CONSTITUTIONAL LAW - TILL A VISA DENIAL DO US PART: HOW A CONSULAR OFFICER'S DISCRETION CAN FRUSTRATE DUE PROCESS.
CONSTITUTIONAL LAW--TILL A VISA DENIAL DO US PART: HOW A CONSULAR OFFICER'S DISCRETION CAN FRUSTRATE DUE PROCESS--Yafai v. Pompeo, 924 F.3d 969 (7th Cir. 2019).
The Due Process Clause of the United States Constitution promotes fairness within the justice system, prevents prejudice and bias, and protects express and implied fundamental rights. (1)
The doctrine of consular nonreviewability provides United States government officials with legal protection when their decisions affect significant elements of due process, which risks undermining the universal right of family unification guaranteed through international law. (2) In Yafai v. Pompeo? the United States Court of Appeals for the Seventh Circuit considered whether a consular officer's decision to deny a United States citizen's spouse's visa application was legitimate and made in good faith. (4) In holding that the consular officer's decision to deny a visa need only be based on an allegation that the applicant violated a statute, the court concluded that the officer's denial was legitimate and made in good faith and thus did not violate due process. (5)
The petitioner, Mohsin Yafai, and his wife, Zahoor Ahmed, were born and raised in the country of Yemen, where they also married each other. (6) In 2001, Mr. Yafai became a naturalized citizen of the United States and later filed 1-130 petitions for his wife and his children so that they could apply for visas and join him in the United States. (7) Upon approval of their petitions, Mr. Yafai's wife applied for immigration visas on behalf of herself and her children. (8) Mr. Yafai's wife's visa application was denied on the grounds that she had been accused of attempting to "smuggle" two of her children into the United States, which was a violation of 8 U.S.C. [section] 1182. (9) The consular officer offered no other explanation as to his decision to deny the visa application. (10) Following the denial, the couple attempted to rebut such accusations. (11)
Mr. Yafai's wife claimed that the children whom the consular officer alleged she tried to smuggle, had died from a drowning accident making it impossible that she attempted to smuggle them. (12) The consular officer required a number of documents from the couple as part of his reconsideration process. (13) The couple sent all of the requested material, including records pertaining to their children's alleged drowning accident, to the officer. (14) Once the couple provided the documents, Mr. Yafai's attorney reached out to the consulate office to request an update, and the embassy fraud prevention manager confirmed receipt of the evidence and assigned an investigator to review the case. (15) Months later, the consular officer once again denied the visa application for the exact same reasons as before. (16)
Mr. Yafai and his wife challenged the denial of the immigration visa under the Declaratory Judgment Act and the Administrative Procedure Act, arguing that the decision was made in bad faith and that it interfered with Mr. Yafai's constitutional right to live in the United States with his spouse. (17) The United States Court of Appeals for the Seventh Circuit affirmed the district court's decision to dismiss Mr. Yafai's claim and in May of 2019, the appeals court denied the couple's petition during a rehearing en banc, reiterating and reaffirming its previous holding from the appeal. (18) The United States Court of Appeals for the Seventh Circuit ultimately held that, because Mr. Yafai's wife was accused of violating a statutory provision prohibiting an attempted smuggling of a person into the United States, the consular officer properly denied her visa application. (19) Further, the court concluded that the evidence reflected a legitimate and bona fide decision by the consular officer and that the decision did not violate Mr. Yafai's due process because Mr. Yafai did not make an "affirmative showing of bad faith" by the officer. (20) The doctrine of consular nonreviewability acts as a legal tool that allows officers who are responsible for approving or denying immigration visas to carry out their duties within their discretion, and it acts as a shield in protecting the officers from judicial review or second-guessing. (21) Not only does the doctrine of consular nonreviewability prevent the judicial system or other government agencies from reviewing the consular officer's decisions, but it sometimes leaves the applicant without a feasible remedy or appeals process. (22) The doctrine of consular nonreviewability has led to a number of debates surrounding due process violations and potential procedural errors. (23) Minorities, including applicants from African and Middle Eastern countries, may experience more legal effects of the doctrine of consular nonreviewability due to the United States' goal of preventing conduct like fraud or terrorism from infiltrating its borders. (24) There are, however, two main exceptions to the doctrine of consular nonreviewability of which applicants may make an affirmative showing in order to challenge their visa denials: (1) where there is an underlying legal or constitutional issue that is outside the discretion of the consular officer, and (2) where the consular officer did not make a legitimate or good faith decision. (25) Case law has focused on the meaning and application of a "legitimate and bona fide" decision, and overall, challenges to this standard have rarely succeeded. (26)
Generally, if a consular officer's decision to deny someone's visa application is based on his or her reasonable belief that there is, was, or should be an allegation against the applicant, such as a violation of a statute, then the decision will be considered legitimate and bona fide. (27) Overall, cases do not set forth a clear guideline as to exactly how many or what kind of substantive facts are needed in order to support a legitimate and bona fide reason. (28) In some cases, a consular officer's decision may still be considered legitimate and bona fide when he or she relies on "erroneous facts." (29) One way an applicant can challenge a consular officer's decision to deny a visa application is by arguing an affirmative showing of bad faith on the officer's part, which is typically based on a fact-by-fact analysis. (30) Another way an applicant can challenge the decision is by claiming a violation of the constitutional rights of the United States citizen involved. (31)
The constitutional right to procedural due process has been a popular defense against the denial of a spouse's visa application. (32) In addition, the institution of marriage has long been protected by the Supreme Court and plaintiffs often argue that the right to live with their spouse or immediate family members in the United States is embedded in the Due Process Clause. (33) Courts have ruled differently on whether to initiate judicial review over the denial of a visa application based on if a court accepts or rejects the fundamental right to marry. (34) This overlap of constitutional law, immigration law, and family law has played a large role in the inconsistencies seen within the judicial system. (15)
In Yafai v. Pompeo, the Seventh Circuit Court of Appeals considered if the consular officer's decision to deny Mr. Yafai's spouse's visa was made with legitimacy and good faith. (36) The Seventh Circuit Court of Appeals found that the consular officer's belief that Mr. Yafai's spouse violated 8 U.S.C. [section] 1182(a)(6)(E) by attempting to smuggle her children into the United States was a sufficient basis for denial, thus constituting a legitimate and bona fide reason. (37) Further, the court sided with precedent set forth in Kerry v. Din (38) and agreed with the notion that a citation to a statutory provision alone constitutes a legitimate and bona fide explanation, and thus, the court did not require any additional explanation be provided to Mr. Yafai or his spouse. (39) Also at issue was the amount of explanation needed from a consular officer when a visa decision affected the constitutional rights of the United States citizen involved: in this case, the liberty interest in Mr. Yafai being able to live in the United States with his spouse. (40) Relying on the rule from Kleindienst v. Mandela which states that citation to a statutory violation satisfies due process, the court also concluded that its decision did not violate Mr. Yafai's procedural due process rights. (42) Although Supreme Court precedent has previously held that there is no such constitutional right to live in the United States with one's spouse, this court failed to address the issue in its reasoning. (43)
In supporting its decision to rule in favor of the consular officer and against Mr. Yafai, the court rejected any argument that indicated its holding allowed for the use of bias or prejudice amongst those responsible for determining the fate of a visa application. (44) As demonstrated by the doctrine of consular nonreviewability, the court relied on the experience and expertise of the Executive Branch regarding the approval process for visa applications. (45) Thus, the Seventh Circuit Court of Appeals held that, regardless of the amount of explanation given by the consular officer, as long as he cited a statutory violation, his decision to deny Mr. Yafai's spouse's visa application was made in good faith and was legitimate and, therefore, did not violate Mr. Yafai's constitutional rights. (46)
The Seventh Circuit Court of Appeals applied a dangerously broad interpretation of the doctrine of consular nonreviewability to the facts at hand. (47) Although the judicial system widely accepts the doctrine of consular nonreviewability, the officer in this case clearly abused his discretion and acted in bad faith because this was more than just an unfavorable decision; this was a blatant disregard of potentially exculpatory evidence. (48) Once Mr. Yafai and his spouse provided the consular...
To continue readingRequest your trial
COPYRIGHT GALE, Cengage Learning. All rights reserved.