A lawsuit filed by a group of Afghan allies claims their children’s visa applications were denied arbitrarily. The Virginia federal judge addressing the claim is being urged to toss the case by the U.S. Department of Homeland Security (DHS). The Department states the lawsuit has no legal standing.

The group filing the suit helped the U.S. during the war against the Taliban in Afghanistan. Ultimately, per DHS, the group is trying to vindicate the rights of third parties. Courts generally do not get involved with third party challenges, per the Department. The Immigration and Nationality Act (INA) does not provide a tool to challenge visa eligibility decisions for these individuals’ children currently living in Afghanistan, claims DHS.

Visa eligibility is the issue in this lawsuit. And as such, third parties, whether parents or other individuals, don’t have a legal standing to challenge the findings of third parties, per DHS. This is particularly true for individuals with no statutory or constitutional right to enter the U.S. as a non-citizen residing abroad.
Further, DHS states the denial is preliminary. It is not a final agency action at this point. Therefore, judicial review under the Administrative Procedure Act, is not warranted. Even if the denial is a final agency action, the lawsuit should still be dismissed due to the doctrine of consular nonreviewability. Per that doctrine, decisions as to allowing or denying noncitizens U.S. entry are final and nonreviewable.

The Afghan allies pursing the lawsuit state the U.S. Departments of State and Homeland Security delayed processing their children’s derivative visa applications. They did not process the applications until the children turned 21 and aged out of the Afghan Special Immigrant Visa program. The group claims the departments did so to deny their applications, given their ages. In DHS’ response, they state although the parents started the process prior to their children aging out, the parents didn’t file the relevant petitions prior to ineligibility.

The Afghan Special Immigrant Visa program, created in 2009, offers protection to Afghan nationals, spouses, and their children, who supported the U.S. military in that country. To qualify, children had to be unmarried and under 21. Later, the Child Status Protection Act was created, freezing the applicant’s age when the application was filed. This was done to ensure children did not age out prior to having their visa application considered. The plaintiffs’ state their children’s ages were not frozen appropriately. As such, their applications were denied. They remain in Afghanistan, subject to the Taliban’s ongoing threats.

If you have questions about any visa processing issue or any other U.S. immigration related issue, contact us at ILBSG. Our team of experienced attorneys work directly with our clients to ensure they get the right advice to maximize their odds of a successful outcome.

Afghan Nationals