Mid-Litigation, DOS Changes the FAM: Convenient Facts Redux, by Nancy Morawetz

Convenient Facts Redux by Nancy Morawetz, NYU School of Law

"Two years ago, I wrote about how the Office of the Solicitor General (OSG) manipulates facts about government policies and practices to advance its arguments in the Supreme Court. In essence, if the OSG does not like the policies it is asked to defend, it makes unsupported statements about government practices or else arranges to issue last minute government guidance to bolster its case to the Court.  It is a move the government made justlast year in an immigration case.

That pattern of using the power of the federal government to conveniently change the image of facts on the ground is at work once again in the government’s reply submission in Kerry v. Din.  Din is a case about an American citizen whose husband was denied an immigrant visa on supposed “terrorism” grounds.  Din challenged the denial and won a ruling that the government has to provide her with minimal information about why her husband is not being allowed to immigrate.  In its initial brief, the OSG presented a narrative in which overworked consular officers toiling in “far-off posts” need leeway to exercise their judgment without scrutiny.  The only problem with that picture is that it has nothing to do with what happens in a case like that of Din’s husband. As former consular officers argued in an amicus brief, consular officers have become de facto subordinate to officials in the Department of Homeland Security (DHS) (that is right – officials who operate not in “far-off posts” but in the United States) who flag cases for denial based on unreliable databases, some of which are not even accessible to consular officers.  So the real question is not protecting some sphere of consular independence, but assuring some basic review of bureaucratic decisions that are preventing a United States citizen from living with her husband in the United States.

In its reply brief, the OSG seeks to take on the amicus brief of the former consular officers.  But what does it point to?  Instead of something from the record, or something that was policy at the time that Din’s husband was denied a visa , the government cites a brand new addition to the Foreign Affairs Manual that was conveniently added on January 29, 2015 – shortly after the former consular officer brief and within a couple of weeks of the reply submission!   The new section changes the instructions for consular officers where DHS has made a “terrorism” finding for denying a visa.  Far more relevant is the provision of the Foreign Affairs Manual which was in effect when Ms. Din’s husband’s visa was denied. That provision is no longer on the Department of State website, but can be accessed here. 

The manipulation of facts by the State Department in collaboration with the OSG is especially disturbing given the State Department’s professed interest in the “three principles of open government” of “transparency, participation, and collaboration.”  Far from being open and transparent, the last minute change to the Foreign Affairs Manual appears to be a cynical effort to shore up a baseless narrative about how visa denials work.  What’s more, the new addition was made public, at a time when the State Department has been treating more and more parts of the Foreign Affairs Manual as classified.  It seems that the only way to understand the sudden addition of this declassified provision is its availability as a citation supporting the narrative that the State Department was the decisionmaker in the Din case.

The OSG obviously wants the Court to buy its narrative about consular independence as a way to support the government’s frightening view that it can keep families apart without even the slightest judicial oversight.  But the Court should not decide the case on after- the-fact efforts to change the practices at play.  Whatever descriptive truth the “far-off posts” narrative had in the past, it bears little relationship to today’s database-driven decisions by DHS and the harm they pose when shielded from all review."

["This is part of continuing commentary (and here, here, here, and here) on the case of Kerry v. Din, which will be argued before the U.S. Supreme Court on Monday, February 23."]