Suit seeking to have consuls explain visa decisions loses in Supreme Court


Lawyers and others have long asked for more transparency insofar as consular visa decisions-nonimmigrant and immigrant-are concerned to have a basis for contesting them if possible. The difficulty has been the doctrine of consular non-reviewability under which courts have long held that the consul is king and his decisions are unassailable. An unfortunately important case supporting that proposition and making it more difficult to obtain detailed explanation of a consul’s denial was the recent Supreme Court decision in Kerry v. Din, (13-1402, 6/15/15). The Court denied the wife’s appeal that she had the right to have a consular officer further explain the reasons for denying an immigrant visa for her husband where the consul only said at first that the visa had been denied under 8 USC §1182(a)-the general statute on inadmissibility listing 10 sections and numerous subsections of excludable acts -and the State Department in response to a request for further information said that the visa had been denied under 8 USC §1182(a)(3)(B) – the terrorism and national security bars to admissibility. Justice Stephen Breyer joined by fellow Justices Ginsburg, Sotomayor and Kagan in dissent pointed out that the latter provision sets forth dozens of reasons for that bar. For immigration applicants wanting to get more explanation for denials by American consular posts, this decision was not helpful and will likely further encourage consuls and the State Department to stonewall them and their lawyers’ attempts to obtain further information on denials.

Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof (its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004); and his 2015 case, Matter of Leacheng International, Inc., with the AAO set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

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