Visa Denied: Why Courts Should Review a Consular Officer’s Denial of a U.S.-Citizen Family Member’s Visa

Before entering the United States for permanent or temporary residence, most noncitizens must complete a series of administrative procedures and background checks. The final step in the process is an interview with a consular officer in the noncitizen's home country. That step, in most cases, determines whether a spouse can permanently rejoin her U.S.-citizen husband or wife in the United States or whether another immediate family member can permanently reside in the same home as her U.S.-citizen family member. After a consular officer decides to admit or deny entry to a noncitizen family member, there are limited opportunities for administrative or judicial review of the consular officer's decision.For decades, federal courts have adhered to the doctrine of consular nonreviewability to limit judicial review of a consular officer's visa decision. This doctrine, rooted in the legislative and the executive branches' plenary power over immigration matters, first emerged in Kleindienst v. Mandel. Since then, federal courts have interpreted the doctrine-in some instances limiting the doctrine's reach, and in others, allowing for more judicial review. In 2014, the U.S. Supreme Court granted certiorari in Din v. Kerry, a U.S. Court of Appeals for the Ninth Circuit decision, which held that a visa denial impinges on a U.S. citizen's constitutionally protected interest in her marriage to a noncitizen spouse.Without the opportunity for either an administrative appeal or judicial review of a visa denial, a single consular officer can force a U.S. citizen, like Mrs. Din, to live apart from her closest family member or to relinquish a stable life and employment in the United States to move abroad with her noncitizen family member. This Comment argues that the visa denial of a U.S. citizen's family member implicates that citizen's fundamental Fifth Amendment due process rights-therefore allowing judicial review of the denial-because the Supreme Court has long recognized the liberty interests involved in marriage and in living with one's immediate and extended family.INTRODUCTIONImagine this scenario: a U.S. citizen accurately and timely files all of the required paperwork for her foreign spouse to permanently immigrate to the United States. The U.S. government approves the visa two years later. Several weeks after the approval, at a U.S. consular office overseas, a consular officer denies her spouse's visa. The embassy and the consular officer refuse to provide a reason for the denial. Without this information, the U.S. citizen and her spouse will not have an opportunity to contest the consular officer's decision, and they also will not have an opportunity to seek administrative or judicial review. As a result of the consular officer's visa decision, the U.S. citizen and her spouse will remain separated without recourse.This is Fauzia Din's story. In 2006, Din, a U.S. citizen, married Kanishka Berashk, a citizen and resident of Afghanistan.1 Shortly after their marriage, she submitted an I-130 visa petition to U.S. Citizenship and Immigration Services (USCIS), the U.S. government agency responsible for visa adjudications, so that Berashk could permanently immigrate to the United States.2 A year and a half after filing the visa petition, USCIS informed Din that the agency approved her visa petition for Berashk.3 As part of the visa process, USCIS forwarded the approved visa petition to the National Visa Center (NVC) for processing and then on to the U.S. Department of State's (State Department or DOS) consular post in Pakistan, where a consular officer interviewed Berashk to issue his visa.4Two years after Din first submitted Berashk's visa petition to USCIS, the consular officer asked Berashk during the consular interview about his work for the Afghan Ministry of Social Welfare during the period in which the Taliban controlled the country.5 The consular officer, suggesting that he had approved the visa, told Berashk that he would receive the visa in two to six weeks. …