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10. Department of State telegram to all diplomatic and consular posts concerning visa ineligibility for international child abduction (October 28, 2002)


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R 281714Z OCT 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KABUL
AMEMBASSY ABIDJAN
AMEMBASSY KHARTOUM

UNCLAS STATE 212894

VISAS - INFORM CONSULS

SUBJECT: VISA INELIGIBILITY FOR INTERNATIONAL CHILD
ABDUCTION

1. SUMMARY: This cable serves to remind posts of the
visa ineligibility provisions that pertain to aliens
involved with international child abductions to countries
with whom the United States does not have a treaty
relationship under the Hague convention (9 FAM 40.103
contains the guidelines relating to this ineligibility).
The Immigration and Nationality Act (INA) makes persons who
have abducted children to non-Hague countries inadmissible.
This ineligibility applies as a matter of law, without
regard to any other considerations. Persons whom the
Secretary of State finds have intentionally assisted or
supported child abductors are also inadmissible. In
addition, the INA grants the Secretary of State discretion
to designate certain relatives or agents of child abductors
inadmissible. In order to apply these visa ineligibility
provisions properly, posts must distinguish between
circumstances in which a conoff may permissibly determine
that a visa applicant is inadmissible and circumstances
requiring Departmental consultation and decision by or on
behalf of the Secretary of State. END SUMMARY.

2. VISA INELIGIBILITY AND CHILD ABDUCTION: As posts are
aware, the Department of State is committed to the
principle that the removal from or retention of a child
outside his or her country of habitual residence is wrong.
When available, we rely on the Hague convention on the
civil aspects of international child abduction ("Hague
convention") to facilitate the return of abducted children.
The INA is designed to use visa ineligibility to help
persuade abductors and others to return abducted children
to the U.S. in situations where the Hague Convention is
unavailable.

3. INADMISSIBILITY UNDER 10(-C-): An alien may be
ineligible for a visa under the INA's section 212(a)(10)(-C-)
("10(-C-)") for one of four reasons. First, 10(-C-)(i) makes
inadmissible any alien who detains or withholds custody of
an Amcit child outside the United States in violation of a
custody order issued by a U.S. Court. Second, 10(-C-)(ii)(I)
makes inadmissible persons known by the Secretary of State
to have intentionally assisted such an alien. Third,
10(-C-)(ii)(II) applies to persons known by the Secretary of
State to have intentionally provided material support or
safe haven to such an alien. Finally, 10(-C-)(ii)(III)
permits the Secretary of State to designate as inadmissible
specified relatives or agents of such an alien. Each of
these provisions is subject to the exceptions contained in
10(-C-)(iii) relating to certain government officials and
cases covered by the Hague Convention.

4. STRICT RULE UNDER 10(-C-)(i): Once post determines that
an alien who is applying for or is in possession of an NIV
falls within the provisions of 10(-C-)(i), and that none of
the exceptions apply, post must find the alien
inadmissible. This means that posts must refuse the visa
or initiate visa revocation, unless the ineligibility is
waived. Post may not condition a determination of
inadmissibility under 10(-C-)(i) on any considerations other
than whether the alien as a matter of fact is subject to
the ineligibility.

5. DEPARTMENTAL AUTHORITY UNDER 10(-C-)(II): The INA's
sections 10(-C-)(ii)(I)&(II) require that the Secretary of
State know that a visa applicant described in these
provisions has intentionally assisted or provided safe
haven or support to a child abductor described in 10(-C-)(i)
before the visa applicant can be declared inadmissible.
The authority to make this factual determination has not
been delegated to consular officers. Therefore, posts are
not authorized to determine alone whether an alien is
ineligible under these two subsections. Similarly,
10(-C-)(ii)(III) permits the Secretary of State to designate
as inadmissible aliens who are related to or are agents of
child abductors. Only the Secretary has discretionary
authority to designate aliens ineligible for visas under
10(-C-)(ii)(III); posts cannot make eligibility
determinations with respect to these applicants.

6. CONSULTATION WITH THE DEPARTMENT: Proper application
of the INA requires that posts refer all cases involving an
alien who is described in 10(-c-)(ii) to the Department
through the advisory opinion channel, slugged for CA/VO/L/A
and CA/OCS/CI. The Department will evaluate these cases
with post recommendations before making inadmissibility
determinations. The Department is developing appropriate
guidelines, which it expects to incorporate into the FAM.

7. WAIVERS: The Department recognizes that there will be
occasions when issuing a visa to an alien otherwise
inadmissible under 10(-C-) might help secure return of an
abducted child. In such a case, post may consider either a
212(d)(3)(A) waiver or humanitarian parole; post cannot,
however, decline to make an inadmissibility determination
that is required by law.

8. CONCLUSION: The INA's 10(-C-)(i) requires that posts
find inadmissible aliens who have abducted AMCIT children
to non-Hague countries. Unless the ineligibility under
10(-C-)(i) is waived, or one of the exceptions in 10(-C-)(iii)
applies, posts must refuse the visa or initiate visa
revocation for these persons. Posts who receive visa
applications from aliens potentially subject to 10(-C-)(ii)
must consult with the Department for the required factual
determinations and discretionary designations reserved by
law to the Secretary of State.

9. Minimize considered.
POWELL



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