ORCID (Links to author’s additional scholarship at ORCID.org)
Jeffrey D. Kahn: https://orcid.org/0000-0002-8857-5647
This brief argues that certain visa application denials, particularly those based on information originating from agencies other than the Department of State, can be qualitatively different from denials based on consular discretion. Although the end result looks the same – “Visa Denied” – denials based on database and watchlist information maintained in the United States by the Department of Homeland Security, the FBI, and other agencies, bear little resemblance to the traditional exercise of consular discretion because the specific information which requires the consular officer to deny these visas is usually not available for him or her to evaluate. Real decision-making in these cases has in effect been ceded to the database and watchlisting process, in which government agents other than consular officers affix a label (e.g., “known or suspected terrorist”) that is then used as a proxy for consular judgment.
As a consequence, visa denials that rely on database and watchlist information frequently involve no consular discretion and are compelled by conclusory statements for which the underlying basis is unseen and unevaluated by a consular officer.
Judicial review should be available for visa applications denied on grounds extending beyond consular discretion, with appropriate restrictions to prevent release of classified information. Judicial review is especially appropriate when a U.S. citizen’s family unity is at stake.
During their public service, Amici on the brief were collectively responsible for assessing tens of thousands of visa applications, as line consular officers and in supervisory capacities. Now, as then, they are interested in maximizing the accuracy and fairness of weighty decisions about whom to admit to the United States, particularly when U.S. citizens’ family reunification is at stake. They submit this brief to clarify the role that consular officers and other government actors play in the current visa-security system when evaluating visa applications that may implicate national security.
Amici on the brief are former consular officers with decades of experience working for the Department of State: Bushra A. Malik, Robert A. Mautino, Stephen R. Pattison, William R. Rosner, Peter van Buren, and Micah Watson.
Brief of Amici Curiae Former Consular Officers in Support of Respondent, Kerry v. Din, No. 13-1402 United States Supreme Court