foreign national marriage had been entered for the purpose of evading the immigration laws so they divorced the petitioner marry that same gentleman filed a petition and i won thirty with u s citizenship and immigration services that petition was approved and when that petition was approved it was sent over to the consular office for an interview and the consulate denied refused to issue the visa on two separate grounds one has to do with the affidavit of support argue an exception to the doctrine of consular non reviewable a we concede with the issue that the doctrine is such that the courts are very apprehensive about reviewing decisions that are made by the consulate it's an issue of separation of powers and we're not here to try and overtake or overcome this longstanding doctrine but there is an issue that arises when the decision is not bonafide or rests upon that a marriage was entered for the purpose of evading an immigration immigration laws that they cannot approve a subsequent petition as was done here which is there's a subsequent marriage a u s citizen filed for the same benefi that there was no case we could provide to say as you would suggest that there's a stop all we're not trying to argue that the government that the consular officer was a stop from making that determination but the issue is if in the subsequent review of the i one hundred and thirty the nd time around if the if the agency u s c i s determined for whatever reason it may be that there was no marriage fraud then the problem is that the consulate then says ok well we have this approved petition we're going to go ahead and process it but we're going to process it as if the agency had previously made this marriage fraud determination it but you know we were we we revoked naturalization marriage that got to the interview at the consulate and during the interview with the consulate issues arose the consular office says i'm not going to issue this fisa i'm going to send it back to u s c i s and let them deal with it along with notes that say we think that there may have been something going on some shenanigans in this relationship you guys take care of because this is in your wheel house not in ours and the problem is if they think moves forward and arguably the  beneficiary here mr i believe can obtain a benefit through what it appears to be knowledge of this suspected marriage fraud and obtain a waiver come into the united states waiver to waive something that cannot be waived that's the whole issue of this legal impossibilities the consulate is essentially engaging in review of these marriages in the way that u s you ins is supposed to have done but compel the secretary of the issue the visa and the supreme court has said we don't have the authority to do that if after we look at the matter i guess facially and determined that th legitimate if the whole reason underlying the denial is something that should have prevented the approval of the island thirty in the st place you came back we were back to my st question which is what case you have that support certainly think that this is certainly not the way that i expected this case to move along when i took it an issue really and it is kind of an outlier in regards to me i've never seen this in my twenty five years of practicing immigration law so there  to give you a visa that you shouldn't have anyway and that's not the way to to put forth what congress intended in the way it set the system up to allow the secretary of the department of homeland security to make these underlying merit of the grounds on which the v i i do not the basis of the denial is in itself the reason why there is no bona fide explanation and that the simple citation to the statute makes the determination the consulate made legally impossible there is no way to deny the visa as being based on a bogus marriage if the  the issue there is that the you know the consulate said hey look you know this guy has been involved in some some communist activities we're kind of it's a national security concern and area we're certainly the executive department is given a wide and doing what it what it's going to do in the courts are very reluctant to enter into that scope when you look at kerry versus dan in that case the the that the the spouse the beneficiary of the petition admitted that he was involved with the taliban when they issued the refusal letter and cited to the provision of the immigration nationality act dealing with terrorist grounds of inadmissibility the whole issue was we want you to tell us what it is that gave you the basis to make this determination knowing that the individual had a relationship with a terrorist organization there's no dollar you reserve twenty minutes for both you'll wind up will give you  little ok then i will i'll leave it right there but let me just say the following thing on kerry versus den you know if there wasn't a ground of legal in possibility as we're arguing here it's not a question of  having it both ways what the consulate's doing here is trying to have it both ways in a way that is impossible and i'll leave it there thank you trump trump versus secretary of state that courts of recognizing admission and exclusion of foreign nationals is a fundamental thought on after abuse and i exercise by the government political department very large purposes we still have to deal with the other issue which is that he has been overcome the public charge provision and has not did not demonstrate to the consular officers satisfaction that argument tantamount to saying well they messed up and issued her or issued her a visa petition or approved it therefore they're bound by their mistake that argument finds no support of logic it doesn't a beneficiary appears to be eligible for the particular vsa sought and also i was thirty did was say ok here you are married you see that and you can now go ahead and apply fact finding discover that us yes misgives i think they probably should have discovered it i'm not sure why they didn't but the fact that they they didn't see oh here's a board decision says i'm not sure why they didn't see it it was pretty out there the regulations say they can't they may refer back to bring it to his attention for them to do whatever they may choose to do with it and in fact that's exactly what happened in this particular case the very  if the decision is being made by the consul or sorry they sent back to turn out to be wrong then that might be problematic now if there is some statutory authority for the consular person to be making these kinds of fact finding decisions that's one thing but if there isn't then you know that's kind of a concern so i'm not i mean judge mark you can correct me if i'm wrong but i'm understanding that's my question to be what record just to be clear so clearly you know obviously the consulate has the authority to exercise its discretion however it wishes to do so as long as it's doing it within the alien must appear in front of the consular office in person for an interview that's required if that isn't to gather facts and make you know a determination from credibility and what not i don't know what would be alias previously been accorded or sought to be accorded an immediate relative petition on a marriage determined by the attorney general to have been entered for the purpose of evading the immigration laws so if a petition has been approved and that petition sent from the us from us c i s to the national visa center national visa center over to the consulate then that must mean that the us that the department of homeland security made a determination that there was not a sham marriage preceding the approval of that petition because the petition could not be approved if there was a council that i'm not sure that that's right the us c i s basically is presented with a petition from an e person is married then issues i one hundred and thirty and the state department official in the country where the alien is located is tasked with the responsibility of deciding whether or not he qualifies for an entry and that may very well involve making investigations locally although it's usually just an interview at the us embassy is not how the system works and  occurs the problem is that the that the front end of the process which is what the department of homeland security is for the very purpose of trying to determine what is the immigration status of the  here what is the relationship between the petitioner and the beneficiary spousal relationship and and and are there any prohibited sions on the approval of this petition so if the i want thirty is approved that is the department of homeland security within whose wheel house the entire process is based that's not to suggest that the consular officer cannot look into it further indeed in this case what that's what happened the st time around the i went thirty state that logic then says that the department of homeland security washes its hands of the process once it determines based on whatever scant evidence it might have before at or whatever and let me know if we wait it wait for the consular officials report following the interview and whatever investigation the consular official determines the needed or verification that this person is inadmissible lately and indeed that would require investigation be sent back to the department of homeland security for revocation or possible revocation of the visa were the consular officer to determine that something came up in that investigation that's what happened in the secretary  these agreed and it's the secretary of the department of homeland security who determines whether a marriage is entered for the right reasons and whether or not there's a pro had bishan on the approval of that petition in this case what happened is the secretary of responded sorry so the secretary of state said well we don't care that that thing was approved we don't care that what one thousand one hundred and fifty four c says nevertheless we are going to determine that there was a bogus marriage in the back in the background and we are going to just deny the application flat out and essentially give the individual the opportunity to enter the united states notwithstanding the fact that they made a determination that there was a prior marriage that was a sham their nightly application be issued you're right the problem with the with the procedure that you're discussing is that there is no report back on lest there is some grounds for revocation that the state department find in the context of doing the investigation authorized under twelve on one g