Wednesday, January 28, 2015

Law Professors Weigh in in Kerry v. Din

ImmigrationProf has been covering Kerry v. Din, a case pending in the Supreme Court in which the doctrine of consular nonreviewability is at issue. 

Six amici curiae briefs have been filed, all on behalf of Respondent Fauzia Din.  One of the briefs was submitted on behalf of 73 professors and academics who teach immigration law at law schools throughout the United States.   ImmigrationProf bloggers Kit Johnson and Rose Villazor were among the amici.  Here is the summary of the argument from that brief:

"This brief is submitted to provide the Court with historical background regarding the origins, nature, evolution, and limits of the so-called doctrine of consular non-reviewability. In Part A, we describe the initial adoption by Congress of a visa requirement and describe two important early cases that arose shortly thereafter, United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir. 1927), and United States ex rel. Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir. 1929). Although these cases are often cited as the cornerstone of consular non-reviewability, they do not support the position that consular decisions denying visas are inherently or absolutely unreviewable. As Part B explains, subsequent cases failed to reexamine these premises even in the face of significant statutory developments, such as the enactment of the Administrative Procedure Act and the Immigration and Nationality Act, as well as the later elimination of the amount-in-controversy requirement for general federal question jurisdiction. In Part C, we describe this Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972), which recognized limited review of visa decisions to ensure that the action had a “facially legitimate and bona fide” basis. The Mandel decision recognizes that judicial review is appropriate when the rights of U.S. citizens are at stake but limits the judicial role because of plenary power concerns. In Part D, we explore the development of this “facially legitimate and bona fide” standard and argue that, consistent with this standard, judicial review can and should include: (1) review of questions of law, to ensure that the decision of the consular officer does not violate the governing statute or regulations; (2) review to ensure that there is a bona fide factual basis for the decision; and (3) review to ensure that minimally fair procedures have been used in making the decision. This limited review respects the plenary power of Congress and the Executive Branch but also provides limited protection for the constitutional rights of U.S. citizens that are at stake. Finally, in Part E, we note that this interpretation of the “facially legitimate and bona fide” standard is fully consistent with 8 U.S.C. § 1182(b)(3), which limits the obligation of the government to provide details behind a denial based on certain grounds of inadmissibility."

The full brief is at Download 13-1402_amicus_resp_lawprofs.authcheckdam

Robert Pauw of Gibbs Houston Pauw is counsel of record on the law professors brief.

 Oral argument is set for February 23.  Stay tuned.


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