Steven D. Heller’s Catch 22 CFR § 40.6
(Based on a true story)
Bob the Brit (not his real name) was refused entry on the Visa Waiver Program because his repeated visits to the US were deemed by Customs and Border Protection to suggest that his intentions were more than just to visit. That was the least of his problems. During interrogation by CBP, his phone was searched yielding social media postings suggesting recent drug use. He admitted to the officer that the postings were accurate, but explained that it was a one-off, he is not a drug user, and simply wanted to enter the US to visit his girlfriend, Mary Jane. He told them that he intended to propose marriage. The CBP officer transcribed the conversation and found Bob inadmissible under INA 212(a)(7)(A), an immigrant without an immigrant visa. The officer explained to Bob that he was no longer eligible to enter on the Visa Waiver Program and would have to apply for a visa. Bob’s passport was inscribed with a reference to 8 CFR 217.4(c) (Visa Waiver: Inadmissibility and deportability-removal of inadmissible aliens who arrived by air or sea) and he returned to the UK on the next flight.
Bob still proposed to Mary Jane, albeit remotely, and she promptly filed an I-129F for Bob to immigrate as her fiancé. The I-129F was duly approved and Bob applied for his visa only to be refused by the consular officer, who found Bob inadmissible under INA§212(a)(2)(A)(i)(II) (controlled substance violation).
A request for review of the consular finding yields the following:
Our records reflect that your client was refused a visa under INA §212(a)(2)(A)(i)(II) (Criminal and related grounds of inadmissibility) based on an ineligibility finding that was originally made by Department of Homeland Security (DHS). As per 9 FAM 303.3-5(E)(1), Consular Officers are not to “look behind a definitive DHS finding or re-adjudicate the alien’s eligibility” with respect to the DHS inadmissibility finding. (Effect of Definitive DHS Inadmissibility Findings (CT:VISA-434; 08-11-2017)
A request for review of the “factual basis for the ineligibility finding” by CBP is equally disheartening:
Pursuant to INA§217(g), there is no administrative or judicial review of Visa Waiver findings; the only means of review is through the visa application process.
Bob’s visa eligibility is caught between the consular finding that the Visa Waiver transcript provided the Consular Officer with reason to believe that Bob had violated controlled substance laws and the CBP refusal to revisit VWP determinations. In other words, the ConOff applied 22 CFR§40.6 to make a finding under INA§221(g) that Bob was inadmissible under INA§ 212(a)(2)(A)(ii)(I) AND there’s nothing Bob can do about it because 9 FAM 303.3-5(E) prevents the ConOff from looking at the CBP finding and INA§217(g) prevents CBP from looking at its own finding.