The United States Supreme Court recently granted the Government’s petition for a writ of certiorari in Kerry v. Din, and will review the Ninth Circuit Court of Appeals’ reversal of a U.S. District Court order dismissing Plaintiff Fauzia Din’s claims for a writ of mandamus and declaratory judgment in a case involving application of the doctrine of consular non-reviewability to a visa denial. Subject to a limited exception, the doctrine of consular non-reviewability deprives federal courts jurisdiction to review the actions of consular officials. Din, a U.S. citizen, had successfully petitioned for immediate relative classification on behalf of her husband Kanishka Berashk, a citizen of Afghanistan who had worked for the Taliban government while being employed as a clerk in the Afghan Ministry of Social Welfare. Berashk subsequently applied for an immigrant visa at a U.S. consulate. A consular officer refused Berashk a visa, linking him with terrorist activities which rendered him statutorily inadmissible. Beyond citing to the statute, however, the consular officer did not provide the factual basis for the visa denial. Din asserted standing as a U.S. citizen and sought relief in U.S. District Court, which granted the Government’s motion to dismiss Din’s claims. The Ninth Circuit reversed the U.S. District Court’s order, concluding that the doctrine of consular non-reviewability did not shield Department of State from liability for refusing to provide Berashk information regarding the reasons for refusing him a visa. The dissent would have affirmed the U.S. District Court’s order and upheld the application of the doctrine of consular non-reviewability, citing Department of State’s interest in not divulging information that could compromise national security.
Timothy D. Widman is a Immigration Attorney and the owner of the Law Office of Timothy D. Widman, with offices in San Jose and Cupertino.