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Visa Denials Not Subject to Judicial Review

The Supreme Court recently dealt a blow to immigrant families hoping for a detailed explanation of a visa denial and the opportunity to challenge that denial in court. On June 15, 2015, the Supreme Court upheld a long-standing doctrine known as “consular non-reviewability.” That’s a fancy way of saying that any visa decisions—including denials—by U.S. State Department consular officers cannot be reviewed by a court.

The Supreme Court’s decision (Kerry v. Din) involved a United States citizen who wished to challenge the State Department’s denial of her husband’s visa. The State Department denied the visa based on “terrorist grounds” without any further explanation.

In its decision, the Supreme Court articulated three principles that adversely affect families wishing to challenge visa denials.

  1. The United States government holds the discretion to decide whether, and to what extent, to explain its basis for visa decisions. In other words, consular officials are not required to explain their decisions.

  2. Visa refusals may not be challenged in court.

  3. The concept of “liberty” as set out in the United States Constitution does not include the right of a U.S. citizen to live with his or her spouse. That means the government cannot be held accountable for its decision to deny a visa which results in the breakup of a family.

What does this mean for you?

  1. It places a much greater weight on the visa approval process. One refusal may mean a person is permanently denied legal entry into the United States.

  2. It makes it harder to legally challenge visa denials, with little accountability by the United States government to provide clear, specific reasons for its decision.

  3. It means that a visa denial can separate you from your spouse, and you do not have any legal recourse.

The good news? If the United States government denied your spouse a visa, you may still have opportunities to fight the case. Antonini and Cohen can help you:

  1. Request a reconsideration of the denial

  2. Refile your application to address the United States Consulate’s concerns

Contact us today if you or a family member has suffered the denial of a visa. We can review the circumstances of the denial and determine your best options for overcoming the denial.

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