As part of our efforts to amplify the AILA Law Journal, authors Sabrina Damast and Eric Lee shared some insights from their recent article published in the November, 2022 edition of the AILA Law Journal, “Consular Nonreviewability: Fifty Years Since Kleindienst v. Mandel” in which they focused on this important concept and its implications for many families trying to reunite.
Most readers probably haven’t heard of the “doctrine of consular non-reviewability” before, and we admit that this clunky legal term doesn’t exactly leap off the page.
But many will also be shocked to learn that under this little-known doctrine, immigrants and even their US citizen family members are denied the right to legally challenge the denial of visas by the executive branch, with only the rarest of exceptions.
To understand how dangerous this doctrine is, imagine yourself in the following situation: You’re a US citizen with an undocumented spouse who has applied for a green card. Everything is going smoothly, your spouse appears eligible, and as the last step in the process, they fly to their home country for an interview at the US consulate. Instead of coming home with a green card as expected, the State Department tells your spouse they cannot return to the US at all. The State Department doesn’t give a reason, they simply say your spouse might engage in unlawful activity if allowed back into the US. You ask for clarification and receive none, and because you do not know the reason for the denial, you have no way to disprove it.
What can you do to unite your family and bring your spouse back home? Most Americans will respond instinctively: “I have the right to my day in court.”
But according to the doctrine of consular non-reviewability, you don’t. The doctrine says that courts cannot review visa denials to ensure their constitutionality, as long as the denial was “facially legitimate and bona fide.” This term comes from Kleindienst v. Mandel, a Supreme Court case issued 50 years ago this year which is the focus of our article in the November, 2022 edition of the AILA Law Journal.
The “facially legitimate and bona fide” standard is a very low bar which the State Department argues it can meet even if the visa denial was wrong and even if the department has no factual reason for the denial.
To our knowledge, only once has a federal court issued a published decision ruling that the government’s denial of a visa did not meet this “facially legitimate and bona fide” standard. There is hope—this decision was recent: the Ninth Circuit’s October 2022 decision in Muñoz v. State Department. In another recent case, Khachatryan v. Blinken, the Ninth Circuit ruled against an immigrant and his US citizen relative but expanded the ways in which plaintiffs can obtain judicial review by showing the State Department acted in “bad faith.”
The doctrine of consular non-reviewability received brief media attention in 2017 and 2018 when the Trump administration relied on it to defend its blanket decisions barring travel from various countries, and in the end the Supreme Court upheld Trump’s bans. Its origins lie in the Chinese Exclusion Cases, where many of the same justices who upheld “separate but equal” racial segregation in Plessy vs. Ferguson ruled that the government’s power to exclude immigrants was at a Maximum because Chinese immigrants constituted an “Oriental invasion” that posed “a menace to our civilization.”
We feel this doctrine deserves far broader attention today, not least because of the unknown number of families who remain separated because of unjust visa denials who are still waiting—sometimes years—for their day in court.
These are extremely perilous times for democracy, and all of us should be concerned about areas of the law which grant the president the power to act without judicial review. We argue in this article that it is high time for a paradigm shift regarding the outdated doctrine of consular non-reviewability.
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