What is the Doctrine of “Consular Non-Reviewability”?

“Consular non-reviewability” is a doctrine which renders unappealable in the US judicial system decisions made by US Embassy Consular Officers, regarding immigrant and non-immigrant visa applications.

It is closely related to the doctrine of “plenary power”, which immunizes from judicial review the substantive immigration decisions of Congress and the executive branch of the US Government. The issues of foreign policy and national sovereignty are reserved to the executive branch of the US Government and, as such, the judicial branch of the US Government may not intervene.

 

To What Decisions Does the Doctrine of Consular Non-Reviewability Apply?

The doctrine of Consular non-reviewability applies specifically to decisions made by US Embassy Consular Officers (who are employees of the Department of State), regarding visa applications.

The doctrine does not apply to adjudications by the USCIS on immigrant petitions nor decisions made by US Customs and Border Protection Officers regarding whether a foreign national should be allowed entry to the US.

 

Are There Any Exceptions to the Doctrine of Consular Non-Reviewability?

Yes. A US Federal Court may review a decision of a US Embassy or Consulate in a very narrow set of circumstances:

  1. In Kleindienst v. Mandel, 408 US 753 (1972), the US Supreme Court suggested that a right of review may exist where the Consulate had not offered a “facially legitimate and bona fide reason” for denying the visa application (“The Mandel Test”).
  2. In Patel v. Reno, 134 F.3d 929 (1997), the Ninth Circuit Court of Appeals held that there is mandamus jurisdiction to compel a Consular Officer to make a decision on a visa application, where a Consular Officer fails to take any action upon an application.
  3. Subject to the type of case and the nature of the decision, it may be possible to challenge the Constitutionality of a rule or regulation which has led to the denial of an application.

 

Has the Doctrine of Consular Non-Reviewability Ever Been Subject to a Legal Challenge?

Yes.

In Kerry v. Din, 135 S.Ct. 2128 (2015), the US Supreme Court upheld the doctrine of Consular non-reviewability, albeit by a slender majority of 4-5.

In Kerry v. Din, a US citizen, Fauzia Din, filed an immigrant visa petition in respect of her husband, Kanishka Berashk, who was a citizen of Afghanistan and a former low-level Payroll Clerk of the Afghan Government while it was under the control of the Taliban. Upon approval of her petition, Mrs. Din’s husband filed an Immigrant Visa application. His application was denied under Section 212(a) of the Immigration and Nationality Act (INA), 8 US.C. § 1182(a), as a result of his alleged involvement in terrorist activities.

At US Supreme Court level Mrs. Din challenged the decision on the basis that 1. She had a Constitutional right to reside in the US with her spouse and 2. The US Government had failed to provide her with detailed reasons for the visa denial and had therefore deprived her of her Constitutional right of due process of law.

By a majority of 5-4, the US Supreme Court ruled that US. citizens have no Constitutional interest in being able to live in the US with their spouses and therefore it is sufficient for the US Government to simply notify the US. citizen spouse of the general section number of immigration law under which their spouse’s  immigrant visa application was denied. It was held that the US Government had not deprived the petitioner of any Constitutional right entitling her to due process of law.

 

I Have Just Been Denied an Immigrant/Non-Immigrant Visa. What Should I Do?

In the first instance, we would recommend that you contact us in order to discuss your case further. Our team of licensed US immigration attorneys will be able to provide a complimentary eligibility check over the telephone, in order to determine what services, if any, we can offer to assist you in your endeavors.

We may be able to offer assistance in connection with a review, if sufficient grounds exist or in the filing of a new application, subject to your circumstances.

 

Davies Legal Immigration

At Davies Legal Immigration, we provide advice and representation in connection with all immigrant and non-immigrant visa categories, including cases in which a waiver of inadmissibility is sought and cases in which there have been previous visa denials. We pride ourselves on providing the highest standards of client care and undertake to keep you informed. Call now for a complimentary telephone call with a licensed US immigration attorney and free, no obligation price quotation.

Published: 13th January 2018