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House Judiciary Committee Unable to Make a Distinction Between a Fiance(e) Petition and a Fiance(e) Visa

Posted: 4:15 am EDT

 

House Judiciary Committee Chairman Bob Goodlatte said in December that immigration officials did a poor job reviewing the financée visa application of Tashfeen Malik, one of the shooters in the San Bernardino, Calif., rampage that left 14 dead.  Goodlatte said he reviewed the application and found there was insufficient evidence to prove Malik and U.S. citizen Syed Rizwan Farook, had met in person — a requirement for a foreign national seeking a K-1 financée visa before being allowed entry into the U.S.

Let’s say that the couple did not meet, 8 U.S. Code § 1184 – admission of nonimmigrants provides for that exception. Below is the relevant section of the immigration law that our U.S. Congress passed:

(d) Issuance of visa to fiancée or fiancé of citizen

A visa shall not be issued under the provisions of section 1101(a)(15)(K)(i) of this title until the consular officer has received a petition filed in the United States by the fiancée and fiancé of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convictions of the petitioner for any specified crime described in paragraph (3)(B) and information on any permanent protection or restraining order issued against the petitioner related to any specified crime described in paragraph (3)(B)(i). It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with sections 1229a and 1231 of this title.

 

The American citizen petitioner is asked to submit evidence that he/she or his/her fiancé(e) have met in person during the 2 years preceding the filing of the I-129F petition. Such evidence may include a written statement from the petitioner and/or the beneficiary stating the exact date(s) on which the parties have met in person, copy of airline tickets, passport pages, or other evidence showing the U.S. citizen petitioner and the beneficiary have met in person during the requisite time period.

There are two exceptions to the “meet in person within 2 years before filing a fiance(e) petition” that DHS allows. The applicants must establish (PDF) that:

(1) The requirement to meet the fiancé(e) in person would violate strict and long-established customs of the the petitioner or fiancé(e)’s foreign culture or social practice; or

(2) The requirement to meet the fiancé(e) in person would result in extreme hardship to the American citizen petitioner.

In any case, it doesn’t look like the petitioner requested an exemption to the personal meeting requirement.  On December 19, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) released a copy of of what he says is “Malik’s K-1 Visa application” (see pdf).  What Mr. Goodlatte actually released is not/not a copy of  Malik’s K-1 visa application but U.S. citizen Farook’s Fiancee Visa Petition (I-129F) on behalf of Pakistani national, Tashfeen Malik.

It looks from the petition that Farook made an Intention to Marry Statement indicating that they were both in Saudi Arabia in October 2013.  If there is a question here, it might possibly be that the Farook submitted copies of passport pages that show the ID pages and admission stamps without the English translation. The I-129F notes that “The petitioner must submit the English translation of the admission/exit stamps.” We don’t know if he ever did, but the petition was presumably approved, or she would not have been issued a visa.

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But man, oh, man, the congressional folks looking into this could not even make the distinction between a petition and a visa?

The U.S. citizen petitioner, in this case, Syed Farook submitted the I-129F Fiance(e) Visa petition to DHS. That’s the document that Mr. Goodlatte released online. The alien beneficiary of the petition, in this case, Tashfeen Malik, then applied for a fiancee visa at a consular post overseas. According to the State Department’s deputy spox, she did that at the U.S. Embassy in Islamabad. She would have been required, among other things, to fill out a DS-160 form, an Online Nonimmigrant Visa Application form,  for temporary travel to the United States, and for K (fiancé(e)) visas. Form DS-160 is submitted electronically to the Department of State website via the Internet. Consular Officers use the information entered on the DS-160 to process the visa application and, combined with a personal interview, determine an applicant’s eligibility for a nonimmigrant visa.

The DS-160 form is not available to fill out as a PDF but information asked in that form is available in an unofficial sample form here (PDF).

There’s a notion that if only the K visa was not issued to Malik or if only she were “fully” vetted, perhaps San Bernardino would not have happened. But the other half of the shooters was one of our fellow citizens! Yes, maybe Farook wouldn’t have done it without her. Or maybe Farook would have found someone else and still kill all those people.  We don’t effing know. All we know right now is it happened.  Sure, we can focus on whether there was enough evidence of a personal meeting or not, but is that going to help us understand the whys and hows behind this attack.

Beyond the question of whether these two have personally meet or not prior to coming to the United States, the larger issue seems to be: how do you determine the intent of a person coming to the United States if he/she has a clean record? The fact is anyone can change one’s intent between the time a visa is issued/entry is allowed into our borders and when action occurs at some later date. It need not have to be a K-1 visa; it can be any kind of visa. It need not have to be a one entry, 90-day visa, it can be a multiple entry, 60 months visa. And it can be a U.S.  citizen born, raised, radicalized within our borders, coming back to this country, or already living here.  Absent a glass ball, or a pre-cognition system, there is no “full vetting” able to predict a hundred percent an individual’s intent or behavior into future.

And then there’s this: researchers at the Center on National Security at Fordham Law (CNS) analyzed 59 individuals in their ISIS Cases in the United States study (PDF) in 2015.  Of the 59 individuals, 17 are domestic plotters, and 100% U.S. citizens. The study notes that “overall, the accused are diverse and difficult to profile, racially or ethnically. They belong to a wide swath of ethnic backgrounds including African, African American, Caucasian, Asian, Eastern European, and South Asian.  Few are of Middle Eastern Arab descent.” 

Among the characteristics of the foreign fighter and domestic plotter groups in that study?  The vast majority, 81% are U.S. citizens, their median age is 24 years.  At least one third are converts to Islam and 14% have previous felony convictions. Some food for thought for folks who bother to think this through.

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