9th Circ. Appeals Court Says Permanent-Residence Visa Denial for US Army Officer’s Wife Was Ok

This week, the 9th Circuit Court of Appeals—the most pro-immigrant of the federal appellate courts—upheld the dismissal of US Army major Jerrid Allen’s lawsuit that challenged his wife’s immigrant-visa denial. (Generally, when one enters the United States with an immigrant visa, one becomes a permanent resident.)

Allen claimed that the consular officer’s visa denial was “arbitrary, capricious, . . . or otherwise not in accordance with law.”

The 9th Circuit heard Allen’s arguments and decided that if the consular officer denied the visa request of Allen’s wife for an apparently legitimate and bona fide reason, then there is no recourse that Allen may receive from the courts. This is not the result Allen and his wife wanted.

While stationed in Germany following deployment to Iraq, Allen and his wife, a German citizen, married. They now have three children. In 2013, the Army ordered Allen to return to the United States, from Germany, for restationing. His wife applied for an immigrant visa so she and their children could join him. The US Citizenship and Immigration Services (USCIS) approved the Form I-130 (Petition for Alien Relative) that Allen filed on behalf of his wife; however, after his wife’s interview at the US consulate, a consular officer denied her visa application, explaining:

This office regrets to inform you that your visa application is refused because you are ineligible to receive a visa under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. On July 16, 1998, you were convicted in a German court of theft pursuant to paragraphs 242 and 248a of the German criminal code. This crime constitutes behaviour reflecting moral turpitude. The maximum punishment is over one year in prison. You are eligible to seek a waiver of the grounds of ineligibility by filing an I-601 with USCIS in the United States.

. . . .

Additionally your visa application is refused because you are ineligible to receive a visa under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act. On March 20, 1997 you were convicted in a German court for illicit acquisition of narcotics pursuant to paragraphs 29, 25, 1 and 3 of the German criminal code. There is no waiver for this ineligibility.

The consular officer’s decision rested on two grounds of inadmissibility:

[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of— (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.

It is unclear whether Allen and his wife hired an immigration law firm from the beginning of their immigration journey, or once they realized they faced headwinds, or at all. However, what is clear is that immigration firms, like ours, help individuals and families throughout their consular processing journey so they neither have to engage in expensive litigation, nor have to face a visa denial.