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Consular Non-Reviewability


With respect to decisions not to grant a visa in a foreign country, the general rule was that a decision made by an official at a U.S. Consulate is NOT reviewable by a U.S. federal court. That is, the consular decision could not be challenged by filing a lawsuit in federal court. This general rule was a solid legal rule that was uniformly imposed.

However, starting in 2015, the rule has been eroded. This is, of course, welcome news to those seeking to obtain visas to enter the U.S. The case that opened the doors to the reviewability of consular decisions was Kerry v. Din, 576 U.S. 86 (2015), decided by the U.S. Supreme Court -- the highest court in the U.S. The Kerry court held that the doctrine of consular non-reviewability is still valid but that there is an important exception. When the exception applies, then U.S. federal courts CAN review consular decisions. The exception exists when two conditions are met:

  • When the consular decision impacts the “fundamental rights” of a U.S. citizen AND
  • When the consular office -- the U.S. government -- fails to provide “a facially legitimate and bona fide reason” for the decision

In practice, this is an enormous exception that basically nullifies the doctrine of non-reviewability. Why? Because, at minimum, a lawsuit can be filed to determine whether the Kerry exception applies. Further, this exception will ONLY apply when a consular official DENIES a visa. If the visa is granted, there is no reason to bring a lawsuit. This means that consular officials will be more cautious about denying a visa. Further, Kerry solidifies the rule that the Consulate must provide reasons -- give a report as to why the visa is denied. This creates bureaucratic incentives to issue more visas. From the bureaucrat's perspective, it is just easier -- less of a hassle -- to grant a visa than to go through the paperwork of denying the visa.

In addition, history has shown that once the U.S. Supreme Court creates an exception to a legal doctrine, there are extensive and concerted efforts to find more exceptions. After all, without question, the existence of the exception will generate more litigation -- if only to see if the visa denial fits within the exception. This creates more opportunities to argue for more erosion of the doctrine of non-reviewability.

How can this be done? First, the exception itself can be expanded through additional litigation. For example, Kerry involved a U.S. citizen's attempt to obtain priority immigration status for her husband, a resident citizen of Afghanistan and former civil servant in the Taliban regime. However, at the Afghanistan consular office, the husband's visa was denied. The only information provided was that he was inadmissible under §1182(a)(3)(B) of the Immigration and Naturalization Act, which excludes aliens who have engaged in “[t]errorist activities.” The husband was unable to obtain any additional information.

The Kerry court said that the wife's fundamental rights with respect to marriage were impacted, and the consulate's failure to provide more information allowed for an exception to the doctrine of non-reviewability. But there are many more "fundamental rights" recognized under U.S. Constitutional law. There are recognized rights with respect to children, sexual identities, religious beliefs and practices, being free from racism and discrimination, etc. Thus, we can see logically that the exception itself is subject to expansion.

Second, the logic of the Kerry decision can potentially lead to additional expansions. The Kerry court focused on the fundamental rights of U.S. citizens. But the same logic can apply to the visa applicant. The U.S. has already said there is a liberty interest held by the visa applicant. Clearly, another exception can be created where the applicant's fundamental rights are impacted.

In the Ninth Circuit, a recent decisions, Muñoz v. U.S. Department of State further applied this exception. Ninth Circuit Court held that when a consulate’s decision on a visa application impacts the constitutional rights or “fundamental rights” of a U.S. citizen, due process requires that the consulate give the citizen “timely and adequate” notice of the decision, and this means, a timely decision and explanation of the denial.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone, and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.


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