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Comment by lmgftp | Hacker News Reader

Their decision was probably based in some way (assuming it's based on available information, which is admittedly risky) in his marriage to a foreign national while expressing interest in moving to the states, and the embassy's reluctance to chance him violating his visa permissions and in some way moving here with his wife in a permanent resident-alien w/o a visa type manner.

Not claiming to know anything special, but if that really is the only perturbed variable, it most likely hinged on that. Or familial ties that are somehow inscrutable. All conjecture, but I find these single cases to be ridiculous, because there are competent individuals in government who oft do what they're supposed to, even if the whole government mechanism appears corrupt and broken. Most likely there was a legitimate reason, and of course we only have one side of the story here, by an associate professor and his PhD student.

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> but I find these single cases to be ridiculous, because there are competent individuals in government who oft do what they're supposed to, even if the whole government mechanism appears corrupt and broken. Most likely there was a legitimate reason, and of course we only have one side of the story here, by an associate professor and his PhD student.

You'll understand only when you face it. What legitimate reasons are you applying to justify treatment of any or every person on the planet as potential threat? Without a means for recourse. And then if you're agreeable to the logic of scrutiny and transparency from others then why not apply the same logic to the individuals in the Government?

"What legitimate reasons are you applying to justify treatment of any or every person on the planet as potential threat"

Because they are? Approximately zero risk, true, but slightly over zero. Its a pretty simple straightforward game theory problem. Whats the total aggregate sum of the trouble you'll get into by letting 1 out of 100 million terrorist thru, vs simply stamping "denied national security" on any random visa and stonewalling? In fact the guy who dared complain about it is probably now on some secret NSA list, and perhaps also now on the no-fly list. That'll show people what happens to complainers, hopefully that prof never has to fly anywhere again for the rest of his life... and probably his families lives, too.

Note, I'm not supporting an unjust system, just explaining how it works from a game theory perspective. I don't see why any individual inspector would ever permit a visa unless there's some kind of piecework payment system or a really good non-retribution system (anonymity?). If a terrorist ever got past them, there would be demands for punishment. Therefore "the system" is going to select for inspectors who are either reckless, careless, actively working against the interests of the USA... None of which will probably have ideal outcomes.

You are completely ignoring the negative effects of these decisions to exclude. Those decisions do not happen in a vacuum. Every one of them has an associated "negative" effect that also accumulates.

OK, then explain the Tsarnajevs (the Boston bombers) getting past even with multiple terrorist flags? If the system is stonewalling and so tight, then why were they successful in going to terrorist camps and then coming back?

That's a very interesting perspective, up-voted!

The current process acknowledges the fact that there will be a number of false positives, probably an order of magnitude higher than true positives - a class of people which the system aims to filter impeccably.

However, we should not forget about the sentiment this process brings about. It leaves a very poor taste and even hurts and insults a lot of people and the cost of losing those talent and taxes thereof could be manifold.

I have been told by other foreign graduate students that getting married in another country (possibly even married at all) violates that student visa agreements. One girl is French and marrying an American, she was told that if she goes to France to have a wedding ceremony that she would not be allowed back in to America. This sounds exactly like what happened to this student. It's shameful and bizarre, but it appears like these are the rules however poorly they are communicated (my friend had NO idea as the university filled out her visa application and did so incorrectly 4 years ago).

Student visas (F1 and J1) are valid only so long as you do not have 'immigrant intent' (as compared to, say, an H-1B, which doesn't have this requirement). Marrying an American (even in another country) can suggest to the DHS that you may actually intend to immigrate to the US after all. At that point, though, you have other options (can apply to be sponsored for a green card by your spouse).

I've never heard of student visa problems caused by getting married to a non-American, which seems to be what happened in the case discussed in the OP.

> marrying an American, she was told that if she goes to France to have a wedding ceremony that she would not be allowed back in to America.

My cursory reading of the USCIS website tells me her fiance would need to apply for a K1,K3 visa. Being married she is entitled to rights the typical J visa holder does not have.

This is where the immigrant/nonimmigrant visa process breaks down. USCIS makes it painfully expensive to change a nonimmigrant visa into an immigrant visa. I guess what they want to avoid is having people jump the greencard queue, and marriage moves you right to the top, by flying in on a tourist visa, find a willing US citizen to marry.

A 'marriage of convenience'[1] in that sort of situation is typically treated as fraud, with potentially high penalties (deportation for the incoming, jail for the citizen). I've heard from more than one recently married couple that they've been separated and intensively interviewed about their personal lives, marriage, and backgrounds. IIRC one was returning to the US, and another was entering Canada. In both cases one of the couple was a native citizen.

If that were the actual reason, I'd be surprised if there wasn't a standard form letter or actual reason for denial. I suppose 'Go Away, We Can't Talk About It' might get used in marginal cases or when the appropriate authority can't be bothered doing the actual research.

Or they just lost at Top100 Terrorist Names Bingo.

[1] https://en.wikipedia.org/wiki/Marriage_of_convenience

No it doesn't. It only matters if a student's spouse is an US Citizen. F1 is a non immigrant visa and student is not allowed to have an immigrant intent.A student can no longer prove non immigrant intent if you are married to USC (Note: H1B is a dual intent visa and it is perfectly legal to have an immigrant intent). Therefore a student on F1 can be denied entry at POE if his/her spouse is USC.

Solution: Enter on fiance visa or a Green Card.

It's a pretty big grey area, that's for sure.

Most likely there was a legitimate reason

Why make that presumption?

Simply because the vast majority of cases regarding visas/entry into the United States are determined by strict procedure and in accordance with the law. So most likely, as in the majority of cases, there is a reason we're not able to see here, for national security or one-sidedness.

I worked at a school with a high percentage of foreign students on F-1 visas. The visa-granting process is much more arbitrary than you imagine. The supposed "strict procedure" is actually filtered through many layers of several partially-communicating bureaucracies. An embassy in particular can approve or reject visa applications without recourse or oversight but Homeland Security can also erect inscrutable obstructions.

With no public oversight there's no guarantee the procedure is in accordance with the law.

The problem is that there is no due process for these things.

You're always playing a bit of a lottery whenever you interact with, well, just about anything. But when domestic police screw up (or not!) and you get in trouble, there's at least a process in place that tries to smooth things out. It's still not a guarantee, but if you didn't actually do anything wrong, the process makes a decent stab at ensuring that fact comes to light.

But start crossing a border and everything changes. A single wage slave having a bad day can ruin you. Low-level consulate worker decided you screwed something up, even though you think you didn't? Well, too bad. Go find another country to live in.

For whatever reason, we completely throw out all these principles the moment we look at people crossing a border. And worse, everyone thinks this is fine. Foreigners have to rights, and people seem to think that's how it should be.

The problem with foreigners having rights is that it goes against very deep principles in the western tradition. If sovereignty means anything, it means the inherent power to create and enforce borders. Its like one of the defining charecteristics of a biological cell: the establishment of an "inside" and an "outside." Subjecting the inherent power of a sovereign entity to control access through its borders to judicial review upsets that dynamic.

Should the US treat visitors with respect and make the process of entering and leaving predictable and transparent? Yes. But saying foreigners have due process rights goes beyond should into must. And that is incompatible with our traditional views of sovereignty.

> The problem with foreigners having rights is that it goes against very deep principles in the western tradition.

Except the Supreme Court has upheld various rights foreigners have w/r/t the bill of rights.

When I say "foreigners" I mean people who are neither U.S. citizens nor on U.S. soil. See: http://www.salon.com/2010/02/01/collins_5.

See in particular his quote from Scalia's dissent in Boumediene:

“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society . . . .

“But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” Id., at 770–771.

Not even Glen Greenwald claims that the U.S. Constitution applies to non-citizens trying to board a plane in Cairo.

What subset of the federal government is considered the sovereign entity here?

I don't really understand this. Judges are part of the government, so how is allowing judges to actually judge things at the border a violation of sovereignty?

I'm talking about rights, not laws. Congress could, for example, pass a law requiring immigration officials to give certain process to people denied visas. Judges could enforce those laws, and nothing about such a scheme would violate sovereignty.[1] But saying that foreigners have a right to such process is different. Where does this right come from? Foreigners are not parties to the Constitution so it can't come from that. It has to come from something "bigger," some higher law that encompasses both the foreigner and the U.S. But unless you believe in some sort of God and divine law, there is no such thing. The sovereign entity is the end of the line--nothing binds its actions other than its own conscience.

[1] Though many people would say it's a separation of powers violation.

It would be great to know the full story. Unfortunately, if it has to do with national security, we probably will never know.

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