Consular visa denials – are they subject to judicial review?

by Atty. Emmanuel Samonte Tipon 

Many aliens, disappointed by the decisions of United States consular officials denying visas to them, their relatives, or friends, have wondered whether a suit may successfully be brought in United States courts to review such consular denials.

DOCTRINE OF CONSULAR NONREVIEWABILITY

As a general rule, the doctrine of consular nonreviewability prevents courts from reviewing the decisions of consular officials in granting or denying a visa (whether immigrant or nonimmigrant) on the theory that the courts do not have subject matter jurisdiction over such cases. The power to regulate the admission or exclusion of aliens is vested in Congress and it has chosen to grant the executive department (which includes consular officials) the authority to enforce congressional policy.

Thus, in most cases, attempts to overturn the decisions of consular officials with respect to the grant or denial of visas by invoking certain provisions of the Immigration and Nationality Act, the Administrative Procedure Act, and Declaratory Judgment Act have been unsuccessful because of the doctrine of consular nonreviewability.  See Sabataityte v. Powell, 2004 WL 2203708 (E.D. Pa. 2004) (court has no jurisdiction of mandamus action by alien visa applicant to compel Secretary of State to readjudicate immigrant visa application). Similarly unsuccessful have been attempts to obtain review of consular decisions on the denial of visas by appealing to the Secretary of State. Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (Immigration and Nationality Act confers upon consular officers exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations). However, resort to diplomatic channels to reverse consular denials of visa applications has sometimes been successful.

APPLICATION OF CONSULAR NONREVIEWABILITY DOCTRINE

The doctrine of nonreviewability of consular decisions has been applied so as to preclude judicial review of the denial of a visa to a spouse, other family members, or a fiancé of a United States citizen on the ground there was no petitionable relationship or the relationship was invalid.  See Hermina Sague v. U.S., 416 F. Supp. 217 (D.P.R. 1976) (no jurisdiction over declaratory judgment action directing that visa be granted to petitioner’s husband, rejecting a claim that the denial of the visa prevented them from enjoying a family life together, since there is no constitutional right of a citizen who chooses to marry an alien outside  the United States to have the alien spouse enter the U.S.). The nonreviewability doctrine has also been applied to preclude judicial review of decisions denying a nonimmigrant visa.  Centeno v. Shultz, 817 F.2d 1212 (5th Cir. 1987) (consular officer’s denial of visitor's visa to Filipino not reviewable by federal court).

EXCEPTIONS TO CONSULAR NONREVIEWABILITY DOCTRINE

The courts disagree on whether there are exceptions to the doctrine of consular nonreviewability. For instance, where a consular official has unduly delayed making a decision on whether to grant or deny a visa, some courts have held that the doctrine is inapplicable and the courts have ordered the consular officer to act. See Patel v. Reno, 134 F.3d 929 (9th Cir. 1997). But there are also courts holding that the doctrine remains applicable and have declined to review a consular officer’s delay in deciding a visa application.

A number of courts have held that the doctrine of consular nonreviewability did not apply where a U.S. citizen complained that the denial of a visa to an alien violated the citizen’s constitutional rights. See Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972). However, other courts have refused to grant an exception to the doctrine of nonreviewability in cases raising constitutional claims. See Udugampola v. Jacobs, 795 F. Supp. 2d 96 (D.D.C. 2011) (no judicial review of the denial of an immigration visa for alien wife because it did not infringe upon the wife's marital relationship with the petitioner, since the only effect was that one of the parties to the marriage could not live in the U.S., and the daughter had no constitutionally protected interest in maintaining a relationship with her father).

There may be judicial review where the visa was denied without a facially legitimate and bona fide reason. See Patel v. Reno, 134 F.3d 929 (9th Cir. 1997). However, consular nonreviewability precluded judicial review of a claim that a consular officer misapplied the law in denying a visa to a citizen’s adopted child. See Nsiah v. Perryman, 129 F.3d 119 (7th Cir. 1997).

RECOMMENDATION:  People seeking to petition relatives or loved ones have a better chance of obtaining a visa for them if they have a lawyer to guide them in going through the immigration “labyrinth.” After a visa application is denied, it is extremely difficult (and expensive) to overturn the decision. It can be done without resorting to judicial review, but by asking for reopening and reconsideration with the presentation of a plethora of evidence and convincing arguments, as we have successfully done in a number of cases.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)