U.S. Supreme Court May Revisit the Doctrine of Consular Nonreviewability

Last week the U.S. Supreme Court granted certiorari in the Ninth Circuit decision, Kerry v. Din—possibly opening the door for U.S. citizens to challenge groundless visa denials for their alien spouses. With few exceptions, a well-settled doctrine of “consular nonreviewability” has prevented federal courts from reviewing actions of consular officials. However, in Kerry v. Din, the Ninth Circuit held that a failure of consular officers to provide “legal and factual reasons” for a visa denial of a U.S. citizen spouse was not “facially legitimate” and ultimately that denial violates the citizen’s constitutionally protected interests.

The facts in Kerry v. Din begin with U.S. citizen Fauzia Din’s filing a Form I-130, Petition for Alien Relative, on behalf of her husband, Kanishka Berashk, who worked previously as a payroll clerk under a Taliban-controlled Afghan government. That petition was approved by U.S. Citizenship and Immigration Services (USCIS). However, later she was told that her husband’s visa was denied under Section 212(a) of the Immigration and Nationality Act (INA)—the denial letter said there was “no possibility of a waiver of this ineligibility.” The letter provided no explanation of what specific activity made Berashk ineligible. When the couple later asked the consulate for more information they were told that he was denied under INA § 212(a)(3)(B)- which includes a broad range of conduct making an alien inadmissible due to “terrorist activities.” Again, the consulate did not point to any specific conduct as the basis for their decision.

The U.S. Supreme Court has not revisited the issue of consular nonreviewability since 1972 in Kleindienst v. Mandel, 408 U.S. 753. It is possible that the Court could take this opportunity to require consular officers to give factual reasons for visa denials and provide an opening for U.S. citizens to bring federal challenges to visa denials for spouses, close family members or even prospective employees.

To read the full Ninth Circuit Decision go here.