9th Circuit rules U.S. citizens can challenge doctrine of consular non reviewability

[Mike E 11,741]

As https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/05/21-55365.pdf recounts Sandra Munoz is a U.S. Citizen who sued in court to overturn a denial of an immigration visa to her spouse. District Court ruled for the U.S. government under the doctrine of consular non reviewability. The decision was appealed and the appellate court overruled the district court. 
 

Vacating the district court’s grant of summary judgment in favor of the government, and remanding, the panel held that (1) where the adjudication of a non-citizen’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; and (2) because the government failed to provide timely notice in this case, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability

 

…

 

The panel explained that, as set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 576 U.S. 86 (2015), the doctrine of consular nonreviewability admits an exception in certain circumstances where the denial of a visa affects the fundamental rights of a U.S. citizen.

…

 

The panel concluded that, under the precedent of this circuit, Muñoz possessed a liberty interest in her husband’s visa application. The panel explained that this court recognized the existence of this interest in Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), and Justice Kennedy’s controlling concurrence Din declined to reach this issue. Because Muñoz asserted this protected liberty interest, the panel proceeded to evaluate whether the government provided a “facially legitimate and bona fide reason” for denying the visa

 

The opinion goes on to mentioned that the petitioner’s spouse was denied the visa because of suspected affiliation with a criminal gang but took 3 years to issue the denial.  

 

The panel also observed that the administrative provisions for review of visa applications – a 30-day period in which visa denials must be submitted for internal review and a 1-year period in which reconsideration is available upon the submission of additional evidence and approvals – provided contextual support for the proposition that receiving timely notice of the reason for a denial is essential for effectively challenging that denial.
By this standard, the panel concluded that the government’s nearly three-year delay in providing appellants with the reason for the denial of Asencio- Cordero’s visa did not meet the requirements of due process. Therefore, the panel concluded that the government was not entitled to invoke consular nonreviewability to shield its visa decision from judicial review and, as a result, the district court could “look behind” the government’s decision on remand

 

[Chancy 6,243]

Lest this ruling give some people false hope, reiterating a key point that led to the court's decision --

 

Quote

By this standard, the panel concluded that the government’s nearly three-year delay in providing appellants with the reason for the denial of Asencio-Cordero’s visa did not meet the requirements of due process.  Therefore, the panel concluded that the government was not entitled to invoke consular nonreviewability to shield its visa decision from judicial review and, as a result, the district court could “look behind” the government’s decision on remand.

 

[Mike E 11,741]

17 minutes ago, Chancy said:

Lest this ruling give some people false hope, reiterating a key point that led to the court's decision --

 

 

It suggests to me that multi year administrative processing death marches can be litigated against in court, and that’s a good thing.

[TBoneTX 45,604]

47 minutes ago, Mike E said:

multi year administrative processing death marches can be litigated against in court

And, frustratingly, there's no way to know, when filing the lawsuit, whether one's AP is just about to end naturally.

[mam521 2,113]

48 minutes ago, Mike E said:

It suggests to me that multi year administrative processing death marches can be litigated against in court, and that’s a good thing.

This seems to be the current modus operandi of late - the only way to get a decision when highly delayed is by filing a court case.  

[slavaskii 886]

Another 9th Circuit case. Kerry v. Din was also a 9C case that looked to upset the doctrine before SCOTUS review. Weird stuff goes on way out there...

 

I wondered how Kerry v. Din would've come out if the consular officer hadn't cited national security reasons for denying the visa. The SCOTUS split was actually really interesting, but I'm not confident the Court is ready to accept an 'exception' for when alleged "liberty interests" are at stake. I don't think the Court actually resolved the constitutional question on that, so the 9C may be jumping the gun.

 

The Court has held before that consular nonreviewability isn't a catch-all shield for immigration matters if I remember correct. I'm pretty sure in Trump v. Hawaii the Trump Admin threw consular nonreviewability out there to try to get the case shut down before reaching the merits. Nonetheless, the Court will always be satisfied in a refusal/delay so long as the Government can provide some reasonable explanation for it, and there's lots of deference given to State Department here. Any mention of national security seems to be an immediate win for the Government.

 

Interested to see what happens with this.

Edited October 12, 2022 by slavaskii