Spousal Visas and Kerry v. Din

Reading through an intriguing case like Kerry v. Din, which was argued last month before the U.S. Supreme Court, I can understand why nobody but lawyers would bother to try to understand exactly what these justices are splitting hairs over.  But it’s a most intriguing argument.

Facts of the case: Husband, an Afghan citizen, filed for a visa to join his wife, a U.S. citizen, in the U.S., only the consulate refuses to issue a visa on terrorism grounds.  Husband tried to prove he wasn’t a terrorist, but failed.  Wife (Fauzia Din) filed to review the consular decision to obtain clarification why her husband was deemed to be a terrorist. Consulate refused to explain why (as per the statute). Suit follows.

Justice Breyer puts it succinctly:

I’m worried about the case where…an American citizen either must live separately from her spouse forever or must give up her right as an American to live in her native land.

Indeed.  Millions of Americans married to non-citizens share such worries.

Two main issues here:

First, is the doctrine of “nonreviewability of consular decisions” (basically, courts don’t intrude into decisions about visas) an absolute bar to courts reviewing a case like this?

Second, can a wife assert a constitutional interest on behalf of her husband to get a clarification of a consular decision?

Seems odd that the “doctrine of nonreviewability” means executive actions at the consulate are subject to “extreme deference” (more deference even than the president’s reports about the state of war in Vietnam?).  Why would consular decisions receive greater deference than other presidential decisions? Well, Congress said so.  Maybe.

Yet Congress also issued extremely long instructions to make sure consular officials make their decisions based on Congress’s standards – AND NO OTHER STANDARDS (particularly with respect to the interpretation of “terrorism”).

The oral arguments featured a number of “ridiculous” hypotheticals (e.g., what if the consular officials are bigots, or think husbands shouldn’t live with their wives, or whatever).  I’m not sure I understand fully, but it seems there’s a slightly different sort of problem: how could Congress “know” that the law they wrote had actually been implemented without some modicum of oversight?

Say “terrorism exemption” portion of the relevant statute reads

1.  Consular decisions are not subject to review by any other agency or judicial authority.

2.  The reasons for consular decisions need not be reported to anyone.

3.  Consular officials may not issue visas to terrorists.  Terrorists, for purposes of this statute, are:

(a) People who take up arms against or threaten the U.S.; or

(b) People who desecrate the American flag.

Say G.I. Joe Ali applies for a visa, is married to an American wife.  Say G.I. Joe Ali is a legendary hero who has fought to protect American lives (e.g., “Lone Survivor” – such folks may exist). G.I. Joe applies for a visa, and he comes in for his interview wearing his favorite red, white, and blue jeans.  His application is denied, and he is told it’s because of the “terrorism exemption.”  A consular official regarded those jeans as a “desecration of the flag.”

G.I. Joe could assert his deep love for America.  He could get every soldier to testify on his behalf, obtaining dozens of statements from the soldiers he saved.  He could go out and save a hundred more soldier’s lives. It would make no difference – he failed on account of the “flag desecration” element of the law and would never get his visa.

G.I. Joe wouldn’t even know that he’d “desecrated the flag” – in his mind, these are a favorite badge of support for America!

Poor Ali! But ignorance is no defense.  What is interesting is that Congress wouldn’t know it either.  They’d ask for a report, and be told “failed the terrorism exemption.”  They’d never know that their code – which was drafted to do something very precise – had been interpreted to mean that “red/white/blue jeans” = “flag desecration.”  If they did know, then they could amend the code to clarify what they meant by “flag desecration.”  But nope – it’s nonreviewable – Congress will never ever ever know how it’s law was implemented, but only that “the terrorism exemption” applied.

Having read through 8 U.S.C. 1182 (as provided by the government in its brief) – I’m reasonably sure there’s no “flag desecration” element buried there – this is just one more ridiculous hypothetical (and the justices already offered a fair number of ’em).

But the definition of “terrorist” that actually is in the statute is extensive. Congress cared deeply that THIS DEFINITION AND NO OTHER DEFINITION be applied by consular officials precisely as it is written. How will they ever know for sure that consular officials have done that?

According to the government’s position, the “doctrine of nonreviewability” would seem to mean, Congress just has to trust these consular officials.  Odd.  The plenary power of Congress to regulate immigration would prevent them from knowing what their statutes were actually doing in the real world – they’d have to just trust the executive.

The U.S. consular officials I’ve known have been excellent, hardworking government officials.  But at least a few congresspeople don’t trust government officials.  Why would these particular officials receive so much more trust than, say, the president?  It’s remarkable.

My expectation: 4-1-4 ruling with Kennedy trying to thread the needle, ultimately ruling the wife cannot prevail in this case for some narrow reason (perhaps overruling or reconstruing part of Mandel in the process) – but also acknowledging that there’s a problem with a completely unchecked doctrine of consular nonreviewability (a problem left for someone else to resolve some day) while chastising mechanical reliance on databases (if consular officials are fallible mortals,  are the data entry clerks who populate the content of those databases somehow MORE reliable simply because they typed on a machine?).  The ultimate ambiguity is left to Congress to resolve (when they get around to passing some form of immigration reform).

Curious what others think.  I suspect at least 73 law professors and a few thousand lawyers disagree.

Edit history: a previous version of this post offered an even more ridiculous hypothetical, before it dawned on me that people, by and large, hate hypothetical questions, and a ridiculous one is easier to dismiss unreflectively.

Smartphone update: Samsung v. Apple (yet again)

A lawyer without his smartphone feels a bit like a disarmed gunslinger: the power of the smartphone means a great deal. Having gone through a half dozen phones in Riyadh, I’ve made a few discoveries over the years.

(1) “Global warranties” aren’t global. I bought an Apple iPhone 3gs in 2009. Loved it at first. Then the battery started malfunctioning. Took it to an Apple Store i Mn America, and was told since I bought it in the KSA, it wasn’t covered and I’d have to buy a new phone.

(2) Global warranties have “cute” exceptions. Both the iPhone and the Samsung that replaced it (a Galaxy S2) both had small print that indicated “operating at temperatures over 100 degrees may cause the battery to malfunction.” That’s 6 months out of the year in most of Saudi Arabia. Since I happened to use my phone outside and in a far too hot car, that also voided the warranty. (Both said I’d have to buy a new phone.)

(3) Phones are less a prestige item than they once were. Even in 2010, more than 10 months after it had come out, iPhones were “hard to come by” at Mobily or STC shops. On the street, you could find them, but you’d be taking your chances with a “sort of used” phone. In the stores, salesmen held them back for favored customers, or sold out to other resellers – either way, supplies through legit channels were unpredictable. Everyone wanted to jump on the same bandwagon (and Whatsapp/Skype/Twitter were taking off in a big way). Now? Yawn. It’s all there (esp. if it’s a 6-month old model). (When I first arrived in Saudi, in 2005, people were selling “special” mobile phone numbers – with multiples of the same digit, or whatever – for significant money – but I haven’t heard of that for years.)

And a part of me is wondering: mobile phones have been prominent fixtures of life in the Gulf for about 20 years now – much longer than in America (more comparable to Europe). Have people finally caught on to the disposable status symbol concept? It’s less about what you carry, and more about what you do with it?  I wonder if jaded Gulfis who’ve been living with these devices for years will prove to set cultural patterns ahead of their American counterparts (many of whom, after all, are barely on their 2nd or 3rd device now…)…

Iran Sanctions Compliance: boilerplate terms

For companies and individuals dealing with the Middle East, various sanctions regimes and boycotts (and the American anti-boycott rules) are fairly standard fare.  Many companies feel secure provided a clause similar to the following is inserted:

Neither the Company nor any of its subsidiaries (collectively, the “Entity“) or any director, officer, employee, nor, to the knowledge of the Company, any agent, controlled affiliate or representative of the Entity, is an individual or entity (“Person“) that is, or is owned or controlled by a Person that is:

  1. Subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC“), the United Nations Security Council (“UNSC“), the European Union (“EU“), Her Majesty’s Treasury (“HMT“), or other relevant sanctions authority (collectively, “Sanctions“), nor
  2. Located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).

Not bad, so far as it goes as a boiler plate representation/warranty.

Not great either, particularly in a reseller arrangement.  When contracting with a party in the Middle East, it’s best to impose an affirmative and ongoing obligation upon them, requiring that not only they affirm they are NOT linked with Iran, but also requiring verification that they will not permit any of their people to transact with any businesses linked to Iran.  The goal is to put the burden on the reseller to actually demonstrate compliance before engaging them (and amending the terms for immediate termination “for cause” to include this item – it seldom pops up as one of the specific causes in those major agreements intended to govern the relationship).

When a foreign company has ultimate control over its resellers (e.g., the re-sellers are subsidiaries under a foreign parent’s control), a simple and immediate termination (coupled with a positive compliance requirement) may work.  When the resellers are actually independent firms locally owned (far more common), they can actually twist the U.S. sanctions system by putting multinationals in a bind through their own “sloppy” initiatives (which, upon discovery, show improper transactions).  More is needed, and should be incorporated into basic agreements up front.

Iran Sanctions Update: No changes yet

Latest news with Iran has certainly attracted political commentary. At this stage, the cautious advice for private companies doing business in the Middle East is that nothing has changed in the statutes (yet), and compliance regimes enacted years ago should remain in effect without change.

What to expect? The U.S. Department of Treasury has already posted interesting guidance. Relief applicable to “associated services” (including any insurance, transportation, or financial service) taking place from July 19, 2014 and November 24, 2014 may be available (that is, “relief” from prosecution…in some instances).

US Departments of Treasury and State may have offered some amount of relief, but given the impasse between the White House and Congress, legal obligations imposed by statute probably won’t change that much in the near term (and if they do, we’ll start hearing about “unprecedented cooperation between the Republicans and Democrats” first).

Nutshell: companies doing business in the Arabian Gulf (esp. in Dubai, Abu Dhabi, Qatar, and Saudi Arabia) should continue to actively monitor their financial flows and ensure that no transactions of any sort are linked to Iran.  And notwithstanding anything else – NO SANCTIONS RELIEF IS APPLICABLE TO A U.S. PERSON – meaning, American citizens, green card holders, American companies, and subsidiaries or affiliates thereof – all such individuals must still comply with the previous U.S. sanctions regime.

That can be tricky. Many merchants and businesses in the region exist entirely to bypass the international sanctions regime; they’ve learned over the many years how to avoid creating appearances that actually pop up. And let’s be serious – the Americans have had sanctions in place against Iran for over 15 years. While the unilateral U.S. sanctions were powerful against certain international companies (e.g., ABN Amro’s $250 million fine) – the UN “international sanctions” regime has been far more effective (politically, at least).

Edit: Note that Russia has already lifted its ban on missile sales to Iran.  If you’re a Russian company, you’ll probably want to check with your own internal counsel before proceeding.  If odds are pretty good you do dollar- or Euro-denominated transactions at some point, you’ll probably want to think twice before jumping the gun on any deals involving Iran for now.

Update: Congress is weighing in, reiterating the position indicated above: the Iran sanctions regime will not be altered without their approval.  For most multinational corporations, this may mean reverting to the sanctions compliance regime they adopted (with varying degrees of success) from 1998 – 2011 (before the UN sanctions took hold).

Re-opening for business

So…having taken a hiatus from blogging about the law and environment of Saudi Arabia for the last few years, the Lawyer of Arabia reemerges to offer advice and commentary about law and practice of business in Saudi Arabia.

The intended audience? Lawyers, corporate counsel, and others who look beyond daily headlines and seek to resolve problems.  Anyone seeking to condemn or critique may do so freely so long as they do it elsewhere.  This site is meant to be a tool for those in need, or a means of guiding individuals and organizations to those who would help resolve problems.