Monday, July 20, 2009

Second Circuit on consular reviewability

Score one for accountability. The Second Circuit has ruled that aggrieved individuals can finally get into Court to challenge Department of State determinations of visa ineligibility, because the District Courts have jurisdiction to hear claims by individuals who believe their visa was wrongly denied.

This is huge news because Consular Officers have wide discretionary authority over the issuance of visas. It is called the "doctrine of consular nonreviewability", or in layman's terms, "you can't to squat about it". Prior to this decision there has been little that we could do to combat an adverse determination, but now it appears as though accountability will finally come into the equation, which may improve the quality of adjudications at Consulates abroad.

I can't wait to see how this plays out.

"The Court of Appeals concludes that the District Court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability; the statutory provision expanding visa ineligibility to those who contributed funds to an undesignated terrorist organization before the provision was enacted was validly applied to Ramadan; the knowledge requirement of the statute required the consular officer to find that Ramadan knew his contributions provided material support; the consular officer was required to confront Ramadan with the allegation against him and afford him the subsequent opportunity to demonstrate by clear and convincing evidence that he did not know, and reasonably should not have known, that the recipient of his contributions was a terrorist organization; and the record was unclear whether the consular officer had done so." Ramadan v. Napolitano, July 17, 2009.

No comments:

Post a Comment