Doctrine of Consulate Nonreviewability After Kerry v. Din


Jungmin Choi, an Associate in the Labor and Employment practice, in the firm’s Newark office, authored an article in Law360 titled “Doctrine of Consulate Nonreviewability After Kerry v. Din.” (Read the full article - subscription required.)

Following is an excerpt:

There are two primary issues in Kerry v. Din: (1) whether there is a constitutional right to live in the United States with one's spouse, and (2) whether procedural due process requires consular officials to give notice of reasons for denying a visa application. Much of the Justices’ questioning focused on the first issue and the scope of Din’s constitutional rights.

Justice Antonin Scalia wrote the opinion for the three-judge plurality, which held that Din’s constitutional rights were not violated when the government refused to provide a full explanation of the reason for denying her husband’s immigrant visa application. According to Justice Scalia, the consulate’s actions did not deprive Din of “life, liberty, or property” and, to the extent that Din received any explanation for the government’s decision, this explanation was more than the Due Process Clause required. ...

Kerry v. Din confirms the continued viability of the doctrine of consular nonreviewability and appears to provide little clarity in the administrative process for allowing visa applicants to correct erroneous denials through judicial review. Kerry v. Din confirms that consular officers need not cite the factual basis for denial, but may simply refer to the statutory provision to deny applications for an immigrant visa. Effectively, consulate officers will continue to have tremendous discretion in reviewing visa applications, and visa applicants will continue to face significant challenges in attempting to secure the details and factual basis for a visa denial. Thus, a prudent visa applicant should spend ample time reviewing his/her case history for potential issues and visa eligibility, and have a well-prepared documentation available at the visa interview that demonstrates clearly their eligibility for the visa they seek.