Doctrine of Consular Non-Reviewability Defense on Visa Processing Stopage Fails

 

 

There is a separate case not included in the recent court cases summary by the State Department. See below what the  Court says about visa processing or the absence of it, and the consular non-reviewability doctrine (see PHILIP KINSLEY, et al., v. BLINKEN et al.  Civil Action No. 21-962):
“While the Court concurs with Defendants that some Plaintiffs lack standing or have claims that are now moot, it also concludes that, as to the nine remaining Plaintiffs, their claims are justiciable, and State acted improperly in suspending visa issuance based on the Proclamations.”
[…]
Defendants believe that “Plaintiffs cannot challenge the actions of the Secretary of State to implement a proclamation issued by the President under 8 U.S.C. § 1182(f).” Id. at 20. They argue that the Supreme Court has “long recognized the power to expel or exclude aliens as a  fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks and citations omitted); see also Def. MTD/MSJ at 20. In particular, they suggest that the “principles underlying [the doctrine of consular non-reviewability] similarly preclude review of the Secretary’s decision to implement a proclamation issued under 8 U.S.C. § 1182(f) because the President suspended entry, and thus determined that a class of noncitizens were ineligible for a visa.” Def. MTD/MSJ at 21.
This is familiar territory. This Court and others in this district have already rejected similar arguments rooted in the doctrine of consular non-reviewability because that doctrine only applies once a decision has been reached on a specific application. See Milligan v. Pompeo, 502 
F. Supp. 3d 302, 317 (D.D.C. 2020) (“[T]he doctrine [of consular non-reviewability] however, is not triggered until a consular officer has made a decision with respect to a particular visa application.”) (internal citation and quotation marks omitted); see also Tate v. Pompeo, 513 F. 
Supp. 3d 132, 142 (D.D.C. 2021), dismissed sub nom. Tate v. Blinken, No. 21-5068, 2021 WL 3713559 (D.C. Cir. July 22, 2021) (“The D.C. Circuit has held that the consular non-reviewability does not apply where plaintiffs ‘do not challenge a particular determination in a particular case of matters which Congress has left to executive discretion’ but instead improperly promulgate rules in violation of statute.”) (internal citation omitted); Gomez v. Trump, 485 F. Supp. 3d 145, 176 (D.D.C. 2020), amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v. Biden, No. 20-1419, 2021 WL 1037866 (D.D.C. Feb. 19, 2021) (“District courts in this jurisdiction consistently have held that when the suit 
challenges inaction, as opposed to a decision taken within the consul’s discretion, there is jurisdiction.”) (internal citations and quotation marks omitted).
Given this repeated determination, there is no reason that the “principles underlying [the consular non-reviewability] doctrine” would preclude the Court from reviewing implementation of policy relating to the Proclamations. Nor does Plaintiffs’ challenge risk “diminish[ing] the 
President’s ability to exercise his broad authority under 8 U.S.C. § 1182(f) to exclude non-citizens.” Def. MTD/MSJ at 22. Even a successful suit would affect only whether visa applications must be adjudicated, not whether visas should actually be issued or individuals allowed to enter once they have received a visa. The Court thus finds the Department’s no-visa policy reviewable.

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