Supreme Court to Review Doctrine of Consular Nonreviewability

Supreme Court to Review Doctrine of Consular Nonreviewability

On February 23, 2015, the U.S. Supreme Court is scheduled to hear oral arguments for Kerry v. Din, which is an immigration case that deals with the doctrine of consular nonreviewability. This doctrine applies to cases where an applicant is denied a visa by a U.S. Embassy or Consulate. In general, under the doctrine of consular nonreviewability, decisions made by U.S. Embassies and Consulates cannot be challenged in a U.S. federal court because immigration issues affect foreign policy and sovereignty. Such issues are reserved for the Executive Branch of the U.S. government, and the Judicial Branch cannot get involved. However, a limited exception is available only when the denied visa application affects the rights of a U.S. Citizen.

Under the limited exception, a federal court may review the Consulate’s decision, but the review is very narrow in scope. Federal courts may only exercise “a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason.” Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008). In other words, as long as the Consulate provides a “facially legitimate and bona fide reason” for the visa denial, the federal courts are powerless to review the facts provided in the reason itself.

Problems with the Doctrine of Consular Nonreviewability

The problem with the doctrine of consular nonreviewability is the fact that decisions made by Consulates are treated differently than similar decisions made by the USCIS. In other words, if a visa petition is denied by the USCIS, U.S. citizen applicants have the option of challenging the decision in a U.S. federal court. But the same visa petition denied for the same reason by a Consulate cannot be challenged in a U.S. federal court.

This inability to challenge consular decisions is a big problem when the rights of a U.S. citizen are involved. The U.S. Constitution gives citizens the right to due process. This means that a U.S. citizen must be provided an opportunity to defend against government action. However, the doctrine of consular nonreviewability appears to take away from U.S. citizens the constitutional right to due process.

The Kerry v. Din case challenges the doctrine of consular nonreviewability. The U.S. Supreme Court now has an opportunity to decide whether or not to keep the doctrine, and if they keep the doctrine, how it should be applied.

Kerry v. Din – Background of the Case

The case of Kerry v. Din involves a U.S. Citizen named Fauzia Din and her husband, Kanishka Berashk, who is a citizen and resident of Afghanistan. Ms. Din married Mr. Berashk in September 2006, and she filed a visa petition on behalf of her husband the following month. The USCIS approved the visa petition on February 12, 2008, and Mr. Berashk’s interview took place at the U.S. Embassy in Islamabad, Pakistan, on September 9, 2008. The consular officer who interviewed Mr. Berashk told him that he should expect to receive his visa in two to six weeks.

However, Mr. Berashk did not receive his visa. Mr. Berashk and Ms. Din called the U.S. Embassy in Islamabad several times to find out the status of Mr. Berashk’s visa, but did not receive any response until June 7, 2009, when Mr. Berashk received a letter telling him that his visa was denied under Section 212(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a). The letter also stated that there was “no possibility of a waiver of this ineligibility.”

The problem, it seems, may have been the fact that Mr. Berashk had worked for the Afghan government. From 1992 to 2003, Mr. Berashk worked for the Afghan Ministry of Social Welfare as a payroll clerk. From 2003, Mr. Berashk worked for the Afghan Ministry of Education as a clerk, performing low level administrative duties, such as processing paperwork. However, the Afghan government was controlled by the Taliban during the years 1996 to 2001. Thus, Mr. Berashk necessarily worked for the Taliban government.

But this is pure speculation, and the exact reason for Mr. Berashk’s visa denial is still unknown. Section 212(a) of the INA contains over 1000 words and ten subsections, which are further subdivided into smaller sections. Thus, it is impossible to determine what part of the statute the Embassy believed applied to Mr. Berashk. After he received the visa denial letter, Mr. Berashk sent an email to the Embassy to receive more clarification regarding his denial. On July 13, 2009, the Embassy responded by stating that Mr. Berashk’s visa was denied under INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), which lists a wide variety of conduct related to “terrorist activities.” The Embassy’s response further stated that “[i]t is not possible to provide a detailed explanation of the reasons for the denial,” citing INA § 212(b)(2), 8 U.S.C. § 1182(b)(2)-(3), which allows the Embassy to withhold from aliens the factual reasons for denials involving criminal or terrorist activities.

Unable to determine the specific reason for Mr. Berashk’s visa denial, Ms. Din then filed a lawsuit against the U.S. government. She sought to overturn the Embassy’s visa denial, calling the decision to withhold the reason for the denial unconstitutional as it applies to her, a U.S. citizen. The district court granted the Government’s motion to dismiss, stating that Ms. Din cannot challenge the Embassy’s decision because of the doctrine of consular nonreviewability. The district court also stated that Ms. Din did not have standing because she was not the intended visa recipient.

Ninth Circuit Ruling

Ms. Din appealed to the Ninth Circuit Court of Appeals, which overturned the district court’s ruling. The Ninth Circuit’s opinion upholds the doctrine of consular nonreviewability, but it instructs the government to provide a “facially legitimate and bona fide reason” for the visa denial. The Ninth Circuit stated that merely citing to a broadly worded statute is not sufficient, and the Embassy must provide the factual basis for its decision to deny Mr. Berashk’s visa application. Furthermore, the court stated that “[w]ithout knowing the specific subsection applicable to Berashk, we cannot determine whether the consular officer was required to give Berashk an opportunity for rebuttal.”

The Ninth Circuit did not, however, broaden the scope of the exception to the doctrine of consular nonreviewability. Rather, the Ninth Circuit still allows the Government to provide a bare assertion of facts, as long as the facts allow the court to determine whether they “constitute a ground for exclusion under the statute.” The Government cannot, however, simply cite a statute without providing any facts at all.

Dissatisfied with the court’s ruling, the Government appealed the Ninth Circuit’s decision to the Supreme Court. The Supreme Court granted certiorari on October 2, 2014, and scheduled a hearing for oral arguments on February 23, 2015.

U.S. Supreme Court

It is still unclear whether the Supreme Court will make a decision regarding the entire doctrine of consular nonreviewability, or whether the Supreme Court will limit its decision to Ms. Din’s particular situation. However, the hope is that the Supreme Court will affirm the Ninth Circuit’s decision regarding the exception to the doctrine if a visa denial implicates the rights of a U.S. citizen. As explained above, the doctrine of consular nonreviewability was established to protect the Executive Branch’s exclusive power over foreign policy and sovereignty. Thus, the Supreme Court may choose to keep the doctrine of consular nonreviewability. The Supreme Court should also leave the exception undisturbed in order to allow U.S. citizens to exercise their constitutional right to due process and challenge consular decisions in federal court.