This is a story about how Attorney Rozdzielski sued DHS in Federal Court and forced the government to follow the law.
In December 2019, a man scheduled an immigration consultation with me from overseas.
He had married a US citizen in 2018, and she sponsored him for a green card. The USCIS approved the I-130 visa petition and he was scheduled for an immigrant visa interview at a US Embassy.
Even though the consular officer at the Embassy was ready to approve his green card, he was prohibited from doing so.
Why?
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When the officer checked the online database, he saw that the US Customs and Border Protection (CBP) agency had entered something into the database stating that our client was inadmissible to the United States because of Fraud. However, CBP offered no explanation as to why they believed that he had committed fraud.
Therefore, the officer denied the man’s green card application.
This seemed not only unfair, but unlawful.
Attorney Rozdzielski Takes Over
I assigned the matter to Attorney Rozdzielski who immediately wrote to the US Embassy requesting an explanation regarding the alleged misrepresentation.
Failing to receive an explanation, Attorney Rozdzielski wrote to the State Department’s attorneys in Washington, D.C.
In January 2020, she received the following response from an unnamed officer:
“The INA 212(a)(6)(C)(i) refusal was originally made by the U.S. Customs and Border Protection (CBP) part of the Department of Homeland Security (DHS). As per 9 FAM 303.3-5(E)(1), Consular Officers are not to ‘look behind a definitive DHS finding or re-adjudicate an alien’s eligibility with respect to the provision of inadmissibility found in the DHS lookout entry.'”
At this point, we had 2 choices, either:
- File an I-601 waiver demonstrating that our client’s wife would suffer extreme hardship if he was not allowed to join her in the United States; or
- Sue the Department of Homeland Security in Federal Court.
Filing a Fraud Waiver?
Attorney Rozdzielski considered the possibility of preparing a fraud waiver. However, she saw various problems with this approach. First, it takes 2-3 months to prepare a waiver, and it would take much longer than that for the government to make a decision.
Further, whether or not to grant such a waiver is a discretionary decision on the part of the USCIS. The USCIS Policy Manual provides as follows:
“Analyze Whether the Waiver Should Be Granted as a Matter of Discretion
A fraud or willful misrepresentation waiver generally requires an officer to consider whether granting the waiver is warranted as a matter of discretion. The officer should determine whether the applicant’s positive factors outweigh the negative factors.
The finding of extreme hardship experienced by a qualifying relative (or the VAWA self-petitioner himself or herself) is the first positive factor for consideration. The underlying fraud or willful misrepresentation itself is the first negative factor to consider. [4] The nature, seriousness, and underlying circumstances of the fraud or willful misrepresentation may influence the weight given to this negative factor. Considerations include, but are not limited to:
The facts and circumstances surrounding the fraud or willful misrepresentation;
The reasons and motivations of the applicant when the fraud or willful misrepresentation was committed;
Age or mental capacity of the applicant when the fraud was committed;
Whether the applicant has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation; [5] and
The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation. [6]”
It was literally impossible to prepare a proper waiver application since the government was unwilling to reveal what the alleged fraud was and when it occurred.
Attorney Rozdzielski Sues DHS in Federal Court
So, was suing the government in Federal Court a better alternative?
Generally, it is impossible to challenge visa denials by US Embassies and Consulates in Federal Court because of the Doctrine of Consular Nonreviewability. This Doctrine states that the Courts lack jurisdiction to overturn consular decisions made by the State Department.
This seemed to make a Federal lawsuit impossible.
However, Attorney Rozdzielski came up with a innovative approach.
In February 2020, she filed a Complaint for Declaratory and Injunctive Relief in Federal District Court not against the State Department, but against both the DHS and the CBP.
She stated that the actions of the CBP in alleging that our client engaged in fraud without revealing the basis for their allegation were both arbitrary and capricious and in violation of due process of law. The complaint states as follows:
“CBP has a legal duty to provide notice to a noncitizen of a decision that will be adverse, and must provide the noncitizen an opportunity to make a statement in response to the derogatory information.”
To support this, she cited both a government regulation as well as court cases showing that this violated the Due Process Clause of the US Constitution.
Success for Our Client
Although the government attorneys requested additional time from the Federal Judge to respond to our complaint, in the end, they had no choice but to agree with Attorney Rozdzielski.
She won the case in Federal Court and our client was granted a green card.
When I called her to congratulate her on this victory, she told me that she had recently spoke to our client’s wife on the phone, and when she learned that her husband would be joining her in the U.S., she broke down in tears.
