Supreme Court Finds that US Citizen has not Protected Liberty Interest in Spouse's Visa

The Supreme Court has determined that a U.S. citizen does not a protected liberty interest in the adjudication of her spouse’s visa application, and thus, cannot use the procedural due process clause to obtain federal court review of the denial of that application. This decision may (sadly) close the door to one of the very few opportunities to obtain judicial review of visa denials in federal court and appears to be a whole hearted embrace by the Supreme Court of the doctrine of consular nonreviewability.

Apart from the legal reasoning in the opinion, the outcome seems out of step with the Biden Administration’s recent emphasis on family reunification, which is noteworthy as the Solicitor General, not Mrs. Munoz, sought Supreme Court review in this matter. In addition, just one week later, the Supreme Court issued its decision in Lopez Bright Enterprises, which emphasizes the role of federal courts in statutory interpretation and review of agency decisions under the Administrative Procedure Act. The Munoz and Loper Bright decisions seem philosophically at odds with one another.

The full text of Department of State v. Munoz can be found here:

https://www.supremecourt.gov/opinions/23pdf/23-334diff_q8l1.pdf

DC Circuit Finds US Citizen Spouse has No Constitutional Interest in Denial of Non-Citizen Spouse's Visa

The Court of Appeals for the District of Columbia Circuit has determined that the denial of a non-citizen’s visa does not impinge on any fundamental constitutional rights held by the applicant’s U.S.-citizen spouse. The court also found that a mere statutory citation to section 212(a)(3)(A)(ii) of the INA is sufficient to meet the “facially legitimate and bona fide” standard laid out by Justice Kennedy in Kerry v. Din and to shield the visa denial from any further review in federal court under the doctrine of consular nonreviewability.

The full text of Colindres v. DOS can be found here:

https://www.cadc.uscourts.gov/internet/opinions.nsf/AE00C9117C0E2443852589D7004ED982/$file/22-5009-2004709.pdf

Sabrina Damast and Eric Lee Explain Consular Nonreviewability

Sabrina Damast and her colleague, Eric Lee, discuss the doctrine of consular nonreviewability and the recent Ninth Circuit decision in Munoz v. Department of State:

https://thinkimmigration.org/blog/2022/12/20/the-doctrine-of-consular-nonreviewability-explained/

Ninth Circuit Reviews Visa Denial for Spouse of a US Citizen

The Ninth Circuit has rejected the government’s argument that it does not need to provide any factual basis for denying a visa to the spouse of a U.S. citizen on the ground that there is a reason to believe the person is coming to the United States to engage in criminal activity.

“We understand notice to be a key concern of Mandel’s facially legitimate and bona fide reason standard. We thus reject the government’s suggestion that it can comply with Cardenas’s ‘fact in the record’ formulation without providing the operative fact to a petitioner.”

In this case, the court was greatly concerned by the length of time it took the government to provide the “fact in the record.” “In reaching our conclusion in Cardenas, we noted that the consular officer himself ‘provided’ the reason within three weeks of the denial. Similarly, the visa applicant in Din was apprised of the reason for the denial—by reference to a statutory provision containing discrete factual predicates—within about a month of the denial. In this case, the government waited almost three years to provide comparable information to appellants and did so only when prompted by judicial proceedings.” “We thus conclude that, where the adjudication of a noncitizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” “Our understanding of reasonable timeliness is informed by the 30-day period in which visa denials must be submitted for internal review and the 1-year period in which reconsideration is available upon the submission of additional evidence.”

“Because no ‘fact in the record’ justifying the denial of Asencio-Cordero’s visa was made available to appellants until nearly three years had elapsed after the denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied Asencio-Cordero’s visa. This failure means that the government is not entitled to invoke consular nonreviewability to shield its visa decision from judicial review. The district court may ‘look behind’ the government’s decision.”

The full text of Munoz v. U.S. Dept of State can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/05/21-55365.pdf

The Ninth Circuit has denied the government’s petition for rehearing en banc:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/14/21-55365.pdf

Eleventh Circuit Construes Consular Nonreviewability Doctrine

The Eleventh Circuit has determined that the doctrine of consular nonreviewability does not deprive a federal court of subject matter jurisdiction over a challenge to a visa denial. However, the court also determined that the government is not required to proffer a factual predicate for a visa denial if the consular officer cites a ground of inadmissibility that specifies discrete factual predicates.

The full text of Del Valle v. Secretary of State can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201914889.pdf

Ninth Circuit Weighs in on Challenges to Visa Denials

The Ninth Circuit has issued a decision touching on two important legal questions surrounding the doctrine of consular nonreviewability, which typically prohibits the review of consular denials of visa applications. In this case, the court found that an adult US citizen I-130 petitioner had no protected constitutional interest in the immigrant visa application of his parent, in part, because they had no parent-child relationship established in the United States. In addition, the court provided some guidance on when the Department of State may be acting in bad faith when it denies a visa. Specifically, the visa denial appeared to be in direct contradiction to multiple determinations by USCIS that the applicant had not engaged in marriage fraud. This was sufficient to plead bad faith at the motion to dismiss stage.

The full text of Khachatryan v. Blinken can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/14/18-56359.pdf

Sixth Circuit Rejects Challenge to Visa Denial

The Sixth Circuit has determined that a lawful permanent resident has no recognized liberty interest in the issuance of an immigrant visa to his spouse.

The full text of Ahmed Baaghil v. Miller can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0134p-06.pdf

Ninth Circuit Discusses Consular Nonreviewability Doctrine

The Ninth Circuit has held that the consular nonreviewability doctrine does not impact a federal court's subject matter jurisdiction to hear a challenge to a visa denial.  The court concluded, however, that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits.  The consular officer need only provide a facially legitimate and bona fide reasons for rejecting a visa application.

The full text of Allen v. Milas can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/16-15728.pdf