Immigration Irony: Doctrine of Consular Non-Reviewability Is Under Judicial Review

This article was last updated on April 16, 2022

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It should come as no surprise to anyone who tracks immigration matters that immigration enforcement is under assault from its opponents in open borders and immigrant advocacy groups. Note, here, that I mean “enforcement” in its broadest sense, to include denial of immigration benefits to aliens deemed ineligible.

The assault on enforcement is being waged across many fronts, not just in courts of law, but also in the court of public opinion. Advocacy groups are treating this as a war for the “hearts and minds” of Americans.

On the legal front, they pick and choose their cases well, looking for those outliers that cast the system — and those who enforce or administer it — in the worst possible light. They choose their venues with equal care, electing to bring cases forward in judicial forums where they believe they have the best possible chance of success. They also cooperate and coordinate with one another on legal strategies, filing amicus curiae (friend-of-the-court) briefs, and sharing information across a broad spectrum of cases.

And they have begun to focus many of their lawsuits on state and local jurisdictions that commit the cardinal sin of cooperating with federal immigration efforts, in an attempt to drive a wedge between the federal government on one hand and its state and local partners on the other, if not out of disaffection or kowtowing by some state and local cops to their political masters, then through fear of being caught up in a costly legal battle that saps time, resources, and morale.

Open borders and amnesty advocates, however, also have been happy beneficiaries of a miracle not engendered by their own strategic cleverness. Few could have foreseen the extraordinary (and constitutionally dubious) help they would be given by the Obama administration in ways large and small in vacating the field of immigration control to these advocates. Even as they pound the president to do more, his cabinet officers and agency leaders continue to go out of their way to ensure that giveaway programs are created out of whole cloth; abandon their legal responsibilities to administer and enforce the law “without fear or favor”; and bolt from lawsuits, leaving their state and local partners hung out to dry.

The difficulty for the administration — one that they should have seen coming — is that, in opening the door to a barrage of lawsuits, they sometimes find themselves on the back end of a case that even they are obliged to defend vigorously to the end because the consequences of not doing so are too high.

In a recent development, we see that advocacy groups are now expanding their legal assault on one of the last bastions of a rational immigration policy: the policy of judicial non-reviewability of decisions made by consular officers, to deny visas to aliens outside the United States seeking to come to our shores for any one of dozens of reasons. (It is a curious oxymoron of our legal system that only judges, by thoroughly reviewing a case, may ultimately sustain the concept of “judicial non-reviewability”, is it not?)

The case in question, Madeline Cardenas and Rolando Mora-Huerta v. United States, has been working its way through the courts and is now in the federal ninth circuit court of appeals, one of the most liberal in the country (on all matters, not just immigration). As usual, the plaintiff is benefiting from legal representation almost certainly provided pro bono (free) by advocacy groups, and supported with amicus briefs filed by law professors who are in favor of open immigration policies.

The gist of the case is this: Madeline Cardenas, a U.S. citizen, married Rolando Mora-Huerta, who resided illegally in the United States for a considerable period before being informally expelled from the country by means of voluntary departure. At the time of his departure, Mora-Huerta had had petty brushes with the law; he had never been convicted of anything even remotely felonious. Based on the marriage, a petition was filed by Cardenas to accord Mora-Huerta status as an immediate relative, permitting him to apply for an immigrant visa at one of the American consulates in Mexico. During interview, Mora-Huerta was repeatedly questioned as to whether he was a member of the infamous gang Surenos (“Southerners” by strict definition from the Spanish but also an abbreviation in that SUR is sometimes intended by gang members to mean “Southern United Raza” (race)). The gang is also sometimes known as Surenos-13.

All of the bases for the consular officer questioning gang membership are not known, but one was surely that Mora-Huerta bears a number of tattoos, which is often, but not always, a trademark of serious gangbangers. (Examples of tattooed Surenos may be seen in the photographs exhibited here.) Of most concern to the consular officer, according to the court record, was one of the tattoos in particular: a “tattoo of two theatrical masks, a symbol often referred to as ‘smile now, cry later.'” (Exactly such a tattoo can be seen about halfway down the gallery of photos mentioned earlier, in the left-hand column.)

Ultimately, the consular officer denied Mora-Huerta’s request for a visa, a decision upheld at the State Department’s Bureau of Consular Affairs’ Washington, D.C., headquarters, leading to the lawsuit seeking to force a reversal through review in the courts. Although the presiding judge found no evidence that the consular officer abused his discretion or acted outside the law or regulation, neither did he dismiss the plaintiffs’ complaint, permitting them to amend it instead. Nonetheless, the amended complaint was ultimately dismissed, leading to the instant appeal to the ninth circuit.

The subtext of the case in some ways obscures the importance of the matters at play: plaintiffs and their advocates would argue that the evidence is too ambiguous to justify a denial, and that Mora-Huerta’s petty brushes with the law belie a gangster. Perhaps having been jaded by too many years in law enforcement, I do not necessarily accept that lack of a substantive criminal history equates to “all around good guy”. When thinking about such claims it is always instructive to remember that Al Capone, notorious gangland boss, bootlegger, and murderer, was only arrested and incarcerated for tax fraud.

What is more, we cannot be certain what was considered by the consular officer that is outside of the public record — information of a classified nature (admittedly doubtful) or, more likely, information labeled “law enforcement sensitive” — which is covered by the confidentiality provisions of law that relate to visa applications and decision-making.

But the most important issue at stake here is what is known as the doctrine of consular non-reviewability. The doctrine, which is a fundamental feature of immigration administration, and which has been upheld by a 1950 Supreme Court ruling and subsequent judicial decisions, and strengthened by the 1996 immigration act, says essentially that decisions made by consular officers are subject to administrative review within the agency, but may not be challenged in the courts.

The legal justification for this doctrine is grounded in the plenary authority of Congress over immigration matters and in long-standing judicial rulings that the ability to exclude aliens is a basic function of sovereignty best exercised by the political branches.

The equally important practical justification for this doctrine is that our system for admitting foreign visitors simply would collapse if the millions of unsuccessful visa applicants had the right to challenge that refusal in U.S. courts, even if only a small fraction of those millions took advantage of the opportunity. According to State Department statistics, in 2013 more than 2.2 million applicants for non-immigrant visas were found to be ineligible, and about 1.5 million were unable to overcome that finding after review. Our judicial system is already burdened with hundreds of thousands of deportation appeals, many of which are frivolous and launched simply to buy time in the United States. There is no logical reason to create an opportunity for citizens of other nations to game our judicial system from overseas.

It is important to remember that we are not speaking about a trial here, where there is a presumption of innocence. According to statute, the burden rests on the applicant to prove to the consular officer that he deserves to be admitted to the United States, not the reverse. The reason for this is to protect the American people. If the baseball rule “tie goes to the runner” applies here, then the “runner” is us, not Mora-Huerta. Let us hope that the justices of the ninth circuit remember this when they go about their deliberations.

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