A Critical Review of Consular Nonreviewability

For all of its moral grandstanding about fairness and meritocracy, it may come as a surprise that the U.S. refuses to uphold these values when it comes to immigrants in foreign countries applying for legal residence in the U.S. This stems from the doctrine of consular nonreviewability, which sets out the jurisdiction of international consular officers. These officers are in charge of reviewing and approving immigration applications, and because of consular nonreviewability, they are not obligated to disclose specific reasons for denial and cannot be brought to court over their decisions. This doctrine grants unfettered discretion to the executive branch over immigration, increasing the likelihood of errors and abuse of power by consular officers. The federal government should allow immigrant applicants to apply for review, which will increase accountability for consular officers and decrease unfairness in the process.

The precedent for consular nonreviewability dates far back in history. Its roots lie in the 1893 case of Fong Yue Ting v. United States, which attempted — and failed — to challenge the Chinese Exclusion Act. The Supreme Court ruled that the government’s power to “exclude aliens” was necessary to preserve sovereignty and national security. The Court set a precedent that regulating immigration was a constitutionally protected federal power that allowed the state to prioritize its citizens’ interests. The initial ruling was reaffirmed in later cases, including United States ex rel. Knauff v. Shaughnessy in 1950 and Kleindienst v. Mandel in 1972, both of which shut down challenges to consular nonreviewability. Most recently, consular nonreviewability was upheld in the 2015 case of Kerry v. Din. The case was especially controversial because it involved allegations of terrorist activities by the federal government.

However, consular officers are human, and it is inevitable that they will make mistakes. The likelihood of errors is exacerbated by a variety of factors, including limited time and resources, misunderstandings, language deficiencies, inadequate training, and the complexity of immigration law itself. Because the doctrine of nonreviewability only applies to officers at international posts, we can look to court cases against domestic consular officers for evidence of consular errors. In Banat v. Holder, the 8th Circuit found consular submissions in an asylum adjudication “glaringly deficient.” In Patel v. Reno, a consular officer did not address an immigration application for eight years, which the court ruled was unreasonable. In Singh v. Clinton, the 9th Circuit found that the consular office failed to provide required notice of termination of a visa registration to the applicant. These cases, which are few among many, demonstrate a failure to follow procedure and disregard for evidence by consular officers. Domestic applicants are fortunate that they can challenge these errors in court; applicants from abroad are not so lucky. The U.S. government’s disregard for serious legal errors in the hundreds of U.S. consulate offices around the world demonstrates an urgent need for verification and accountability measures for consular officers.

In addition to the problem of consular errors, consular nonreviewability also gives malicious leeway to consular officers to abuse their powers, as revealed by the recent precedent set by Kerry v. Din. In Kerry v. Din, US citizen Fauzia Din applied for a familial visa for her husband, Kanishka Berashk, a citizen of Afghanistan. The application was rejected on the grounds that Berashk, who had worked as a clerk for the Afghan government during the Taliban regime, had engaged in terrorist activities. Din and Berashk inquired about which parts of Berashk’s work constituted “terrorist activities,” given that he was only a civil servant, but their request was denied. The Supreme Court held that the rejection was legitimate for national security reasons, and did not require the consular officer to provide any explanation for the determination. Justices Scalia and Kennedy stated that it was not necessary for anyone to know, for that was up to the discretion of the consular officer. 

Although it is impossible for any of us to determine whether Berashk had truly engaged in terrorist activities, the precedent set in this case protects all consular officers from review in every circumstance. Regardless of whether Berashk was innocent or guilty in this case, there will inevitably be cases where a consular officer applies the Terrorism-Related Inadmissability Grounds, deeming that an immigrant is “likely to engage in terrorist activities,” based on prejudice or personal opinion. Such decisions will go unchallenged because the government prioritizes national security above fairness and equality. This type of securitization mindset, which prioritizes artificially constructed scenarios and disproportionate anxiety over specific threats, allows the government to use security as an excuse to carry out rights violations. It becomes easy for consular officers to reject any applicant that they feel is ideologically or racially undesirable, even in the complete absence of evidence. Consular officers know that they do not answer to anyone: any applicant they label a security risk will lose their chance at entering the U.S. indefinitely.

Finally, if for no other reason, consular nonreviewability should be reconsidered simply because it benefits no one: not citizens nor immigrants. Allowing for a degree of review and transparency in the consular process would not compromise security or quality of life for US citizens. All of the laws barring terrorists and other unsafe individuals from immigrating to the US would still exist, but allowing for review would make the process of vetting applicants more accurate. More accurate vetting would prevent the wrongful denial of hopeful immigrants while increasing the safety of U.S. citizens and improving its reputation as a moral international leader. The possibility of review would also incentivize consular officers to act with more diligence and to base their decisions in evidence, preventing the arbitrary and unjust exclusion of immigrants.

Although supporters of consular nonreviewability argue that the option of review would overload the immigration court system, they forget that increasing accountability in the process will make its outcomes legitimate, thus decreasing demand for judicial review. Court cases are expensive and time-consuming to file; applicants would only turn to them when they saw no other way of recourse. If a nefarious foreign national wanted to interfere with the U.S. government, he or she would not choose such an inefficient and unimpactful manner to do so. This is confirmed by the statistics on immigration cases from European nations that have allowed for review of immigration decisions, and saw an insignificant change in workload. Even if there is a slight increase in work, the government should not prioritize convenience over the reliability of a system that holds the fate of so many immigrants in its hands. This logic is akin to students complaining about quizzes because it requires that they actually do the reading, a mindset that is both lazy and unpersuasive. If the government has “assigned” itself the task of vetting immigration applications, then it should be willing to put in the necessary amount of effort in order to succeed.

It is important that the U.S. be willing to hold its consular officers accountable and ensure legitimacy in its immigration process. As an international leader and model for democracy, its actions have broad impacts on norms of governance surrounding the way that immigrants are treated around the world.