@StateDept Updates Guidance For Recovery and Seizure of Passports 3 Years After OIG Review

 

 

In October 2018, State/OIG issued a Review of Allegations of Improper Passport Seizures at Embassy Sana’a, Yemen. The report indicates that the “Department did not follow relevant standards” and that ” officials did not comply fully with required procedures.”  OIG said that “Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined:

The Department does not have a central system to track passport confiscations or retentions. As a result, OIG could not determine the number of passport seizures that occurred at Embassy Sana’a from 2012 to 2014, and the total number remains uncertain. However, because one document provided by the Department contained a list of 31 names with dates on which the passports were taken, OIG focused on these cases.

There are two bases in Department regulations that govern its authority to take passports from U.S. citizens: “retention” and “confiscation.” Regardless of the authority by which the Department took the passports at issue here, the Department did not follow relevant standards. If the Department “retained” the passports, officials did not comply fully with required procedures. Furthermore, although the Department acknowledged that retentions are temporary measures, it held many of the passports in question for months (and in some cases, over a year), suggesting that the Department effectively confiscated these documents. Confiscation is permitted only after revocation or pursuant to an arrest. Revocation is the formal process by which the Department invalidates an individual’s passport. Neither an arrest nor revocation occurred before any of the passports were taken.

The Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined. Although the Department must notify the holders in writing of the reason for revocation and their right to appeal, OIG could not confirm that these notices were sent in every case. Even if notices were sent, the affected individuals remained uninformed about the status of their passports for lengthy periods (in one case, almost 2 years). OIG also identified instances where individuals contacted the Department with questions and received limited information or no response at all.

OIG also identified other concerns. First, the lack of a single legal authority within the Department led to significant difficulties in resolving key legal issues. Second, although the Department has updated its policies, issues remain unresolved, including conflicting interpretations of the Department’s authority to seize passports and uncertainty regarding eligibility for limited validity passports.

On October 20, 2021 — that’s right, three years later this month — the State Department/Diplomatic Security finally updated 12 FAM 220 of the Foreign Affairs Manual on the  recovery and seizure of U.S. passports. The notation on the change transmittal says “Updated as a result of the Office of the Inspector General report on Yemen Passport Seizures”.  The bold parts are highlighted in the FAM.

12 FAM 224.1-5  Recovery and Seizure of Passports
(CT:DS-368;   10-20-2021)
a. 22 CFR 51.7 (a) states that a passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.
b. CA/FPP or CA/PPT may request DS confiscate a passport that CA/PPT issued.  See 12 FAH-4 H-124.2.  The Department’s authorized representative (usually the case agent) is authorized to confiscate a revoked passport.  If the bearer refuses to do so, CA/PPT may invalidate the passport by notifying the bearer in writing of the invalidation (22 CFR 51.4).4
c.  Only CA/PPT/S/A may revoke U.S. passports.  DS agents may lawfully seize a U.S. passport pursuant to:
(1)  A search warrant;
(2)  An arrest warrant;
(3)  A lawful, warrantless seizure pursuant to a warrant exception when robable cause exists that the U.S. passport itself is evidence of a crime;
(4)  The express consent of the subject; or
(5)  A court order.
If CA intends to revoke the passport of a subject of a DS investigation, and DS has presented the case to DOJ for prosecution, the DS special agent must inform the prosecutor about the passport revocation.
d. All property acquired by DS will be collected and treated as though it were evidence to ensure proper handling until such determination is made.  Special agents may only acquire property in accordance with the law as it relates to searches and seizures, judicial forfeiture, and by voluntary delivery by the owner.  Occasionally, items may be seized or taken into custody for safekeeping (i.e., high value items, illegal drugs, firearms and weapons, etc.).  Special agents are not authorized to acquire property in any other manner other than by direction of CA to recover U.S. passports.
e. The procedural aspects of passport seizure by a DS special agent are contained in 12 FAH-4 H-120. That section contains important information as well as relevant timelines for notification to the Department of the seizure.
f.  For more information on passport revocations, see 8 FAM 804, Revocation.
g. DS may receive recovered U.S. passports from different sources, such as local law enforcement, local governments, airlines, and transportation centers.  To maintain the integrity of the U.S. passport as a secure travel document, CA/PPT makes every effort to account for the final disposition of all U.S. passports.  Therefore, DS should mail all found or recovered (not seized or confiscated) U.S. passports to CA/PPT at …

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Related item:

12 FAM 220 Investigations

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US Embassy Khartoum Issues Security Alert Following Coup in Sudan

 

 

USDOJ: FL Executives Plead Guilty to Large-Scale Visa Fraud Employment Scheme

 

Via USDOJ:

Two Florida business executives pleaded guilty today in the Southern District of Georgia to charges related to their roles in a scheme to recruit and hire foreign nationals who were not authorized to work in the United States to fill temporary housekeeping and food service positions and commit various other criminal immigration offenses for profit.

According to court documents, Educational World Inc. (Ed World), a visa processing company based in North Point; and Larisa Khariton, 73, and Jon Clark, 71, also of North Point, were indicted by a federal grand jury in Georgia on April 8. The 36-count indictment also contained allegations against Regal Hospitality Solutions LLC (RHS), a Louisiana-based staffing company, and seven current and former RHS employees. Each defendant was charged with one count of conspiracy to defraud and commit offenses against the United States, including encouraging and inducing an alien to reside in the United States, as well as alien harboring, alien transporting, and visa fraud. In addition, the RHS defendants were charged with wire-fraud related offenses.

Khariton and Clark pleaded guilty today to conspiracy to defraud and commit offenses against the United States.

According to the indictment and other court documents, the individual defendants enriched themselves by participating in a scheme to recruit and hire noncitizen laborers without authorization to work for RHS. RHS provided hospitality-related businesses with laborers to work in housekeeping, retail, and food service positions, using noncitizens who were unauthorized to work in the United States to fill the positions. In some cases, the RHS defendants arranged for and provided housing and transportation to the workers.

The defendants and other co-conspirators also encouraged and induced noncitizen laborers on expiring and expired J-1 exchange visitor visas to obtain B-2 tourist visas and to work in the United States for RHS, knowing that employing such laborers on B-2 visas was illegal. According to admissions made in connection with their guilty pleas, Khariton and Clark prepared and submitted applications for B-2 visas on behalf of the workers after charging noncitizen laborers approximately $650 per application. The application contained false and misleading statements indicating the noncitizens intended to obtain the B-2 visa for the purpose of engaging in tourism. In fact, Khariton and Clark knew that those noncitizens were already present in and intended to stay in the United States for employment, not tourism.

The indictment also alleges that Khariton and Clark submitted petitions for H-2B temporary work visas on behalf of defendant RHS that contained false and misleading information about the location where noncitizen laborers allegedly were to be employed. In connection with their guilty pleas, Khariton and Clark admitted that they engaged in deceitful and dishonest conduct to impede and obstruct the functioning of, among other things, the H-2 non-immigrant visa program. Khariton and Clark also admitted that they were paid a commission by RHS for noncitizens Ed World recruited to work for RHS, including those who were not authorized to work for RHS in the United States.

Khariton and Clark will be sentenced at a later date. Khariton and Clark face a statutory maximum penalty of five years in prison; A federal district court judge will determine the sentences after considering the U.S. Sentencing Guidelines and other statutory factors. Charges remain pending against defendant RHS and the individual RHS defendants who are considered innocent unless and until found guilty

The U.S. Department of State Office of Inspector General is investigating the case with assistance provided by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations and U.S. Citizenship and Immigration Services.

Trial Attorneys Frank Rangoussis and John-Alex Romano of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Steven Lee of the Southern District of Georgia are prosecuting the case.

 

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Doctrine of Consular Non-Reviewability Defense on Visa Processing Stopage Fails

 

 

There is a separate case not included in the recent court cases summary by the State Department. See below what the  Court says about visa processing or the absence of it, and the consular non-reviewability doctrine (see PHILIP KINSLEY, et al., v. BLINKEN et al.  Civil Action No. 21-962):
“While the Court concurs with Defendants that some Plaintiffs lack standing or have claims that are now moot, it also concludes that, as to the nine remaining Plaintiffs, their claims are justiciable, and State acted improperly in suspending visa issuance based on the Proclamations.”
[…]
Defendants believe that “Plaintiffs cannot challenge the actions of the Secretary of State to implement a proclamation issued by the President under 8 U.S.C. § 1182(f).” Id. at 20. They argue that the Supreme Court has “long recognized the power to expel or exclude aliens as a  fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks and citations omitted); see also Def. MTD/MSJ at 20. In particular, they suggest that the “principles underlying [the doctrine of consular non-reviewability] similarly preclude review of the Secretary’s decision to implement a proclamation issued under 8 U.S.C. § 1182(f) because the President suspended entry, and thus determined that a class of noncitizens were ineligible for a visa.” Def. MTD/MSJ at 21.
This is familiar territory. This Court and others in this district have already rejected similar arguments rooted in the doctrine of consular non-reviewability because that doctrine only applies once a decision has been reached on a specific application. See Milligan v. Pompeo, 502 
F. Supp. 3d 302, 317 (D.D.C. 2020) (“[T]he doctrine [of consular non-reviewability] however, is not triggered until a consular officer has made a decision with respect to a particular visa application.”) (internal citation and quotation marks omitted); see also Tate v. Pompeo, 513 F. 
Supp. 3d 132, 142 (D.D.C. 2021), dismissed sub nom. Tate v. Blinken, No. 21-5068, 2021 WL 3713559 (D.C. Cir. July 22, 2021) (“The D.C. Circuit has held that the consular non-reviewability does not apply where plaintiffs ‘do not challenge a particular determination in a particular case of matters which Congress has left to executive discretion’ but instead improperly promulgate rules in violation of statute.”) (internal citation omitted); Gomez v. Trump, 485 F. Supp. 3d 145, 176 (D.D.C. 2020), amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v. Biden, No. 20-1419, 2021 WL 1037866 (D.D.C. Feb. 19, 2021) (“District courts in this jurisdiction consistently have held that when the suit 
challenges inaction, as opposed to a decision taken within the consul’s discretion, there is jurisdiction.”) (internal citations and quotation marks omitted).
Given this repeated determination, there is no reason that the “principles underlying [the consular non-reviewability] doctrine” would preclude the Court from reviewing implementation of policy relating to the Proclamations. Nor does Plaintiffs’ challenge risk “diminish[ing] the 
President’s ability to exercise his broad authority under 8 U.S.C. § 1182(f) to exclude non-citizens.” Def. MTD/MSJ at 22. Even a successful suit would affect only whether visa applications must be adjudicated, not whether visas should actually be issued or individuals allowed to enter once they have received a visa. The Court thus finds the Department’s no-visa policy reviewable.

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Court Orders @StateDept to “Reserve” Diversity Visas From FY20/FY21, State/CA Guidance to Follow

 

Via State/CA:
The Department of State is aware of the various court orders regarding the reservation of DV-2020 and DV-2021 diversity visas, which are briefly summarized below. We will publish public guidance on this website regarding the Department’s plan for complying with these orders as it becomes available.
On August 17, 2021, the U.S. District Court for the District of Columbia in Gomez v. Biden ordered the Department to “process DV-2020 applications in random order until all 9,905 diversity visas have been granted.” However as of September 30, 2021, the Court had not issued a final order establishing a time frame for processing.
On September 27, 2021, the U.S. District Court for the District of Columbia in Rai v. Biden ordered the Department of State to “reserve 966 diversity visa numbers of applicants awaiting adjudication at the twenty-seven embassies and posts previously subject to Proclamations 9984 and 10143 and Defendants’ regional No-Visa Policy.”
On September 30, 2021, the U.S. District Court for the District of Columbia in the Goodluck v. Biden-related matters ordered the Department of State to “reserve 6,914 diversity visas for adjudication pending final judgment in the Goodluck-related matters.”
On September 30, 2021, the U.S. District Court for the District of Columbia in the Goh v. Biden ordered the Department of State to “to make 481 diversity visas available for adjudication” and to “adjudicate those diversity visas by the close of Fiscal Year 2022.”
In the GOH decision, the Court writes:
“The court (once again) appreciates the efforts of State Department officials and employees  who have processed diversity visas to comply with the court’s injunction, but those efforts “do not obviate the need for additional relief.” Id. Unless additional relief is granted, the shortfall of visas issued for Fiscal Year 2021 from the historic average will be dramatic. Some of that shortfall is no doubt due to the difficulties caused by the COVID-19 pandemic, but the pandemic is not the primary culprit. That would be the State Department’s complete cessation of adjudicating diversity visa applications for five months and its unlawful deprioritizing of those applications when adjudications resumed.”
Below are the related court orders:
Civil Action No. 2020-1419 GOMEZ et al v. TRUMP et al
Civil Action No. 2021-0863 RAI et al v. BIDEN et al
Civil Action No. 2021-1530 GOODLUCK et al v. BIDEN, JR. et al
Civil Action No. 2021-0999 GOH et al v. U.S. DEPARTMENT OF STATE et al

 

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So CA/OCS May Survive a Funding Crunch Only to Fall Apart at the Seams?

 

The largest public facing bureau of the State Department is the Bureau of Consular Affairs. For those who may need more familiarity, the major sub-divisions within this bureau are passport services (PPT), visa services (VO) and overseas citizen services (OCS). The identification and repatriation of remains of Americans overseas are handled by OCS. Evacuations of American citizens during natural disasters and civil unrest are also handled by OCS.  When somebody goes missing overseas, or becomes a victim of crime, these cases are handled by CA/OCS. In addition to the recent Afghanistan evacuations, the bureau also managed the massive COVID repatriation around the globe.
Consular operations are mostly fee-based; you pay for visa processing, passport issuance, notarial services and so on.  With the Trump travel bans and the subsequent COVID travel restrictions, passport and visa fee collection significantly cratered. At the same time, CA undertook two massive repatriation and evacuation.
In a congressional hearing in 2020, the State Department projected a $1.4 BILLION loss which was about 50 percent of Consular Affair’s revenue in the fiscal year ending September 30, 2020. It also projected comparable losses in FY2021 and FY2022. We’re sure the numbers are available internally, but we have yet to see publicly the cost of the global COVID repatriation and the Afghanistan evacuation.
During that same 2020 hearing, CA’s top official told Congress that services for American citizens “will not be put out of business.” We’re now wondering if the OCS directorate was saved from the funding crunch only to fall apart at the seams. Let’s consider a few things that we’ve learned:
STAFFING
–The Deputy Assistant Secretary of State (CA/OCS – DAS) recently sent a memo to staff acknowledging that the long hours and lack of sleep has taken an “unacceptable health toll”.
— The  Director of the Office of American Citizens Services and Crisis Management (CA/OCS/ACS) abruptly retired, reportedly one year into a two year tour and only months after making the Senior Foreign Service.
— The Managing Director of CA/OCS took a week off after acknowledging to the staff that the MD’s well-being had been put at risk, and indicated the need for some time off “to regroup.”
— Several of the staff who flew into Afghanistan are reportedly still struggling with what they saw.
— Staffers who made the thousands of phone calls to US citizens in Afghanistan have reportedly been traumatized by what they hear.
— During the inbound call phase early in the operation these staffers reportedly “suffered abuse at the hands of the US public, self-identified military callers who blamed the Task Force for Afghans left behind, and congressional staff who called in to yell at phone bank workers.”
A FOREVER TASK FORCE AFTER THE END OF A FOREVER WAR
— The Task Force continues – until when?
— “We are still staffing 24 hour task force support, which is just wearing people out.”
LEADERSHIP OBSESSES OVER NUMBERS AS EXHAUSTION BITES
— The Leadership is reportedly “totally focused” on the numbers. “All that matters in the Bureau is the number of people called, put on lists, and flown out.  Getting everyone out who wants out is a great goal, but from the top it is clearly just numbers.”
— “A/S and PDAS are only focused on this, basically never in SA17. Everyone is exhausted.”
— Somebody noted to us that “The idea that “around 100″ citizens remain in Afghanistan is absurd, as we never knew how many were there in the first place. And if it is such a low number who are posts from Mexico to Pakistan calling?”  Initially these posts were apparently calling the same folks who had reached out to the US over and over to try to determine who is ready to go. It was relayed to us that most of the times, State didn’t actually have a flight for them to get on or a solution to their problems (no passport, can’t leave family), leading to some testy exchanges.
— Department leadership allegedly “appears blind to the fact that the obsession with getting the number of American Citizens  in Afghanistan to zero has crippled OCS.”
For those who agree that the US should rightfully obsess in a zero AmCit number in Afghanistan, we should point out that the United States left thousands of U.S. citizens stranded in Yemen in 2015 and the show ponies in Congress did not care to interrupt their beauty sleep. (see Stranded in Yemen: Americans left to find own way out, but exactly how many more AmCits are left there?Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy DecisionsFor U.S. Citizens in Yemen, a New Website and a New Hashtag Shows Up: #StuckInYemen).
REALITY CHECK
— “CA is ill prepared to continue on this path, and a second major crisis would be almost impossible for the Bureau to address.”
— “CA and OCS people need a break.”
— “COVID is still an issue around the world, regular OCS work doesn’t go away, so fewer people have to handle that and these are the same people that did the COVID repatriations.”
— “It’s not just OCS though, the SIV cases are still out there, and posts everywhere are short staffed, tired, and working under a variety of local restrictions”
— “CA needs what it always needs: money, staff, training, and a Department leadership that values more than a visa referral or a quote for the Secretary.”
Well, now you know.
How soon before we hear about the leadership tenets and taking care of people?

 

Related posts:

 

 

What’s happening at CA/OCS? Besides People Calling In to Yell at Staffers Working the Phones

 

Overseas Citizens Services (OCS) in the State Department’s Bureau of Consular Affairs is responsible for the protection and safety of U.S. citizens traveling and residing abroad. OCS has three offices: the Office of American Citizens Services and Crisis Management (OCS/ACS), the Office of Children’s Issues (OCS/CI), and the Office of Legal Affairs (OCS/L).

Billy Goat on Grass Field by Pixabay

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Court Orders @StateDept to “Undertake Good-Faith Efforts” on Diversity Visa Processing by 9/30/21

 

Via travel.state.gov
On September 9, 2021, the U.S. District Court for the District of Columbia preliminarily enjoined the Department of State from applying the November 2020 prioritization policy guidance to diversity visa (“DV”) 2021 applicants and ordered the Department to undertake good-faith efforts to expeditiously process DV applications (including derivative beneficiaries) by September 30, 2021.  The court stated that the Department may not rely on the November 2020 prioritization guidance to “foreclose or prohibit embassy personnel, consular officers, or any administrative processing center (such as the KCC) from processing, reviewing, or adjudicating a 2021 diversity visa or derivative beneficiary application” and clarified that the order “does not affect the prioritization scheme as to any other visa category or in any other respect.”  The court further explained the order “does not prevent any embassy personnel, consular officer, or administrative processing center from prioritizing the processing, adjudication, or issuance of visas based on resource constraints, limitations due to the COVID-19 pandemic, or country conditions.”
In accordance with the order, the Department of State has instructed consular sections to make every effort within their discretion and subject to posts’ resource constraints, limitations due to the COVID-19 pandemic, and country conditions to prioritize the scheduling and adjudication of additional DV-2021 cases by September 30, 2021.  It is important to note that the court did not order the Department to “prioritize DV-2021 applications over other visa applications.”  The court also did not order the Department to prioritize the adjudication of DV-2021 applications of plaintiffs who have sued the Department over the DV-2021 applications of non-plaintiffs.  The court further said that posts do not have to “drop everything and process DV-2021 applications.”
In accordance with the requirements in the Immigration and Nationality Act and applicable regulations, DV cases will continue to be processed in rank order as required by law, and applicants must be documentarily qualified, have paid all requisite application fees, be able to obtain the required medical exam by a panel physician, and demonstrate that they are eligible for a visa before visa issuance.  DV-2021 applicants may be issued a visa through the end of the fiscal year, on or before September 30, 2021.
If a consular section has the capacity to schedule your DV-2021 case, you will receive a notification by email to check the Entrant Status Check site.  Many diversity visa processing posts are getting emails directly from diversity visa applicants.  The Department has instructed posts to respond to those general inquiries about the September 9th Order and DV-2021 processing with the following message:  We are aware of the court order dated September 9, 2021 from the U.S. District Court for the District of Columbia regarding the 2021 diversity visa (“DV”) program.  In accordance with that order, post is making good-faith efforts to expeditiously process DV applications (including derivative beneficiaries) by September 30, 2021.  We will continue to process DV cases in rank order as required by law, subject to our resource constraints, limitations due to the COVID-19 pandemic, and country conditions.  If post has the capacity to schedule your case, you will receive a notification by email to check the Entrant Status Check site.”
See GOH et al v. U.S. DEPARTMENT OF STATE et al

 

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CDC Requires COVID-19 Vaccination For Immigrant Visa Applicants Effective 10/1/21

 

Via CDC: CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians:

The current pandemic of Coronavirus Disease 2019 (COVID-19) has been determined by the World Health Organization (WHO) to be a public health emergency of international concern (PHEIC) under the International Health Regulations. COVID-19 meets the definition of a quarantinable communicable disease under 42 USC 264 and Executive Order 13295, as amended by Executive Order 13375 and 13674. Specifically, COVID-19 meets the definition of severe acute respiratory syndromes as specified by Presidential Executive Order 13674external icon (issued July 31, 2014), thus making it a Class A Inadmissible Condition.

Applicants, defined in these Technical Instructions as people applying for immigrant or refugee status, as well as non-immigrants who are required to have an overseas medical examination, are medically screened days or weeks prior to travel to the United States (US). Thus, a negative screening for COVID-19 at the time of the medical evaluation does not guarantee the applicant will not have COVID-19 at the time of immigration to the United States.

A combination of vaccination, strategic testing, and routine infection control practices will provide the best protection from COVID-19 for applicants and US communities. These instructions provide requirements for COVID-19 vaccination and testing for applicants.  The Instructions in this document are to be followed for COVID-19 when assessing applicants from all countries.  These Technical Instructions are effective from October 1, 2021 until the Centers for Disease Control and Prevention (CDC) determines these Technical Instructions are no longer needed to prevent the importation and spread of COVID-19.
[…]

Other reasons why an applicant might not complete a COVID-19 vaccine series:

  • Applicant may request a waiver based on religious or moral convictions
    If an applicant objects to vaccination based on religious or moral convictions, it must be documented that the applicant is requesting an individual waiver based on religious or moral convictions. This is not a blanket waiver. The applicant will have to submit a waiver request to US Citizenship and Immigration Services (USCIS). USCIS will determine if this type of waiver is granted, not the panel physician or CDC.
  • Applicant refuses a COVID-19 vaccine series in part or entirety
    If an applicant refuses one or more doses of an approved COVID-19 vaccine series that is medically appropriate for and available to the applicant, it should be documented that the vaccine requirements are not complete and that the applicant refuses vaccination. This applicant is Class A and is inadmissible to the United States.

Read the entire guidance here.

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