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Muñoz and Limits to the Doctrine of Consular Nonreviewability

By October 17, 2022Immigration
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Earlier this month, the U.S. Court of Appeals for the Ninth Circuit took a look at the general rule that a consulate’s decision to deny a visa cannot be reviewed by a court – called the doctrine of consular nonreviewability – and reminded us that in some situations courts can review whether a consulate’s denial of a visa was reasonable. In this post, we take a look at that case, Muñoz v. U.S. Department of State, and how it is not only a helpful reminder that there are important limits to the doctrine of consular nonreviewability, but it also supports the argument that a consulate has a responsibility to provide the factual basis for a visa denial within a reasonable time.

What is consular nonreviewability?

Consular nonreviewability is a doctrine stating that visa decisions made by consular officers (U.S. Department of State Foreign Service Officers representing the United States in other countries) cannot be appealed to U.S. courts. Put differently, it is the doctrine establishing that “a consular official’s decision to deny a visa to a foreigner is not subject to judicial review.” Khachatryan v. Blinken, 4 F.4th 841, 849 (9th Cir. 2021).

The doctrine comes from courts’ “respect for the separation of powers,” and the fact that courts do not have the broad power over the country’s immigration system that the executive and legislative branches do. As a result, courts will only consider whether the government’s interest in denying a visa outweighs an individual’s liberty interest in having it approved in cases in which the government has failed to provide “a facially legitimate and bona fide reason” for denying the visa. (See Kerry v. Din, 576 U.S. 86 (2015)). If the consulate has provided adequate notice, then the individual must show that the consular official acted in bad faith. If the individual cannot show this, the consulate’s decision will not be reviewed by the court.

The doctrine of consular nonreviewability applies broadly to consular decisions – whether those decisions apply to foreign individuals who are denied entry by the consulate, or to U.S. citizens and permanent residents who receive a decision from the consulate regarding their family member (for a few examples, see our earlier post here).

Are there any exceptions to the doctrine of consular nonreviewability?

Fortunately, courts have made clear that there is an exception to the general doctrine that consular officers’ decisions cannot be subject to judicial review. In two of the most influential cases involving the doctrine of consular nonreviewability – Kleindienst v. Mandel , 408 U.S. 753 (1972) and Kerry v. Din, 576 U.S. 86 (2015) – the Supreme Court held that there is an exception to the doctrine of consular nonreviewability when, first, the denial of a visa impacts the “fundamental rights” of a U.S. citizen, and, second, the government has failed to provide “a facially legitimate and bona fide reason” for the visa denial.

What are the facts behind the Muñoz case?

In Muñoz, the Ninth Circuit Court of Appeals concluded that when a consulate’s adjudication of a visa application impacts the constitutional rights of a U.S. citizen, due process requires that the consulate give the citizen “timely and adequate” notice of the decision.

The case centered on Sandra Muñoz, a U.S. citizen. Mrs. Muñoz was married to Luis Asencio-Cordero, a citizen of El Salvador. Mrs. Muñoz filed an application for a green card with USCIS on behalf of her husband. USCIS approved the application. Mr. Asencio-Cordero then traveled to the U.S. consulate in El Salvador to receive the visa. In December 2015, the consulate denied his visa application.

As justification, the consulate only cited the statute under which they denied the application, 8 U.S.C. § 1182(a)(3)(A)(ii). That statute broadly states that any foreign national trying to enter the U.S. to engage in an unlawful activity is inadmissible. At the time, the consulate gave no further explanation, and did not point to any specific facts that caused them to reach this conclusion.

Mrs. Muñoz sued the consulate in January 2017. In September 2018 – almost three years after the consulate denied the visa – the government stated for the first time that the consular officer denied the visa after concluding that Mr. Asencio-Cordero was a member of a criminal organization. In November 2018, the government gave Mrs. Muñoz an explanation of the factual basis for its decision.

What did the Ninth Circuit hold in Muñoz?

A U.S. citizen has a liberty interest in their non-citizen spouse’s visa application.

The court first found that Muñoz had a “protected liberty interest” in her husband’s visa application. This makes sense. In the United States, the right to marry is considered a fundamental right (see, for example, Obergefell v. Hodges, in which the Supreme Court held that this fundamental right is guaranteed to same-sex couples under the Fourteenth Amendment to the U.S. Constitution). Also, the court noted, U.S. citizens have an interest in being able to live in their country of citizenship.

Putting these two concepts together, Mrs. Muñoz clearly has a liberty interest in both marrying the person she chooses, and being able to reside with him in her country of citizenship, the United States. The denial of her husband’s visa forces her to choose between these two interests. As a result, as the court put it, “a U.S. citizen possesses a liberty interest in a non-citizen spouse’s visa application.”

The consulate gave Mrs. Muñoz an adequate explanation of the reason for the visa denial.

After concluding that Mrs. Muñoz did, in fact, have a liberty interest in the visa decision, the court then asked whether the consulate gave Mrs. Muñoz a “facially legitimate and bona fide reason” for the denial. The consulate can satisfy this requirement by pointing to a specific fact in the record that creates at least some connection to the ground of inadmissibility. The court held that the consulate had satisfied this requirement in November 2018, when it explained to Mrs. Muñoz that the consulate denied her husband’s visa application “after considering [his] in-person interview, a review of his tattoos, and the information provided by law enforcement saying that he was a member of MS-13.”

However, because the consulate’s notice to Mrs. Muñoz was not timely, the consulate is not protected by the doctrine of consular nonreviewability, and the court can determine whether the consulate’s basis for denying the visa was reasonable.

But the court did not stop there. It then asked whether the consulate’s explanation to Mrs. Muñoz was “timely and adequate.” The court found that even though the consulate did give Mrs. Muñoz a legitimate reason for denying the visa, it took the consulate three years to do so. This, the court held, was unreasonable and violated her due process rights. The result? The consulate could not hide behind the doctrine of consular nonreviewability, meaning that the court could look behind the consulate’s decision to determine whether its denial of the visa was reasonable. The Ninth Circuit came to the following conclusion:

“We thus conclude that, where the adjudication of a non-citizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.”

Why is the Muñoz holding important?

Muñoz makes clear that, when a U.S. citizen has a liberty interest in a visa decision, the consulate must not only give the U.S. citizen the factual basis for the denial; the consulate must also provide that explanation within a reasonable time.

But how long is “reasonable”? The court suggests that notice that is provided between one month and one year of the visa denial is probably adequate, whereas notice provided three years after the denial is clearly not.

Does consular nonreviewability bar me from suing the consulate for an unreasonable delay or for failing to reach a decision?

One of the additional lessons from Muñoz is that the doctrine of consular nonreviewability is still alive and well. In other words, courts generally remain unwilling to review a consulate’s decision regarding a visa, particularly where a U.S. citizen or permanent resident is not affected by the decision.

This, however, does not mean that there is no option for those who have been waiting a long time for the consulate to reach a decision on their visa application. Consular nonreviewability does not bar an applicant from suing the consulate for an unreasonable delay or for failing to reach a decision. Consular nonreviewability applies once the consulate has reached a decision, but does not apply when the consulate has either failed to reach a decision or has delayed doing so. In such situations, you may be able to file a mandamus action against the consulate.

As explained in an earlier post about mandamus actions here, a mandamus action asks a court to order the government to do a specific thing that it is obligated to do by law. In the context of immigration law, there are many things consulates are required by law to do. When they fail to do those things or take an unreasonably long time to do them, we can typically ask a district court to command the consulate to do them.

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