DOS Cable Discusses New 212(a) Grounds of Ineligibilty
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Subject: P. L. 104-208 Update No. 3 - INA 212(a)(10): Voting and Renunciation
Ref: (A) State 210953 (B) State 208799
1. Summary:
This cable is the third in a series providing information on the recent Immigration Act which was part of the omnibus legislation enacted by the President on September 30. For ease of reference, these cables from here on out will be numbered. Posts are asked to label Reftel “A” as “P.L. 104-208, Update No. 1: General Overview, and Reftel “B” as “P.L. 194-208, Update No. 2: 222(g).”
The new legislation juggled several of the 212(a) grounds of ineligibility. For example, 212(A)(9) has become 212(a)(10). The law, also, added two new subsections, 212(a)(10)(D) & (E), two new independent grounds of ineligibility. Although this cable provides the entire text of INA 212(a)(10) for easy reference, only the two new subsections are discussed.
It should be noted that State, the Immigration and Naturalization Service, and other agencies affected by this sweeping and complex legislation, are working as quickly as possible to develop internal operational procedures that will ensure a coordinated USG position on policy implementation. We will continue to keep posts informed as soon as outstanding policy issues are resolved. End summary.
2. Text of INA 212(A)(10)
(10) Miscellaneous
(A) Practicing Polygamists: Any immigrant who is coming to the United States to practice Polygamy is inadmissible.
(B) Guardian Required to Accompany Helpless Alien: Any alien (I) who is accompanying another alien who is inadmissible and who is certified to be helpless and who is certified to be helpless from sickness, mental or physical disability, or infancy pursuant to section 232(c), and (II) whose protection or guardianship is determined to be required by the alien described in clause (I) is inadmissible.
(C) International Child Abduction: (i) In general, except as provided in clause (ii) , any alien who, after entry of an order by a court in the United States granting custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child, outside the United States from the person granted custody by that order, is excludable until the child is surrendered to the person granted custody by that order.
(ii) Exception: clause (i) shall not apply so long as the child is located in a foreign state that is a party to the Hague Convention of the civil aspects of international child abduction.
(D) Unlawful Voters: Any alien who has voted in violation of any federal, state, or local constitution provisions, statute, ordinance, or regulation is inadmissible.
(E) Former Citizens who Renounced Citizenship to Avoid Taxation: Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is excludable.
3. Determining Ineligibilities Under the New Law
Visa application forms are presently under review/revision and will incorporate questions concerning the new grounds of visa ineligibility. Since forms revision involves OMB approval and can be protracted, VO is developing a interim supplemental questionnaire formats for the OF-156 and 230 that will assist posts in expediting determinations under the new/revised grounds of ineligibility. Until the supplemental formats are communicated to posts, consular officers should pursue a line of questioning aimed at establishing possible visa ineligibility if there are reasonable grounds to believe that an applicant may be ineligible under any of the new sections of law so far articulated. Posts should contact VO/L/A for further guidance on a case-by-case basis.
4. Mail-in Applications
Mail-in applications should continue to be adjudicated under current procedures until posts receive the supplemental questionnaire formats.
5. Discussion of 212(A)(10)(D)
A. Consular Interviews
Section 212(A)(10)(D) renders ineligible aliens who at any time voted in violation of law. Needless to say, it is difficult to ascertain whether a visa applicant has voted at all, no less in violation of law, absent an admission by the alien that he/she did so.
If an alien admits to voting in the U.S., a record should be made of the circumstances, as the alien may later wish to refute the statement and the circumstances upon learning of the consequences of such an admission. If the consular officer judges that the alien may later contest such a finding of ineligibility, the applicant should have opportunity to prepare a written statement for the officer. Such detail may, also, be necessary, if an advisory opinion is requested.
B. Standards
Voting in most political elections in the U.S. requires the holding of U.S. citizenship and the establishment of residence in the jurisdiction in question for a certain period of time. It is known that a least one local Washington, D.C. area municipality allows aliens to vote, however, this certainly appears to be the rare exception to the rule of requiring U.S. citizenship. In the normal course of events, the consular officer can presume that an alien voting in a political election did so in violation of some law or ordinance. The alien should be provided every opportunity to prove that the particular election regulations permitted his/her participation. If, however, the consular officer seeks verification of those voting requirements or if a case arises in which the consular officer has any question about this ground of ineligibility, an advisory opinion should be submitted to VO/L/A.
6. Discussion of 212(A)(10)(E)
A. Time of Renunciation
It is crucial to note that this ground of ineligibility applies only to renunciations of U.S. citizenship which took place on September 30, 1996 and thereafter. Section 352(B) of PL 104-208 clearly limits the application of this section to former citizens who renounce on the effective date of the Act, 9/30/96, and any day thereafter. So, former citizens who renounced their citizenship prior to 9/30/96, regardless of motive, are not ineligible under this provision.
B. Attorney General Determination
This requirement is beset with operational complications. At least three agencies play a role in the implementation of this section. State will provide the Department of Treasury with certain information in regard to renunciants as required by PL 104-191, the Health Insurance Portability and Accountability Act of 1996. A Septel will provide guidance in that regard, in essence, treasury will review the information provided by State and will coordinate with INS. INS will then determine if the alien is ineligible, and will inform VO. If the alien is found to be ineligible, VO will enter the alien’s name into the lookout system.
The role of the Department and the consular officer is very limited implementing this ground of ineligibility. Absent a hit revealing a finding of ineligibility, the Consular Officer would process the visa application to conclusion if the alien is otherwise qualified. A hit would indicate a finding of ineligibility and would be a basis for visa refusal. When final procedures are established, the field will be notified.
7. Waivers Under 212(A)(10)(D) and (E)
The law provides no immigrant visa waivers for aliens ineligible under the provisions of 212(A)(10)(D) and (E). INA 212(D)(3)(A) nonimmigrant visa waivers are, however, available. As in all such NIV waiver cases, national interest must be shown to merit a recommendation to INS for approval.
Christopher