Remedy for consular visa denial or inaction

by Atty. Emmanuel Samonte Tipon

Hundreds of visa applications at U.S. consulates abroad are denied for a number of reasons. What should a visa applicant do if his/her application is denied?

The applicant may either ask to reopen the case or move for reconsideration of the denial. When the applicant asks to reopen, the request should be accompanied by new evidence. When the applicant moves for reconsideration, the motion must show that the consul committed factual or legal errors. The best strategy is to ask for both reopening and reconsideration, supporting it with additional documents and legal arguments.

What if the consul does not act on the request to reopen or motion to reconsider for an unreasonable length of time? Can the applicant’s petitioner and the applicant go to court and if so which court?

A Mexican applied for a visa at a U.S. Consulate abroad based on an approved I-130 petition filed by his daughter. The U.S. Consulate denied the Mexican’s visa application. He and his daughter filed a petition in U.S. district court for an order compelling Department of Homeland Security and Department of State officials to act on his Form I-601 (Application for Waiver of Grounds of Inadmissibility) and his letter requesting reconsideration of the denial of his Visa Application and Alien Registration form.

The district court denied the petition on the ground that the doctrine of consular nonreviewability deprived the court of subject matter jurisdiction to review the consular official’s discretionary decisions. They appealed to the Court of Appeals.

EXCEPTIONS TO CONSULAR NON-REVIEWABILITY

The Court of Appeals said: “Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official’s actions “when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul’s discretion.” Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997). Second, the court has jurisdiction to review a consular official’s actions when “a U.S. citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner” without a “facially legitimate and bona fide reason” for the denial. Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008).”

The district court correctly concluded that neither of the exceptions to the doctrine of consular nonreviewability applied to the denial of Form I-601. The consular official was required only to accept or reject Form I-601 and he rejected it. Thus, the exception for failure to take action did not apply.

However, the district court erred in finding that the doctrine of consular nonreviewability applied to the consulate inaction on the request for reconsideration because the “facially legitimate and bona fide reason” did not apply to the request for reconsideration since the consulate took no action on the request and thus the “fail to take action” exception applied.

The regulation, 22 CFR § 42.81(e), provides: “If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.”

Once this is done, consular officials have a duty to reconsider a case and must take action. Because 22 C.F.R. § 42.81(e) imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility, the district court has subject matter jurisdiction under the Mandamus Act where the government fails to comply with the regulation. See 28 U.S.C. § 1361; Patel, 134 F.3d at 931. Moreover, because the consulate’s attention to requests for reconsideration that fall within 22 C.F.R. § 42.81(e) is legally required, that action may be compelled under the Administrative Procedure Act.

The U.S. Court of Appeals affirmed in part, vacated in part, and remanded the case to the district court. Rivas v. Napolitano, No. 09-56843, 03/28/13 CA9


(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. Websites:  www.MilitaryandCriminalLaw.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. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)