Ninth Circuit Recognizes First Amendment Rights of US Citizen when Non-Citizen Spouse is Denied Visa

The Ninth Circuit has recognized that a U.S. citizen’s First Amendment rights made be implicated when her non-citizen spouse is denied a visa. “Mandel’s central holding—that the government must offer a facially legitimate and bona fide reason when its inadmissibility determination implicates a U.S. citizen’s First Amendment rights—remains good law.” The court then concluded that “the consular officer’s belief that Sanchez is a member of a known criminal organization is sufficient to establish a facial connection to the statutory ground in question.”

“At no point has the government conceded that Sanchez’s tattoos played any role in the visa denial. Appellants would like us to assume that the tattoos were the true justification due to Sanchez’s lack of a criminal record and the consular officer’s alleged focus on his tattoos during the interview. But we are not privy to the full breadth of information available to the officer, as ‘information provided by law enforcement”’can encompass details not located in a formal record. For us to delve further into the particulars of the officer’s investigation would subvert the purpose of the facially legitimate and bona fide standard—a standard that affords even more deference to the government than rational basis review. In sum, the consular officer cited 3A2 and concluded that there was ‘reason to believe’ Sanchez is a member of a criminal organization after reviewing interview statements, law‑enforcement information, the immigration record, and all other submissions. For the purposes of our limited inquiry, the government has proffered a facially legitimate and bona fide reason.”

“Although this case presents some troubling allegations, there is not enough to conclude that the consular officer’s visa denial, which was reviewed by both a supervisor and the Department of State’s Visa Office, was made in bad faith. Appellants again point to the officer’s alleged focus on Sanchez’s tattoos during the interview, the government’s failure to identify a specific gang to which Sanchez belongs, and Sanchez’s lack of a prior criminal record. Greater detail about the basis for the consular officer’s determination would have satisfied our native curiosity, but Appellants have offered no direct evidence that the officer ignored contrary findings or relied on clearly erroneous facts, and we have no license to require further explanation from the State Department. For us to demand greater explanation would improperly interfere with the consular officer’s discretion over visa denials and subvert the design of the consular nonreviewability doctrine.”

The full text of Sanchez Gonzalez v. U.S. Department of State can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/04/30/23-4205.pdf

Seventh Circuit Indicates that Doctrine of Consular Nonreviewability May Apply to Decisions Made by Non-Consular Officials

The Seventh Circuit has indicated that the doctrine of consular nonreviewability made extend to findings of inadmissibility made by officials in the United States.

“Muñoz describes the doctrine as one under which ‘the action of an executive officer to admit or exclude an alien’ is not substantively reviewable. We applied the doctrine to a decision by a non-consular officer in Matushkina v. Nielsen, 877 F.3d 289, 295 (7th Cir. 2017). How far the doctrine extends to visa revocations at a port of entry need not be resolved today; we flag this subject only to ensure that no one thinks that the doctrine has been confined inadvertently to decisions by the Department of State at consulates outside our borders.”

The full text of Dubey v. Department of Homeland Security can be found here:

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2025/D09-26/C:25-1207:J:Easterbrook:aut:T:fnOp:N:3430723:S:0

First Circuit finds Doctrine of Consular Nonreviewability does not Bar Review of Visa Category Reclassification

The First Circuit has determined that a consular post’s determination that a visa applicant was in the F-1 category, rather than an immediate relative, because he was over age 21 when his petitioning father naturalized, is reviewable by a federal court. The Court determined that the petition reclassification does not constitute a visa denial, and thus, does not implicate the doctrine of consular nonreviewability. The First Circuit also agreed with the Ninth Circuit that a beneficiary’s age at the time of a parent’s naturalization refers not to their biological age, but their CSPA-adjusted age. Thus, because the applicant’s CSPA-adjusted age was 20 at the time of his father’s naturalization, he was properly categorized as an immediate relative.

The full text of Teles de Menezes v. Rubio can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1253P-01A.pdf

DC Circuit Permits APA Challenge to FAM Guidance to Move Forward

The Court of Appeal for the District of Columbia has issued a decision permitting a challenge to the Foreign Affairs Manual’s guidance that a visa can be denied if there is a “reason to believe” the applicant has previously made a material misrepresentation. The court found that this forward facing challenge to the FAM was not a challenge to a visa denial, and thus, was not covered by the doctrine of consular nonreviewability. “[W]e are not confident that Congress authorized a consular officer unilaterally to deem a person to have made willful misrepresentations and thereby trigger permanent ineligibility for a visa based only on an implicit ‘reason to believe’ standard – especially considering its decision to make that standard explicit for other categories of noncitizens posing elevated risks to national interests.”

The full text of Pietersen v. Department of State can be found here:

https://media.cadc.uscourts.gov/opinions/docs/2025/05/24-5092-2118190.pdf

Tenth Circuit Addresses Consular Nonreviewability and First Amendment

The Tenth Circuit has issued a decision addressing a visa denial to a worship leader, and how the doctrine of consular nonreviewability intersects with the First Amendment rights of American citizens to hire a religious worker. First, the court determined that the Religious Freedom Restoration Act’s (RFRA) cause of action does not expressly authorize federal court of review of consular officers’ visa decisions. The court then concluded that the consulate has provided a bona fide and legitimate reason for denying the applicant’s visa by citing the fraud and misrepresentation inadmissibility statute. This citation was also supported by evidence in the record that the applicant had received honoraria while in the United States on a tourist visa. Finally, the plaintiff had not plausibly alleged bad faith because did not allege that the officer did not in good faith believe the information that he had.

The full text of Calvary Albuquerque v. Rubio can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111230435.pdf

The decision was later vacated after the visa applicant was granted a waiver of inadmissibility and a new visa application was approved, rendering the litigation moot:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111301154.pdf

Supreme Court Finds that US Citizen has not Protected Liberty Interest in Spouse's Visa

The Supreme Court has determined that a U.S. citizen does not a protected liberty interest in the adjudication of her spouse’s visa application, and thus, cannot use the procedural due process clause to obtain federal court review of the denial of that application. This decision may (sadly) close the door to one of the very few opportunities to obtain judicial review of visa denials in federal court and appears to be a whole hearted embrace by the Supreme Court of the doctrine of consular nonreviewability.

Apart from the legal reasoning in the opinion, the outcome seems out of step with the Biden Administration’s recent emphasis on family reunification, which is noteworthy as the Solicitor General, not Mrs. Munoz, sought Supreme Court review in this matter. In addition, just one week later, the Supreme Court issued its decision in Lopez Bright Enterprises, which emphasizes the role of federal courts in statutory interpretation and review of agency decisions under the Administrative Procedure Act. The Munoz and Loper Bright decisions seem philosophically at odds with one another.

The full text of Department of State v. Munoz can be found here:

https://www.supremecourt.gov/opinions/23pdf/23-334diff_q8l1.pdf

DC Circuit Finds US Citizen Spouse has No Constitutional Interest in Denial of Non-Citizen Spouse's Visa

The Court of Appeals for the District of Columbia Circuit has determined that the denial of a non-citizen’s visa does not impinge on any fundamental constitutional rights held by the applicant’s U.S.-citizen spouse. The court also found that a mere statutory citation to section 212(a)(3)(A)(ii) of the INA is sufficient to meet the “facially legitimate and bona fide” standard laid out by Justice Kennedy in Kerry v. Din and to shield the visa denial from any further review in federal court under the doctrine of consular nonreviewability.

The full text of Colindres v. DOS can be found here:

https://www.cadc.uscourts.gov/internet/opinions.nsf/AE00C9117C0E2443852589D7004ED982/$file/22-5009-2004709.pdf

Sabrina Damast and Eric Lee Explain Consular Nonreviewability

Sabrina Damast and her colleague, Eric Lee, discuss the doctrine of consular nonreviewability and the recent Ninth Circuit decision in Munoz v. Department of State:

https://thinkimmigration.org/blog/2022/12/20/the-doctrine-of-consular-nonreviewability-explained/

Ninth Circuit Reviews Visa Denial for Spouse of a US Citizen

The Ninth Circuit has rejected the government’s argument that it does not need to provide any factual basis for denying a visa to the spouse of a U.S. citizen on the ground that there is a reason to believe the person is coming to the United States to engage in criminal activity.

“We understand notice to be a key concern of Mandel’s facially legitimate and bona fide reason standard. We thus reject the government’s suggestion that it can comply with Cardenas’s ‘fact in the record’ formulation without providing the operative fact to a petitioner.”

In this case, the court was greatly concerned by the length of time it took the government to provide the “fact in the record.” “In reaching our conclusion in Cardenas, we noted that the consular officer himself ‘provided’ the reason within three weeks of the denial. Similarly, the visa applicant in Din was apprised of the reason for the denial—by reference to a statutory provision containing discrete factual predicates—within about a month of the denial. In this case, the government waited almost three years to provide comparable information to appellants and did so only when prompted by judicial proceedings.” “We thus conclude that, where the adjudication of a noncitizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” “Our understanding of reasonable timeliness is informed by the 30-day period in which visa denials must be submitted for internal review and the 1-year period in which reconsideration is available upon the submission of additional evidence.”

“Because no ‘fact in the record’ justifying the denial of Asencio-Cordero’s visa was made available to appellants until nearly three years had elapsed after the denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied Asencio-Cordero’s visa. This failure means that the government is not entitled to invoke consular nonreviewability to shield its visa decision from judicial review. The district court may ‘look behind’ the government’s decision.”

The full text of Munoz v. U.S. Dept of State can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/05/21-55365.pdf

The Ninth Circuit has denied the government’s petition for rehearing en banc:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/14/21-55365.pdf

Eleventh Circuit Construes Consular Nonreviewability Doctrine

The Eleventh Circuit has determined that the doctrine of consular nonreviewability does not deprive a federal court of subject matter jurisdiction over a challenge to a visa denial. However, the court also determined that the government is not required to proffer a factual predicate for a visa denial if the consular officer cites a ground of inadmissibility that specifies discrete factual predicates.

The full text of Del Valle v. Secretary of State can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201914889.pdf

Ninth Circuit Weighs in on Challenges to Visa Denials

The Ninth Circuit has issued a decision touching on two important legal questions surrounding the doctrine of consular nonreviewability, which typically prohibits the review of consular denials of visa applications. In this case, the court found that an adult US citizen I-130 petitioner had no protected constitutional interest in the immigrant visa application of his parent, in part, because they had no parent-child relationship established in the United States. In addition, the court provided some guidance on when the Department of State may be acting in bad faith when it denies a visa. Specifically, the visa denial appeared to be in direct contradiction to multiple determinations by USCIS that the applicant had not engaged in marriage fraud. This was sufficient to plead bad faith at the motion to dismiss stage.

The full text of Khachatryan v. Blinken can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/14/18-56359.pdf

Sixth Circuit Rejects Challenge to Visa Denial

The Sixth Circuit has determined that a lawful permanent resident has no recognized liberty interest in the issuance of an immigrant visa to his spouse.

The full text of Ahmed Baaghil v. Miller can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0134p-06.pdf

Ninth Circuit Discusses Consular Nonreviewability Doctrine

The Ninth Circuit has held that the consular nonreviewability doctrine does not impact a federal court's subject matter jurisdiction to hear a challenge to a visa denial.  The court concluded, however, that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits.  The consular officer need only provide a facially legitimate and bona fide reasons for rejecting a visa application.

The full text of Allen v. Milas can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/16-15728.pdf