By Gabriela Baca | 64 Am. U. L. Rev. 591 (2015)

Before entering the United States for permanent or temporary residence, most noncitizens must complete a series of administrative procedures and background checks.  The final step in the process is an interview with a consular officer in the noncitizen’s home country.  That step, in most cases, determines whether a spouse can permanently rejoin her U.S.-citizen husband or wife in the United States or whether another immediate family member can permanently reside in the same home as her U.S.-citizen family member.  After a consular officer decides to admit or deny entry to a noncitizen family member, there are limited opportunities for administrative or judicial review of the consular officer’s decision.

For decades, federal courts have adhered to the doctrine of consular nonreviewability to limit judicial review of a consular officer’s visa decision.  This doctrine, rooted in the legislative and the executive branches’ plenary power over immigration matters, first emerged in Kleindienst v. Mandel.  Since then, federal courts have interpreted the doctrine—in some instances limiting the doctrine’s reach, and in others, allowing for more judicial review.  In 2014, the U.S. Supreme Court granted certiorari in Din v. Kerry, a U.S. Court of Appeals for the Ninth Circuit decision, which held that a visa denial impinges on a U.S. citizen’s constitutionally protected interest in her marriage to a noncitizen spouse.

Without the opportunity for either an administrative appeal or judicial review of a visa denial, a single consular officer can force a U.S. citizen, like Mrs. Din, to live apart from her closest family member or to relinquish a stable life and employment in the United States to move abroad with her noncitizen family member.  This Comment argues that the visa denial of a U.S. citizen’s family member implicates that citizen’s fundamental Fifth Amendment due process rights—therefore allowing judicial review of the denial—because the Supreme Court has long recognized the liberty interests involved in marriage and in living with one’s immediate and extended family.

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