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Article United States: Appeals Court Refuses Review of Visa Denials for Four Iranian Nationals Under Doctrine of Consular Nonreviewability

On January 31, 2024, the United States Court of Appeals for the Seventh Circuit affirmed the ruling of the United States District Court for the Western District of Wisconsin that the doctrine of consular nonreviewability precluded the court from reviewing the denial of visas for four Iranian nationals. (Pak v. Biden, No. 23-1392 (7th Cir. 2024).)

Background to the Case

Between 2014 and 2020, four Iranian citizens applied for visas to enter the United States to join family members there. The four Iranian citizens had completed mandatory military service in the Islamic Revolutionary Guard Corps (IRGC) between 1980 and 2008. They were randomly assigned to this branch of the Iranian military and alleged that their service consisted of only nonmilitary civil-service activities. When they applied for their visas, they submitted their IRGC military identification cards. (Pak at 4–5.)

The State Department designated the IRGC a Tier I terrorist organization on April 8, 2019, and consular officers began denying visa applicants who served in the IRGC after April 2019. Consular officers also denied the Iranian citizens in this case, even though their service in the IRGC ended before April 2019. The Iranian citizens’ denial notices provided no explanation for their denial. The four Iranian citizens whose visas were denied requested an exemption from the terrorism-related inadmissibility grounds (TRIG), but the exemption requests were also denied without explanation. (Pak at 2–5.)

The four Iranian citizens and their family members filed their action under the Administrative Procedure Act (APA) (5 U.S.C. § 551 et seq), 5 U.S.C. § 706(2)(A) and (D), and the Due Process Clause of the Fifth Amendment, seeking “a writ of mandamus ordering Defendants to implement a process for considering visa applicants for TRIG exemptions consistently and in good faith.” (Pak at 6.) The District Court granted the defendants’ motion to dismiss on the basis of the doctrine of consular nonreviewability, and the plaintiffs appealed the dismissal. (Pak at 6–7.)

Doctrine of Consular Nonreviewability

Congress has delegated the power to make visa decisions to consular officers abroad, and according to the doctrine of consular nonreviewability, the decisions are ordinarily not subject to judicial review. (Pak at 7.) The plaintiffs argued that they were challenging not the consular officer’s decision but the legal structure for processing TRIG exemptions. (Pak at 7.) The circuit court noted that plaintiffs could not make an “indirect attack” on a visa denial because “the doctrine of consular nonreviewability applies even where a plaintiff challenges some other, related aspect of a consular officer’s decision to deny a visa.” (Pak at 7–8 (citing Matushkina v. Nielsen, 877 F.3d 289 (7th Cir. 2017)).) The circuit court held that the plaintiffs’ claims were still subject to the doctrine of consular nonreviewability because they were attempting to frame their substantive complaints as procedural objections; although they claimed to be disputing the TRIG exemption process, they were really trying to have the TRIG exemptions granted. (Pak at 8.) Therefore, the doctrine of consular nonreviewability could still preclude the court from hearing the plaintiffs’ claims.

Exception to the Doctrine of Consular Nonreviewability

The circuit court considered a narrow exception to the doctrine of consular nonreviewability that “applies when a visa denial implicates the constitutional rights of a U.S. citizen.” (Pak at 8 (citing Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972)).) However, this exception cannot be invoked if “the consular officer’s decision is based on a ‘facially legitimate and bona fide reason.’” (Pak at 8 (citing Yafai v. Pompeo, 912 F.3d 1018, 1021 (7th Cir. 2019)).)

The plaintiffs argued that the right of U.S. citizens to live with their family members is protected by the Due Process Clause of the Fifth Amendment; the circuit court assumed that this right exists in order to consider whether the visa application denials implicated the constitutional rights of the plaintiffs’ U.S. citizen family members. (Pak at 9.) This argument failed because the plaintiffs did not provide evidence to overcome the presumption that the decisions to deny the visas were facially legitimate and bona fide. (Pak at 9.) The circuit court came to this conclusion because the Supreme Court has previously held that “the government need only provide a citation to a valid statutory provision to support a visa denial.” (Pak at 9 (citing Kerry v. Din, 576 U.S. 86, 105 (2015) (Kennedy, J., concurring)).) The circuit court found that there was “at least a facial connection to terrorist activity,” because the plaintiffs completed military service in the IRGC, which had been designated a terrorist organization, and they submitted their IRGC military identification cards to the consular officers. (Pak at 10 (citing Din, 576 U.S. at 105 (Kennedy, J., concurring)).)

Affirmative Showing of Bad Faith

Finally, the circuit court considered whether there was “an affirmative showing of bad faith” that would allow a court to review a consular officer’s decision. (Pak at 10 (citing Din, 576 U.S. at 105 (Kennedy, J., concurring)).) The plaintiffs argued that the consular officers acted in bad faith because some of the visa applicants presented the consular officers with evidence that their military service consisted of civil-service tasks. (Pak at 11.) However, this evidence was submitted after the visa applications were denied, and there was no statutory obligation for consular officers to reopen the plaintiffs’ applications upon receiving new evidence. (Pak at 11.) The plaintiffs also argued that the consular officers acted in bad faith because they never requested that the plaintiffs offer evidence of their IRGC service. The circuit court rejected this argument as well because it was the plaintiffs’ burden to submit any evidence that they had. (Pak at 11.)

Conclusion

The circuit court expressed sympathy toward the plaintiffs for being denied TRIG exemptions without explanation but reinforced that they had received the information to which they were entitled on the basis of previous Supreme Court decisions. (Pak at 12.) As a result, the circuit court affirmed the District Court’s dismissal of the plaintiffs’ case. (Pak at 12.)

Sarah Friedman, Law Library of Congress
February 27, 2024

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Chicago citation style:

Friedman, Sarah. United States: Appeals Court Refuses Review of Visa Denials for Four Iranian Nationals Under Doctrine of Consular Nonreviewability. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-02-26/united-states-appeals-court-refuses-review-of-visa-denials-for-four-iranian-nationals-under-doctrine-of-consular-nonreviewability/.

APA citation style:

Friedman, S. (2024) United States: Appeals Court Refuses Review of Visa Denials for Four Iranian Nationals Under Doctrine of Consular Nonreviewability. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-02-26/united-states-appeals-court-refuses-review-of-visa-denials-for-four-iranian-nationals-under-doctrine-of-consular-nonreviewability/.

MLA citation style:

Friedman, Sarah. United States: Appeals Court Refuses Review of Visa Denials for Four Iranian Nationals Under Doctrine of Consular Nonreviewability. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-02-26/united-states-appeals-court-refuses-review-of-visa-denials-for-four-iranian-nationals-under-doctrine-of-consular-nonreviewability/>.