visa the alien mayhold, or if independent groundsfor revocation apply. In the latter case, the consular officer is also required by 22 CFR41.122 to
give the alien, if practicable, an opportonityto rebut or overcome
that ground(s)of ineligibility.
PNI0. Importance of Physically Canceling Visa Prior to Alien’s Departure/Stopover en Route to the United
States
(CT: VISA-663; 12-22-2004)
If the revokingofficer has learned that the alien is stopping at a city en route to the UnitedStates in whicha
consular office is located, the revoking post should request the stopover post to attempt to contact the alien and
physically cancel the visa. The revoking post should immediatelynotify the Department(CA/VO/L/A
for nonsecurity related ineligibilities and CAIVO/L/C
for security-related ineligibilitics), info the Departmentof Homeland Security, (DHS)and the stopover post as described in 9 FAM41. 122 PNI4.2, and update CLASS,as appropriate.
PN10.1. If Visa is Canceledat StopoverLocation(CT:VISA-663;12-22-2004)
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a. If the stopover post physically cancels the visa, it should notify the revoking post and the Department
(CA/VO/L/Aor CA/VO/L/C)by telegram.
b. The revoking post should update CLASSand notify the Department (CA/VO/L/Aor CA/VO/L/C),
well as the stopover post and DHSto update the report.
PNI0.t-I. If Visa is not Canceled at Stopover Location(CT:VISA-663;12-22-2004)
If the stopover post is unable to cancel the visa physically, it should notify the revokingpost and the Department (CA/VO/L/A
or CA/VO/L/C),provide any additional information, and must also notify all appropriate
transportation companiesthat the visa has been revoked. The letter should be used to notify transportation companies of this action and be delivered to them by the most expeditious and secure means. Neither the revoking
post nor the stopover post should prepare a FormDS-4047,Certificate of Revocation of Visa by Consular Ofricer, unless subsequently instructed to do so by the Department,nor should they inform the alien of the findings. Theseinstructions are predicated on the premise that the alien has commenced
an interrupted journey to, or
is already in the United States. The revoking post should immediately notify the Department(CA/VO/L/A
or
CA/VO/L/C),
the stopover post, and DHS,to update or file a report as described in 9 FAM41. 122 PNI4.2, and
to update CLASS
as necessary.
PN10.1-2. If at Stopover Location Revocation Appears Overcome(TL:VISA-555;07-17-2003)
Uponinterviewing the alien, should the stopover post conclude that revocation has been overcomeand the
alien is no longer ineligible, reinstatement of the visa in accordancewith PNt3 maybe warranted. The stopover
post should inform the revoking post in detail of its findings, addressing an info copy to the Department,
(CA/VO/L/A
or CA/VO/L/C).
Such a report could form the basis for reinstatement of the visa initiated by the
revokingpost or the stopover post, providedthat it had the concurrenceof the revokingpost. tf posts havea difference of opinion, the case should be submitted to the Department, (CA/VO/L/A
or CA/VO/L/C)
for determination. Shoulda determination to reinstate the visa be made,the revoking post, whichmaybe presumedto hold the
bulk of pertinent data on the case, wouldhavethe responsibility to take the reinstatement actions described in 9
FAM41. 122 PNI5, and update and revise entries in CLASS.
PN10.2. Visa Erroneously Issued by Other Post(TL: VISA-277;05-10-2001)
Ifa consular officer determinesthat another post has erroneously issued a visa, that post should be informed
in detail of the officer’s findings. Sucha report could formthe basis for revokingthe visa, initiated by the issning post or by the reporting post, with the concurrenceof the issuing post. If a difference of opinion ensues
between posts, the case should be submitted to the Department (CA/VO/L/A
or CA/VO/L/C)for an advisory
opinion.
PNt 0.3. Visa ErroneouslyIssned by Other Post(TL: VISA-277;05-10-2001)
lfa consular officer determinesthat another post has erroneouslyissued a visa, that post should be informed
in detail of the officer’s findings. Sucha report could formthe basis for revokingthe visa, initiated by the issuing post or by the reporting post, with the concurrenceof the issuing post. If a difference of opinion ensues
between posts, the case should be submitted to the Department (CA/VO/L/A
or CAJVO/L/C)
for an advisory
opinion.
PN11. WhenAlien Unlikely to Surrender Passport for Revocation
(TL: VISA-555;07-17-2003)
If a consular officer has reason to believe than an alien, whosevisa is subject to be revokedwill fail to
present the visa, and if the alien has not yet commenced
travel, the DHS
office at the port of entry and all appropriate transportation companiesshould immediatelybe notified that the visa has been revoked.The letter should
be used to notify transportation companiesof this action and be delivered to themby the most expeditious and
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secure means.Concurrently, with the preparation of the letter, the FormDS-4047,Certificate of Revocationof
Visa by Consular Officer, is to be prepared and maintained in the appropriate CATI or CATII file at post. A
telegraphic report as described in 9 FAM41. 122 PN14.2and an entry into CLASS
must also be made.
PN12. Notice to Department
PN12.1. Ineligible Alien in United States(TL: VISA-553;06-25-2003)
Whenevera consular officer believes that an alien, whosevisa is subject to revocation, has commenced
an
interrupted journey to, or, is already in the UnitedStates and physical cancellation of the visa is not possible, the
officer shonld immediately inform the Department(CA/VO/L/A
for non-security cases, VO/L/Cfor security-related cases) of the groundsof ineligibility or other adverse factors, and furnish the informationcalled for by
FAM41. 122 PN14.2. Newineligibilities
and other pertinent derogatory information should be entered into
CLASS.In addition, if the officer is awareof reasons makingit desirable to permit the alien to complete the
temporary stay, the officer should report them to the Department, (CA/VO/L/Aor CA/VO/L/C).In no case
should an officer communicatethe findings to the alien concerned. The consular officer should not prepare a
FormDS-4047,unless instructed to do so by the Department.
PNI2.2. Department Revocation and DHSCancellation of Visa(CT:V1SA-663;12-22-2004)
Uponreceipt of the consular officer’s report, the Departmentwill decide whetherthe visa should be revoked
and, if so, ask DHSto cancel it physically immediatelyor at such time as the alien mayagain present the visa at
a port of entry. If the decision is to revoke, the Department
will normallyprepare a Certificate of Revocationfor
signature by the DeputyAssistant Secretary (DAS)for Visa Services. Alternatively, the Departmentmayinform
DHSof the data submitted and give DHSan opportunity to initiate proceedingsunder the pertinent provisions of
INA237 (Classes of DeportableAliens). If the latter course is followed, the Departmentwill concurrently request that it be informedof the alien’s date of departureand destination, so that, subseqnentto the alien’s departure from the United States, the visa maybe physically canceled and the consular officer instructed to prepare
the FormDS-4047.If the visa is physically canceled at a post other than the one at whichit was issued, the revokingofficer should forward a signed copy of the FormDS-4047,to the issuing post.
PNt2.3. Prudential Revocations(CT.’VlSA-778; 10-13-2005)
a. Althoughconsular officers generally mayrevokea visa only if the alien is ineligible under 1NA2 t 2(a)
is no longer entitled to the visa classification, the Department
mayalso revokea visa if an ineligibility or lack of
entitlement is suspected, tn addition to the conditions described in 9 FAM41. 122 PN12.2,the Departmentmay
revoke a visa whenit receives derogatory information directly from another U.S. Governmentagency, including
a memberof the intelligence or law enforcement community.The process is initiated whenCA/VO/L/Aor CA/
VO/L/Creceives derogatory information, usually through Bureauof Intelligence and Research (INR). Whenthe
derogatory information relates to a suspected 2t2(a)(3) security ineligibility, it will be evaluated by
VO/L/C.Other~vise, derogatory information will be evaluated by CA/VO/L/A.
Onceit has been determined that
the derogatory information appears sufficient to warrant a revocation, the subject’s nameshall be entered into
CLASS,and a Certificate of Revocationwill be submitted for signature to the DeputyAssistant Secretary (DAS)
of State for Visa Services with a summary
of the available intelligence and/or backgroundinformation, and any
other relevant documentation. Whenthe Certificate of Revocation has been signed, it will be communicated
within the Departmentand to other agencies by the following means:
(1) The file is reviewedto ensure that the subject has been entered into CLASS
under the appropriate code.
For a prudential revocation, the "VRVK"
code will be entered as well as any applicable quasi-ineligibility ("P")
code that correspondsto the suspected ineligibility. In the case of a prudential revocation based on derogatory
information for~varded to VOby INR, the "DPT-00"code will be entered as well as "VRVK"
and any applicable
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"P" code. For revocationsbasedon a finding of ineligibility, the appropriate ineligibility codeis entered, but the
"VRVK’"
code is not required. For additional guidance on the use of the VRVK
code, refer to Standard Operating Procedures: No. 11.
(2) Copies of the Certificate of Revocationare sent to the Departmentof HomelandSecurity (DHS)and
INRwhenthe revocation relates to INA212(a)(3)(A), (B)
(3) A Departmentalrequest to post to attempt to notify the visa holder of the revocationis sent to the issuing
post, DHSand, whenthe revocation relates to INA212(a)(3)(A), (B) or or the Federal Bureauof Investigation
(FBI). (Note: If law enforcementinterests require that the subject remainunawareof U.S. Government
interest,
post will be informedof the revocationbut instructed not to notify the subject).
b. Except for revocations based on recommendations
from post where the alien maybe in the United States,
most of the Department’srevocations are prudential revocations, whichdo not constitute permanentfinding of
ineligibility. Theysimplyreflect that, after visa issuance, informationsurfacedthat has called into question the
subject’s continuedeligibility for a visa. Subjects of prudential revocations are free to reapply and reestablish
their eligibilities. If a subject of a CLASS
code of "DPT-00"or an ineligibility under INA212(a) applies for
visa, post must request either a security advisory opinion to CA/VO/L/C
or, if there is no "00" entry and the ineligibility code relates to a INA212(a) subsection other than 212(a)(3)(A),(B), (C), (D), (E), or
opinion other than security to CA/VO/L/A.
(If the "VRVK"
code is only accompaniedby an entry from another
post, the adjudicating post should contact the revokingpost via email, and, in most cases will not needto send a
cable to the Department).Uponreceipt of a visa application from a subject of a prudential revocation for whom
CLASS
reflects a Departmententry of a code of "VRVK"
or a quasi-ineligibility under an INAsection other
than 212(a), posts are required to obtain Departmentapproval prior to visa issuance. Posts must submit a Security Advisory Opinion (SAO)request to CA/VO/L/C,in eases with CLASS
codes relating to a security-related
subsection of INA212(a), or a request for advisory opinion other than security to CA/VO/L/A,
in cases relating
to other INA212(a) subsections.
PNI3. Recommendationsfor Waiver Action
PN13.1. Important Public Relations lmplications(TL: VISA-555;07-17-2003)
Consular officers should, in eases having important public relations implications, consider recommending
that the alien’s temporaryadmissionbe authorized pursuant to INA212(d)(3)(A). If such a decision is made,
case is to be processed in accordance with 9 FAM40.301 Notes and the additional information called for by
PNI5is to be furnished, either to the DHSoffice abroad or to the Department.Consularofficers should note that
referral to the Department(CA/VO/L/C)
is required in several kinds of eases including, for example,those involving ineligibility under212(a)(3)(B), "Terrorist Activities, or any case in whichthe alien’s presenceor
ities in the UnitedStates mightbecomea matter of public interest or of foreign relations significance." In the latter cases, eonsutar officers should note the AdvisoryOpinion procedural requirements under 9 FAM40.32, especially N4. Whenthe facts justify the recommendationof a waiver onder INA2t2(d)(3)(A) and the alien
within the jurisdiction of the consular office, the consular officer should informthe alien that a waiver is being
recommended.
The alien should be asked to temporarily surrender the passport or other documentcontaining the
visa, pendingfinal action on the recommended
waiver. If the alien refuses to surrender the visa, the officer
should formally revoke it as described in 9 FAM41. 122 PNIand PN2.
PN13.2. If WaiverObtained(CT:VISA-816;06-21-2006)
Waiverprocedures are described here on the premise that action to revoke a visa has not been made. tf a
visa has been revoked then reinstatement procedures (see 9 FAM41. 122 PN15)are needed to undo a revocation. If a waiver is obtained, the consular officer must enter the notation on the visa as required by 9 FAM
41.
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Document 1
IMMLS2D
PSD FAM1I 4t.t22 PNT
Page 8
122 PN15.3.A waiver for an ineligibility under section 212(a)(3)(B) of the INAmust be requested by the
partment. If the waiver limits the numberof applications for entry, this information should be included in the
notation, for example,"single entry" or "two entries." The alien is to be informedthat the visa will be valid only
for the period and numberof applications for admissionauthorized by the waiver.
PN14. Entry of Subject Into CLASS
and Record of Visa Revocation
(CT." VISA-663;12-22-2004)
The revoking office should enter the alien’s nameinto the Consular Lookoutand Support System(CLASS)
in accordance with 9 FAMAppendixD. The original of the FormDS-4047,Certificate of Revocation of Visa by
ConsularOfficer, as well as a copyof the post’s letter to transportation companieslisting all the addressees, is to
be madea part of the Category I file. The issuing post should annotate FormDS-156, NonimmigrantVisa Application, regarding the revocation and date.
PN14.1. Action Required WhenDerogatory Information Received After Issuance of Crew-Member
Visa
(CT: VISA-816; 06-21-2006)
See 9 FAM41.41 PN3, "Action Required WhenDerogatory Information Received Regarding Holder of D
Visa," and 9 FAM41.42 PN2, "Derogatory Information Received After Issuance of a Crew-List Visa."
PN14.2. Report of DerogatoryInformation ReceivedAfter Issuance of a Visa
(CT:V1SA-663;12-22-2004)
a. Posts are no longer required to submit a report to the Departmenton NIVrevocations done at post,
provided that the visa has been physically canceled prior to the alien’s departure for the United States. Exceptions to this procedure are in cases involving A, G, C-2, C-3, North AmericanTreaty Organization(NATO),diplomatic, or official visas, whena report wouldbe required.
b. A VISASDONKEY
SAOshould be sent as called for in these notes whenevera visa in one of the abovementionedcategories is revoked, (except whenrevokedfor issuance of an immigrantvisa, regardless of whether
the visa has been physically canceled.) The telegram should be captioned: "CVIS: REVOCATION,"
or "CVIS:
DEROGATORY
INFORMATIONDEVELOPEDSUBSEQUENTTO VISA ISSUANCE." This telegram
will
normally be passed to DHSfor appropriate action, including entry of pertinent data into DHSlookouts. If the
consular officer has reasonto believe that the alien mayenter the UnitedStates via a particular port of entry, the
officer mayaddress the cable to DHS,slugging it with the note "Pass to point of entry (POE)(Insert name
port)." The officer should not address DHSif that wouldcontradict the recommendation(s)in items (b) and
of this telegram. As necessary and appropriate, other posts can and should be included as INFOaddresses. The
following items should be included:
(t) Full nameof alien, includingaliases;
(2) Dateand place of birth;
(3) Countryof nationality and residence;
(4) Dateof issuance or transfer of visa, date of expiration of visa, numberof applications for admission,and
visa symbol;
(5) Place of visa issuanceor transfer;
(6) Type, number,and date and place of issuance of passport;
(7) All sections of law underwhichthe alien is ineligible or is thoughtto be ineligible;
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IMMLS2D
PSD FAM11 41.122 PNT
7 ImmigrationLawService 2d PSDForeign Affairs Manual1141. t22 Procedural Notes (2008)
Page 9
(8) Afull report of the informationuponwhichthe finding of ineligibility is based and the consular officer’s
comments,together with a statement as to whether the information maybe fi~mished DHSand used as a basis
for questioningthe alien; (Considerationsof national security, foreign policy, protection of sources, and the like
maywarrant not advising the alien of certain information.)
(9) If available, the meansof transportation, prospectivedate and port of arrival, and the alien’s address
the United States;
(10) Posts should indicate that the subject has been entered into CLASS;and
(11) Anyother pertinent information, including consular officer’s recommendations
or suggested course
action to be followed by the Departmentand DHS.
PNI5. Reinstatement Following Revocation
(TL:V1SA-130;11-30-95)
If a visa has been revokedand a consular officer subsequentlydeterminesthat the reason for revocation has
been overcomeand the alien is no longer ineligible, the visa should be reinstated in accordancewith the appropriate procedure as indicated below and in all applicable cases, the procedures in PN15.1should be taken
promptly.
PN15.1.If the Visa has Been Revokedbut no Further Action Taken
(TL:VISA-553; 06-25-2003)
If a FormDS-4047,Certificate of Revocationof Visa by Consular Officer, has been prepared in accordance
with 9 FAM
41. 122 PNI, but a copy has not been sent to the Department,if the visa has not been physically
canceled, and if notices of revocation have not been sent, a brief summary
of the pertinent facts is to be entered
on the FormDS-4047,indicating that the revocation was withdrawn.If post had already notified the Department
or other posts of the revocation, post should notify the Department(and any relevant posts) of the reinstatement
by telegram as follows:
"CVIS; ADVISORYOPINIONS, VISAS, BASIS FOR REVOCATION, NIV, JOHN DOE, OVERCOME,
REINSTATED THIS DATE."
PNI5.2. If the Visa Has Been Revokedand Notices of Revocation Sent
(TL:V1SA-130;11-30-95)
a. If the visa has not been physically canceled, but notices of revocationhave beensent and the alien has departed, or if the alien’s departure cannot be determined,the Departmentis to be promptlynotified by telegramas
follows:
"CVIS:
ADVISORYOPINIONS, VISAS, BASIS FOR REVOCATIONNIV JOHN DOE OVERCOME.
REINSTATED THIS DATE."
b. Anyother post involved in the revocation action should be madean INFOaddressee of this cable. Notices of reinstatement should be sent by the most expeditious secure meansto all parties notified of the revocation.
PNI 5.3. If the Visa Has Been Revokedand Physically Canceled
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Page 10
IMMLS2DPSD FAMII 4t.122 PNT
(CT: VISA-663; 12-22-2004)
a. If a visa has been revoked, notices of revocation sent, the telegraphic report described in 9 FAM
41. 122
PN7has been made,and the revokedvisa physically canceled, the alien is to be notified of the reinstatement and
invited to appear at the consular office. If the alien appears and applies for a newvisa, a newvisa maybe issued
with the annotation "reinstated." Nofee should be collected for a "REINSTATED"
visa unless the prior fee for
issuance was refunded whenthe visa was revoked. The alien should be provided with a letter explaining the visa
reinstatement. The Department(CA/VO/L/A)is also to be promptly notified by telegram as follows:
"CVIS ADVISORYOPINIONS, VISAS, BASIS FOR REVOCATION
NIV JOHN DOE OVERCOME."
b. Anypost involved in the revocation action should be madean INFOaddressee of the cable.
PNt5.4. If the Alien’s Namehas Been Entered into CLASS
(CT:VISA-663; 12-22-2004)
If the alien’s namehas been entered into CLASS
and the alien’s visa is reinstated, the consular officer
should request that the Department CLOK
out any relevant CLASS
entry. [See 9 FAMPARTIV AppendixD].
PNt6. Cancellation of Visas by ImmigrationOfficers Under22 CFR41.122(h)
PN16.1. Notations Madein Passport(CT: VISA-663;12-22-2004)
Whena visa is canceled by an DHSofficer, one of the following notations will normally be entered in the
alien’s passport:
(1) Canceled. Adjusted;
(2) Canceled. Excluded. DHS(Office) (Date);
(3) Canceled. Application withdrawn.DHS(Office) (Date);
(4) Canceled. Final order of deportation/voluntary departure entered DHS(Office) (Date)(e) Canceled.
parture required. DHS(Office) (Date);
(5) Canceled. Waiver revoked. DHS(Office) (Date);
(6) Canceled.Presented by impostor. DHS(Office) (Date).
PN16.2. Issuing Office Informedof Visa Cancellation(TL:VISA-555;07-17-2003)
Except whena visa is canceled after the alien’s status has been adjusted to that of a permanentresident,
DHSwill directly informthe consular office whichissued the visa of the cancellation action.
PN17. Form1-275, Notice of Visa Cancellation/Border Crossing Card Voidance
(CT: VISA-663;12-22-2004)
Form1-275, Withdrawalof Application/Consular Notification, will be used to inform consular officers at
the issuing office of the cancellation action. Form1-275 and any other attached forms should not be released to
aliens or their representatives.
PN18. Voidanceof Counterfeit Visas
(CT." VISA-663;12-22-2004)
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Document 1
7 ImmigrationLawService 2d PSDForeign Affairs ManualII 41.122 Procedural Notes (2008)
PageI t
WhenDHShas determinedthrough examinationthat a visa has been altered or is counterfeit, it will void the
visa by entering one of the followingnotations on the visa page, together with the action officer’s signature, title,
and office location:
(a) Counterfeit visa per testimonyof alien (file number);
(b) Counterfeit visa per telecon, letter, telegram, e-mail from U.S. embassy(U.S. consul).
ENDOFDOCUMENT
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V~stlaw.
789 F.2d 1380
789 F.2d 1380
789 F.2d 1380
Page 1
Wongv. Departmentof State
C.A.9(Cal.), 1986.
Tak-Ming WONG
and King-Fong Wong, Yat Sum
International Corporation,Plaintiffs-Appellants,
DEPARTMENT
OF STATEand Immigration and
Naturalization Service, Defendants-Appellees.
No, 84-6567,
regulations thereunder, Administrative Procedure
Act and due process clause of the Fifth Amendment
in connectioa with revocation of nonimmigrant
visas of the alien’s wife and their minorchildren;
alien’s visa was not revoked,and employerstill had
benefit of his services. 5 U.S.C.A. §§ 553(b-dl,
706; Immigration and Nationality Act, § 104(a),
U.S.C.A. § 1104(a); U.S.C.A. Const.Amend.
12] Federal Courts 170B ~=:~724
Arguedand Submitted Oct. 10, 1985.
Decided May19, 1986.
Aliens brought action against State Departmentand
Immigrationand Naturalization Service for alleged
violations of Inunigration and Nationality Act, Administrative Procedure Act, and due process clause
of the Fifth Amendment.
The United States District
Court for the Central District of California, Consuelo Bland Marshall, J., entered summaryjndgment affirming revocation of the aliens’ nonimmigrant visas. Aliens appealed. The Court of Appeals,
Hug,Circuit Judge,held that: (1) requiring aliens
exhaust purported administrative remedies was an
abuseof discretion, and (2) physical absenceof aliens from consular district was not ground for ab
initio revocation of their nonimmigrant
visas.
Reversed and remanded.
West Headnotes
Ill Federal Courts 170B
170BFederal Courts
170BIJurisdiction and Powersin General
170BI(A~IIn General
[ 70Bk12 Case or Controversy Requirement
170Bk13k. Particular Cases or Questions, Justiciable Controversy.MostCited Cases
Nocase or controversy existed as to claims of alien
and his employeragainst Departmentof State and
Immigrationand Naturalization Service for alleged
violations of Immigration and Nationality Act and
170BFederal Courts
170BVIII Courts of Appeals
170BVIIIII) Dismissal, Withdrawalor Abandonment
i70Bk723 Want of Actual Controversy
170Bk724k. Particular Cases. Most
Cited Cases
Alien’s appeal, for herself and as representative of
her children, from summaryjudgment for defendants in alien’s action against Departmentof State
and Immigrationand Naturalization Service for alleged violations of Immigrationand Nationality Act
and regulations thereunder, Administrative Procedore Act and due process clause of Fifth Amendment
in connection with revocation of nonimmigrant
visas, was not moot despite fact that appellants
were admitted into the United States pursuant to
visa waivers granted by immigration judge; visa
waivers afforded appellants only portion of the
remedysought and placed them in substantially less
favorable position than had their L-2 visas been reinstated. 5 U.S.C.A. §§ 553fb-d), 706; Immigration
and Nationality Act, § 104(a), 8 U.S.C.A.
1104(a); U.S.C.A. Const.Amend.
131 United States 393 ~=~127(2)
393 United States
3931XActions
393k127Rights of Action Against United
States or UnitedStates Officers
393kl27(2) k. Prior Administrative
Claim. Most Cited Cases
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789 F.2d 1380
789 F.2d 1380
789 F.2d 1380
Page 2
Requiringalien, whobrought action for herself and
as representative of her children, to exhaust purported administrative remediesof requesting reconsideration of visa revocation by consular officer who
revokedtheir L-2 visas and, either additionally or
alternatively, of presenting new applications for
nonimmigrantvisas to an Americanconsular officer
abroad before bringing action against State Department and Immigration and Naturalization Service
for alleged violations of ImmigrationNationality
Act and regulations thereunder, Administrative Procedure Act and due process clause of Fifth Amendment in connection with revocation of nonimmigrant visas, was an abuse of discretion. 5 U.S.C.A.
§§ 553(b-d), 706; immigrationand Nationality Act,
§ 104(a), 8 U.S.C.A. § l104(a); U.S.C.A.
Const.Amend.5.
[41 Aliens, Immigration, and Citizenship 24 ~
201
24 Aliens, Immigration, and Citizenship
24IV Admissionand Visas in General
241V(E)Revocationor Expiration of Visas
24k201k. Groundsfor Revocation. Most
Cited Cases
(Formerly 24k53.4)
Physical absence of alien and her children from
consular district was not groundfor ab initio revocation of their nonimmigrantvisas by consular ofricer, even though their absence was in contravention of regulation concerningissuance of the visas.
Immigration and Nationality Act, §§ 101(a)(15),
(a)(15)(L), 212, 212(a), 221(i), 8 U.S.C.A.
1101(a)(15),(a)(15)(L), 1182, I]82(a),
"1381 Howard Hom, Fleming & Hom, Los
Angeles,Cal., for plaintiffs-appellants.
Carolyn M. Reynolds, Asst. U.S. Atty., Los
Angeles,Cal., for defendants-appellees.
Appealfrom the UnitedStates District Courtfor the
CentralDistrict of California.
Before BROWNING,
Chief Judge, and KENNEDY
and HUG,Circuit Judges.
HUG,Circuit Judge:
This action concerns the validity of the revocation
of nonimmigrantvisas by a consular officer. Appellants Tak-MingWong,his wife, King-Fong Wong,
and his employer, Yat SumInternational Corporation, appeal from the district court’s summary
judgment affirming the revocation of the nonimmigrant
visas of Mrs. Wongand the Wongs’minor children.
The issues before us on this appeal are: (1) whether
the Wongsfailed to exhaust their administrative
remedies, and (2) whether the applicable statutes
and regulations authorized the consular officer to
revoke the visas on the groundsasserted.
FACTS
Appellant Yat SumInternational Corporation ("Yat
Sum"), a subsidiary of Yat SumLand Investment
Company based in Hong Kong, employed Mr.
Wongas manager of its California operations. In
order to work in the United States, Mr. Wong
sought to obtain for himself an intracompanytrans¯
. FNI and wsas
.
feree v~sa, knownas an L-1 visa,
knownas L-2 visas for his spouse and minor children. After the initial processing, Mr. Wong,accompanied by his attorney, flew to Pagu Pagu,
American Samoa, to secure the visas for himself
and his family. Mrs. Wongand the children did not
personally appear for an interview at the American
Consulate in Pagu Pago. The visa-issuing officer
approved the applications and the appropriate endorsementstampswere affixed to all passports.
FN1. Mr. Wongwas classified as an L-1
nonimmigrant pursuant to 8 U.S.C. §
1101(a)(15)(1982).
On May20, 1983, Mr. Wongand his family arrived
at the Los AngelesInternational Airport from Hong
Kongand presented the nonimmigrantvisas issued
in Pago Pago. In accordance with instructions received by wire on January 24, 1983 from the State
Department, the immigration and Naturalization
Service ("INS") inspector questioned them concerning whetherthey obtained the visas withoot be-
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ing personally present in Pago Pago. FN2 Mr.
Wongstated under oath that while he personally
appeared at the AmericanConsulate, his wife and
children did not. The INS inspector notified the
State Departmentby telephone of the apparent deficiency, and a State Departmentofficial revokedthe
visas of Mrs. Wongand the children because they
had not personally appeared at the AmericanConsulate in Pago Pago. Mrs. Wongand her children
were advised that they had not established that they
were admissible into the country and were instructed to appear for deferred inspection at the local
INS office on May23, 1983 for a final determination on their admissibility. Mr. Wong,whopersonally appeared in Pago Pago, was admitted into the
country underhis L-I visa.
FN2.This questioning was specifically instituted in response to the State Departmeat’s discovery that nonimmigrantvisas
were being issued in Pago Pago in apparent violation of the immigration laws and
regulations. A pattern developed whereby
aliens outside American Samoawere obtaining nonimmigrant visas even though
they had never been to Pago Pago, American Samoa.
Mrs. Wongand her children, accompaniedby their
attorney, appearedfor deferred inspection. The INS
inspector opined that they did not appear to be admissible and could either withdrawtheir request for
admission or elect to have an exclusion hearing before an immigration "1382 judge. They opted for a
hearing and were served with notices to appear for
an exclusion hearing, scheduled to commenceon
June 2, 1983.
On May24, 1983, the INS received a teletype from
Mr. Goelz, Deputy Assistant Secretary for Visa
Services, Bureau of Consular Affairs, Department
of State. Mr.Goetz’steletype states in relevant part
as follows:
This is to certify that 1, the undersignedconsular
officer, acting in pursuance of the authority con-
ferred by section 221(i) of the Immigration and
Naturalization Act and 22 C.F.R. § 41.134, hereby
revoke the nonimmigrantvisas, L-2, issued at the
office of the Governor of American Samoa, Pago
Pago, AmericanSamoa,on November
22, 1982 .....
Mrs. Wongand the children were paroled into the
United States and have remainedsince that time.
[1] On Jnly 18, 1983, Mr. Wong,Mrs. Wong,and
Yat Sumbrought a class action for declaratory and
injunctive relief against the Departmentof State
and the INS, alleging violations of the Immigration
and Nationality Act, 8 U.S.C. § 1104(a) (1982),
C.F.R. §§ 41.130 and 41.134 (1983); the Administrative Procedure Act, 5 U.S.C. §§ 553(b)-(d)
706 (1982), and the due process clause of the fifth
amendment. The district court granted summa.ry
FN3
judgment to appellees on October 11, 1984.
Mr. Wong’svisa was not revoked, and Yat Sumstill
has the benefit of his services. The district court
correctly ruled that there is no case or controversy
as to Yat Sumor Mr. Wong.Mr. Wongdoes not allege standing as representative of the children to
challenge the revocation of their visas. Neither Yat
Sumnor Mr. Wonghas standing to contest the revocation of Mrs. Wong’svisa. Weare, thus, here
concerned only with the appeal of Mrs. Wongfor
herself and as representative of her children.
FN3.The appellants withdrewtheir request
for class certification on October6, 1983.
STANDARD OF REVIEW
Wereview de novo a grant of summaryjndgment
by the district court, Lojek v. Thomas. 716 F.2d
675. 677 (9th Cir. t983). In reviewing agency action, both the district court and this conrt apply the
samedeferential standard. The Administrative Procedure Act, 5 U.S.C. § 701 et seq. 11982), provides
that "the reviewingcourt shall ... hold unlawfuland
set aside agency action findings and conclusions
found to be (A) arbitrary, capricious, an abuse
discretion, or other,vise not in accordance with
taw." 5 U.S.C. § 706(2)(A). Underthis deferential
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789 F.2d 1380
789 F.2d 1380
789 F.2d 1380
standard, we can reverse the district court’s decision
to revoke Mrs. Wong’svisa only if the Secretary of
State violated the law or committeda clear error in
judgment. See Knoetze v. United Stutcs, 634 F.2d
207~209 (5th Cir.), cert. denied,454 U.S. 823, 102
S.Ct. 109, 70 L.Ed.2d 95 (t981); BowmanTransportation, htc. v. dr~msas-Best Freight ~vstem,
hw., 419 U.S. 281, 284-86, 95 S.Ct. 438, 441-42,
42 L.Ed.2d 447 (1974). Traditionally, an agency’s
interpretation of its ownregulations is entitled to a
high degree of deference. Sierra Chtb v. Clark, 756
F,2d 686, 690 (9th Cir. 1985); lhm,aiian Elect~’ic
Co. v. EPA,723 F.2d 1440, 1447(Oth Cir.t984).
STATUTORY AND REGULATORY BACKGROUND
Underthe conditions and limitations prescribed by
the Immigration and Nationality Act ("Act") and
the regulations promulgatedthereunder, a consular
officer mayissue a nonimmigrantvisa to a nonimmigrant who has made a proper application. 8
U.S.C. § 1201(a)(2) (1982). "’Consular officer"
defined by 8 U.S.C. § 1101(a)(9) (1982) as
consular, diplomatic, or other officer of the United
States designa?ted under regulations prescribed under authority containedin this chapter, for the purpose of issuing immigrantor nonimmigrantvisas."
The regulations designate "commissionedconsular
officers, the District Administrators of the Trust
Territory of "1383the Pacific Islands, the Director
of the Visa Office of the Department[of State] and
such other officers of the Departmentas he shall
designate for the purpose of issuing nonimmigrant
visas" as consularofficer. 22 C.F.R.§ 4 I. I ( 1981).
The provisions of 8 U.S.C. § 1201/g) specify that
nonimmigrantvisa shall not be issued by the consular officer if (1) it appears to the consular officer
that the alien is ineligible to receive a nonimmigrant visa under8 U~S.C.§ 1182, or any other provision of law, (2) the application fails to complywith
the Act, or the regnlations issued thereunder, or (3)
the consular officer knowsor has reason to believe
that suchalien is ineligible to receive a visa under8
U.S.C, § 1182, or any other provision of law. 8
U.S.C. § 1201(g) (1982). The statute requires
an alien’s application for a nonimmigrantvisa shall
be made in such form and manner as prescribed by
the regulations. 8 U.S.C. § 1202(c) (1982).
C.F.R. § 41.110(a) (1983) sets forth the manner
makingvisa applications.
[E]very alien applyingfor a regular or official visa
shall makeapplication to the consular officer in the
consular district in whichhe has as his residence,
except that a consular officer shall at the direction
of the Department,or mayin his discretion, accept
an application for a nonimmigrantvisa from an alien havingno residencein the consulardistrict if the
alien is physically present therein.
[Emphasis added.] FN4
FN4. 8 U.S.C. § 1202(el (1982) also
quires that the application be signed and
verified by oath before the consular officer
unless otherwise prescribed by the regulations. This aspect of the application proeedure was not designated as a ground for
the revocation and is not contendedby the
Governmentto be the basis for the revocation.
Congress has conferred upon the consular officer
and the Secretary of State plenary powerto revoke
a visa in the followinglanguage.
After the issuance of a visa or other documentation
to any alien, the consular officer or the Secretary of
State mayat any time, in his discretion, revoke
such visa.... [S]uch revocation shall invalidate the
visa or other documentationfrom the date of issuance....
8 U,S.C. § 1201(i) (1982).
Underthe Foreign Service Act of 1980. 22 U.S.C. §
3921(1982). the Secretary of State is charged with
administering and directing the Foreign Service,
which includes consular officers. In implementing
his statutory authority to revoke nonimmigrant
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789 F.2d 1380
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Page 5
visas, the Secretary of State has adoptedregulations
delegating to all consular officers the powerto revoke nonimmigrant visas and specifying the
groundsand proceduresfor doing so.
The provisions of 22 C.F.R. § 41.134(a) (1983),
thorize a consular officer to revoke a nonimmigrant
visa subsequent to its issuance on two specific
grounds:ineligibility to receive the visa under section 212(a) of the Act, 8 U.S.C. § 1182(a), and
entitlement to the nonimmigrantclassification under section t01(a)(15) of the Act, 8 U.S.C.
I 101(a)(15). Section41.134(a)states as follows:
Groundsfor revocation. A consular officer is authorized to revoke ab initio a nonimmigrant
visa issued to an alien if, subsequent to the issuance of
such visa, he finds that at the time of issuance the
alien was ineligible under section 212(a) of the Act
to receive such visa or was not entitled to the nonimmigrant classification under section 101(a)(15)
of the Act specified in such visa.
Analien whosevisa has been revoked has the right
to request that the consular officer reconsider his
decision to revoke. 22 C.F.R. § 41.134(g)(1)
(1981).
the outcome." Murphyv. ltunt. 455 U.S. 478, 481~
102 S.Ct. 118t, 1183. 71 L.Ed.2d 353 (1982) (per
curiam) (quoting United States Parole Commission
v. Geraghiy. 445 U.S. 388~ 396, 100 S.Ct. 1202,
1208, 63 L.Ed.2d 479 (1980)); accord Walker v.
Ihtston, 689 F.2d 901, 902 (9th CirA982). Where
"interim relief or events have completely and irrevocablyeradicated the effects of [an] alleged violation" of law and there is no reasonable expectation
that the violation will recur, a case is moot.County
~fLos Angeles v. Davis, 440 U.S. 625, 631, 99
S.Ct. 1379, 1383, 59 L.Ed.2d642 (1979). Partial relief in another proceeding does not moot an action
seeking additional relief. 13AC. Wright, A. Miller
& E. Cooper, Federal Practice & Procedure §
3533.2 at 242-43 (2d ed. 1984).
Appellants seek reinstatement of their nonimmigrant visas and, thus seek the benefits flowing to an
L-2 visa holder that are otherwise unavailable to a
nonimmigrant entering this country on a visa
waiver. For example,an L-2 visa holder has a right
to revalidation of the visa before its expiration, a
right that is not available to a nonimmigrantentering and residing in this country without such documentation. 22 C.F.R. § 41.125(g) (1981). Appellants have not already received everything they ask
for in this action. Their claim is not moot.
DISCUSSION
B. Exhaustion of Remedies
A. Moolness
[2] Weare informed that appellants were admitted
into this country on November
8, 1985 pursuant to
the visa ;vaivers granted by the immigrationjudge.
The Governmentcontends that the appeal is "1384
nowmoot. Because the visa waivers afford appellants only a portion of the remedysought and place
appellants in a substantially less favorable position
than had their L-2 visas been reinstated, this appeal
is not moot.
The doctrine of mootnessrequires courts to dismiss
cases where"the issues presented are no longer live
or the parties lack a legally cognizableinterest in
The district court held that it lacked subject matter
jurisdiction because of Mrs. Wong’s"failure ... to
exhaust administrative remedies, ... and a failure to
state a claim for whichrelief can be granted." Presumably, the district court agreed with the Government’scontentions that the visa holders are required
to request reconsideration of the visa revocation by
the consular officer who revoked their L-2 visas
and, either additionally or alternatively, are required to present new applications for nonimmigrant visas to an American consular officer
abroad.FN5
FN5. The Government does not contend
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that the exclusion hearing is an administrative procedurethat must be exhaustedas
a remedyfor a visa revocation.
Unlessstatutorily mandated,application of the doctrine of exhaustion of administrative remedies lies
in the sounddiscretion of the district court. See Reid v. Engen, 765 F.2d 1457, 1462 (9th Cir. 1985).
This judicially created doctrine "does not limit jurisdiction; rather, it pemaitscourts to decide whether
to exercise jurisdiction." Rodrignes 1,. Donol,an,
769 F.2d 1344, t348 (9th Cir.1985). Where,
here, there is no statutory or regulatory exhaustion
requirement, the administrative agency’sinterest in
applying its expertise, makinga proper record, and
maintaining an efficient, independentadministrative systemshould be balanced against the interests
of private parties in finding adequateredress. Shetter Framiug Corp. v. Pension Benqfit G~taran~v
Corp., 705 F.2d 1502, 1509(9th Cir.1983), rev’don
other grounds sub nora.Pension Benefit Guaranty
Co~7~.v. R.,4. Gray&Co., 467 U.S. 717, 104 S.Ct.
2709, 81 L.Ed.2d 601 (1984).
[3] Wefind that under either theory asserted by the
Governmentand presumablyrelied upon by the district court, it wasan abuseof discretion to require
exhaustion of these pnrported administrative remedies. A request for reconsideration to the person
makingthe decision is not generally considered a
procedurethat must be exhausted. In this particular
case, a request for reconsideration of the consular
officer’s revocation order wouldhave been fi~tite
because the consular officer whorevoked the visas
indicated in his deposition that he wouldnot reconsider any revocation based on lack of physical presence. Further, requiring the appellants to leave
"1385 the United States to submit an application
for a newnonimmigrantvisa at another consulate is
not a remedyfor an error in revoking these visas.
Theappellants are entitled to litigate the validity of
the revocation of their nonimmigrant visas that
were issued.
C. Revocationof the Visa Ab lnitio
The district court appears to have ruled in the alternative that the visa was properly revoked under
the applicable statutes and regulations. Wetherefore also address that issue as a matter of law,
which maybe determinedin this appeal without the
necessity of a remand.
Although8 U.S.C. § 1201(i) grants to the Secretary
of State broad authority to revoke a uonimmigrant
visa, the regulation that implementsthat authority,
22 C.F.R. § 41.134(a), delegates that authority
all consular officers, but circumscribessuch authority to twolimited instances: if it is foundthat the
visa holder was ineligible under 8 U.S.C. § 1182to
receive such visa, or if the visa holder was not entitled to nonimmigrant
classification under 8 U.S.C.
§ 1101(a)(l
[4] The parties have consistently maintained that
Mr. Goelz, Deputy Assistant Secretary for Visa
Services, acted in his capacity as a consular officer
in revoking the nonimmigrant visas. 22 C.F.R. §
4t.1 defines "consular officer" as including the Director of the Visa Office of the Departmentand his
designate. Mr. Goelz, a lawfully recognized consular officer, revoked the nonimmigrantvisas on the
basis that Mrs. Wongand the children were not
physically present within the consular district. Such
a basis is not one of the permissible groundsenunciated by 22 C.F.R. § 41.134(a). The evidence reflects that Mrs. Wongand her children do not fall
within either of these categories and, as such, the
ab initio revocation of their nonimmigrantvisas
was improper.
8 U.S.C. § II82(a) specifies 33 categories of people
whoare ineligible for visas and whoshall be excluded from admission to the United States.
Groundsfor ineligibility include insanity, drug addiction, criminal conviction and the like. It is not
contendedthat any of these exclusionary categories
are applicable to the Wongs.
8 U~S.C.§ 1101(a)05)classifies persons entitled
nonimmigrant status. The Wongswere issued L-2
visas as the wife and children of an alien admitted
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789 F.2d 1380
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under an L-I visa pursuant to the terms of 8 U.S.C.
§ ll01(a)(15)(L). There is no contention that
are not properly classified as nonimmigrantsunder
8 U.S.C. § 1101(a)(15)(L). There is no dispute
Mr. Wonghas an ongoing business relationship
with Yat Sumin this country and that the requisite
familial relationship exists betweenMr. Wongand
his wife and children.
Althoughthe consular officer is supposedto assure
the physical presence of the applicant within the
consular district before issuing the nonimmigrant
visa, this procedural deficiency is not one of the
groundsspecified for revocationof the visa after its
issuance. Instead, the regulation looks to the substance of the visa qualifications-whetherthe alien is
inappropriately classified for the type of visa obtained and whetherthe alien is within the group of
people listed in 8 U.S.C. § ll82(a) that would
ineligible for a visa regardless of their classification.
visas were issued was in contravention of a regulation concerningthe issuance of the visas, that circumstancecannot support a revocation of their otherwise lawfully issued nonimmigrant visas. The
consular officer had no authority under the governing regulation to revoke the visas. Wereverse the
district court’s summaryjudgmentfor appellees and
remandwith instructions to enter judgmentfor Mrs.
Wongand to vacate the order revoking the visas of
Mrs. Wongand her children.
REVERSED AND REMANDED.
C.A.9(Cal.),1986.
Wongv. Department of State
789 F.2d 1380
END OF DOCUMENT
The regulation makesgood sense. Uponissuance of
a visa by the consular officer, the alien should be
able to expectthat the consnlarofficer has taken all
the necessary steps to assure that the appropriate
procedural details have been fulfilled. Relying on
this, Mrs. Wongand her children traveled to the
United States. To revoke a nonimmigrant visa at
that stage becausethe consular officer failed to ensure that the correct procedures were followed,
whenthe alien is actually qualified to receive the
visa, seemsharsh, indeed. Aliens entering any foreign country are naturally quite dependentuponthe
consular officers to ensure that the appropriate procedural requirements to obtain visas to enter the
foreign country are satisfied. The revocation*1386
regulation appropriately draws a distinction
betweensubstantive eligibility for the visa and procedural defects in its issuance.
The physical presence requirement is a procedural
requirement that falls outside the authorized
groundsfor visa revocation set forth in 22 C.F.R. §
41.134(a). While the absence of Mrs. Wongand the
children from the place where the nonimmigrant
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Document 1

IJ,S. `,~171 ~J,, IN THE UNITED STATES DISTRICT

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