The Doctrine of Consular Nonreviewability

[Palladin 18]

The Doctrine of Consular Nonreviewability, which means actions of US overseas consular officers are not subject to US judiciary review, have been debated on VJ very often.

On this I find the following comment from the State Department's Guide on Petition Return interesting:

5. Unlike consular determinations regarding visa eligibility,

which are not subject to judicial review, actions relating to

DHS petitions are potentially subject to administrative and/or

judicial review. The Department is regularly named as a co-

defendant with DHS in cases involving the return of immigrant or

nonimmigrant petitions to DHS. Therefore, it is particularly

important that consular petition adjudications are well

documented and clearly state the basis for the petition return.

Comments, please.

[intx13 5]

That paragraph fits into the context of the cable, which appears concerned with tracking and detailing consular recommendations of petition revocation (which I'm abbreviating as "consular rejections"). The cable makes a bunch of points:

• They want consulates to send their rejections to the NVC, not USCIS, because USCIS has lost rejections before and the NVC is best equipped to track them and forward them as necessary.
  
• They want consulates to remember that they should not worry about the petition - DHS/USCIS has already approved it - but rather examine additional evidence not made known to DHS/USCIS (such as the interviewee's responses to questions).
  
• They want consulates to remember that even though their decisions can't be questioned, DHS/USCIS and the State Department can be named in lawsuits for their handling of petitions and those lawsuits might rely on the facts of a consular rejection. Therefore DHS wants as specific a record of the rejection decision as possible.
  
• The rest of the cable is details about how to explain and describe rejections.
  

Just a guess, but I bet that cable was the result of lawsuits alleging improper handling of a petition by DHS/USCIS and DHS/USCIS was unable to make a strong case because they either lost the consular rejection or it was too vague. That said, I think that a lawsuit against DHS would not be a loophole by which to question the consular officer's decision. I suspect a court would insist that your suit be based on allegations against DHS specifically, regardless of the consulate's decision. The contents of the rejection could be important if they indicate mistakes made by DHS/USCIS.

In your specific situation, take a look at paragraphs 9 and 10 of that same cable, which discuss the contents of the report the consular office must provide to DHS (and make available to you). That should give you an idea of how specific the consulate will need to be when spelling out a rejection, if in fact they do recommend to the NVC that your petition be revoked (I forget where you stand right now with your case).

I'm not a lawyer or a civil servant and this is all amateur hour, but that's my speculation

[evelyn1140 18]

That paragraph fits into the context of the cable, which appears concerned with tracking and detailing consular recommendations of petition revocation (which I'm abbreviating as "consular rejections"). The cable makes a bunch of points:

• They want consulates to send their rejections to the NVC, not USCIS, because USCIS has lost rejections before and the NVC is best equipped to track them and forward them as necessary.
  
• They want consulates to remember that they should not worry about the petition - DHS/USCIS has already approved it - but rather examine additional evidence not made known to DHS/USCIS (such as the interviewee's responses to questions).
  
• They want consulates to remember that even though their decisions can't be questioned, DHS/USCIS and the State Department can be named in lawsuits for their handling of petitions and those lawsuits might rely on the facts of a consular rejection. Therefore DHS wants as specific a record of the rejection decision as possible.
  
• The rest of the cable is details about how to explain and describe rejections.
  

Just a guess, but I bet that cable was the result of lawsuits alleging improper handling of a petition by DHS/USCIS and DHS/USCIS was unable to make a strong case because they either lost the consular rejection or it was too vague. That said, I think that a lawsuit against DHS would not be a loophole by which to question the consular officer's decision. I suspect a court would insist that your suit be based on allegations against DHS specifically, regardless of the consulate's decision. The contents of the rejection could be important if they indicate mistakes made by DHS/USCIS.

In your specific situation, take a look at paragraphs 9 and 10 of that same cable, which discuss the contents of the report the consular office must provide to DHS (and make available to you). That should give you an idea of how specific the consulate will need to be when spelling out a rejection, if in fact they do recommend to the NVC that your petition be revoked (I forget where you stand right now with your case).

I'm not a lawyer or a civil servant and this is all amateur hour, but that's my speculation

I understood the Embassy must be very specific for them to return it back to NVC. The only way they will not give you details of the denial is if a third party it is involved and they have to protect the agency or individual.

GOOD TO READ

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

Edited December 8, 2011 by evelyn1140

[bigdog 376]

I think the embassy has less latitude to reject or deny, from what I have read here on VJ.

[TBoneTX 45,540]

I find myself infuriated all over again at the ####### Guayaquil consulate. I wonder how many times their protective Plexiglass has had to be replaced after enraged petitioners tried to crash through it?

[Palladin 18]

I guess there is a line to draw here.

Consular visa issuance decisions are not reviewable by the judiciary branch. The decisions pertains to granting certain priviledges to a foreigner. Because a foreigner is not a subject of the US judiciary the foreigner has no right to appeal to the US judiciary system. A visa is a priviledge, not a right.

On the other hand, a US citizen has a RIGHT to petition to bring a family member in. It is a matter of every citizen's Constitutional Right of pursuit of happiness: I want to bring my wife in and live with me because that makes me happy. This right should be protected as long as it does not infringe on OTHER citizen's right. For example if you bring in a wife who would end up become a public charge financially, hence forcing every one else to pay a bit higher tax, or you bring in some one who becomes a terrorist and blows up a building, then you would have infringed on OTHER people's right and then you can not be allowed to bring in your wife. With those exceptions put away, with the guarantee that your pursuit of happiness does not end up infringing on other people's pursuit of happiness, then it is a matter of your own constitutional right to bring in a family member. So it is completely appealable through the US judiciary system.

The question is, by denying visa to a spouse of a US citizen, the State Department does not infringe on the foreign spouse's right, because no such right existed. But it DOES infringed on the right of the US citizen and caused injury to the citizen. So can the US citizen pursue legal actions based on the notion that the US citizen, not the foreign spouse, has been injured by the US government's action?

When the consulate returns a case file, it is returned with a recommendation to revoke the petition. So is that considered an action on the petition itself, hence is subjected to judiciary review, meaning that the consulate's very revocation recommendation of the petition, is subject to judiciary review, if not the visa denial itself.

Of course, without a revocation recommendation, there is no point returning a case back to USCIS. The regulation is very clear: If the consulate has their doubts on a specific case, keep the case at the consulate and resolve it satisfactorily one way or another. If it is to be returned it must be returned with solid evidence strong enough to stand in a court of laws. If a visa is to be granted they must be satisfied with a reasonable judgement. If it is neither they need to do more to resolve the indecision.

Unfortunately the consulates choose to return too many undecisive and merely speculative cases to USCIS, opening up the door for potential lawsuits.

[intx13 5]

The "pursuit of happiness" may be a natural right but it's definitely not codified in US law. The idea that "I can do whatever I want unless it hurts someone else" is fundamental to the ideals of the US, but it doesn't trump the USC when they conflict.

I'm not a lawyer, but with a little searching I see a couple reasons why consulate decisions on immigrant visas cannot be judicially reviewed.

1. I suspect that only the foreign spouse could claim tort, and the Alien Tort Statute limits such suits to violations of international law or treaties with the US, neither of which would apply to the granting of immigrant visas. More info here.
   
2. Even if #1 didn't apply or you could file the suit yourself, the Federal Tort Claims Act does not waive government immunity for "acts or omissions" by government employees, so long as those acts fall within the duties prescribed to those employees. This applies even when the employees abuse their discretion. More info here.
   

In short, I think it's unlikely that the injury done to you would meet a judge's definition of tort and your wife is unable to sue to the US government herself because the injury done to her doesn't meet the requirements of the Alien Tort Statute. Even if you could overcome either of those things, I think the Federal Tort Claims Act gives the government immunity in a case like this.

That said, an immigration attorney could probably point you to a more specialized attorney who could give you a consultation far more accurate than my Google search skills These sorts of questions are probably beyond the experience of most of us here at VJ! (Also let me say that I don't necessarily agree with this rule, I'm just trying to interpret the reasons behind it.)

[Ryan H 3,813]

The "pursuit of happiness" is in the Declaration of Independence, not the US Constitution.