Does the Consular Non-Reviewability Doctrine Preclude a U.S. Citizen from Inquiring About Why a Visa Application Was Denied?

On June 15, 2015, the U.S. Supreme Court issued its long anticipated ruling in Kerry v. Din,[1] a case in which a U.S. citizen argued that the government erred in denying her husband’s visa without even explaining to her the basis of its decision. She claimed that the visa denial implicated her protected constitutional interests and that the government’s failure to communicate the reasons for the denial violated the Due Process Clause. This case was much anticipated by
immigration lawyers because it comes against the backdrop of a long-standing judicial doctrine that many believe is now outdated — the doctrine of “consular non-reviewability.” All the way back in the late 1800s, the U.S. Supreme Court ruled that the federal government has very broad discretionary authority, delegated by Congress, over the admission of foreign nationals to the United States and that decisions made abroad by U.S. consulates as to visa matters are not to be second-guessed by courts stateside. Historically, courts have consistently deferred to the executive branch on visa matters and have refused to review visa denials.
Consular non-reviewability would have prevented the foreign national husband from challenging the visa denial on his own. What makes this case unusual and interesting is that it was his U.S. citizen spouse who sued the government by bringing a Due Process claim. She argued that the visa denial affected her protected constitutional interest and that this was sufficient to overcome the government’s wide-ranging discretionary authority over foreign national admission to allow at least a limited level of judicial review. Consular visa denials have profound repercussions for foreign nationals and their U.S. citizen spouses. They often mask inadvertent mistakes by overworked consular officers or are automatically entered based on questionable data collected in the absurdly complex interaction of various federal agencies involved in the U.S. immigration process.[2] Even a highly restricted level of judicial review would help in such circumstances and save U.S. citizens from the harsh consequence of being forced to live apart from their foreign national spouses.

Background

Fauzia Din, a United States citizen, filed an immigrant petition for her husband, Kanishka Berashk, an Afghani national who lives in Afghanistan, to classify him as an immediate relative for permanent residence purposes.[3] After the U.S. government approved the petition, Mr. Berashk applied for an immigrant visa at the U.S. Embassy in Pakistan to allow him to enter the United States as a lawful permanent resident and live with his wife. The U.S. Embassy eventually informed Mr. Berashk that his visa application was denied for “terrorist activities” under 8 U.S.C. § 1182(a)(3)(B). This subsection is a part of the broader § 1182(a), which includes various classes of foreign nationals who are ineligible to receive visas and to be admitted to the United States. § 1182(a)(3) focuses on national security and related grounds of inadmissibility such as terrorist activities, engaging in persecution and genocide, and membership in a totalitarian party, among others. The Embassy did not specify the particular proscribed activities that triggered the denial and refused to disclose any additional details, claiming exemption under § 1182(b)(3). While visa denials under § 1182(a) must usually describe the specific grounds of inadmissibility and any related statutory provisions, § 1182(b)(3) waives this requirement when the denial is based on national security grounds under § 1182(a)(3).

Ms. Din filed a writ of mandamus to compel the government to lawfully adjudicate her husband’s visa application, and requested declaratory judgment that § 1182(b)(3) does not apply to U.S. citizens and that the government was in violation of the Administrative Procedures Act. The District Court for the Northern District of California granted the government’s motion to dismiss, citing the doctrine of consular non-reviewability. The 9th Circuit Court of Appeals reversed, holding that the visa denial implicated protected constitutional interests of a U.S. citizen and the government’s general reference to § 1182(b)(3), without asserting any facts or clarifying which of the many proscribed activities falling within § 1182(a)(3)(B) led to the denial, was not a bona fide and facially legitimate reason to deny the visa application.[4]

Doctrine of Consular Non-Reviewability

U.S. courts have long held that foreign nationals do not have the constitutional right to enter the United States. Ever since The Chinese Exclusion Case (1889)[5] and Fong Yue Ting v. United States (1893),[6] courts have reasoned that the authority to admit foreign nationals is inherent in the government’s administrative powers and that Congress has plenary power to pass laws and delegate to the executive branch the authority to regulate the admission and removal of foreign nationals from the United States.[7] Courts have also held that whatever process Congress authorizes through legislation represents all of the “due process” to which foreign nationals applying for admission to the United States from abroad are entitled.

While consular non-reviewability has been applied uniformly when foreign nationals have attempted to challenge visa denial decisions, some courts have recognized a narrow exception when challenges are brought by U.S. citizens, based on the U.S. Supreme Court decision in Kleindienst v. Mandel.[8] In Mandel, the U.S. Supreme Court held that when a visa denial impacts constitutionally protected First Amendment rights of U.S. citizens but the government’s visa denial is based on facially legitimate and bona fide reasons, courts would not look behind the government’s reasoning or balance protected First Amendment interests against the government justifications.[9]

While the Mandel case involved a First Amendment challenge to consular non-reviewability, several circuit courts have applied the same reasoning to allow a limited and highly constrained review when U.S. citizen protected interests are implicated in visa denial decisions.[10] These courts have concluded that as long as the government provides bona fide and facially legitimate reasons for visa denials, courts should defer to the executive’s judgment.[11]

Din’s Protected Constitutional Interest and the Government’s Bona Fide Reasons for Visa Denial

The two central issues in Kerry v. Din revolved around whether Din had a protected constitutional interest and, assuming she had a protected interest, whether the government provided a bona fide and facially legitimate reason for her husband’s visa denial to meet the Mandel requirements. Justice Scalia, writing for the plurality and joined by the chief justice and Justice Thomas, vacated the 9th Circuit Court of Appeals decision. He concluded that Din did not have a protected constitutional interest. Highly skeptical of what he described as the continued expansion of the meaning of “liberty” under the Due Process Clause into certain “implied fundamental rights,” he observed it is a long-held historical practice for the U.S. government to regulate spousal immigration and argued that this historical tradition is inconsistent with finding a “free-floating and categorical” liberty interest in marriage that is sufficient to trigger constitutional protection.[12]

Justice Kennedy, joined by Justice Alito, concurred with the decision but declined to address whether there was an implicated constitutional interest. In fact, he specifically pointed that the court decision should not be taken as a final determination of whether a U.S. citizen has a protected liberty interest in living with her foreign spouse. He concluded that, assuming such an interest exists, the government’s general reference to § 1182(a)(3) was a sufficient and “facially legitimate and bona fide” reason for the visa denial, which was enough to meet Due Process requirements under Mandel.

Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, dissented. He disagreed with the plurality holding and argued that Din did possess a constitutionally protected interest entitled to Due Process procedural protection. He also concluded that the government’s explanation of the visa denial was not facially legitimate and bona fide. He wrote that because § 1182(a)(3)(B) is so complex and contains several subsections with different categories of terrorist activities, some of which explicitly allow the foreign national to present evidence in rebuttal of the alleged conduct, the government’s non-specific reference to this section made it impossible for courts to evaluate whether the consular denial was for bona fide and facially legitimate reasons.[13] Justice Breyer underscored that while the government was not required to prove its allegations under § 1182(a)(3)(B), it was at least required to specify them for courts to conduct a limited review under Mandel.

Is the Doctrine of Consular Non-Reviewability Still Applicable?

In the end, this case was supposed to test the boundaries of the consular non-reviewability doctrine in the family immigration context. Instead, its focus shifted to an interpretation of protected constitutional rights. While the federal government ultimately prevailed in a narrow 5-4 decision that lacked a majority opinion, it is worth noting that six out of nine Supreme Court justices seem to view protected constitutional rights more broadly than the interpretation offered by Justice Scalia. Also, while the court did not reach the substance of the consular non-reviewability doctrine, six justices were willing to allow at least some review of consular visa decisions under Mandel. Justices Kennedy and Alito followed a more deferential judicial review approach while Justices Breyer, Kagan, Sotomayor and Ginsburg required a more rigorous scrutiny.

This decision leaves the doctrine of consular non-reviewability largely intact, at least for the time being. However, as the U.S. immigration system becomes more and more complicated and an increasing number of visa denials are caused by inaccurate information in automated government watch lists and national security databases, consular non-reviewability may be up for reevaluation in the very near future.

Notes

1. 576 U.S. ____ (2015).
2. Brief of Amici Curiae Former Consular Officers in Support of Respondent, 576 U.S. _____ (2015) (No. 13-1402). Amici, who are former consular officers, argue that the visa denial in this case was not a discretionary consular decision but an automated system denial based on information contained in various security databases and watch-lists compiled by the U.S. government. Such information cannot be evaluated by consular officers and visa denial decisions are frequently reduced to automatic system responses, prompted by derogatory information that is often based on incorrect and conflicting data.
3. 8 U.S.C. § 1151(b)(2)(A)(i). Under a two-step process, a U.S. citizen first files an immigrant petition to classify the foreign spouse as an immediate relative and the foreign national then applies for an immigrant visa to enter the United States.
4. 718 F.3d 856 (9th Cir 2013).
5. 130 U.S. 581 (1889).
6. 149 U.S. 698 (1893).
7. Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895).
8. 408 U.S. 753 (1972). The Mandel case involved a legal action brought by U.S. citizen professors who argued that the denial of the visa application of a prominent foreign scholar interfered with their constitutionally protected First Amendment right to receive information and ideas. The Supreme Court noted that an unadmitted and nonresident foreign national had no right to enter the United States, and that the case came down to the “narrow issue” of whether the U.S. citizens’ First Amendment right to “receive information and ideas” outweighed the longstanding principle that Congress has plenary power to make policies and rules and delegate authority to the executive branch over the admission and exclusion of foreign nationals.
9. 408 U.S. at 762.
10. Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir. 1990); Burrafato v. United States Dep’t. of State, 523 F.2d 554, 556-57 (2d Cir. 1975); Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999); Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008).
11. 531 F.3d at 1062.
12. 576 U.S. _____ (2015).
13. "Terrorist activity” and “engage in terrorist activity” under 8 U.S.C. § 1182(a)(3)(B) are defined with reference to multiple different subsections, involving different types of conduct ranging from violent terrorist activities to indirect support of terrorist activities. More importantly, some subsections allow the visa applicant to present evidence to rebut the alleged ground of inadmissibility.

MILEN SAEV is a partner with Saev Hernandez Immigration Practice PLLC in Nashville. He is a Vanderbilt Law School graduate and has practiced immigration law exclusively over the past 14 years with a strong emphasis on business immigration. He assists a wide range of companies, from startups to large multinational corporations, with obtaining temporary work visas and permanent residence for key employees. He also provides strategic counseling regarding I-9 compliance and other immigration-related matters.