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Supreme Court to take on Consular Non-reviewability in Kerry v. Din

For the first time since the landmark case of Kleindienst v. Mandel, 408 U.S. 753 (1972), the U.S. Supreme Court will re-examine the intractable doctrine of consular non-reviewability this year in Kerry v. Din, Docket No. 13-1402. In sum, the Court’s review will concern the rights of U.S. citizens to know the underlying specific reasons for why their spouse’s immigrant visa was denied, causing permanent separation.

First, a Real Life Example

The case of “Bob” and “Christina” (not their real names) is illustrative. Bob and Christina met while Christina was a political science foreign graduate student at a California university in 2011. After quickly falling in love and embarking upon a storybook romance, circumstances tore them apart. Bob took a job in Manhattan and Christina returned to her native Italy to care for an ill relative in the Fall of 2012.

Nevertheless, their commitment to one another never wavered. Through Skype and phone calls, the couple kept in touch. Bob visited Christina several times and Christina visited the U.S., though less often. During one of these visits in early 2013, Bob and Christina spontaneously decided to get married. They considered having Bob petition Christina for U.S. immigration benefits, which would allow Christina to stay in the U.S. However, because she had entered the U.S. using the Visa Waiver Program—which is not intended to allow entrants to stay permanently in the U.S.—the couple decided to have Christina return to Italy, where an immigrant visa could be received at the Embassy in Rome within about 9-12 months.

Bidding adieu for what they believed would be their last period of living apart, Christina returned to Italy and Bob filed a Spousal Petition with the U.S. Citizenship and Immigration Services on behalf of Christina. The petition was approved within 5 months, and the last step was for Christina to receive her immigrant visa at the Embassy. However, on the day of her fateful Embassy interview, her Immigrant Visa was denied. The officer gave no concrete reason for the denial, but upon inquiry from Bob’s counsel, it emerged that the legitimacy of Bob and Christina’s marriage was in doubt.

Bob and Christina were distraught, their plans disrupted. They would now have to wait months for the Embassy to return Bob’s petition to the National Visa Center, which would then send the petition to USCIS, and finally, back to Bob, where he would be given the opportunity to respond to the allegations in the denial. Because Christina now had a visa denial in her record, she had become permanently ineligible for the Visa Waiver Program, and would have to apply for a visitor visa for any future visits to the U.S. Because she was married to a U.S. citizen, she would have difficulty receiving a visitor visa, as she would have trouble proving her stay would only be temporary.

All told, it took about 16 months before the USCIS reaffirmed its earlier spousal petition approval and Christina was re-interviewed at the Embassy. Her Immigrant Visa was ultimately approved the second time. Nonetheless, one cannot help but wonder why there was not a way to seek a review of the earlier denial, which would have saved the USCIS and National Visa Center the extra work, and saved U.S. citizen Bob and his spouse 16 months of sleepless nights and worry, not to mention additional legal fees. Based on USCIS statistics from 2006, over 50,000 such visas per year are refused, and undergo the process of being returned to the U.S. citizen petitioner from the Embassy back to the petition by way of the National Visa Center and USCIS.

What is Consular Non-reviewability?

It is the doctrine of Consular non-reviewability which stands for the notion that Consular decisions are not appealable or subject to review in federal courts. The Supreme Court established the general doctrine in its 1950 decision in United States ex rel. Knauff v. Shaughnessy, and it has been almost universally followed by U.S. courts since. As a result, when a consular officer denies a visa, the visa applicant is generally without any recourse.

Several weeks ago the Supreme Court decided to grant certiorari in Kerry v. Din, 718 F.3d 856 (9th Cir. 2013), which means that it has agreed to reexamine Consular Non-reviewability for the first time in 40 years. A former colleague of the author–Anoop Prasad of the Asian Pacific Law Caucus–is one of Din’s lawyers, and I am confident the rights of the immigrant will be well represented at the highest court in the land.

Visa Denial on Broad Grounds

The story behind Kerry v. Din involves U.S. citizen Fauzia Din and her foreign-born husband. In 2006, Mrs. Din petitioned her husband–an Afghan national, and the petition was approved by USCIS. In his immigration documentation and during his interview, Mrs. Din’s husband answered all questions truthfully, including those regarding his previous employment. Most notably, he had worked as a payroll clerk for the Afghan Ministry of Social Welfare since 1992, including the period from 1996 to 2001 when the Taliban controlled the government. Mr. Din was told by the consular officer conducting his interview in Pakistan that he would be approved and that the visa would arrive shortly. Instead, he was notified by mail in June 2009 that the visa had been denied under Immigration and Nationality Act Section 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), which lists a wide variety of conduct that renders a foreign national inadmissible due to “terrorist activities.”

Din denied that her husband had been involved in terrorism and sought further explanation. Mrs. Din took her matter to Federal Court and sued the State Department, however, the District Court Judge dismissed her complaint, citing the doctrine of Consular Non-reviewability. She appealed the ruling to the 9th Circuit Court of Appeals. On May 23, 2013, the 9th Circuit sided with Mrs. Din, ruling that the government must state a “facially legitimate and bona fide reason” for denying a visa. In other words, the consulate must tell a U.S. citizen why her husband’s visa was denied.

In Kerry v. Din, the Court will Review the Doctrine

The Solicitor General has asked the Supreme Court to review the Ninth Circuit’s decision, and on October 2, 2014, the Supreme Court granted review of the 9th Circuit decision. The position of the government is that the appeals court ruling would override a federal law that was “intended to protect the confidentiality of intelligence and other sensitive information on which a consular officer may rely in denying a visa to protect the national security.”

Now, the Supreme Court will render an opinion as to the scope of Consular Non-reviewability. In doing so, it will balance the profound national security concerns facing consular officials in examining visa eligibility, versus the constitutional rights of U.S. citizens in obtaining a legitimate legal and factual basis for the denial of their spouse’s immigration.

Clearly, there is an overriding national security concern in consular withholding of certain information, for example information that could compromise an ongoing law enforcement investigation. However, that is not the level of detail that Mrs. Din is asking for, nor is it the level of detail that Bob and Christina, in the example above, were requesting. It is our hope that the Supreme Court carves out a narrow holding, and finds that if the constitutional rights of a U.S. citizen are at issue, the consular official must provide a “facially legitimate and bona fide” legal and factual basis for the denial.

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