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including a “special effort" to improve the training provided to officers.26
The Consular Officers' Association, an informal organization of Foreign Service and GS consular specialists, has stated that the training provided to consular officers is insufficient, particularly in the areas of language training and area studies. 27 Although the State Department has taken a “forwardlooking attitude” towards training and has greatly improved the basic training course for junior officers, it has apparently not placed enough emphasis on the importance of foreign language proficiency and a familiarity with area culture and politics in consular work. 28
I would say that the most serious thing is the power which is vested in the American consul to issue or refuse a visa, and that decision is not reviewable by even the Secretary of State, and it certainly is not reviewable in the courts. Congress has, by implicit legislation - I think it's Section 104—has excluded the consul. A relatively petty official, a vice consul, for instance, his decision on whether to issue a visa or not is not reviewable by the Department of State Visa Office, except as to questions of law, but a question of fact is not reviewable by the Secretary of State, and it cannot be overturned, no matter how unjust, even in court. And I think that's one crying area where there is such a potential for abuse, and it is being abused, that it needs reform.29
Sister Adela Arroyo, director of Catholic Services for Immigrants in San Antonio, Texas, testified:
Reviewability of Consular Visa
Witnesses at the Commission's State Advisory Committee open meetings and at the Washington hearing of the United States Commission on Civil Rights expressed dissatisfaction with the current visa application procedure. According to testimony, one of the worst problems encountered in the entire immigration process is an inadequate system for review of consular visa decisions. Benjamin Gim, a New York immigration attorney and former president of the Association of Immigration and Nationality Lawyers, stated at the Washington hearing:
[M]any times the gravest and greatest problems are with the U.S. consuls who are under the State Department. The consuls operating in a foreign land become like kings in their own domain. Even the Secretary of State does not have the authority to direct a consular officer to grant or refuse a visa. And in addition, a refusal by a consular officer to issue a visa is not reviewable by the U.S. court system.30
36 The report stated:
The quality of the consular work force needs to be strengthened.
emphasis on more effective supervisory attention.
2* Ibid., pp. 2–3. Mr. Leininger, on behalf of the COA, stated:
The Department has, in our opinion, taken a forward-looking attitude
consular work in Amsterdam (emphasis supplied in the original).
When an application for a visa is denied, State Department regulations provide for a rudimentary system of review of that denial, 31 generally consisting of a reevaluation of the case by the principal consular official or supervisory consular officer. That officer, under the regulations, can reach one of three decisions: (1) concur with the junior consular officer in denying the visa, in which case the visa application is retained in the permanent files of the consular office and no further action is taken, (2) conclude that the denial is unwarranted and assume responsibility for the particular case and issue the visa or discuss the conclusion with the junior officer to persuade him to reverse the original decision, or (3) disagree with the determination and request guidance from the State Department in making a decision. If guidance is requested, the case would be forwarded to the Visa Office of the State Department in Washington for an advisory opinion or for a departmental ruling from an appropriate official of the Bureau of Consular Affairs.
Even without a specific consular request, the State Department may initiate a review of a visa applications and issue an advisory opinion to the consular officer for consideration. However, regardless of who initiates the review, rulings of the State Department are only binding as to questions of law. Questions of fact are left to the absolute discretion of consular officers. 33
Other than this limited supervisory review, the Secretary of State is clearly prohibited by statute from considering the issuance or denial of visas in individual cases. The Secretary of State is given supervisory authority over consular activities in administering and enforcing the immigration laws “except (for) those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas” (emphasis added). 34 A party aggrieved by a consular decision is also denied access to Federal court to seek redress, since courts have consistently held that, without explicit statutory language authorizing such review, visa refusals are immune from judicial scrutiny.35
Elizabeth J. Harper, Deputy Assistant Secretary of State for Visa Services, testified that the review process begins when the supervisory consular official, normally the chief of the consular section, reviews the paperwork of each visa denial case, looking at the case anew by examining the files and other materials presented by the junior consular officer to determine whether "good judgment” was exercised. If necessary, the consular officer will request additional information from either the applicant or the junior officer prior to making a determination, but such requests are rare, according to Ms. Harper, because "most denials are well-documented."36 She acknowledged that applicants who have been denied visas receive no notification of the
31 For nonimmigrant visas, State Department regulations provide:
(b) Review of refusals at consular offices. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or an alternate whom he may specifically designate, shall review the case of an applicant who has been refused a visa and shall record his decision over his signature and the date on a form prescribed by the Department. If the ground of ineligibility may be overcome by the presentation of additional evidence, and if the applicant has indicated that he intends to obtain such evidence, a review of the refusal may be deferred for a period not to exceed 120 days. If the principal consular officer, or his alternate, does not concur in the refusal, he shall (1) refer the case to the Department for an advisory opinion or (2) assume
responsibility for the case himself. 22 C.F.R. $41.130(b) (1979). For immigrant visas, State Department regulations provide:
(b) Review of refusals at consular offices. The principal consular officer at a post, or an alternate whom he may specifically designate, shall review without delay the case of each applicant who has been refused a visa and shall record his decision over his signature and the date on a form prescribed by the Department. If the principal consular officer, or his alternate, does not concur in the refusal, he shall (1) refer the case to the Department for an advisory opinion, or (2) assume
respor ity for the case himself. 22 C.F.R. $42.130(b) (1979). » Although it is not stated in its regulations, the State Department has indicated that such a review may be upon "its own initiative or at the request of interested parties." Harper Letter. » State Department regulations provide:
(c) Review of refusals by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if a nonimmigrant visa has been refused. The
Department will review such reports and may furnish an advisory opinion to the consular officer for his assistance in giving further consideration to such cases. If upon the receipt of the Department's advisory opinion the consular officer contemplates taking action contrary to the advisory opinion, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, shall be binding upon consular
officers. 22 C.F.R. 941.130(c) (1979) (although this section applies only to nonimmigrant visas, 22 C.F.R. $42.130(c) (1979) provides for similar review of immigrant visas in almost the identical language). Although advisory opinions may not be binding on consular officers, the State Department asserted that:
In practice the consular officer in the field is considered to be the best judge of the facts of the case and the Department's advisory opinions are restricted to advice as to the application of the law to the facts. While in a legal sense an advisory opinion is not controlling on the individual consular officer's action, we have experienced only rare and
isolated instances where the Department's opinion was not accepted. Harper Letter. * Immigration and Nationality Act, $104(a), 8 U.S.C. $1104(a)(1976). 35 Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir. 1929), cert. denied, 279 U.S. 868 (1929) (holding that consular visa decisions are nonreviewable absent an express statutory provision); Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D. III. 1960) (holding that the statutory scheme provided by Congress for excluding aliens, whatever it is, is due process, citing Knauff v. Shaughnessy, 338 U.S. 537 (1949), and that only congressional action could remedy the statutory scheme); Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961) (where the court recognized in a footnote the immunity of consular visa decisions from review, citing Ulrich v. Kellogg). ** There is evidence, however, that there is insufficient documentation of
The former president of the Association of Immigration and Nationality Lawyers, Steven S. Mukamal, supported this view:
every once in a while you do have a consular officer who will lose sight of the purpose of why he's there and function outside the law, the existing law, and there's nothing that you or I could presently do about it. . . .It does not sit right with me that this country which has a democratic process should permit this type of system to continue and it absolutely requires change.41
subsequent review of their application "unless they ask about it,” and that applicants and/or their legal or personal representatives have no automatic access to the review process.37 A visa denial may be appealed to a superior officer if the applicants demand to see a higher ranking official, and, although there is no absolute requirement that attorneys be allowed to participate in the review process, permission may be granted for an attorney to accompany an applicant who has gained access to a reviewing consular official. Ms. Harper characterized the current review process as "a modest appellate system in order to ensure that there are no abuses by consular officers.. not really to weed out officers as much as to preclude injustice to the applicants.”38
Immigration practitioners, however, often disagree with the conclusion that the existing review system is adequate to preclude injustice to applicants and have criticized its failure to ensure that aggrieved parties 39 are accorded the procedural safeguards that are available in other settings under traditional due process doctrine. Immigration attorney Laurier McDonald, in his testimony on the consular visa process, stated:
At a minimum, due process requires that an aggrieved party receive notice of the review procedure, an opportunity to be heard, and the right to an appeal or review of an inequitable or unjust decision. The present system of review for consular visa decisions does not adequately provide these due process safeguards to an aggrieved party. In fact, the picture that emerges of the current review of visa denials is that of a relatively informal process in which visa applicants generally do not participate. 43 Other Federal Government agencies, even where issues of lesser impact than the separation of families are at stake, have established formal appellate review systems for the denial of benefits under our laws that accord greater rights of due process. 44
In its own examination of the visa application process, the State Department reached findings that support the need for an improved appellate system beyond the perfunctory review that currently exists. After conducting its internal inspection and review of the consular function, the State Department
The American process stops at the threshhold of the American consulates abroad. I have never seen any other phase of the Federal agencies anywhere to measure up to the lack of due process that exists within the American consulates and the American embassies abroad. This not only includes Mexico, this is anywhere in the world.40
the grounds for some visa denials. For example, a visa may be denied under
or legal residents and American business enterprises. A visa denial can
rience dates from 20 years ago when they were junior officers.
concluded, generally, that some consular officers were inadequately trained and supervised" and recognized inconsistencies in the performance of consular officers, attributable, in part, to the subjective attitudes of officers and to the absence of adequate guidelines for decisionmaking. 46
A review procedure is necessary to help ensure that the law will be applied equally and consistently to all visa applicants, but the present review system does not ensure that result. Although the Deputy Assistant Secretary of State for Visa Services testified that all visa denials are “reviewed by regulation,”7 the President's Reorganization Project of the Office of Management and Budget, in its analysis of the review procedures for visa denials, concluded that "only a rudimentary appeals process exists and is rarely used."'48 Furthermore, the lack of adequate supervision, as noted in the State Department's own review of the consular function, raises serious doubts as to the effectiveness of the current supervisory review. The Consular Officers' Association, which has been critical of the overall supervision of the consular function, stated:
At posts such as these—and even at some larger missions at which local practices may have come to dominate what is regarded as standard procedure—the ability of the Inspection Corps to function as an instrument that assures equitable and consistent application of law and regulation and provides helpful insight into consular management problems is paramount. Sadly, the Inspector Corps itself has not been able to staff its teams with senior, experienced consular officers, primarily because there simply are not enough of them to go around. 49
Consular sections at posts overseas are notoriously thinly-layered. As a consequence, the officer whose main occupation ought to be the supervision of the junior officers and the general management of the consular program is more often than not pressed into duty as a caseworker, eight hours a day.
The current review process is more akin to a managerial review than an appellate review. Broadly speaking, a managerial review is a unilateral appraisal by a supervisor of the performance of a subordinate employee to determine whether the work product is proper and efficient, whereas an appellate review is generally a more formal process wherein an administrator, judge, or other arbiter resolves a dispute after both parties have been given due notice and an opportunity to argue and support their respective contentions. Under present review procedures for visa denials, the supervisory consular officer reviews only the decision of the junior consular officer by examining the paperwork of the case to determine whether good or bad judgment was exercised, 50 unless a denied visa applicant is aware of the review process, demands access, and is granted an opportunity to defend the merits of his or her case.51
Inadequate training and the lack of uniform decisionmaking in certain types of cases support the need for reviewability of consular visa decisions. Similarly, the inadequacy of the supervision and the absence of procedural safeguards under traditional due process doctrine necessitate the establishment of a formal review process beyond the current managerial review.
One area in which appellate review should be available is the situation where consular officers
That presupposes, however, that a nominal supervisory consular officer exists. Actually, at about one-fifth of the posts in which consular work is performed, there is no full-time consular officer, let alone supervisor. At an additional one-third, there is but one consular officer, who is almost invariably on his or her first or second tour and who, at such posts, is most likely to have the least qualified and helpful local national staff. An additional one-sixth of all consular establishments are two-officer operations, with the senior-most of those being no more than 0-5 and more frequently, an 0-6. In offices such as these-over two-thirds of all consular sections—the only available senior supervision comes from officers whose own consular expe
"S U.S., Department of State, "Report of the Consular Functions of the Department of State” (December 1977), p. 7. ** For example, the Visa Office has recognized, at least with respect to visa denials on public charge grounds í action 212(a)(15) of the act), that a lack of uniform decisionmaking might be the result of such factors. AINL, Visa Practice Committee, Report of Meeting with Visa Office, U.S. Department of State, Sept. 28, 1978, p. 5. " Harper Testimony, Washington Hearing Transcript, p. 195.
** James T. McIntyre, Jr., Office of Management and Budget, memorandum (on law enforcement, border management, and immigration policy reorganization) to President Carter, June 1, 1978. * Wayne S. Leininger, chairman, Consular Officers' Association, letter to the Office of the General Counsel, U.S. Commission on Civil Rights, Dec.
11, 1978, pp.
50 Harper Testimony, Washington Hearing Transcript, p. 196. 51 Ibid., pp. 195-96.
retain original documents submitted by an applicant in support of the visa application.52 According to Ms. Harper, documents presented with an application are retained if a visa is denied and the document is germane to the refusal. Although she was unaware of any request for recovery of retained documents, Ms. Harper admitted that there is no State Department instruction or process whereby an applicant can recover original documents that the applicant asserts are neither fraudulent nor in his or her wrongful possession.53
One frequently overlooked problem of the current review process is the protection of the rights of American citizens, legal residents, and business enterprises. An examination of the consular review process usually concentrates exclusively on the rights available to the denied visa applicant, although “[f]or the most part, the aggrieved party in this instance is not necessarily the alien abroad but it would be the petitioner in the United States.”54 Milton R. Konvitz, in his book Civil Rights in Immigration, described the situation:
The dissenting opinion of Mr. Justice Frankfurter in Knauff v. Shaughnessy recognized that Congress, in enacting the War Brides Act, had "extended the privilege for the benefit not of the alien but of her American husband.”57 Similarly, the current immigration selection system is designed to benefit Americans and American businesses. The preference system gives the greatest priority to the reunification of American citizens and legal residents with their families living abroad. American businesses are given the next greatest priority so they may achieve the admission of certain foreign nationals with professional or technical skills that are needed. The benefits derived from a visa issuance, whether the pursuit of qualified employees or the “preservation of family units,"58 are indeed substantial. Similarly, the harmful effects of a visa refusal are also substantial. Americans who have suffered an injury from an adverse consular visa decision should be entitled to have some redress. Any aggrieved party, not merely the denied visa applicant, "should be recognized as having sufficient interest in a visa application case to have standing to take an appeal.”:59
As matters stand now, in every situation involving an alien knocking on our door for admission, attention is focused only on the alien. He may seek entry because he has been invited by a son or a father, or other close relative, or by a distinguished university, or by a responsible church or synagogue, or by a committee of famous scholars who are planning an international conference. Such circumstances may, in some instances, put the alien in a preferred class substantively, but procedurally such facts will make little difference. The case never becomes one involving the rights of the American citizens who seek the alien's admission. The sponsoring citizens do not enjoy any special legal status or rights in the proceedings. 55
Findings and Recommendations Finding 4.1: It would be sound procedural practice for all consular officers to prepare written memoranda of their decisions on visa applications that set forth fully their conclusions and the evidence supporting their conclusions. In cases where the decisions of the consular officer are challenged, the written memoranda would facilitate the review process. Recommendation 4.1: The Secretary of State should promulgate regulations that require each consular officer to record in written memoranda a detailed statement of the reasons for the decision on each visa application. Finding 4.2: The current Department of State process for the review of consular visa denials does not adequately protect aggrieved parties from improper exercises of consular discretionary authority.
Although the denial of a visa effectively bars a person from legally entering the United States, the visa application process does not contain adequate 56 Ibid., p. 79. 57 Knauff v. Shaughnessy, 338 U.S. 537, 549 (1949).
NOTE, "Judicial Review of Visa Denials: Re-examining Consular Nonreviewability," New York University Law Review, vol. 52 (1977), pp. 1137, 1154. 58 American Jewish Committee, Americanizing Our Immigration Laws (1949), as cited in Konvitz, Civil Rights in Immigration, p. 79, n. 208.
52 Ibid., p. 206. Cornelius D. Scully, Chief of the Regulation and Legislative Branch of the Visa Office, stated, however, that he “assumed” that an arrangement could be made to make a copy of the original for the consular file “if the applicant needed" the original. Scully Testimony, Washington Hearing Transcript, p. 206. 58 Harper Testimony, Washington Hearing Transcript, p. 207. 5* Mukamal Testimony, Washington Hearing Transcript, p. 237. 56 Milton R. Konvitz, Civil Rights in Immigration (1953), p. 78.