Supreme Court Leaves Doctrine of Consular Nonreviewability Intact06 Jul 2015
The U.S. Supreme Court issued a decision on June 15, 2015, in Kerry v. Din, a case that involved the doctrine of consular nonreviewability. Consular nonreviewability protects the decisions of U.S. consular officers, including approvals and denials of visa applications, from review by U.S. courts. This case resulted in a very narrow decision that, unfortunately, leaves the doctrine essentially unaltered.
Background on Din Case
This case involved a U.S. citizen, Mrs. Fauzia Din, who sued the federal government for refusing to grant an immigrant visa to her foreign national spouse. Din argued that the government failed to provide her with an “…adequate explanation of the reason for the visa denial…,” and that this “…deprived her of her constitutional right to live in the United States with her spouse.” The government countered with various arguments, including the assertion that Din did not even have the legal right to challenge this decision made by the consular officer. The Din case and the doctrine of consular nonreviewability were discussed in detail in the MurthyDotCom NewsBrief, Supreme Court to Review Consular Nonreviewability (29.Jan.2015).
Split Decision Leads to Narrow Ruling
Generally, U.S. Supreme Court decisions are not simple “yes” or “no” votes. They are typically lengthy written decisions, laying out the logic and reasoning behind the particular interpretation and conclusion. Each of the nine Supreme Court Justices has the option to draft a separate decision in each case explaining her/his respective rationale. Alternatively, they can vote with each other and join together in rendering a more unified decision.
In the Din case, a majority – that is, five of the nine Justices – agreed that the government should prevail over the U.S. citizen who filed this lawsuit. However, only three of these Justices supported the blanket notion that a U.S. citizen lacks the right to challenge the U.S. Department of State for a denial of a visa to his/her spouse. The remaining two Justices who voted with the majority concluded that, in this case, the brief explanation given by the U.S. consular officer as to the reason for the denial of the visa was adequate. Therefore, these two Justices determined that the Supreme Court did not need to address the question of whether a U.S. citizen ever has the ability to challenge a visa denial for his/her foreign national spouse.
Doctrine of Consular Nonreviewability Remains Unchanged
Under U.S. Supreme Court rules, only the section/s of the decision in which at least five Justices agree is controlling for future cases. Thus, the holding in this case is very narrow and does not open up new options for challenging consular decisions. So, while this decision has an obvious negative impact on Mrs. Din and her husband, this case does not have much of a direct impact on the doctrine of consular nonreviewability. Unfortunately, for the foreseeable future, that means this doctrine will remain an obstacle to challenging decisions of U.S. consular officers at consular posts abroad.
This U.S. Supreme Court decision in Din is a disappointment. While the Court did not find that an explanation of visa denials is required, there may still be options for future challenges of completely unsupported denials of visas to relatives of U.S. citizens by consular officers. We will continue to update our readers on important court decisions and other legal developments.
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