US Ninth Circuit requires timely notice for certain US visa application denials
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US Ninth Circuit requires timely notice for certain US visa application denials

The US Court of Appeals for the Ninth Circuit ruled Wednesday that due process requires the US government to provide timely notice when it denies visa applications that implicate the constitutional rights of a US citizen. Circuit Judge Kermit Lipez wrote the opinion of the three-judge panel, and Circuit Judge Kenneth Lee dissented.

The case arose when the US Consulate in El Salvador denied the visa application of Luis Ernesto Asencio-Cordero. After the denial, Asencio-Cordero and his US-citizen wife, Sandra Muñoz, sought judicial review of the decision. There was nearly a three-year delay in the US providing the plaintiffs with the reasoning for their denial. The US District Court for the Central District of California granted summary judgment in favor of the US based on the doctrine of consular nonreviewability. The plaintiffs appealed the decision nevertheless.

Under the doctrine of consular nonreviewabiliy, generally, a consular official’s decision to deny a visa to a foreigner is not subject to judicial review. However, where the denial of a visa affects the fundamental rights of a citizen, judicial review of the visa decision is permitted if the government fails to provide “a facially legitimate and bona fide reason” for denying the visa. Additionally, there is a 30-day period in which the US must submit visa denials for internal review and a one-year period in which reconsideration is available upon the submission of additional evidence and approvals.

The US Court of Appeals for the Ninth Circuit ruled that, where the adjudication of a non-citizen’s application implicates the constitutional rights of a US citizen, due process requires the government to provide the citizen with timely and adequate notice of their decision. The court vacated the district court’s grant of summary judgment and remanded the case for further proceedings.

Here, the nearly three-year delay violated the rights of Muñoz. Because the government was not entitled to invoke consular nonreviewability to shield its visa decision from judicial review, the district court could “look behind” the government’s decision on remand.