The Door of Consular Absolutism is Ajar
On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn't enough room for the couple to go through that unjust portal. Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrine that the courts will not consider visa refusals based on a factual decision of an American consular officer.
The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that "when a citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." The Ninth Circuit rested this slim right of review on the citizen's liberty interest in marriage:
[We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application. The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures.” Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).
The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.
In many other situations, however, the "reason to believe" standard does not apply. In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal. Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith. I suspect that some cases of this type are out there. Build the argument and the clients will come.
Congratulations to the Bustamantes' lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.