I’ve spent a lot of time in this space hemming and hawing about the world that I practice law in. One thing I’ve written about ad nauseum is the stupidity of having to sometimes advise some corporate clients that the only way they can hire a foreign specialty occupation worker (i.e., an H-1B) is if they are first selected in a random lottery in competition with 700,000 other employers. This is one of many examples of how ridiculous our immigration system is.
Here’s another: the doctrine of consular nonreviewability. Let me set the stage. You’ve got a client that needs to apply for a visa at a U.S. embassy or consulate outside the United States. Maybe it’s employment-based, family-based, or even a visa for a friend or relative to come visit the United States. You prepare the visa application and get it filed. You prepare your client for his or her interview. The application is well-documented, and your client is well-prepared. The interview goes well, but your client’s visa application is nevertheless denied. No meaningful reason is given (and if one is given, it’s on a pre-printed form with a box checked next to a section of law, devoid of details). As lawyers, we instinctively think that we can appeal the denial. Think again.
Under current law, U.S. consular officers have the exclusive authority to adjudicate applications for visas.[1] Furthermore, the case law to date has been very clear: there is no judicial review over an embassy’s or consulate’s decision to deny a visa (or, indeed, over almost any other action by the consulate in adjudicating a visa application).[2] Yes, you read that right. Case law refers to this as the “doctrine of consular nonreviewability.”[3] In 2015, the Supreme Court affirmed this notion that there is no judicial review of the denial of a visa because, according to the Court, an individual abroad (or the U.S. citizen petitioner that may have sponsored the individual abroad, e.g., a relative of that individual) does not have a Fifth Amendment right of due process.[4]
Enter the 9th Circuit Court of Appeals. In Muñoz v. United States Department of State,[5] the 9th Circuit Court of Appeals, in a broad decision that gave attorneys hope that there was now a chink in the government’s armor, held (a) that a U.S. citizen possessed a protected due process liberty interest in her noncitizen husband’s immigrant visa application, (b) that a declaration by a consular officer denying the immigrant visa application because of noncitizen’s gang membership contained sufficient information connecting the reason for the denial with the cited statute of inadmissibility, (c) that, in a matter of first impression, due process requires that the U.S. government to provide its citizens with timely and adequate notice of a decision to deny a visa, and (d) the failure to provide timely notice of the factual basis for a visa application denial precluded the application of doctrine of consular nonreviewability.
Suffice it is to say, the government was not happy with the 9th Circuit’s decision, and then made an application for a writ of certiorari with the Supreme Court, which was granted, in part. The questions being presented to the Court are whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the U.S. citizen and, assuming there is a constitutional interest, whether then notifying a visa applicant that they were deemed inadmissible under the law suffices to provide any process that is due.[6]
This is pretty big in my opinion, because as you might imagine, it’s a pretty awful (and, as a lawyer, embarrassing) conversation we occasionally have to have with our clients when we tell them that consular officials essentially have unfettered discretion to review visa applications.[7]
I have seen many examples of well-documented cases that are denied for reasons not completely known to me. I’ve seen sophisticated and confident individuals who have completely unraveled in an intimidating consular interview setting, only to have their case denied. With no recourse at the consular level or in the Courts, clients are left to scratch their heads at a process sometimes referred to as “consular absolutism”. Perhaps now the tides are changing. I, for one, will be keeping an eye on the Supreme Court. Oral argument is scheduled for late April, 2024. Stay tuned.
[1] INA §104(a) specifically provides as follows: “The Secretary of State shall be charged with the administration and enforcement of the provisions of this chapter … relating to … the powers, duties and functions of diplomatic and consular officers of the United States except those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas.”
[2] This would not be the case if the issue were before U.S. Citizenship and Immigration Services (“USCIS”). Let me tweak the facts. Let’s say your client is applying for a visa, and the consular official determines that because of something your client did in his or her past (e.g., an arrest, etc.), your client is not eligible for a visa without first receiving a waiver of inadmissibility from USCIS. You thereafter apply for that waiver with USCIS, and that application is denied. Here, you can appeal to the Administrative Appeals Office (“AAO”), and perhaps thereafter up the chain of federal courts if you’re not successful in that venue.
[3] Lihua Jiang v. Clinton, 08-CV-4477, 2011 WL 5983353 (E.D.N.Y. Nov. 23, 2011), citing Al Makaaseb Gen. Trading Co., Inc. v. Christopher, No. 94-CV-U79 (CSH), 1995 WL 110117 (S.D.N.Y. Mar. 13, 1995).
[4] Kerry v. Din, 576 U.S. 86 (2015).
[5] 50 F.4th 906 (9th Cir. 2022).
[6] The Supreme Court declined to address the question of whether, assuming that a constitutional interest exists and that citing the law is sufficient standing alone, due process also requires the government to provide a further factual basis for the visa denial “within a reasonable time,” or else forfeit the ability to invoke consular nonreviewability in court.
[7] There certainly are some (very few) regulatory opportunities to request that a denied application be reviewed by the consular officer’s superior, but very rarely, if ever, will that change the result.