Consular officers make numerous decisions affecting immigrants and their families. Some of these decisions may be incorrect, causing disruptions and breaking families apart. But the Doctrine of Consular Nonreviewability generally prevents courts from reviewing decisions made by consular officers, even if they make legal errors or violate laws. Denying judicial review creates opportunities for law violations and power abuses, which ultimately weakens the rule of law. I can’t see how this promotes fairness, accountability and justice in any meaningful way.

However, a consular denial isn’t always final. In cases where the rights of U.S. citizens are involved, there can be exceptions. Last year, the U.S. Court of Appeals for the Ninth Circuit examined the Doctrine of Consular Nonreviewability in Munoz v. US Department of State. The court found that there are exceptions to this doctrine when the denial of a visa impacts the fundamental rights of a U.S. citizen and the government has failed to provide a legitimate reason for the denial.

In Munoz, the Court concluded that when a visa application adjudication impacts the constitutional rights of a U.S. citizen, due process requires that the consulate provide the citizen with timely and adequate notice of the decision. The Munoz case establishes that consulates have a responsibility to provide the factual basis for a visa denial within a reasonable time, and that courts can review a consulate’s decision in certain situations.

We’ve had some recent success with this argument and are hoping to have a few more soon. The Doctrine of Consular Nonrewiewability is overdue for some adjustments.