For over 25 years, I have been living and working abroad helping noncitizens secure family, work and other types of visas to the United States. As a specialist in consular law and procedure, I’ve had the honor and the privilege to deal with American consular officers at posts around the world, and have spent countless hours studying and writing about Volume 9 of the Foreign Affairs Manual (FAM), the authoritative guidance governing every consular officer’s process for issuance of a U.S. visa. Like other immigration lawyers, I am closely following the case of Kerry v. Din pending before the Supreme Court (argument scheduled for Monday February 23). At stake in that case: whether the courtroom door is open to an American citizen asking for a minimal explanation about the denial of her spouse’s visa on what the government asserts are terrorism grounds.
The premise of the Solicitor General’s (SG) argument is that the issuance or denial of visas is a discretionary function carried out by consular officers. The fallacy of that description, however, is that it’s outdated. It ignores the reality of the Homeland Security Act of 2002 – Congress’ response to the 9/11 tragedies – which gives the then-newly-created Department of Homeland Security (DHS) an overarching role in the visa process, especially when it comes to denials based on security grounds. (For more information on DHS’s predominant role in the visa process, see here, here, and here).
It is DHS’ role in database-driven national-security determinations, like the one at issue in Din, that’s explained in an amici brief by a group of former consular officers supporting Ms. Din. For the government to claim that courts shouldn’t review “discretionary” visa decisions by consular officers begs the case’s key question, because those decisions are often made based not on the consular officer’s discretion but rather on DHS inadmissibility findings entered into national-security/terrorism databases and watchlists.
A strange thing happened shortly after the compelling amici brief by the former consular officers was filed. In the brief period between filing of the amici brief and the date for filing of the SG’s reply brief, the section of the FAM relating to the duty of consular officers in cases involving DHS findings of inadmissibility on a national-security/terrorism database or watchlist was suddenly changed.
Previously, the guidance to consular officers had stated:
Except in cases involving non-permanent inadmissibility, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.
But suddenly, as of January 29, 2015 this guidance now states:
Except in cases involving non-permanent inadmissibility or in cases of 212(a)(3) grounds, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.
The 212(a)(3) grounds are the security and terrorist-based grounds of ineligibility which served as the basis for the denial of the visa to Ms. Din’s husband.
By virtue of this sudden FAM change, the SG shamelessly claimed in its reply brief that “consular officers do not automatically deny a visa application pursuant…when there is a ‘hit’ in the terrorist screening database (or another database)” and that these terrorist database determinations are even “subject to reexamination” thorough the Security Advisory Opinion (SAO) process.
The curious speed and unusual declassification of that change, and its prospective application, which served to further the SG’s litigation position, is the subject of another blog.
The SG’s claim is entirely misleading. The plain language of the FAM change requires consular officers adjudicating cases potentially raising national-security concerns to seek an SAO. But consular officers are not even part of the SAO “loop” – the SAO is managed through an inter-agency process in DC. As such, the FAM guidance, even as changed a few weeks ago, provides no opportunity for the consular officer him or herself to exercise any modicum of discretion to “reexamine” or otherwise look behind the DHS determination. Moreover, the revised FAM provision does nothing to alter the division of responsibilities in the Memorandum of Understanding between the Secretaries of States and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act (MOU). Paragraph 4.b. of that MOU provides that when the State Department disagrees with the SAO of a third agency, it is DHS—not the State Department—that resolves the conflict. Whatever change the SG has tried to conjure in the FAM, it leaves undisturbed the fact that consular officers do not deny visas as an exercise of discretion in database-driven national-security cases.
The SG’s rhetorical and sub-regulatory maneuvers have failed to conceal that the government’s argument boils down to an assertion: “Trust Us.” It is an assertion belied by the facts in the Ibrahim case, where a person the government admits poses no terrorism threat was wrongly included in government watchlists because an FBI agent checked the wrong box on a nomination form. The fundamental principle of judicial review, particularly apposite when an American citizen’s family life is at stake, rejects leaving to government fiat the maintenance of gigantic databases disqualifying spouses from living together, without any independent oversight. In Kerry v. Din, the Court should uphold the court of appeals’ decision that some visa decisions, including those having nothing to do with a consular officer’s discretion, are not completely shielded from judicial review.
Written by Liam Schwartz, Member, AILA State Department Liaison Committee