I received an anonymous comment in response to my entry entitled "Iraqi Boy Has Heart Surgery in U.S.". I'm sorry it was submitted anonymously, as we now can't judge the bona fides of the author nor ask direct questions, but the comment shows a familiarity with visa issues and is well-addressed to my entry. The author suggests I look at the Foreign Affairs Manual (FAM) for information regarding travel to the U.S. for medical purposes. That brings up a good question; are the FAMs (a multiple-volume publication) available to the public? I suppose they could be. Most of the volumes are unclassified. But now I digress.
I'm completely convinced that the young Iraqi got a visa to the U.S. only because of the involvement of the military's humanitarian office. That is to say, I believe that other young Iraqis with similar, though perhaps not as urgent, needs will not get visas unless there is heavy duty intervenion on their behalf. Conversely, I'm convinced that the young Palestinian with the broken jaw would not have gotten a visa without considerable outside attention. I know from personal experience that many hardluck cases are not given visas because the vice consul adjudicating (judging, or considering) the application isn't convinced--because of economic and political circumstances--that the applicant will return, no matter how real and compelling their case.
Visa law isn't cut and dried. A vice consul sits as a judge and relies heavily on the term "convinced". In a country troubled by domestic uncertainties, the vice consul (I speak for myself and the colleagues I knew and spoke with) starts the day with the ingrained assumption that most of the applicants do not want to use their visitor's visa for a short, legal visit. Instead, each applicant has to oversome that assumption that they intend to remain in the U.S. by evidence and correct responses to questions. In the case of a young Palestinian during the intifada, when universities were closed and unemployment was high, there was almost nothing--not even a broken body--that could convince a vice consul to issue a visa.
It would be simple enough to judge the value of a comment based simply on its content. Whether someone is an ambassador, or a custodian, what they say here probably ought to be judged on whether it makes sense.
Regarding your opinion that only because of media efforts that some visas are issued: high (media) profile case should probably never be decided at the vice consul level. The Section Chief is who should be involved with these cases, and probably in many extremely significant cases Consular Affaris back in Washington will be involved.
There are many vice consuls who can handle both the absolute power implied in adjudicating visas and the life experience that is necessary to make reasonable decisions. Some vice consuls likely do not have the spectrum of experience to handle the absolute power. How does one determine who these vice consuls are? Very difficult. This is why they persist in their positions. And this is why there is something of a "gentleman's agreement" between vice consuls not to second guess another vice consul's decision.
And this is probably as good as can be done - even though all vice consuls and the Department of State wishes they could do better.
What it takes to overcome the "intending immigrant" presumption with which the law requires all vice consuls to start every visa adjudication interview is highly subjective. Some vice consuls want absolute certainty that the visa applicant will be returning to the US. Other vice consuls choose a standard that might be something like "reasonable certainty" that someone will return to their country after visiting the US. The law itself does not say what it takes to overcome the "intending immigrant" presumption. Hence the standard used is probably as different as every vice consul.
Regarding the standard used in deciding humanitarian cases: officially DHS is the agency that decides humanitarian entry to the US. People with humanitarian cases can - and some do - apply directly to DHS for entry into the US on humanitarian grounds. The idea of a "humanitarian visa" is real enough BUT in fact legally there is no such thing as a "humanitarian visa". There is no such visa class for example. There are only "humanitarian cases" and these cases can be righly refused in many cases as not overcoming the intending immigrant presumption. HOWEVER - applying to DHS for entry to the US on humanitarian grounds at the port of entry on a PRACTICAL basis is NOT practical hence overseas many of these "humanitarian cases" are considered by vice consuls.
Given these facts, many vice consuls might have the courage to consider that they can approve visas in "humanitarian cases" because as it is the official/legal way of processing these cases is usually NOT the way they are processed. Furthermore, given that there is no legal way to revisit a vice consul's decision, the vice consul has broad discretion. Finally, people should never underestimate the desire of all people to live with their families - to return to their families.
In many many case (but not all) it should not take a media effort for a vice consul to issue a single entry visa for medical care in the US - especially if that issuance is consistent with the FAM requirements for travel for medical care.
The FAM is a public document, and lawyers and visa applicants can look up the requirement for such issuance. It is not a "slam dunk" but nor is it a "slam dunk refusal" - no matter where the applicant lives.
I could go on more about how hard it is to fill consular posts worldwide, and how frankly limited the experience is of many section chiefs. Visas are a very complicated matter and things are constantly changing. Very few posts really are very large operations, but if every vice consul did tours in places like Soeul, or Manilla - places with very large visa case loads - they would be more experienced and able to deal with things are complicated places elsewhere. Like the Middle East.
Just my humble opinion.
Posted by: Anonymous | December 31, 2005 6:46 PM | Permalink to Comment