US Supreme Court affirms the doctrine of Consular Non-Reviewability

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:

http://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Supreme Court Rules for Due Process for Immigrants

The U.S. Supreme Court ruled Monday that an appeals court can review the Board of Immigration Appeals’ refusal to toll a bid to reopen a removal case based on legal malpractice , siding with a both the U.S. government and a Mexican citizen whose former Attorney failed to timely file documents in a case.

The Supreme Court justices ruled Monday in favor of Noel Reyes Mata, a Mexican national  who had lived in the United States years. The government began deportation proceedings after he pleaded guilty to an assault charge.

An immigration judge ordered him removed/ deported. He appealed, but his attorney missed the filing deadline ( 90 days) . A new attorney tried to reopen the case, but the Board of Immigration Appeals refused.

Mata appealed to the 5th Circuit U.S. Court of Appeals, but the court ruled  it had no authority to order a deadline extension.

The Supreme Court said the court did have such authority.

http://www.supremecourt.gov/opinions/14pdf/14-185_i4