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Consular Non-reviewability: Consular’s Office Decision to Deny, Rarely Reversed

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Immigration Reform

The “Doctrine of Consular Non-reviewability” may be a concept unfamiliar to many yet it is very important for anyone outside the country desiring to enter the United States with a visa. When an individual is not on U.S. soil, he must go through the U.S. Department of State and visit a consulate abroad in their home country in order to attain a visa.

The problem confronting visa applicants is that no system of external oversight exists within a consulate for visa issuance decisions. This essentially enables the consulate office to express bias and employ inconsistent standards. Consular processing is required when the intending immigrant is not physically located in the United States and therefore has to request a visa in order to legally enter the country. It is disconcerting since this doctrine allows a consulate to issue a denial without an explicit set of evidence present to explain the outcome. This leaves visa applicants helpless without any chance for appeal or external review.

A recent case in Afghanistan brought attention to the issue regarding a couple, Fauzia Din, a U.S. citizen and her fiancée, Kanishka Berashk. Mr. Berashk did have an approved visa petition from USCIS based on marriage yet while waiting for his visa interview, the situation changed. Unfortunately, his visa application was denied and the only justification given was denial based on Section 212(a) of the Immigration and Nationality Act (INA) which includes several terrorism-related grounds for excluding non-U.S. citizens from the country[1]. The “terrorism-related grounds” were based on Mr. Berashk’s job as a payroll clerk, performing low-level administrative duties at the Afghan Ministry of Social Welfare. This charge may seem absurd, yet since Afghanistan was controlled by the Taliban at one point many Afghani citizens have faced similar accusations from U.S. government officials. The U.S. Department of State under the doctrine of consular non-reviewability is not responsible for justifying its lack of action or rejection of a visa application. Din filed a lawsuit against the U.S. government to adjudicate her husband’s visa application but the complaint was dismissed due to the protections of consular denials from judicial review.

It is pertinent that an applicant and his attorney be fully aware of the exact explanation of a denial for a visa application. Without this knowledge, there is no opportunity to dispute incorrect information. Currently, consular non-reviewability does not allow for the needed transparency. The U.S. Department of State consistently defends this doctrine in the hopes of “protecting our borders”. It is of course appropriate that the United States has this far-reaching authority in order to keep the country secure by deciding who should be permitted to enter the borders. Yet, there are also regulations in place, which define the limitations of this authority, and they must be followed. Decisions must be evaluated, regardless if they are being made under the roof of a consulate. A highly criticized doctrine such as this must be amended because the justification for maintaining the status quo is simply too weak and the complaints against it continue to rise.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/23/10-16772.pdf

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