Hoping to marry
A New Berlin man is suing Homeland Security over his fiancée’s visa.
A New Berlin lawyer picked a bad time to fall in love with a Chinese woman last year — after President Donald Trump’s administration enacted sharp limits on legal family immigration, including so-called fiancée visas.
Christopher Carson has gone to great lengths — even a short-notice flight to the U.S. consulate in Guangzhou — to secure a visa for Fiona Yang. According to his court papers, she’s not only in love and wants to get married, but needs a stomach surgery that he had already scheduled in Milwaukee.
After all that failed, Carson is now asking a federal judge to compel immigration authorities to reactivate her application. A spokesperson with the Department of Homeland Security said officials do not talk about pending litigation.
According to the suit, a consular officer in Guangzhou “flatly, arbitrarily and capriciously” told Yang she had failed to demonstrate a bona fide relationship. Yang, 32, wrote in a statement that after she said she met Carson online, the examiner seemed to conclude she wasn’t deserving and denied her a K-1 nonimmigrant visa.
‘I’m not an easy mark’
The decision stunned Carson. In a letter to immigration officials, he assured them, “I’m not exactly an easy mark for a visa scam.” He said he’s a cynical criminal defense attorney and formerly worked on China trade policy at a Washington, D.C., think tank for a former U.S. ambassador to China.
“Although Fiona and I haven’t had a long engagement, what we lacked in history we made up in passion,” he wrote to the U.S. Citizenship and Immigration Servies at the start of the process in December.
They met online and talked daily in WeChat, messages and video calls and just clicked. They used translation apps as Yang’s English steadily improved.
“I’m pretty sure we fell in love before we met in person,” he wrote.
Carson, 50, went to China to meet her in person. They spent eight days together in November when he met her relatives and friends, and he proposed with a diamond ring. He spent another eight days there in April, four in July and nine with her last week.
“It’s not fantastical that two divorced and lonely people, separated by a vast ocean and slightly less vast cultural differences, could meet online and begin a course of communication that gradually opens up world similarities and points of affiliation between us, leading to love,” Carson wrote.
Edward Fallone, a Marquette Law School professor who taught immigration law for years, said he’s not surprised at Carson’s predicament, given the current policies on immigration.
“Definitely, any opportunity for a discretionary denial, that’s going to be exercised against the immigrant and their admission,” Fallone said.
Fiancée visas down after shooting
According to the Center for Immigration Studies, foreign national fiancée visas were approved about 99% of the time by consulates in 2015 but dropped to about 80% in 2016 and so far this year is running about 67%.
The decline began before Trump took office, in part due to the mass shooting in San Bernardino, California, in December 2015. One of the shooters, Tasheen Malik, had entered the U.S. on a K-1 visa. She and her husband died in a shootout with police after the couple killed 14 people and wounded 22 others.
A U.S. citizen who wants to bring a foreign national to the United States to get married can petition the Department of Homeland Security with documentation of the relationship and intention to marry within 90 days of the fiancée entering the U.S.
If DHS approves the paperwork, the foreign national then gets interviewed by someone in the State Department who can grant or deny the K-1 visa. If approved and the person comes to the U.S. and marries their sponsor, they can then apply for permanent resident status and, eventually, citizenship.
After fear of widespread fraud in the 1980s, Fallone said, Congress added a requirement that the marriage last two years. That then led to some people staying in abusive relationships, he said, so Congress made waivers available in cases of domestic abuse or extreme hardship.
Fallone said the law doesn’t provide a mechanism to appeal reviews of the consular decisions, which could make it tough for Carson. The State Department bureaucrats who do the interviews “are on an island of authority,” he said.
He warned that any citizen seeking approval on K-1 or other visas, “should expect delay and arbitrary demands for information. They’re just trying to make it difficult.”
‘Snap-judgment’ decisions
Thomas Hochstatter, a Milwaukee immigration lawyer, said couples meeting online are not uncommon and not a typical dealbreaker for people seeking K-1 visas. He also said that the interviews by consulate staff can lead to “very brief, almost shoot-from-the-hip snap-judgment” decisions.
Because he can’t directly appeal the consular official’s decision, Carson’s lawsuit asks the court to order Citizenship and Immigration Services to “affirm” his petition again, on an expedited basis, essentially putting it back in the pipeline for review by, perhaps, a different consular official.
According to Carson’s suit, his initial petition and documentation were received in January and approved by U.S. Citizenship and Immigration Services in June.
Yang then went to the U.S. consulate in July, was interviewed by a State Department employee and was denied. Carson flew to China the next day but the visa department of the Guangzhou consulate would not meet with him. So he talked with a non-visa employee and asked him to pass along information about Yang’s urgent need for surgery.
Earlier this month, immigration officials sent Carson a termination notice, stating there’s no legal requirement they take action on a petition returned by the State Department.
Carson, who was back in China last week with Yang for the fourth time, could file a new petition to start the K-1 process over again or marry her there and try to bring her in as a spouse. Both options take too long and cost too much, he said in an email.
“My only hope is that my lawsuit will pressure them enough to just re-approve the application” they already passed on to the consulate the first time in June, Carson wrote.