WASHINGTON (CN) - Though the U.S. has been inconsistent in its reasons for keeping a former Sri Lankan official from his family here, a federal judge found that he cannot review the case.
Premadasa Udugampola's relatives have twice filed federal complaints to get him a U.S. visa. Officials rejected three different applications from Udugampola on different grounds over the years.
"Although the basis for the visa denial at issue in this second suit differs from the first suit, the claims and relevant legal doctrines remain unchanged, necessitating the same outcome of dismissal," according to a Sept. 29 dismissal order.
The ruling spells the family's name alternatively as Uduguampola.
Udugampola's daughter Bianca brought the suit against Assistant Secretary for Consular Affairs at the State Department Janice Jacobs, and others, claiming that the decision to bar her father from coming to America violates her Fifth Amendment rights.
Mr. Udugampola worked a Sri Lankan police officer from 1957 to 1992, and become deputy inspector general of police before retiring.
His wife won asylum in 1995 and became a U.S. citizen in 2012.
The couple's four children are permanent U.S. residents.
Mrs. Udugampola petitioned for refugee-asylee status for her husband in 1995, shortly after she arrived, but immigration officials denied her request four years later on the grounds that her husband "ordered, incited, assisted or otherwise participated in the persecution of any persons on account of race, nationality, membership, in a particular social group, or political opinion" when he was deputy inspector general of police in Sri Lanka.
Bianca's 2003 petition ended with a 2009 denial from the U.S. embassy in Colombo, Sri Lanka, because of Mr. Udugampola's "alleged participation in terrorism."
In their first unsuccessful lawsuit, the Udugampola's claimed that the U.S. State Department officials violated their due-process rights by failing to provide a legitimate reason for the visa denials.
The U.S. Department of Justice allowed Mr. Udugampola to resubmit a visa application for a third time, but his family filed suit again in April 2013 when a decision within the year proved unavailable.
Two months later, the consulate denied the third visa application, this time citing a provision authorizing the exclusion of an alien who was involved in "extrajudicial killing."
"In sum, over the last fifteen years, the applicant's three visa applications have been consistently denied but on different grounds," U.S. District Judge Beryl Howell wrote.
Howell tossed the family's latest case because the court lacks the ability to review a consular's decision to grant or deny a visa.
"The parties do not dispute that under the doctrine known as consular non-reviewability, 'a consular official's decision to grant or deny a visa is not subject to judicial review," Howell said.
Though Udugampola's wife claimed that the visa denials are interfering with her constitutional right to enjoy her marriage and family life, Howell didn't buy it.
"The defendants are correct that, contrary to the holdings of certain cases decided in the Ninth Circuit, in this Circuit the exception to the consular nonreviewability doctrine has been found general inapplicable to spousal visa denials," Howell said.
In sum, his wife has the "choice of living abroad with her husband or living in this country without him."
"The plaintiffs have presented no persuasive or binding caselaw that warrants revision of the legal conclusion reached by this court," Howell said.
Howell also found the differing reasons for each denial inconsequential.
"Indeed, whether the applicant 'committed, ordered, incited, assisted, or otherwise participated in the commission of ... an extraditional killing,' the outcome would be the same - he is inadmissible," he wrote.
A federal judge in San Francisco also cited the 9th Circuit case that Howell mentioned, Din v. Kerry , this year in ordering the removal from a no-fly list of Malaysian national Rahinah Ibrahim.
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