immigration security
Are immigration officers who grant visas to a convicted terrorist guilty of a crime?
<p>I'm not a lawyer or an expert on laws, but from what I know it is the visa officers' first and foremost responsibility to screen applicants/referrals and filter out potentially dangerous ones. They get paid from taxpayers money just to do it, and if they are so incompetent as to admit a blood thirsty psychopathic terrorist who later attacks people with a car and a butcher knife, shouldn't victims and/or their families have the right to sue them? And if they do, are they likely to win?</p>

<p>The answer from @BlueDogRanch is right as far as it goes, but omits a critical point. There are certain acts that are excluded from liability under the Federal Tort Claims Act and granting a visa when it should have been denied is almost certainly one of them. The critical provisions are 28 USC § 2680(a) and (h).</p>

<blockquote>
  <p>28 USC § 2680. Exceptions to the Federal Tort Claims Act</p>
  
  <p>The provisions of this chapter and section 1346(b) of this title shall
  not apply to--</p>
  
  <p>(a) <strong>Any claim</strong> based upon an act or omission of an employee of the
  Government, exercising due care, in the execution of a statute or
  regulation, whether or not such statute or regulation be valid, or
  <strong>based upon the exercise or performance or the failure to exercise or
  perform a discretionary function or duty on the part of a federal
  agency or an employee of the Government, whether or not the discretion
  involved be abused.</strong> . . .</p>
  
  <p>(h) Any claim arising out of assault, battery, false imprisonment,
  false arrest, malicious prosecution, abuse of process, libel, slander,
  misrepresentation, deceit, or interference with contract rights:
  Provided, That, with regard to acts or omissions of investigative or
  law enforcement officers of the United States Government, the
  provisions of this chapter and section 1346(b) of this title shall
  apply to any claim arising, on or after the date of the enactment of
  this proviso, out of assault, battery, false imprisonment, false
  arrest, abuse of process, or malicious prosecution. For the purpose of
  this subsection, "investigative or law enforcement officer" means any
  officer of the United States who is empowered by law to execute
  searches, to seize evidence, or to make arrests for violations of
  Federal law.</p>
</blockquote>

<p>The decision to grant or deny a visa is generally placed in the discretion of a visa officer, evaluating the facts when informed by guidelines established by the U.S. Secretary of State and Department of Homeland Security which is a quasi-judicial role, and is subject to administrative appeal in some cases. As a result, even if that discretion is abused, the employee and the agency are immune from liability under the FTCA.</p>

<p>The claim may be barred under 2680(h), as well, if the visa officer is sued for conspiring to cause one of the enunciated intentional torts and the visa officer is not a law enforcement officer.</p>

<p>Also, if liability exists at all under the FTCA, it <a href="https://www.justice.gov/sites/default/files/usao/legacy/2010/12/06/usab5806.pdf" rel="nofollow noreferrer">arises against the United States and not against the employee personally</a>:</p>

<blockquote>
  <p>The general rule is that <strong>federal employees enjoy absolute immunity
  from tort claims that challenge negligent or wrongful acts performed
  while acting within the scope of government employment.</strong> <em>See Osborn v.
  Haley</em>, 549 U.S. 225, 229-30 (2007). The source of this absolute
  immunity is the Federal Employees Liability Reform and Tort
  Compensation Act of 1988, commonly known as the Westfall Act. 28
  U.S.C. § 2679 (2010). Under the Westfall Act, the exclusive remedy for
  anyone injured by the negligent or wrongful act of a federal employee
  acting in the scope of employment is a suit against the United States
  under the Federal Tort Claims Act. 28 U.S.C. § 2679(b)(1) (2010).</p>
</blockquote>

<p>The bottom line is that there are no private causes of action that arise under the immigration laws for a person not personally claiming improper denial of an immigration benefit. <em>Cf. Mirmehdi v. United States</em>, 662 F.3d 1073, Footnote 4 (9th Cir. 2011) (no cause of action exists for selective enforcement of the immigration laws); <em>Tsolmon v. United States</em>, 15-20609 (5th Cir. November 7, 2016) (discretionary exception clause barred FTCA action for failure to follow department policy re potential visa issue). <em>But see Watson v. United States</em>, 14-CV-6459 (E.D. New York, February 25, 2016) (discretionary acts exception did not apply to the deportation of a child who was a known U.S. citizen by immigration officers since this is beyond the scope of their authority).</p>

<p>There is also no constitutional right to have the government deny a visa to someone not entitled to a visa under U.S. law or immigration guidelines.</p>

<p>If someone brought a suit of the kind described in the question, they would almost certainly lose, probably on a motion to dismiss by the government filed before they were required to answer the complaint on the merits.</p>

<p>A sufficiently negligent decision might constitute good cause to fire the visa officer from that person's civil service job, if their supervisor chose to seek the termination of the visa officer's employment.</p>

<p>I will refrain from answering whether the sovereign immunity that exists in this circumstance is good policy as the question asks as that would be beyond the scope of this forum and implicate wide ranging questions of pure opinion. Suffice it to say that U.S. law on this question would not necessarily apply in every country.</p>

<p>It is possible for individuals to sue the federal government (which typically has sovereign immunity) for negligence, and sometimes they are successful, but the lawsuit must be very focused to be allowed under the Federal Tort Claims Act <a href="https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act</a> which allows only some types of actions against the government. (And, before any suit is filed by a plaintiff under the FTCA, they must first file a complaint with the specific federal agency.)</p>

<p>A very general overview of the possibilities of suing the government is from Nolo:</p>

<blockquote>
  <p>Historically, under the doctrine of "sovereign immunity," you were not
  permitted to sue the king. Sovereign immunity has carried over to
  modern times in the form of a general rule that you cannot sue the
  government -- unless the government says you can.
  <a href="http://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html" rel="nofollow noreferrer">http://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html</a></p>
</blockquote>

<p>So, it is possible, but the process is complex and is designed to both allow lawsuits as a "check and balance" of actions and possible negligence by federal employees, as well as to stop frivolous suits.</p>

<p>Can a federal immigration officer be sued for negligence for issuing visas?</p>

<p>Yes, under certain circumstances. These are very general guidelines <em>(with my emphasis)</em> on the limitations of FTCA claims; anything else would be thrown out early in any lawsuit:</p>

<blockquote>
  <p><em>Only federal employees can be sued under the FTCA</em>, not independent
  contractors hired by the federal government (unless they are treated
  like employees).</p>
  
  <p>The <em>negligent or wrongful conduct must have been done within the scope
  of the defendant's employment</em>.</p>
  
  <p>In general, <em>only claims of negligence -- as opposed to intentional
  misconduct -- are allowed</em> (though some claims for intentional
  misconduct can be brought against certain federal law enforcement
  officers).</p>
  
  <p>The claim must be based on -- and permitted by -- <em>the law of the state
  in which the misconduct occurred.</em></p>
</blockquote>

<p>And, before a suit is filed under the FTCA, the plaintiff must first file a claim with the federal agency responsible - probably multiple agencies - and work through that process first. The government has its own site for that process and guidelines: <a href="https://www.usa.gov/complaint-against-government" rel="nofollow noreferrer">https://www.usa.gov/complaint-against-government</a></p>

<p>How likely they are to win depends on the merits of the case; what's the evidence an employee was negligent? And if the plaintiff is trying to prove intent: again, what's the evidence?</p>
