Consular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.
The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.
In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
The petitioner eventually filed a federal lawsuit against the Secretary of State and other officials. The district court dismissed the suit, finding that consular nonreviewability barred her requests for a writ of mandamus and a declaratory judgment, and that she lacked standing to bring a constitutional challenge. The Ninth Circuit reversed that decision, holding that the government failed to “put forth a facially legitimate reason to deny” the visa. Din v. Kerry, 718 F.3d 856, 858 (9th Cir. 2013).
The Ninth Circuit cited its own ruling in another case, holding that a U.S. citizen petitioner may compel a consular officer to cite a specific provision of § 1182, along with other evidence, to support a visa denial. Golkar v. Kerry, No. 11-57044, memorandum (9th Cir., Apr. 18, 2014). The Supreme Court will consider two questions when it hears the Din case: whether a U.S. citizen petitioner has a constitutional interest in the reasons for the refusal of a visa for his or her immigrant spouse, and whether the petitioner may challenge a refusal in court and require the government to support its decision.
Samuel C. Berger is an immigration attorney who helps people in New York and New Jersey obtain family-based visas for loved ones, which allow them to immigrate to the United States and obtain a green card. To schedule a confidential consultation with a skilled and experience immigration advocate, contact us today online or at (212) 380-8117.
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Photo credit: By USAID Afghanistan (Kabul Official July 4th Celebration) [Public domain or CC-BY-SA-2.0], via Wikimedia Commons.