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

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 reunification—must 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.