Doctrine of Consular Nonreviewability

[JR2008 0]

Foreword: Doctrines are not laws. One court rules something one way, which gets cited over and over again in other court cases, and before long, you have a doctrine. Almost every consular official has his or her own understanding of what this doctrine means. One deputy or vice consul I talked to believed it to be something similar a to a diplomatic immunity. Needless to say, this doctrine, or perception thereof, is one of the major culprits why things are as they are as consulates. Following is the truth behind this very misunderstood doctrine.

Rationale of the doctrine is that since 29% to one-third of all non-petitioned visa applicants are refused a visa, if only 16% of these 29% refused aliens were to take it to federal courts, the numbers are so large, that it would double the litigation load in federal courts, and therefore, a door best left closed.

Since non-petitioned to petitioned visa issuance ratio is 13 to 1 (according to the 2006 figures), such scenario is possible with petitioned visa cases only if all 100% of the petitioned visas are denied, and all 100% of the respective petitioners litigate in federal courts. Therefore, it is obvious that the same justification does not hold true in petitioned visa denial litigation. Also, the DHS/ CIS reviews all petitioned visa denials, something that cannot co-exist with consular non-reviewability.

But since only 5% of the petitioned visas are actually denied, mostly for lawful reasons, even if as many as 1/2% of petitioned visas are denied unlawfully, and even if as many as every other petitioner litigates, it accounts for less than one case per month per district. If that's is still too much, then might as well just do away with the judiciary.

Romero v. U.S. Consulate at Barranquilla, Columbia

In sum, exercising jurisdiction over the claims of these ALIENS would violate the longstanding.. doctrine of consular non-reviewability.. Although the doctrine.. is not without it’s critics, it is well-grounded in established principles of national sovereignty.. if rules were the rules to be otherwise, federal courts would be inundated with claims of disappointed and disgruntled OFF-SHORE ALIENS seeking review of consular officer’s denials of their requests of NONIMMIGRANT (non-petitioned) VISITOR VISAS. Romero v. US Consulate at Barranquilla, 1994 (860 F.Supp. 319, 322-24).

Although the above involved non-petitioned visitor visas, consular official(s) didn’t simply fantasize Mr. Romero and Mr. Navarro to be suspected drug smugglers by both being Columbians, but because both were identified as such in the government's computer, and therefore, visa denial was lawful under INA § 212(a)(2)©.

More Examples

njustifiable refusal to vise a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against [but is] beyond the jurisdiction of the court. Court ruling in London v. Phelps, 1927 (22 F.2d 288), which involved a British woman who applied for a visitor visa from Canada.

Consular officers have discretion to issue a NONIMMIGRANT (non-petitioned) VISA based on a proper application. This power has consistently been held as not being subject to judicial review. Angelo A. Paparelli & Janet J. Lee.

Chairman Weldon, members of the Committee, thank you for inviting me to testify on the Administration's proposed legislation, which gives the new DHS exclusive authority over the visa function. And if DHS is to be held accountable for it's authority, then it should have it's own officers overseas to monitor and supervise visa operations.. Otherwise DHS will just be "business as usual" and only the names on door will change. The new DHS should "control" the visa function and that Secretary of Homeland Security shall have the "exclusive authority" to issue or refuse visas. US federal courts have consistently sustained a doctrine of consular non-reviewability in nonimmigrant (non-petitioned) cases. The section does not alter the employment status of diplomatic or consular officers processing visas abroad. - John J. Tkacik, Jr. in Testimony submitted to the Subcommittee on Civil Services, Census, and Agency Organization of the Committee on Government Reform, 07/15/2002.

Justification for Consular Discretion in Non-Petitioned Visas

Even in non-petitioned visas, the only reason consular officials are allowed discretion is because most decisions in such cases are based upon vaguely defined concepts, such as strong ties, used as a qualifier for the nonimmigrant status.

Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a family, a job, a house, a bank account. “Ties” are various aspects of your life that bind you to your country of residence: your family and social relationships, employment, and possessions. Each person’s situation is different.