This brief challenges the government’s theory that judicial review is never available when a consular officer decides to deny a visa application. Among the reasons why the government’s theory lacks legal support are:
- Congress enacted the Administrative Procedure Act (APA) to provide for judicial review of agency action, with limited exceptions.
- The Supreme Court recognizes a strong presumption favoring judicial review, with narrow exceptions: (1) when a statute bars review or (2) the decision is committed to agency discretion. Neither exception applies to consular visa denial decisions.
- The Immigration and Nationality Act (INA) does not make consular decisions unreviewable.
- The INA requires a consular officer’s decision to be grounded in specific facts relevant to the INA’s specific standard for eligibility and is not left to the officer’s discretion.
- The consular nonreviewability doctrine, created by lower court decisions, may rest on a concern that an “unadmitted and nonresident” person is not within the zone of interests protected by the INA, which would preclude APA review. But that thinking does not apply to a U.S. citizen seeking to be reunited with her immigrant visa applicant spouse.
- The consular nonreviewability doctrine has no independent constitutional basis. Such a doctrine must be created by Congress, which instead has imposed limits on Executive Branch authority through the APA.
This case also demonstrates why APA review should be available. From the publicly available record, a court could find that the consular officer did not properly apply the inadmissibility standard and conclude that errors occurred in agency action.
The American Immigration Council filed this brief with the American Immigration Lawyers Association.
