Immigration Petition Denied at U.S. Consulate

One of the most difficult challenges in immigration law is dealing with a denial of a petition at a U.S. consulate. The main reason being that there is very limited appeal options and in most instances, no appeal option beyond asking the consulate to reconsider their decision (In most cases, this is likely no going to change the decision). There is no appeal to the BIA. Further, there is very limited review in the federal court system. This is largely due to the doctrine of “consular nonreviewability” that began in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). All appelate circuits in the United States more or less have universally upheld the rule that generally denies judicial review of consular decisions regarding the issuance or denial of a visa. The few exceptions to this rule includes reviewing a denial to make sure that there was at least a facially plausible reason for the denial. This unfortunately does not include delving into the fact finding (or lack thereof) into why the decision was rendered as long as the reason is facially legitimate.

Because of this nonreviewability doctrine, doing well at one’s interview is extremelly important. For example, if one has been in the United States previously and is hoping to file an I-601 waiver, if for some reason the consular officer believes that you have committed an act of smuggling because you crossed the border with others you knew even if they were not paying you to help them and your only involvement is that you happened to be traveling with the person. If the other person was anyone but an immediate family member, you are now permanently barred from entering the United States without the ability to ask for someone else to look at your case.

Because this doctrine of nonreviewability can create some extremelly harsh results, federal courts are starting to entertain arguments relating to the depravation of constitutional rights to U.S. citizen family members that now cannot be with a denied spouse. This path is uncertain and one still must overcome the major hurdle of having a court not toss out a case on a 12(b)(6) motion for failing to state a cause of action upon which relief can be granted. However, there is likely to be some major court battles relating to this issue due to the amount of increased deportations over the past few years. More and more families in the United States are part immigrant and one parent not being able to return lawfully causes major hardship on a family.

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