The Conventional Wisdom on Consular Denials is Out of Date

Consular officers are responsible for making many decisions that significantly impact immigrants and their families. Unfortunately, some of these decisions may be incorrect, resulting in familial disruptions and separations. Yet, the existing Doctrine of Consular Nonreviewability largely prohibits courts from scrutinizing the decisions made by consular officers, even when these decisions may contain legal mistakes or breach existing laws. This restriction on judicial review fosters a potential environment for the violation of laws and misuse of power, undermining the principles of the rule of law. It is difficult to perceive how this doctrine encourages a sense of fairness, accountability, or justice in any substantial manner.

Nonetheless, it’s important to note that a rejection from a consular officer is not always irreversible. This is especially true in situations where the rights of U.S. citizens are at stake, such as the right to live with a spouse, parent or child. This was evident last year in the case of Munoz v. US Department of State, where the U.S. Court of Appeals for the Ninth Circuit scrutinized the Doctrine of Consular Nonreviewability. The court identified that there can be exceptions to this doctrine, specifically when a visa denial affects the fundamental rights of a U.S. citizen and the government cannot justify the denial with a legitimate reason.

In the Munoz case, the court said that if a visa application’s adjudication impacted the constitutional rights of a U.S. citizen, the consulate is obligated to furnish the citizen with a prompt and sufficient notification of the decision, i.e., some form of due process. This case sets a precedent, highlighting the consulate’s duty to disclose the reasons behind a visa denial within a reasonable timeframe. It also recognizes that in certain circumstances, courts are permitted to review a consulate’s decisions.