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Washington Law Review

Abstract

United States consular officers stationed abroad exercise enormous discretion in deciding whether to grant or deny applications for visas by foreign citizens. The process for reviewing visa denials is exceptionally limited. Federal rules and regulations and consular practices do provide for internal review of visa denials, members of Congress and the media occasionally press for review of individual cases, and the Visa Office in the Department of State issues advisory opinions from time to time on matters of both fact and law. This process is, however, inadequate for several reasons. Time and budgetary constraints generally prevent consular officers from recording reviewable explanations for denials and from undertaking comprehensive internal review of denials. Other factors limiting internal review are the absence of any provision for attorney access to the process, the refusal of the Visa Office to disclose its opinions to applicants, and a dearth of objective standards and guidance for conducting internal review of denials. By relying on ambiguous and often antiquated authority, the State Department and the courts have prevented more formal administrative review within the Department and have narrowly restricted judicial review. In doing so, courts have rendered questionable interpretations of a provision for consular discretion in the Immigration and Nationality Act and have largely ignored both the requirements of the Administrative Procedure Act and international law. The resulting nonreviewability of most visa denials is anachronistic and peculiar. Although the author's field observations indicate that consular training and decision making are of a high quality, a more formal review process would be beneficial. The availability of administrative and judicial review of visa denials would encourage greater consistency and uniformity of decisions on visa applications and better serve the interests of fairness and legitimacy. This study concludes with two sets of recommendations. The first set is of a general nature whereas the second, more detailed set takes account of alternative levels of funding for improving the review process.

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