U.S. consulates ‘abusing their discretion’ to stop legal immigration, lawyers say
JULY 22, 2019 06:00 AM
For one South Florida man, half a million dollars couldn’t cut it.
In order for the U.S. citizen to bring his parents from overseas on immigrant visas, the Department of State wanted proof that he had at least four times the required amount. In his case, federal law says the man only needed to show $220,000 in assets, but the U.S. demanded proof of $1 million.
“I feel like I’m in an Austin Powers movie,” the man’s attorney, Tammy Fox-Isicoff, told the Miami Herald. “The embassy wants proof of $1 million in assets to immigrate to the U.S., totally disregarding the law. Tell me this administration isn’t trying to stop even legal immigration.”
There’s no math to determine how the amount of $1 million was calculated by federal officials. Lawyers say the million-dollar benchmark was “simply pulled from thin air” and is a “blatant abuse of discretion” by U.S. consulate offices.
Attorneys say the narrative of consulars taking action out of their own judgment— rather than federal guidelines— is becoming more common at U.S. embassies around the world.
“My client clearly meets the requisites. This decision is arbitrary and capricious and shows how consulates are abusing their discretion which isn’t reviewable in court,” Fox-Isicoff said.
There is currently no appeals process for visa refusals. The only avenue for review that immigration attorneys have if they have “legal questions” about a consular’s decision is LegalNet — an office within the Department of State.
LegalNet does not review any case findings, and according to United States Supreme Court case Kerry v. Din, the decisions of U.S. embassies cannot be challenged in court.
The Miami Herald obtained redacted copies of Fox-Isicoff’s client’s case. The petitioner’s name is being withheld from this report due to privacy concerns.
Fox-Isicoff’s client, a Hollywood man in his 30s, is married and has two children. The man, who holds a master’s degree from the University of Florida, applied to bring his parents, who work as engineers in Uzbekistan, to the United States to help support him and his wife with the rearing of their two young children.
U.S. Immigration law says consular officers analyze the “totality of the applicant’s circumstance” including — age, health, family status, education and skills, assets, resources, financial status and also “affidavits of support.”
An affidavit of support is a legally binding document that “financial sponsors” sign to insure financial responsibility for the immigrant. In the Hollywood man’s case, his co-sponsor is a close family friend with a $150,000 annual salary — about six times the required minimum.
“After conducting the interview and evaluating the totality of the applicant’s circumstances, the consular officer is not convinced the applicant will not be a public charge in the United States,” the U.S. Embassy in Tashkent, Uzbekistan, wrote in an email to Fox-Isicoff. “If the petitioner would like to request a reconsideration of this decision, the evidence of $1,000,000 will be required.”
A “public charge” is a term used in the law to refer to a person who is considered primarily dependent on the government, whether it be via public cash assistance, food stamps, disability or institutionalization for long-term care at the government’s expense.
Documents show the applicant has assets worth more than $470,000. His gross income last year was $48,000, and his co-sponsor has an annual salary of $150,000.
“Few people have free and clear assets totaling almost half a million dollars,” Fox-Isicoff said. “If this is a public charge case, we’re all in trouble.”
When Fox-Isicoff challenged it with LegalNet, the office concurred with the consular’s decision but would not explain the reasoning, emails show. The Department of State did not immediately respond to a request for comment Monday.
“My client is now trying to liquidate his possessions in order to meet the government’s non-reviewable ludicrous request of a million dollars,” Fox-Isicoff said.
Isicoff’s case doesn’t come as a surprise to other attorneys. Marlene Markowitz said her client, a South Florida author, had a million-dollar investment property and still didn’t financially qualify to sponsor his wife from South America on an immigrant visa.
“He’s a millionaire through income and assets and still didn’t qualify according to the consular,” Markowitz said. “He has $500,000 in the bank, but the government still requested additional evidence. These decisions are all based on the officer assigned to your case. It’s totally all up to their discretion.”
With the Trump administration’s hard-line immigration policies, attorneys say denying immigrant visas despite meeting the requirement is a creative effort by the government to “separate families in another way” as well as an “effort to slow things down” by the United States Citizenship and Immigration Services. The USCIS is an agency under the Department of Homeland Security that administers the country’s naturalization and immigration system.
“This is them trying to see what they can nitpick at. The reality is that it’s becoming harder and harder to immigrate here, even legally,” Markowitz said. “Separating families is just one of the collateral damages.”
In another Miami-Dade case, a disabled military veteran, who now works as a mailman, was denied the ability to bring in his immediate relatives based on his affidavit of support.
The U.S. Consulate in Peru said he was denied because he couldn’t use his non-taxable VA payments, about $20,000 a year, as proof of income.
“This is clearly a decision that constitutes an abusive discretion; it’s a gray area,” Isicoff said. “It’s inconceivable that an embassy would prohibit a disabled vet from utilizing disability payments that he received because he was injured while honorably serving this country. It’s a slap in the face.”
Glorily López, an immigration attorney in Wisconsin, told the Miami Herald that “the abuse of discretion hit an all-time low” for her clients in Bogota.
“It was almost comical: The officer told my clients their documents didn’t fit through the slot of the glass window and that therefore he could not accept the documents, that it was ‘too much paper,’ ” López said. “We had to get our senator’s office involved and everything to get it reviewed.”
López’s case involves her client, a U.S. citizen businessman, sponsoring his fiance from Colombia.
“I can see people being very discouraged,” López said. “We all know the administration wants a wall on the southern border. But because that wall hasn’t been built, the government has resorted to utilizing this invisible wall of trying to restrict legal immigration.”
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