The Guards May Still Guard Themselves: An Analysis of how Kerry v. Din Further Entrenches the Doctrine of Consular Nonreviewability

Author:Emily C. Callan - John Paul Callan
Position:Emily C. Callan (née Kendall) is an attorney working in private practice in Reston, Virginia. She has published articles on multiple immigration and constitutional issues in law journals including the Georgetown Immigration Law Journal, the John Marshall Law Review, the Michigan State University College of Law International Law Review, the ...
Pages:303-323
SUMMARY

An outline of Kerry v. Din and how it fits into the extant jurisprudential framework established by the Supreme Court of the United States; because of this ruling, only Congressional action can provide a means to repudiate the consular nonreviewability policy found in Kerry.

 
FREE EXCERPT
THE GUARDS MAY STILL GUARD THEMSELVES: AN
ANALYSIS OF HOW KERRY V. DIN FURTHER
ENTRENCHES THE DOCTRINE OF CONSULAR
NONREVIEWABILITY
EMILY C. CALLAN * & JOHNPAUL CALLAN**
I. INTRODUCTION
In Alexander Solzhenitsyn’s celebrated novel One Day in the Life of
Ivan Denisovich, authorities arrest the titular character on dubious charges
he does not understand and sentence him to ten years of hard labor in a
Russian prison camp.1 When he approaches the ruling powers with
questions concerning the accusations levied against him, Ivan is met only
with the prison and legal systems’ minor officials who are possessed with a
dogged obedience to the systems’ rules and who refuse to provide him with
any explanations concerning his fate.2
Unfortunately, Ivan’s experience is not confined to the literary world, a
sad fact to which many immigration attorneys and still more foreign
nationals may attest.3 Foreign nationals who desire to come to the United
States for any number of reasons—e.g., work, study, investment, tourism,
family reunificationmust obtain the appropriate visa at the U.S. consulate
in their home countries.4 During the visa interview process, the consular
Copyright © 2016, Emily C. Callan & JohnPaul Callan.
* Emily C. Callan (née Kendall) is an attorney working in private practice in Reston,
Virginia. She has published articles on multiple immigration and constitutional issues in law
journals including the Georgetown Immigration Law Journal, the John Marshall Law Review,
the Michigan State University College of Law International Law Review, the Journal of
Supreme Court History, and others.
** JohnPaul Callan is also an attorney working in private practice in Reston, Virginia. His
articles have been published in the University of Miami Business Law Review and the
Mississippi College Law Review.
1 See generally ALEXANDER SO LZHENITSYN, ONE DAY IN THE LIFE OF IVAN DENISOVICH
(Max Hayward & Ronald Hingley trans., 1963). “One day of Ivan Denisovich Shukhov, a
prisoner in a forced labor camp . . . unfolds as a picture of exceptional vividness and
truthfulness about the nature of man.” Id. at xix. “There were three thousand six hundred
and fifty-three days like this in his sentence, from reveille to lights out.” Id. at 203.
2 See generally id.
3 See Donald S. Dobkin, Challenging the Doctrine of Consular Nonreviewability in
Immigration Cases, 24 GEO. IMMIGR. L.J. 113, 113 (2010).
4 See id.
304 CAPITAL UNIVERSITY LAW REVIEW [44:303
officer reviews the case and is empowered to approve the applicant for the
requested immigration classification and stamp the visa into the applicant’s
passport.5 Of course, the officer is also authorized to deny the visa on valid
grounds, such as the applicant’s criminal record or previous immigration
violations.6 However, the officer can also deny the visa without providing
any reason at all, and there is nothing the applicant or his or her attorney can
do.7
Immigrating to the United States is typically a two-step process. First,
the person or entity sponsoring the foreign national for the immigration
classification files a petition with U.S. Citizenship and Immigration Services
(USCIS).8 If the USCIS adjudication officer approves the petition, the
officer forwards it to the respective U.S. consulate for the completion of the
second step: the visa interview.9 Again, the consular officer may approve
or deny the visa at the interview.10 That leads to the question of why a U.S.
government officer in a foreign country is authorized to effectively reverse
another government officer’s decision by denying a visa to an approved
applicant. This disparity in government action is permitted to take place
because of a little-known but much-bemoaned policy called “consular
nonreviewability.”11
Consular nonreviewability, also referred to as consular absolutism,is
the nearly unfet tered privilege of consular officer s to approve or deny a visa
with absolute discretion.12 The consular officer is not required to inform the
applicant of the specific reasons for the denial,13 and the officer’s decision
is not subject to review by any court, governmental, or administrative
body.14 Although the power to make critical decisions arbitrarily may seem
to offend the notion of due process, consular nonreviewability is a well-
5 See City of New York v. Baker, 878 F.2d 507, 512 (D.C. Cir. 1989) (“The authority to
issue visas belongs solely to the consular officers of the United States.”).
6 See 22 C.F.R. § 42.81 (2015).
7 See Dobkin, supra note 3, at 114.
8 See 22 C.F.R. § 42.41.
9 See id. § 42.62.
10 See id.
11 See Emily C. Kendall, The Alien Terrorist Removal Court and Other National Security
Measures You May Have Never Heard Of: The Need for Comprehensive National Security
Reform, 18 TEX. WESLEYAN L. REV. 253, 273 (2011).
12 See id.
13 See Kerry v. Din, 135 S. Ct. 2128, 2138 (2015).
14 See Dobkin, supra note 3, at 114.

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