Every visa officer a law unto himself

By Calvin Godfrey, TN News

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The arrest of consular officer Michael T. Sestak has left everyone wondering what changes, if any, will come to the United States' deeply flawed system for evaluating visa applications

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The Santa Fe International Folk Art Market kicked off this week without three Red Dao embroiderers from northern Vietnam. The impoverished women were fully sponsored and funded for the trip, which could have brought their village much-needed attention and funding. Last year, the average booth at the nonprofit event took in $18,200 - 90 percent of which was brought home by the vendors. The women could not go because they were twice denied tourist visas by US Embassy in Hanoi. Photo: Bob Smith and Jim Arndt 
Thousands of people walked into the Santa Fe International Folk Art Market last week looking for a Red Dao woman from northern Vietnam, but the smiling full-faced artisan on their tickets wasn't anywhere to be seen.
On July 1, she and two other embroiderers from the village of Ta Phin took an overnight train from Sa Pa to Hanoi carrying a load of handmade garments some of which had taken up to a year to complete.
The next day, they presented their official invitations to a consular officer, along with their passports, which they'd just received a few days before.
They seemed like shoe-ins.
More than 500 artists from around the world had applied for a chance to sell goods and solicit sponsorship at the nonprofit event; only 140 were invited to participate. The market's organizers had even chosen to print a photo of one of the Vietnamese women on 30,000 tickets.
Apparently, none of this impressed the consular officer who rejected their application.
"It's just outrageous," said Mark Rapoport, a pediatrician based in Hanoi who sponsored their application and advanced them money for their trip. "These women can't read English, they can't write English, they make US$100 a year. One had never been to Hanoi a few hundred kilometers from their village. Are they really likely to step off a plane in New Mexico and say, 'I think I'll stay here'?"
Rapoport and a group of American veterans believed the consulate had made a mistake and appealed the decision.
During a fourth of July function at the embassy, Vietnam War veteran Chuck Searcy approached Ambassador David Shear.
"The ambassador was sympathetic," Searcy said. "But he said he couldn't interfere in a visa application process."
The women were granted a second two-minute interview the following day.
"They said, 'Ta Phin is our life. This is the home of our ancestors, we cannot leave. We wouldn't think about it'," said Searcy, who assisted them with the process.
Once again, a consular officer turned them down, concluding that they could not demonstrate sufficient family, social, and economic ties that would require them to return home.
"Ties is all these people have," Rapoport said via telephone. "They are probably the three people in Vietnam least likely to overstay their visa."
A spokesperson for the embassy said he could not comment on the case due to the Privacy Act, but the law speaks for itself.
Consular absolutism
"A consular officer's decision isn't even reviewable by the Secretary of State," said Brent Rennison, an immigration attorney in Portland who is engaged in a long fight to overthrow the antiquated legal doctrine known as Consular Nonreviewability or consular absolutism.
The doctrine was born, more or less, in 1894 when a man named Fong Yue Ting unsuccessfully challenged a congressional law that singled out Asians for unfavorable immigration treatment.
No one has succeeded in challenging a visa rejection ever since.
Last year, a federal judge tossed out Rennison's class action lawsuit against the State Department in general and the US Consulate in Ho Chi Minh City, in particular, because the government had granted his clients visas by the time it got to court.
Rennison's case attempted to challenge the government's approach to K-1 visas also known as "fiancé visas."
When an American and a foreigner get engaged, they must prove that their relationship is genuine in order for the foreign fiancé to enter the US. When consular officers choose to flag a genuine relationship as a sham marriage they don't have to justify their split-second decisions in writing; lawyers cannot really get involved.
Naturally, these circumstances have yielded some pretty terrible stories.
Perhaps the worst culminated in the Fall of 2011, when a South Carolina man named Clay Riggsbee and his then-fiancé lost their infant daughter to the epidemic of hand, foot and mouth disease then sweeping through HCMC.
The mother and child wouldn't have even been in the city had they not been caught in the consulate's red tape.
The couple first applied for a visa in 2009 and was turned down, forcing Riggsbee to fly back to HCMC to sort the mess out. After Riggsbee's fiancé became pregnant the consulate demanded DNA proof that Riggsbee was the father. Riggsbee has publicly claimed that employees of the consulate refused to examine it on three separate occasions.
Again, the consulate can say nothing about the case due to the Privacy Act.
What's clear, however is that their infant died at the tragic age of two and-a-half months in September of 2011. In October, the couple received their K-1 visa.
"There is a tenet in the law that says no man should be a law unto himself and that's what [consular officers] are," said Rennison, who is preparing to file another suit against the State Department. "They have absolute authority. We think that, at least as far as relatives and fiancés of US citizens are concerned, we should be able to say 'we think you're wrong, here's why'."
Rennison is prepared to wait a long time.
"Only the Supreme Court can change the law," he said. "All lower courts are bound by precedent. It's going to take four or five years to maybe get there."
Even if Rennison gets his way and the US government extends foreign fiancés a modicum of legal review, people like the three women from Ta Phin will remain at the mercy of a broken system.
Many worry that the recent arrest of Michael T. Sestak, the former head of the non-immigrant visa department in HCMC, will throw the already cloistered consulates into a siege mentality.
In May, Sestak confessed to taking millions of dollars in bribes. "I'm going to prison," he told State Department investigators, days before he was deported. "I know it's going to be many years, but you know what? I'd like to go with a clear conscience and be able to not worry anymore that I did something wrong."
His alleged accomplices aren't going so quietly.
Attorneys representing Hong Vo (the 27 year-old web designer who stands accused of serving as the fraud ring's IT expert) have filed a clever motion arguing that since all of her alleged crimes were committed in Vietnam she can't be tried in Washington DC.
Meanwhile her brother Vo Tang Binh and his wife Nguyen Thuy Anh Dao remain on the lam with what investigators say is more than $5 million in ill-gotten gains.
No one knows where they are and their lawyers aren't answering questions. The consulate and embassy have likewise remained mum on the matter"”noting only that they do not tolerate malfeasance and that all visa applicants are treated in accordance with the law with dignity and respect.
The bitter end
What, if anything, the State Department learned from the Sestak saga remains to be seen, but news that a woman named Rena Bitter will replace the outgoing Consul General in August lends some clue.
Bitter has spent 20 years running some of the biggest US consular sections in the world, including Mexico City, London and Amman where she shared a Thomas Jefferson Award (one of the department's highest honors) with the Consul General in Baghdad.
For a while, she returned to DC and worked as a special advisor to Secretary of State Colin Powell.
Now, Bitter seems like the closest thing the State Department has to Harvey Keitel in Pulp Fiction: a fixer, a cleaner, the person you call when you've accidentally blown someone's brains out.
Right before Bradley Manning's stolen cables hit the proverbial fan, Bitter ran the department's Operations Center. For three weeks in the winter of 2010, she assembled the State Department's Wikileaks "working group."
During Manning's trial, Bitter testified that the team worked 24/7 to "stay ahead of the public disclosures."
I cannot pretend to know what she will do in HCMC. I only hope that she'll make life easier for people like the three ladies from Ta Phin.

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