Brazilians who were told at a United States consulate this year that their immigrant visa could not be issued are among the people whose cases Washington has been ordered to look at again.
Brazil was one of 75 countries on a list the State Department drew up in January. Nationals of those countries, the department said, were at high risk of becoming a public charge — of drawing on public assistance once in the country — and immigrant visas to them would be suspended. The policy was announced on January 14 and took effect a week later.
A federal court struck it down in late August. In a status report filed on September 8, the government told the judge how large the freeze had been: more than 43,000 immigrant visa applications had been refused on the strength of the policy alone.
What the court decided
The case is Catholic Legal Immigration Network v. Rubio, filed in February in the US District Court for the Southern District of New York by CLINIC and African Communities Together, together with individual applicants and the American citizens sponsoring relatives.
Judge Jeannette A. Vargas vacated the suspension. Congress, she held, gave consular officers the authority to decide visa eligibility case by case against the criteria written into the Immigration and Nationality Act, and a blanket refusal by nationality overrides that scheme rather than applying it. The policy, the ruling said, mandated "the refusal of visas to eligible applicants without any basis in law," according to PBS News, which reported the decision. Al Jazeera quoted the judge describing the policy as patently unlawful and beyond the authority of Secretary of State Marco Rubio.
Anna Gallagher, CLINIC's executive director, said in the organisation's statement that "at its heart, this case is about keeping families together."
The State Department, asked about the ruling, said it was protecting the American people by upholding the highest standards and declined to discuss pending litigation.
What consulates were told to do
On September 10 the department sent instructions to every US embassy and consulate. The earlier guidance imposing the country-based pause was withdrawn. Posts were told to review refusals issued solely under the policy immediately, starting with the oldest cases; to ask in writing for any missing documents, including a fresh medical examination where the old one has expired; to re-interview applicants where necessary; and to complete a new public charge worksheet in every immigrant visa case.
Applicants refused only under the 75-country policy are being told to wait to be contacted by the consular section rather than to file anything new. Where a refusal rested on other grounds as well, the usual one-year window to supply the missing documents without paying a second fee still applies.
The appeal
The government filed a notice of appeal to the US Court of Appeals for the Second Circuit on September 10 and, four days later, asked the district court to suspend its judgment while that appeal is heard — or at least the part of it that requires the review of the refusals. No stay has been granted, which means the judgment stands and the reprocessing continues. The two sides are due to file a joint status letter at the end of September.
For applicants, that is the practical point. An appeal that is pending is not an appeal that has won, and until a court says otherwise the consulate is under orders to take the file back up.
Who else is on the list
The 75 countries span four continents and include much of Latin America and the Caribbean alongside Brazil: Colombia, Uruguay, Cuba, Haiti, Guatemala, Nicaragua, Jamaica, Belize, the Bahamas, Barbados, Dominica, Grenada, Saint Lucia, Saint Kitts and Nevis, Saint Vincent and the Grenadines and Antigua and Barbuda. The rest of the list runs from Afghanistan, Iran, Iraq and Russia through Nigeria, Ethiopia, Ghana and Senegal to Bangladesh, Pakistan, Nepal and Thailand.
Reporting from PBS News, Al Jazeera, Courthouse News Service, the National Immigration Law Center's case docket for CLINIC v. Rubio and published guidance from Fragomen.
