On Second Thought, Did Kerry v. Din Crack the Non-Review Door?

“Consular Non-Reviewability,” the notion that visa decisions made by consular officials at US embassies abroad are not subject to review or challenge outside the consular section, has long been a fixture of US immigration practice.  Last challenged in the 70s,  much has changed in the technology and security environment for consuls since then.  So it was with high hopes that some of us looked on this year’s non-review challenge in the case of Kerry v. Din.  At first glance, it seemed the Supreme Court upheld the principle that a consul’s judgment cannot be challenged — even if an American citizen is adversely affected by his decision.

On closer examination, however, the close 5-4 decision, together with the fact that the 5 justices upholding non-review split on why they did so,  and the strength of the dissenting opinions, lent considerable credence to some of the arguments advanced in support of Ms. Din’s challenge.  In short, I see a crack in the non-reviewability  door which a one-vote shift or a different case could open further.

Let me explain:

It’s widely known and grudgingly accepted by visa applicants and their counsel that visa decisions by consular officers aren’t subject to appeal unless the consular officer can be found to have  committed an error of law.  A good illustration of this “doctrine of consular non-reviewability”  can be found in the 1972 Supreme Court case Kleindienst v. Mandel.  In that case, the court rejected  6-3  a claim by U.S. citizens that the denial of a visa to Mr. Mandel, a revolutionary Belgian Marxist,  violated their first amendment right to hear him speak.  According to the majority in Kleindienst,  when U.S. officials  exercise the authority granted them by Congress to adjudicate visas,  they only have to provide a “facially limited and bona fide” reason for their decisions, and  when they base their decisions on the Immigration and Nationality Act, their judgments are not subject to review or challenge.

Returning to the consular non-review issue again in the Kerry v. Din* decision, the Court ruled 5-4 for the government, upholding once again consular authority to make binding visa decisions.  However, the majority was divided on why it sided with the government.  Three justices contended that Ms. Din had no fundamental constitutional rights that had been violated by the consul’s decision, rejecting her assertion of a right as a U.S. citizen to reside with her husband in the US that could only be taken away by due process.  By contrast, Justice Kennedy and Justice Alito, rather than concur in challenging her assertion of a fundamental constitutional right argued that her fundamental right to due process had not been violated because she had been given  proper notice of the statutory basis for her husband’s visa denial.

In the dissenting opinion Justice Breyer made a strong argument that Ms. Din’s rights to live with her husband in the U.S. were adversely impacted by the consul’s decision, and that she was denied due process to challenge that decision.  In other words, in contrast to the 1970s, only 3 of the 9 justices concluded that that a US citizen has no rights that can be violated in a consular visa decision.

Along with several other former consular officers, I contributed to an amicus brief in support of Ms. Din’s case,  pointing out that the actual role the consular officer plays in most security-related visa denials is limited to endorsing the findings of other agencies and involves little or no exercise of independent authority.   We argued that what the government describes as a consular visa decision protected from review by  consular non-reviewability is actually a consular fig leaf over the exercise of authority by other elements of the US Government whose actions — and possible errors of fact or judgment — are not held to account or subject to review.   This helped strengthen Din’s due process arguments by undercutting the government’s argument that the consul’s authority in visa decisions should be exempt from review.

Many close observers of this case were surprised by the narrow grounds on which the court upheld the government’s position in this case, as well as by the explicit endorsement by the dissent that US citizens have a constitutional right to due process in immigration matters.  It seems a surprisingly shorter step than anticipated between where the court came out on Kerry v. Din and modification to the principle of Consular Non-Reviewability.

*Ms. Din,  a U.S. citizen spouse of an Afghan citizen denied an immigrant visa under a terrorism-related provision of the law, challenged the decision by a consular officer to deny her husband’s visa, arguing that the Government’s failure to provide her the basis of the charges against her husband made it impossible to challenge and violated her constitutional right to due process.





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