Sunday, January 29, 2012
Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.
Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage. The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act." That section allows exclusion of a visa applicant from the United States for any of six security-related grounds. The Consulate did not reveal the precise ground for exclusion.
Mostofi sued, arguing that the exclusion violated her fundamental right to marry.
Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches. But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).
The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation. Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest." Op. at 7.