Consular nonreviewability (sometimes written as consular non-reviewability, and also called consular absolutism) refers to the common law doctrine in United States immigration and nationality law whereby the visa decisions made by United States consular officers working for the United States Department of State are presumed to be not subject to judicial review. It is closely related to the plenary power doctrine that immunizes from judicial review the substance of United States immigration and nationality law. [1] [2]
Consular nonreviewability specifically applies to decisions made by consular officers representing the United States in other countries, who are employees of the United States Department of State. It does not apply to decisions made by United States Citizenship and Immigration Services.
For many immigrant and non-immigrant visas, the approval of a petition or application from the USCIS is a prerequisite for obtaining the visa. However, the visa may be denied despite the USCIS application having been approved, and consular nonreviewability insulates such decisions from challenge. [2] For instance, in the case of Kerry v. Din (2015) the applicant whose visa was denied had gotten USCIS approval through a Form I-130 filed by his wife, but his visa was nonetheless denied and the United States government claimed that detailed explanation of the reason of denial was not necessary.
Consular nonreviewability also does not apply to decisions made by U.S. Customs and Border Protection officers when deciding whether to allow an alien to enter or not enter the United States at a designated port of entry, or to immigration enforcement actions taken by U.S. Immigration and Customs Enforcement. However, in practice, the avenues of legal redress for the actions of these agencies are limited, owing to the plenary power doctrine.
Consular nonreviewability does not mean that the Department of State cannot reconsider its immigration decisions. There are a number of avenues for redress within the Department of State for somebody whose visa is denied. [3]
The Code of Federal Regulations states that all non-immigrant visa denials should be reviewed by a supervisor. However, the Foreign Affairs Manual states that as many refusals as practical, but not fewer than 10%, should be reviewed, as soon as possible, but deferrable by up to 120 days if the applicant wishes to submit additional evidence. For immigrant visa applications, the review must take place as soon as administratively feasible (but within 30 days) unless the applicant wishes to submit additional evidence (in which case there is no time limit). Supervisorial review of 214(b) refusals (failure to establish non-immigrant intent) require the supervisor to re-interview the applicant. [3] [4]
A few exceptions to the doctrine of consular nonreviewability have emerged over the years: [2] [5]
The history of consular nonreviewability dates back to 1892, with Nishimura Ekiu v. United States, which arose concerning the denial of admission to a Japanese woman, on the grounds she was a public charge. Ekiu sought judicial review of her denial, but section 8 of the Immigration Act of 1891, provided for the finality of these decisions. [6] The Supreme Court upheld that provision, which read:
SEC. 8. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.
Thus, Nishimura Ekiu extended the deference afforded under the plenary power doctrine in United States immigration and nationality law to consular officers, though in a more narrow manner than the contemporary scope of consular nonreviewability. [7] In the 1920s, the United States courts of appeals began to develop their own jurisprudence on consular nonreviewability, with the most influential cases being London v. Phelps (1927), decided by the 2nd Circuit, and Ulrich v. Kellogg (1929), decided by the D.C. Circuit. [8]
Prior to 1946, there was no barrier in principle to judicial review of consular decisions, but there was no clear protocol in general for challenging decisions by government agencies in courts. The Administrative Procedure Act of 1946 changed this; Section 10 of the APA permitted judicial review for any person "adversely affected or aggrieved" by the actions of a government agency. [5] Also, Section 279 of the Immigration and Nationality Act of 1952 explicitly gave the courts jurisdiction over "all causes" arising under Title II of the statute. This meant that cases would be brought to the courts the decisions on which would help clarify their thinking on consular nonreviewability.
Courts' initial response to efforts to challenge consular decisions was to rely on the plenary power doctrine. The first decision establishing the plenary power doctrine in the post-APA era was Knauff v. Shaughnessy (1950). According to the Knauff court, "whatever the procedure authorized by Congress, it is due process as far as an alien denied entry is concerned." [1] [2]
In this case, Knauff, the alien wife of a citizen who had served for the United States in World War II sought admission to the United States (and would ordinarily have been eligible based on the War Brides Act), but was denied admission by the United States based on confidential information. The Attorney General denied a hearing, arguing that a hearing would reveal sensitive information that would be detrimental to the interests of the United States. The Supreme Court upheld the Attorney General's decision, clarifying that the denial of entry to the alien wife was not unconstitutional, and that it is "not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a certain alien." [9]
Kleindienst v. Mandel , 408 U.S 753 (1972), was a United States Supreme Court decision that upheld that the United States Attorney General has the right to refuse somebody's entry to the United States, as he has been empowered to do so in 212 (a) (28) of the Immigration and Nationality Act of 1952.
This action was brought to compel Attorney General Kleindienst to grant a temporary nonimmigrant visa to a Belgian journalist and Marxian theoretician whom the American plaintiff-appellees, Ernest Mandel et al., had invited to participate in academic conferences and discussions in the US. The alien had been found ineligible for admission under 212 (a) (28) (D) and (G) (v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish "the economic, international, and governmental doctrines of world communism." Kleindienst had declined to waive ineligibility as he has the power to do under 212 (d) of the Act, basing his decision on unscheduled activities engaged in by the alien on a previous visit to the United States, when a waiver was granted.
Even though it upheld consular nonreviewability, the opinion offered in the Kleindienst v. Mandel case paved the way for potential challenges to consular decisions. Specifically, Kleindienst v. Mandel rejected judicial review because it ruled that the consulate had offered a "bona fide and facially legitimate" reason for rejecting the visa. This suggested that in cases where such a reason was not provided, the consular decision may be subject to judicial review. This criterion for whether a consular decision might be eligible for judicial review would come to be known as the Mandel test. [2]
Kerry v. Din , 576 U.S. 86 (2015), was a United States Supreme Court decision that upheld the doctrine of consular nonreviewability. The case was filed by Fauzia Din, a United States citizen who had arrived in the country as a refugee from Afghanistan in 2000. In September 2006, she married Kanishka Berashk, a citizen of Afghanistan, who had worked as a civil servant under the Taliban regime. Din then submitted a Form I-130 petition to the United States Citizenship and Immigration Services, sponsoring Berashk under the Immediate Relative category. The petition was approved by the USCIS.
Berashk used the approved Form I-130 to apply for a visa to enter the United States. However, in June 2009, he was informed that his visa was denied; the stated reason for the denial was that he had provided material support to a terrorist but no further details were provided. Din filed suit in the United States District Court for the Northern District of California arguing that the government denied her due process of law by depriving her of her "constitutional right to live in the United States with her spouse." The District Court rejected her argument, but the Ninth Circuit Court of Appeals reversed. The United States appealed the reversal in the Supreme Court. Per the Mandel test, there were two questions at hand:
The case was won by the United States, with the Supreme Court split in its opinion. Antonin Scalia, John G. Roberts, and Clarence Thomas wrote plurality opinions. Anthony Kennedy and Samuel Alito concurred.
Scalia's opinion rejected (1), i.e., he argued that the denial of a visa did not implicate a fundamental liberty interest, and that it differed from Loving v. Virginia in that the right to marriage was not being questioned. Kennedy's opinion differed from Scalia's in that he did not come to a definite conclusion regarding (1), but instead he rejected (2), arguing that even if Din's liberty was infringed upon, the reason explanation offered by the consulate for the denial (i.e., that Berashk had provided material support to a terrorist organization) fulfilled the government's obligations, and that further details were not required in cases where the application was denied due to terrorism or national security concerns.
Stephen Breyer wrote a dissenting opinion answering both (1) and (2) in the affirmative, in which he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Breyer's dissent argued that forbidding people from living together did effectively impede the right to marry, and that the level of explanation offered for the denial was inadequate, similar to "telling a criminal defendant that he is accused of breaking the law."
Although Kerry v. Din upheld the doctrine of consular nonreviewability, legal commentators viewed it as not carrying much additional weight as a precedent since the decision was a plurality opinion. [10] [11] [12]
Nishimura Ekiu extended the immigration plenary power to administrative officials executing Congress's directions.Still, Nishimura Ekiu's deference was limited—especially compared to what courts afford consular officers today.
There are two seminal cases on the question of consular nonreviewability. One of the cases most often cited for the proposition that consular visa denials are not reviewable is London v. Phelps, decided by the Second Circuit in 1927....Next to London v. Phelps, the most often cited authority for the doctrine of judicial nonreviewability of a visa denial was the 1929 decision of the District of Columbia Circuit in Ulrich v. Kellogg.