Immigration – Consular’s decision about visa application beyond judicial review

Where the consular officer who denied a visa application cited the statutory provisions for the denial and explained her reasoning—that she found the applicant had proffered a falsified passport and lied about her age—the doctrine of consular non-reviewability barred judicial review.

Background

In October 2016, Anthony Sesay, a United States citizen, filed an immediate-relative petition on behalf of his daughter, Mabinty Sesay, a citizen and resident of Sierra Leone. After the petition was approved, Ms. Sesay applied for a visa. During a November 2017 interview, the consular officer suspected Ms. Sesay of lying about her age.

The government initially informed appellants that Ms. Sesay’s application was denied due to her failure to supply necessary documentation. The government then informed appellants that Ms. Sesay’s application was further denied because she had made “a material misrepresentation to obtain a visa by misrepresenting her age and presenting a passport in a false identity.”

Appellants filed suit in the district court. The district court granted the government’s motion to dismiss under the doctrine of consular non-reviewability.

Analysis

The doctrine of consular non-reviewability instructs that ordinarily, “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” The primacy of the political branches over immigration policy is a function of the separation of powers.

The Supreme Court recognized a narrow exception to this general rule in Kleindienst v. Mandel, 408 U.S. 753 (1972), allowing for limited judicial review when a U.S. citizen’s own constitutional rights (here Mr. Sesay’s) are assertedly burdened by a visa denial. As Justice Kennedy explained in his concurring opinion in Kerry v. Din, 576 U.S. 86, 104 (2015), when there is such a burden, an executive officer’s decision to deny a visa is only valid when made “on the basis of a facially legitimate and bona fide reason.”

In Din, Justice Kennedy found that even assuming a constitutional interest was burdened, the government satisfied its obligation of providing a “facially legitimate and bona fide reason” by simply providing notice of the statutory provision under which the visa was denied. The Supreme Court recently reaffirmed this standard in Trump v. Hawaii, 138 S. Ct. 2392 (2018).

With that framework in mind, this appeal’s outcome is clear. The doctrine of consular non-reviewability plainly prohibits this court from questioning the consular officer’s visa determination. The Supreme Court has unambiguously instructed that absent some clear directive from Congress or an affirmative showing of bad faith, the government must simply provide a valid ineligibility provision as the basis for the visa denial.

The government met this obligation by providing 8 U.S.C. § 1201(g) and § 1182(a)(6)(C)(i) as the statutory bases for denial of Ms. Sesay’s visa application. Moreover, not only did the consular officer provide the applicable statutory provisions as the bases for Ms. Sesay’s visa denial, but the officer went further than necessary by explaining her decision-making—she found Ms. Sesay had proffered a falsified passport and lied about her age.

Appellants urge the court to review those factual grounds for the denial, but the doctrine is clear: such an inquiry falls outside the limited scope of the court’s review. For the doctrine of consular non-reviewability to have any meaning, this court may not peer behind the decisional curtain and assess the wisdom of the consular determination. Probing the consular officer’s decision would require reviewing the credibility of the applicant’s testimony, the authenticity of the documentation and balancing the reason for the denial against any constitutional interest allegedly burdened. The court cannot do that because the cited provisions are facially legitimate and appellants’ attempts to establish bad faith involve nothing more than conclusory allegations.

In a further attempt to establish bad faith, appellants point to the many months of proceedings, but such back and forth only demonstrates the lack of bad faith in this case. Far from revealing some malicious intent, the months of requesting further documentation show that the government was doing its due diligence in ensuring all proper documentation was considered before exercising its discretion in granting a visa.

Affirmed.

Sesay v. United States of America (Lawyers Weekly No. 001-006-21, 10 pp.) (J. Harvie Wilkinson III, J.) Appeal No. 19-2146. Jan. 5, 2021. From D. Md. (Deborah K. Chasanow, S.J.) Parva Fattahi for Appellants. Alan Carl Lazerow for Appellees.