Further, as noted earlier, in most cases these determinations are not reviewable or appealable, even to an administrative law judge. In the past, cases relating to fraud or misrepresentation were referred to Immigration Judges to weigh the factors and make a determination. Similarly, at the consular posts, consular officers are required to make significant decisions about an applicant s credibility in the course of a few minutes of discussion. However, under current immigration law, there often is no recourse for appeal or review of these serious decisions. At consular posts, the Advisory Opinions office of the State Department will only overrule a consular officer s decision if it represents an erroneous conclusion of law.
Consular decisions are largely non-reviewable by any court.
With regard to INS fraud determinations, denial of certain petitions are appealable to the Administrative Appeals Office of the INS, and subsequently to a federal district court, although often the information on which the INS denies the petition is not made available to the petitioner to rebut during an appeal. Denials of admission to the United States under expedited removal are specifically exempt from any type of administrative or judicial review of the determinations by immigration inspectors. The only review allowable is by an immediate supervisor, who often reviews only the record prepared by the inspector. Thus, individuals who find themselves banished for five years under expedited removal procedures for erroneous applications of the law have no real way to appeal or reopen their case. This situation flies in the face of our judicial tradition of due process, and, to many both foreign nationals and U.S. citizens, can smack of arbitrary decision-making.