Supreme Court Considers Consular Nonreviewability in Kerry v. Din

On February 23, 2015 the Supreme Court heard arguments on the case of Kerry v. Din—one of the few times when the Court has  discussed the nature and extent of the consular officer’s role in visa adjudications.   Ms. Din, a U.S. citizen who filed an immigrant visa on behalf of her Afghani husband, brought suit because his visa was denied by a consular office under a security related grounds of the Immigration and Nationality Act .  Both she and her husband were denied any opportunity to know what specific alleged conduct led to this finding, which made it impossible to challenge it.

The 9th Circuit upheld Ms. Din’s argument that the consular officer’s decision against her husband did not provide sufficient information to know the statutory basis of the finding, although its ruling was narrowly drawn and focused on the fact that the decision did not identify the specific subsection of the applicable portion of the INA–section 212 (a)(3) (B)–which applied to Mr Din’s case.  Nonetheless, the government appealed the decision, arguing that the State Department had no obligation to provide further information to Ms. Din about her husband’s denial.  Citing well established precedent that gives consular officers discretion to approve or deny visas, the government’s brief argued that Ms. Din had no recourse to challenge her husband’s visa denial in court.

When the government appealed the 9th Circuit decision to the Supreme Court, I was asked,  along with several other former consular officers and managers,  to contribute to an Amicus Brief presented by Ms. Din’s attorneys to lend support to their argument that the decision to deny her husband’s immigrant visa without providing any opportunity for judicial review of the reason for that denial was unfair and violated her constitutional rights.  In our brief we argued that a central part of the government’s case—that consular decision-making is not subject to judicial review—is inconsistent with the reality that security visa denials are not made by consular officers as part of their well-recognized discretionary authority.  Instead, these denials are imposed based on database entries by other agencies based on information that consular officers themselves have no access to and cannot independently evaluate.  When a consul denies a visa on security related grounds based on such data, he or she actually exercises no discretion at all, and the decision reflects a determination by other government personnel who have no visa authority and whose judgments are not subject to any effective review.

State took our arguments seriously, and the government pushed back aggressively in oral argument that no fundamental right of Ms. Din’s has been violated , but examination of the oral arguments shows that the government  had a difficult time supporting the notion that the decision to deny her husband’s visa had to be upheld to preserve the doctrine of consular non-reviewability.   That’s because the principle point of our brief was that in her husband’s case there was effectively no consular review.  Consular officers know that when a data base entry points to possible security related grounds of inadmissibility, they have no real choice but to affirm that decision, even if the applicant or his sponsor provides evidence that could challenge the denial.  In short,  the government’s case that Din’s husband was denied because a consul found him inadmissible doesn’t reflect the reality of how consuls make such decisions.

The Amici were not arguing that all security based denials should be subject to judicial review, nor do we believe it to be the case that other government agencies routinely get things wrong when they identify individuals as being inadmissible on these grounds.  But the reality is that when a U.S. citizen petitioner is not able to bring his or her family member to the United States, fundamental fairness argues for a better way to resolve such cases than rote reliance on “consular non-reviewability”.    Nationality security concerns are real and legitimate.  But as is the case with  professionals in any other situation, it is possible for national security officials in other agencies to make errors, such as a case of mistaken identity or a false accusation.  Under the existing system, there is no way to effectively ensure a review of the relevant facts, cloaked inaccurately as they are in the broad rubric of “consular non-reviewability.”

When there is no effective way for U.S. citizen petitioners to challenge such findings, the government’s position really doesn’t have much to do with preserving consular authority to adjudicate visas.  Instead, it endorses giving  anonymous government officials the ability to determine who gets to enter the U.S. without any effective  checks on their authority to do so.

Errors in judgment and fact by officials charged with national security responsibilities have been well documented in recent years.  Rather than deny any accountability and place blame for the results upon consular officials who have had no real role in making these determinations and are powerless to challenge them, it is time to move beyond the notion that consular non-reviewability is sacrosanct and give consuls the authority to recommend review of security based visa denials when they have doubts or concerns about the credibility of such a finding.  It is also time to consider changes  to current procedures allowing limited recourse by U.S. citizens to the courts when they are adversely affected by security related visa denials of their loved ones.  Not only would this genuinely put another pair of skilled eyes and local knowledge into the mix, it could actually strengthen rather than weaken the national security process, enhance the accountability of a democratic government to its citizens, and reinforce the broad discretion that consular officers are granted under the law.


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