T5 B65 Gao Visa Docs 6 Of 6 Fdr- Mar 02 Dos Cable- Visa Revocation And Corruption 857

view telegram|1l R182343ZMAR02 FM SECSTATE WASHDC TO ALL DIPLOMATIC AND CONSULAR POSTS SPECIAL EMBASSY PROGRAM BELGRADE POUCH DUSHANBE POUCH KABUL POUCH UNCLAS STATE 052234

__ 33,0081-

,0, , •

VISAS - INFORM CONSULS E.0.12958: N/A TAGS: CVIS SUBJECT: REMINDER ON VISA REVOCATION PROCEDURES AND SUBSTANTIVE REQUIREMENTS AS THEY RELATE TO CORRUPTION REFS: (A) 9 FAM 41.122 (B) 99 State 122693 (C) 99 State 245040 (D) 01 State 207482

o

1. SUMMARY. Posts are reminded of the following: •• Posts must carefully follow the law and procedures governing visa revocations and the confidentiality of visa records. -- A consular officer may only revoke a visa if the alien has been found ineligible under some ground specified in the law. -- Corruption is not itself a ground of ineligibility, although some corrupt individuals may be ineligible under some existing section of the INA. -- Visa determinations must be made on an individual, case-by-case basis. Aliens who are suspected or known to be ineligible should, on an individual basis, be entered into the CLASS system. Posts should not draw up separate lists of aliens targeted for visa refusal or revocation. - Visa records are confidential. Posts may not disclose the underlying facts that led to a revocation, and may not announce visa revocations except in rare circumstances expressly authorized by the Department. -- Posts should consult with the Department prior to revoking visas of government officials or other prominent individuals and should clear any press statements with CA and other relevant offices in the Department. END SUMMARY

1

c

view telegram! 1]

CONOFFS MUST CAREFULLY FOLLOW REVOCATION RULES AND MAY NOT REVOKE A VISA UNLESS SOME INELIGIBILITY APPLIES.

2. Although INA Section 221 (i) authorizes a consular officer to revoke a visa "at any time, in his discretion," that discretion is necessarily limited by Department regulations. Specifically, 22 CFR (9 FAM) 41.122(a) allows a consular officer to revoke a nonimmigrant visa only if the alien is ineligible for the visa classification or is inadmissible under some ground of exclusion in INA 212(a) (or in two other very narrow contexts not relevant here). Consular revocations cannot be based on suspected ineligibilities or on ineligibilities that are reserved to Department officials, such as INA 212(a)(3)(C) or 212(f), and have not been expressly invoked by an authorized official. 3. The Department has independent authority to revoke visas, and may do so based on an ineligibility finding or on "prudential" grounds. This authority is vested in the Secretary and delegated to CA, where it is generally exercised by the CA/VO DAS. A prudential revocation is generally only undertaken when there is substantial question about the aliens continuing eligibility for a visa, such that the alien should be required to reapply for a visa and establish his/her eligibility before a consular officer. 4. Per 22 CFR (9 FAM) 41.122(b), the consular officer must, if practicable, notify the alien of the conoffs intent to revoke and give the alien an opportunity to show why the visa should not be revoked. This notice must be made (if practicable) before/before the revocation occurs, not after the fact. 5. As required by 9 FAM 41.122 N4, posts must consult with the Department (CA/VO) prior to revoking the visa of a foreign government official or other prominent individual, particularly if the revocation is likely to have foreign policy or law enforcement significance or may generate media attention. Posts should also note that, under INA 102 and 9 FAM 41.21(d), foreign government Page 2

view telegram|1l officials qualifying for A or G visa classification are exempt from most 212(a) grounds of inadmissibility. 6. As stated in Ref B Aldac, the rules and procedures for revocations must be carefully adhered to. Failure to base a revocation on a ground specified by regulation, or failure to follow the prior notice or other requirements of the law, is not only unauthorized but could have adverse consequences for the Departments broader legal and policy interests.

CORRUPTION IS NOT AN INELIGIBILITY PER SE BUT IT COULD BE ASSOCIATED WITH A VALID GROUND OF INELIGIBILITY.

7. Posts are reminded that there is no visa ineligibility for corruption, per se. However, there are some grounds of ineligibility related to criminal activity that may come into play in cases involving corrupt officials.

o

8. For example, as described in Ref D, recently enacted INA 212(a)(2)(l) (aka "21") renders inadmissible any alien who the consular officer has reason to believe has engaged in money laundering as defined in 18 USC 1956 or 1957. This new ineligibility generally requires proof that the alien engaged in a financial transaction using funds from certain specified unlawful activities. The 21 ineligibility may also require proof of a U.S. nexus. If a post intends to pursue a refusal or revocation on this ground, Ref D requires that the case be submitted for an advisory opinion to CA/VO/L/A, which in turn consults with the Justice Department. (Per 9 FAM 40.23 N1.2, drug money laundering has long been a ground of ineligibility under pre-existing (and less complex) INA 212(a)(2)(C)(i), and 2C1 findings generally do not require an advisory opinion from VO or consultation with DoJ. Because 2C1 findings are less complex and less resource-intensive than 21 findings, cases involving drug money laundering should normally be processed locally at post under 2C1, rather than 21. Additional resources should only be expended to pursue a 21 ineligibility if the case involves non-drug money laundering and there is either no evidence of drug money laundering or the evidence of drug money laundering is not sufficient for a 2C1 finding.) Page 3

view telegram! 1] 9. Other possible grounds of ineligibility related to illegal activity include: •• 212(a)(2)(A) • crime of moral turpitude or controlled substance violation (these grounds require a conviction or an admission by the alien) -• 212(a)(2)(B) • multiple criminal convictions •• 212(a)(2)(C) • drug trafficking or aiding trafficking •• 212(a)(6)(E) • smuggling aliens into the U.S. •• 212(a)(2)(D)-prostitution •- 212{a)(3)(B) • terrorism and assisting terrorism (which requires an SAO and a report to Congress) •• 212(a)(3)(C) • foreign policy ground refusal (which requires an SAO, a determination by the Secretary, Deputy Secretary, or Under Secretary for Political Affairs, and a report to Congress).

PLEASE USE STANDARD PROCEDURES, INCLUDING CLASS ENTRIES, RATHER THAN DRAWING UP AD HOC LISTS OF TARGETED ALIENS.

o

10. Visa determinations must be made on an individual, case-by-case basis, after careful consideration of the specific facts. If an alien is found ineligible in the context of an application or revocation, the alien must be added to the CLASS lookout system under the appropriate code(s). If the alien has not applied for a visa and does not have a currently valid visa that could be revoked but post has derogatory information that could lead to an ineligibility finding, then the aliens name should be entered in CLASS under the appropriate "P" (quasi) lookout code(s). 11. Posts should not draw up separate, ad hoc lists of aliens targeted for refusal or revocation, as such a practice is not consistent with the procedures and requirements noted above and risks improperly politicizing the adjudication process. Such lists are of little utility, as posts cannot adjudicate cases in groups, nor can the Department issue advisory opinions on a list of names. In addition, unlike CLASS, ad hoc lists would not be available to other posts where the aliens might apply, and such lists raise issues as to proper filing and retention and could present complicated issues if the Page 4

view telegram! 1] Department were to receive a request to produce such lists.

PLEASE ADHERE SCRUPULOUSLY TO VISA CONFIDENTIALITY RULES

12. Visa eligibility is generally a private matter between the alien and the U.S. government, and INA 222{f) requires that visa records be kept confidential and used only as specified therein. In general, visa revocations may not be announced to the public, and the underlying details of the case may not be disclosed.

o

13. There are limited exceptions to the general rule prohibiting release of visa information. Most notably, we may release visa information for purposes of U.S. law enforcement. In addition, if the alien or some other third party discloses the revocation, we can confirm the revocation, on an if-asked basis only, and, if asked, we can also cite the section of the law under which the visa was revoked. However, we may not publicly discuss the facts underlying the revocation. 14. The confidentiality rules can be very complex. To avoid violating these rules, it is critical that visa matters not be publicly discussed unless that discussion is cleared in advance by CA and other appropriate bureaus. 15. If posts have any questions concerning the foregoing, please contact CA/VO/LJA (and, for press guidance, CA/P). POWELL

PageS