When a person petitions for a nonimmigrant visa outside the U.S., the Department of State (DOS) usually has authority over the petition, and the consular official who reviews the petition has a substantial amount of discretion. The media reported several months ago on a Chilean couple who had been living in New York City for several years, but who were denied re-entry after they left the country with their children to go on vacation. The apparent reason for the denial was a lawsuit brought by a former employee under a federal human trafficking statute. While a judge dismissed the case, the consular officer reportedly concluded that the couple was nevertheless inadmissible.
The couple, described in the media as “Chilean aristocrats,” moved to New York City in 2011 with their two children. The wife later gave birth to their third child in New York. They came to the U.S. so that the wife could study graphic design. They brought the children’s nanny with them from Chile, but the nanny’s employment only lasted for about two months after their arrival. Two years later, the nanny sued the couple, claiming that they had “enslaved” her by bringing her to the U.S. on false pretenses, taking her passport, restricting her to a locked room, withholding food and medicine, and allowing the children to physically assault her. Garnica v. Edwards, et al, No. 1:13-cv-03943, complaint (S.D.N.Y., Jun. 10, 2013). The lawsuit included a civil claim for human trafficking under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. § 1595.
The couple and their three children traveled to Italy for a vacation in August 2014. They intended to stay for three weeks and return on September 6, but the DOS denied the wife’s student visa renewal. The U.S. Consulate reportedly told her that she had failed to report involvement in human trafficking on her visa renewal application, and that it had denied the application because she had not been truthful. Their only conspicuous connection to human trafficking, however, was the nanny’s lawsuit, which was still pending in September 2014.
The couple moved for summary judgment in the lawsuit in early 2014, largely on the basis of statements made by the nanny in deposition testimony that contradicted claims she made in court filings. On December 10, 2014, the court granted the defendants’ motion and dismissed the lawsuit. At no time has any judge entered findings related to the couple’s involvement in human trafficking, and with the dismissal of the case, they remain mere allegations.
A consular official has broad discretion when reviewing a visa petition or visa renewal application. Human trafficking is one of the many grounds for inadmissibility to the U.S. This includes direct involvement in trafficking and knowingly aiding or abetting trafficking activities, and it extends to the spouse of an inadmissible person. 8 U.S.C. §§ 1182(a)(2)(H)(i), (ii); 22 U.S.C. § 7102(8)(B). A consular official only needs “reason to believe” that this provision applies in order to deny an application. When the media last reported on this case, the couple was still in Italy and was seeking reconsideration of the decision from the consulate.
Immigration attorney Samuel C. Berger represents immigrants living in the New York City and Northern New Jersey areas, individuals who want to immigrate to this region of the United States, and family members petitioning for immigrant visas for their loved ones. Contact us today online or at (212) 380-8117 to schedule a confidential consultation with a knowledgeable and experienced immigrant advocate.
More Blog Posts:
State Department Extends Duration of Certain Visas for Chinese Visitors to U.S., New York & New Jersey Immigration Lawyer Blog, January 28, 2015
Government, H-1B Temporary Work Visa Holders Fight Against Unlawful Practices by Employers, New York & New Jersey Immigration Lawyer Blog, January 14, 2015
Federal Government Begins Allowing Electronic Travel Documents for Nonimmigrant Visitors, New York & New Jersey Immigration Lawyer Blog, July 23, 2014