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 E MILY C. C ALLAN * & J OHN P AUL C ALLAN ** I. I NTRODUCTION 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 SOLZHENITSYN, 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 unfettered privilege of consular officers 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. 2016] CONSULAR NONREVIEWABILITY 305 established policy that dates back more than half a century. 15 The Supreme Court of the United States reiterated the doctrine approximately sixty years ago in the seminal case United States ex rel. Knauff v. Shaughnessy 16 in which the Court affirmed that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” 17 The Constitution does not promise foreign nationals the right to enter the United States, and the due process rights they enjoy typically derive from their physical presence in the country. 18 However, a unique quandary arises when a consular officer, without explanation, denies a visa to the spouse of a U.S. citizen. Although the foreign spouse may not be entitled to due process, certainly the U.S. citizen may seek judicial review of the decision that prevents the citizen’s family from residing together in the United States. 19 Unfortunately for the citizen, however, the Supreme Court of the United States disagrees with that assumption and has repeatedly upheld both the legality and legitimacy of consular nonreviewability. 20 The Court’s recent decision in Kerry v. Din 21 continues the long trend of cases that have cemented consular nonreviewability into the immigration law of the United States. 22 The plaintiff in Kerry v. Din , naturalized U.S. citizen Fauzia Din, filed a lawsuit in federal court as part of her effort to learn exactly why a U.S. consular officer in Afghanistan denied her husband an immigrant visa. 23 The case made its way to the Supreme Court of the United States in the plaintiff’s hopes that the nation’s final arbiter would repudiate the longstanding doctrine and find in favor of fair and transparent government proceedings. 24 Unfortunately for Mrs. Din, in February 2015, the justices ruled that consular nonreviewability did not violate Mrs. Din’s due process rights; the doctrine continues to have the force of law today. 25 15 See Kendall, supra note 11, at 273. 16 338 U.S. 537 (1950). 17 Id. at 544. 18 See Calcano-Martinez v. I.N.S., 533 U.S. 348, 349–52 (2001); I.N.S. v. St. Cyr, 533 U.S. 289, 293, 304–05 (2001). 19 See Kerry v. Din, 135 S. Ct. 2128, 2131 (2015). 20 See id. at 2138. 21 135 S. Ct. 2128 (2015). 22 See id. at 2138. 23 See id. at 2131. 24 See id. 25 Id. at 2138. 306 CAPITAL UNIVERSITY LAW REVIEW [44:303 The decision-making power to approve or deny a visa is indeed one that should be taken and treated seriously, as the authorization to enter the United States may carry sweeping and long-term consequences for national security, diplomatic affairs, economic interests, geo-political concerns, and familial relationships. 26 Because these highly-important ramifications are repeatedly placed by the wayside in favor of a continued adherence to this imprudent doctrine, the implications of consular nonreviewability require a closer examination. To do so, Part II of this article provides a brief description of the history of consular nonreviewability and how it became a recognized policy. Part III analyzes the problems and discusses the adverse effects caused by this doctrine. Part IV outlines the recent case of Kerry v. Din and how it fits into the extant jurisprudential framework established by the Supreme Court of the United States. Finally, Part V posits Congressional action as the only true means to repudiate the consular nonreviewability policy. Kerry v. Din provided the Court with an excellent opportunity to cease its adherence to the policy of consular nonreviewability. 27 The ruling majority squandered the opportunity and elected instead to further cement this archaic doctrine into U.S. immigration law, 28 thereby all but guaranteeing that future U.S. citizens will experience the same unfairness in their own families’ cases. By looking to the development of this policy and understanding the disadvantages that result from its implementation, the legal community can work to arrive at a better method for processing visas. In doing so, the need for institutional efficiency will be effectively and fairly balanced with the Constitution’s guarantee of due process. II. T HE A NNALS OF A BSOLUTISM : A B RIEF H ISTORY OF THE C REATION AND I MPLEMENTATION OF C ONSULAR N ONREVIEWABILITY In terms of bureaucratic red tape, immigration procedures stand as some of the most administratively burdensome applications in the body of U.S. law. 29 Hundreds of pages of documentation are often necessary to establish the simplest of claims, such as the marital union between a U.S. citizen and 26 See Bureau of Pub. Aff., Diplomacy: The U.S. Department of State at Work , U.S. DEP’T ST. (June 2008), http://www.state.gov/r/pa/ei/rls/dos/107330.htm. 27 See 135 S. Ct. at 2131–32. 28 See id. at 2138. 29 See Allen Smith, Inconsistency, Burdensome Paperwork Plague Visa Processing , SOC’Y FOR HUM. RES. MGMT. (Jan. 9, 2015), http://www.shrm.org/legalissues /federalresources/pages/visas-consistency.aspx. 2016] CONSULAR NONREVIEWABILITY 307 a foreign national, or a given...