The U.S. Supreme Court on Monday upheld the long-standing doctrine of consular non-reviewability by ruling that visa refusals cannot be subjected to court review. Furthermore, the Supreme Court held that the denial of a visa to a U.S. citizen’s spouse does not impact the citizen’s own constitutionally protected interest.
The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a very similar of immigration law’s exceptional “plenary power” doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch.
In refusing to disturb the federal government’s reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
According to the Department of Homeland Security (DHS) statistical yearbook, more than 200,000 noncitizens immigrate every year through a marriage to a U.S. citizen. The U.S. Census Bureau reports that over 1.5 million couples residing in the United States are native-born U.S. citizens married to noncitizens; another 4.4 million couples are naturalized citizens and noncitizens. U.S. citizens may file visa petitions for their spouses. However, the approval of a spouse’s visa petition does not automatically confer the right to enter the United States. A visa must still be issued.
Here is a copy of the opinion: