Supreme Court to Review Consular Nonreviewability

In February 2015, the U.S. Supreme Court will hear arguments in Kerry v. Din, an immigration-related case that deals with the doctrine of consular nonreviewability. This doctrine generally insulates embassies and consulates from having visa denials overturned by federal courts. This particular court promises to address the limits of the doctrine as it applies to an immigrant visa case petitioned by a U.S. citizen relative.

Doctrine of Consular Nonreviewability

The roots of the doctrine of consular nonreviewability can be traced back to an 1889 decision by the U.S. Supreme Court in the Chinese Exclusion Case. The doctrine has been clarified and modified by the courts over the decades, and, based on these holdings, the general understanding today is that ‘consular nonreviewability’ means that if a consular officer denies a foreign national a visa, the courts have virtually no authority to overturn this decision.

Doctrine as it Applies to Family Members of U.S. Citizens

In 1972, the Supreme Court recognized a limited and highly restrictive review if the visa denial affects rights of U.S. citizens. Under this standard, the consular officer need only provide a factually legitimate, bona fide basis for the decision denying the visa application. More recently, however, federal courts have again questioned the doctrine and found that, where the rights of a U.S. citizen are involved in the denial of a visa to a spouse or close family member, the citizen may seek review by the courts of the reason for the visa denial.

Kerry v. Din

The Supreme Court has agreed to hear the appeal of the case initially filed as Din v. Kerry. This case involves a U.S. citizen, Mrs. Fauzia Din, who is married to a citizen of Afghanistan, Mr. Kanishka Berashk. Mrs. Din obtained an approved I-130, petition for alien relative, she filed on behalf of her husband. Thereafter, Mr. Berashk was denied an immigrant visa at a U.S. consulate abroad.

The exact reason for the visa denial is still unknown. However, it is speculated that it may be related to the fact that the visa applicant, Mr. Berashk, worked for the Afghan Ministry of Social Welfare before, during, and after the time when the Taliban controlled the Afghani government. At his visa interview, Mr. Berashk answered the consular officer’s questions about his experiences working for the government under Taliban control, and was told that his visa would be approved in 2 to 6 weeks.

Denial Without Explanation

Almost nine months after the visa interview, Mr. Berashk received a form letter noting that his visa was denied under Section 212(a) of the Immigration and Nationality Act (INA) and that there was no possibility of applying for a waiver of his inadmissibility. In response to an eMail requesting clarification, the U.S. Embassy in Islamabad, Pakistan stated that his immigrant visa was denied under INA §212(a)(3)(B). This section of the INA prohibits the admission of individuals who have connections to terrorist activities. The embassy’s eMail also stated that it could not disclose the detailed basis for this decision.

Lawsuit Challenges Denial

In response to her husband’s visa denial, Mrs. Din filed a federal lawsuit requesting a writ of mandamus and declaratory judgment under the Administrative Procedures Act. The use of a lawsuit to challenge either an incorrect federal decision or a delayed decision by an U.S. immigration official is discussed in the MurthyDotCom NewsBrief, Murthy Success Story: Mandamus Against DOS Results in Visa Issuance (23.Nov.2012).

In Mrs. Din’s case, the U.S. district court dismissed her claim that an unexplained denial of her husband’s immigrant visa violated her rights, citing the doctrine of consular nonreviewability. The appellate court disagreed, however, ruling in Mrs. Din’s favor. This decision was then appealed by the government to the U.S. Supreme Court, which is expected to hear oral argument on the case on February 23, 2015.

Conclusion

The doctrine of consular nonreviewability is the reason that, in many situations, it can be difficult to overcome a visa denial at a consulate abroad. It is hoped that the existing limited exception to this doctrine is not disturbed and, rather, is expanded to allow for appropriate review of seemingly arbitrary decisions. The Murthy Law Firm will track this case and post updates as the case progresses.

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