Judge Amy Coney Barrett's Immigration Jurisprudence

Holding back an expansion of consular non-reviewability

By Andrew R. Arthur on September 25, 2020

Read More: Those Favoring Judicial Activism on Immigration Will Likely Be Disappointed With a Justice Barrett


With the vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg, Judge Amy Coney Barrett has emerged as the reported front-runner to replace her. While she does not have an extensive judicial record on immigration issues, one decision she authored — involving the principle of judicial non-reviewability of consular decisions — reveals some important clues about how she would rule on the High Court.

That decision, Yafai v. Pompeo, involved the denial of a visa to the wife (Zahoor Ahmed) of a U.S. citizen (Moshin Yafai) — and some very unusual facts.

Yafai and Ahmed were born and raised in Yemen, where they married. Despite the fact that he was married to a foreign national abroad, in 2001, Yafai became a naturalized citizen of the United States. Thereafter, Yafai filed Forms I-130, Petitions for Alien Relative, on behalf of Ahmed "and several of their children". Those petitions were granted, and each applied for a visa.

The consular officer denied Ahmed's visa under section 212(a)(6)(E) of the Immigration and Nationality Act (INA). That section renders inadmissible: "Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law." According to the consular officer's denial, Ahmed "attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai."

The couple contended that the two named individuals were their children, but that both of them had drowned. As Judge Barrett noted: "Although it is not entirely clear from either the record or the plaintiffs' brief, their position seems to have been that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased."

Subsequently, the consular officer requested additional documentation about the two children in order to reconsider Ahmed's visa application, specifically: "(1) vaccination records; (2) Khaled's school records; (3) hospital bills; (4) hospital birth records; (5) the police report from the drowning accident; (6) Khaled's passport; and (7) family photos."

After those documents were submitted, counsel for Yafai and Ahmed contacted the consulate for an update. The lawyer received an email response from the embassy's fraud prevention manager, who was working on the case. In that email, the fraud prevention manager admitted that there had been "some repetition in examining the circumstances of the purported deaths of two beneficiaries."

The manager asserted, however that the couple did "not testify credibly, testif[ied] contradictorily, den[ied] the existence of evidence, and otherwise cast doubt on the accuracy of their responses." That official continued:

Hence they were questioned by the interviewing officer who referred their cases to the Fraud Prevention Unit whereupon we explored the same issues in more detail with you[r] clients. Based on their testimony, we concluded the evidence which you attached did exist, hence we requested its production in an effort to corroborate the testimony of your clients, not impeach it. As of this writing, a fraud investigator is reviewing the evidence and we will finalize our fraud report for the adjudicating officer. [Emphasis added.]

Several months thereafter, the consular officer reaffirmed the denial of Ahmed's visa. In response, Yafai and Ahmed filed suit, seeking judicial review of that decision. They contended that the consular officer "acted in bad faith by ignoring evidence that Yaqub and Khaled were their children" and that the two were deceased.

The district court dismissed the suit under the doctrine of consular non-reviewability. As the U.S. Court of Appeals for the District of Columbia explained more than two decades ago:

In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers' actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.

As Judge Barrett noted, however:

The Supreme Court has identified a limited exception to this doctrine, however, when the visa denial implicates a constitutional right of an American citizen. ... Yet even in that circumstance, a court may not disturb the consular officer's decision if the reason given is "facially legitimate and bona fide."

Here, Yafai and Ahmed asserted that there was a constitutional right at issue, specifically Yafai's right to live in the United States with his wife. Judge Barrett noted that "the status of this right is uncertain", as a plurality of the Supreme Court, in Kerry v. Din (an extremely convoluted decision involving a three-justice decision, a two-justice concurrence, and a four-justice dissent) had held "that no such right exists."

Judge Barrett did not decide that issue, however, noting (with restraint) that the Seventh Circuit has "avoided taking a position on the issue in the past." Respectfully, if such a right were recognized, the exception would in many cases swallow the rule, so it could be argued that it would have been better if she had followed the lead in Din. That said, such a position likely would have invited rehearing en banc (assuming that she could have held a majority), so discretion may have been the better part of jurisprudence in this case.

But she had her reasons for not reaching the issue, inasmuch as she determined that even if denial of Ahmed's visa had implicated Yafai's constitutional right to live in the United States with his wife, she still would have to dismiss their appeal "because the consular officer's decision was facially legitimate and bona fide."

In making this determination, the court again showed judicial restraint in accordance with precedent. Looking to Justice Kennedy's concurrence in Din, she found: "For a consular officer's decision to be facially legitimate and bona fide, the consular officer must identify (1) a valid statute of inadmissibility and (2) the necessary 'discrete factual predicates' under the statute."

Applying that standard, the court held "the consular officer need not disclose the underlying facts that led him to conclude that the statute was satisfied". Here, the officer "cited a valid statutory basis" for denying that visa (section 212(a)(6)(E) of the INA), and also "provided the factual predicate for his decision", specifically: "You attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai."

Therefore, she concluded, "[n]o more was required", and in accordance with Supreme Court precedent, the court could not "look behind the exercise of" the consular officer's discretion.

It was at that point that Judge Barrett's reasoning got interesting, as the plaintiffs attempted to push the limits of the law. They argued for an exception to the principle of consular non-reviewability because, they contended, they could affirmatively show that the consular officer had acted in bad faith. Specifically, they contended, "the evidence they produced was strong, and the officer did not accept it."

Judge Barrett admitted that the law was not clear on how far a court could look behind a legitimate and bona fide decision by a consular officer in order to assess whether that decision was made in bad faith — assuming that the court was able to do so at all. That was a correct determination, inasmuch as the law on this issue is unsettled — particularly in light of the aforementioned convoluted decision in Din.

Covering all of her bases, however, she made a factual determination that even if the court could engage in more probing review, Yafai and Ahmed had "failed to make an affirmative showing that the" consular officer had denied Ahmed a visa in "bad faith". In this regard, she concluded that a showing of bad faith requires more than proof that the couple had received an "unfavorable decision".

Further, she concluded that while the State Department was not required to rebut the allegation of bad faith, "the evidence here reflects a good-faith evaluation of Ahmed's application", in particular the request that was made for additional evidence.

Note the highlighted portion of the excerpt above. Judge Barrett found that "the officer's willingness to reconsider Ahmed's application in light of additional evidence suggests a desire to get it right. And the embassy officer's email to the plaintiffs' lawyer reveals good-faith reasons for rejecting the plaintiffs' response to the smuggling charge."

Why do I describe this as "interesting"? Consular non-reviewability is nowhere near as settled an area of the law as it should be (and as unqualified precedent suggests it is), which means that an erroneous decision — either on the facts or on the law — could lead to an expansion of that doctrine in a way that would seriously impede the ability of consular officers to do their jobs.

"Hard cases make bad law", and this was, objectively, a hard case.

Worse, reversal based on such errors could extend the reach of the courts into an area where they have no expertise whatsoever.

Contrast Judge Barrett's determinations with those of Judge Kenneth Ripple in dissent.

First, he would have followed Justice Breyer's view in dissent in Din "that a United States citizen has an interest in an alien spouse's visa application", finding it "far more compatible with the values of our constitutional tradition" — (again, respectfully) an invitation for a baseless extension of the law.

Second, he would require the government in such cases to provide significantly more evidence than is required by precedent — an invitation to judicial interference in an area where judges' expertise is sorely lacking. He found:

On this record, we cannot tell whether the adjudicating officer undertook a careful examination or whether, without any examination, he simply issued a denial based solely on a generalized, stereotypical assumption of what, in his view, happens in that country.

I'll get back to that last line in a moment. He contends, therefore, that the court has:

[T]he obligation to require, at the very least, that the Government assure us, by affidavit or similar evidence, that it actually took into consideration the evidence presented by the applicant and point to some factual support for the consular officer's decision to discount that evidence.

To what end? It is called "the doctrine of consular non-reviewability" for a reason, but under Judge Ripple's logic and proposed solution, "review" is exactly what the court would be doing with that "factual support".

Returning to the last line in the penultimate excerpt, Judge Ripple's contentions about a "generalized, stereotypical assumption of what, in" a consular officer's view happens in a foreign country is, if not exactly "why", at least one of the reasons "why" the doctrine exists to begin with.

Those consular officers are in the field, most in the country from which visa applications come (or close to them). They are therefore more familiar with the local laws and customs (to say nothing of the local indicators of fraud and deception) than a judge sitting in, say, South Bend, Ind. But if the doctrine did not exist, the judge in South Bend would be second-guessing (and likely usually overruling) the consular officer in, say, Cairo, Egypt (the visa post that services Yemen).

That is not to say that visa determinations should be made based on stereotypes (they plainly and most definitely should not). But it would be all too easy for a judge to conclude that a consular decision was based on "stereotype" when in reality it was based on practical experience with country conditions someplace far away. Especially if the judge did not like the outcome (which Judge Ripple plainly did not).

Judge Barrett did what a judge should do: She applied the law in accordance with precedent, addressing all of the issues that were raised (factual and legal) where the law was not clear. As importantly, she did not leave any unresolved issues for subsequent review that could have expanded what is, and should be, an area of limited judicial review.

And, at least in the minds of the Seventh Circuit, she got the decision right, as a majority of the active judges in the circuit subsequently denied rehearing en banc.

Judge Barrett may or may not become the ninth justice on the Supreme Court. When it comes to immigration, however, she applies the law. And that is really all that I can ask.

Topics: Politics