The Doctrine of Consular Non-reviewability: Strategy to Challenge
Meaning of Consular Non-reviewability
The doctrine of consular nonreviewability, also referred to as consular absolutism, means that the decisions of the consular officers regarding visa applications cannot be reviewed by the U.S. Courts. The doctrine was developed through a series of cases. In The United States ex rel. Knauff v. Shaughnessy (1950), the Court firmly reiterated “It is not within the province of any court unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”
Consular Nonreviewability as Ground for Dismissal
Defense in the form of the motion to dismiss a complaint under APA or in the form of a mandamus claim may be raised under Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12(b)(6) stipulates that a motion to dismiss may be granted on the ground of failure to state a claim. In Baan Rao Thai Rest. v. Pompeii (2020), the D.C. Circuit Court opined “Dismissal based on the doctrine of consular nonreviewability . . . is a merits disposition” and as such, a motion to dismiss may be granted by invoking the doctrine of consular nonreviewability under Rule 12(b)(6) for failure to state a claim, not under 12(b)(1) for lack of subject-matter jurisdiction. However, this is not a settled procedure. For example, in Moghaddam v. Pompeo (2020), the D.C. Circuit Court opined “Courts do not typically have subject-matter jurisdiction to review decisions of consular officers to deny visas because the INA confers upon consular officers the exclusive authority to review applications for visas,” which means the Courts may decide on the subject-matter jurisdiction on the basis of the consular nonreviewability doctrine. Subject matter jurisdiction is the authority of a court to hear cases relating to a specific subject matter e.g. matter concerning the administrative delay.
Strategy to Oppose
There are some disagreements among courts as to whether the doctrine of consular nonreviewability applies only to the review of a consular officer’s substantive, final decision with respect to a visa application or whether it is extended to prevent courts from entertaining a suit that challenges delays in the adjudication of a visa application before any final decision has been rendered.
On one hand, a long line of decisions from this Court have held that the consular nonreviewability doctrine applies only to final decisions and thus does not bar judicial review of a consular officer’s delay when a visa application has been provisionally refused for administrative processing pending a final decision [Al-Gharawy v. DHS (D.D.C. 2022), Sawahreh v. DOS (D.D.C. 2022), Nusrat v. Blinken (D.D.C. 2022), Giliana v. Blinken (D.D.C. 2022), Ramirez v. Blinken (D.D.C. 2022), Ibrahim v. DOS (D.D.C. 2020), Ghadami v. DHS (D.D.C. 2020), Vulupala v. Barr (D.D.C. 2020), P.K. v. Tillerson (D.D.C. 2018), Nine Iraqi Allies v. Kerry (D.D.C. 2016), Patel v. Reno (9th Cir. 1997)].
On the other hand, several district court decisions within the Second Circuit have held that the consular nonreviewability doctrine bars suits to compel action on a delayed visa application [Al Naham v. DOS (S.D.N.Y. 2015), Saleh v. Holder (E.D.N.Y. 2014), Li v. Chertoff (S.D.N.Y. 2007), Wan Shih Hsieh v. Kiley (2nd Cir. 1978)].
From the aforesaid discussion, it can be assumed that the recent decisions of Circuit Courts regarding the non-applicability of consular nonreviewability doctrine in reviewing the provisional refusal decisions of the consular officers will get more support from later Courts. However, it should be kept in mind that the application of the doctrine will be withheld in cases of provisional refusals pending substantive, final decisions [INA § 221(g)]. Where a substantive final decision in the form of approval or denial [INA §§ 212 and 214] has been rendered, the Court will not hesitate to apply the doctrine of consular nonreviewability to refuse to entertain claims under APA.