Consuls must provide ‘factual basis’ for visa denial

On Oct. 5, 2022, the Ninth Circuit Court of Appeal held that consular officers are required to provide the factual bases for a visa denial or refusal within a reasonable time, or they can be sued.

This case is very important because, ordinarily, a consular officer’s decision to deny a visa is not subject to judicial review or oversight under the “doctrine of consular nonreviewability.”

There are times when a person is refused a visa for a number of reasons, such as fraud, smuggling, etc., and when they try to get an explanation from the consul, they’re never provided with a clear answer, and there’s really nothing they can do about it. This recent Ninth Circuit opinion carves out an exemption or exception to the doctrine of consular nonreviewability in cases where the consular officer failed to provide a US citizen spouse with timely and adequate notice of the reasons behind the visa refusal.

In that case, a US citizen petitioned her husband and he went for his interview at the consulate in 2015. At the interview, his visa was refused based on the consul’s finding that he was seeking to enter the US to engage in “unlawful activity” and was therefore “inadmissible” to the US.

The couple continually requested the factual basis or reasons for the consul’s determination that the husband was inadmissible and why they thought he would come to the US and engage in “unlawful activity.” After getting no response, they filed a lawsuit in 2017, contending that the government failed to provide them with “the specific factual basis of the denial at the time of the denial,” and otherwise failed to provide a “facially legitimate and bona fide reason” for the visa refusal.

Finally, three years later, after the lawsuit was filed, the government provided the factual basis for the refusal. This did not sit well with the Ninth Circuit, which noted that the government had waited almost three years to provide the information, and did so only when prompted by judicial proceedings.

The Ninth Circuit noted that it “is a long-standing due process requirement that the government provide any required notice in a timely manner.”  This is because the denial of an immigrant visa to the spouse of a US citizen “deprives that citizen of the ability to enjoy the benefits of her marriage and to live in her country of citizenship. Her ability to vindicate her liberty interest, whether through the presentation of additional evidence or initiation of a new petition, depends on timely and adequate notice of the reasons underlying the initial denial.”

Because it took the government almost three years to finally provide the reasons for the denial, “the government did not meet the notice requirements of due process.” As a result, the government was not protected or shielded by the doctrine of consular nonreviewability and the lawsuit could proceed.

The reason this decision is so important is that it should now force or require consuls to be more forthcoming in explaining why a visa was refused. I have had many cases where a person was refused a visa for fraud or for human smuggling. They may be given a single sheet of paper on which a particular box is checked for fraud or smuggling.

When attempts are made to find out what the fraud was or who was being smuggled, the consuls don’t provide that information. How can a person clear their name or defend themselves if they are not provided with the reasons for the refusal? It is like being accused of a crime but not being told what the crime is. This case now puts a duty or obligation on consuls to provide an adequate explanation for the visa refusal.

If you, or someone you know, was refused a visa but was not given a clear explanation of why the visa was refused and you believe the refusal was in error, you should consult with an attorney, who can remind the consuls of their obligation to provide information under this Ninth Circuit case, and the attorney can evaluate if there could be hope, waivers or otherwise see if you can clear your name if the refusal was in error.

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