Introduction
In 1995, fourteen-year-old Edvin Colindres Juarez, a Guatemalan citizen, crossed the United States border without inspection.
He lived in New York with his family for a few years before moving to Florida, where he worked for a pool-finishing company.
In 2006, he married Kristen, a U.S. citizen; two years later, the couple welcomed a daughter.
Mr. Colindres built a life in the United States, all the while lacking documentation to be legally in the country.
To stabilize his precarious foundation, he hoped to secure a visa and fix his immigration status.
People “unlawfully present” are ordinarily not issued visas,
but the Attorney General waived this prohibition as applied to Mr. Colindres in 2015, finding that the Colindres family would face extreme hardship without Mr. Colindres in the United States.
In June 2019, Mr. Colindres traveled to Guatemala to complete the final step of the visa process: an interview with a consular officer.
He packed lightly, expecting a quick trip.
He was wrong. After multiple interviews, a clean criminal record check, and almost a year’s delay, a consular officer denied Mr. Colindres’s application.
The officer claimed that “‘there [was] reason to believe’ that he was ‘a member of a known criminal organization.’”
The embassy provided no evidence to support this assertion,
leaving Mr. Colindres to speculate how the officer could believe he was “seek[ing] to enter the United States to engage . . . in . . . unlawful activity”
when he had a clean criminal record and had been peacefully living in the United States for twenty-four years.
The officer’s reasoning did not matter: When Mr. and Mrs. Colindres appealed the visa denial, the court dismissed the case for failure to state a claim, holding that the consular nonreviewability doctrine barred review of the officer’s decision.
Mr. Colindres voluntarily trusted the immigration system to adjust his status. In response, the U.S. government labeled him a criminal and banned him from his home of more than two decades.
Mr. Colindres’s story highlights the immense, unchecked power of consular officers over the visa process.
Immigration to the United States almost always requires a visa,
and consular officers determine who is eligible to receive one.
Consular officers churn through hundreds of applicants in a day, making “judgement call[s]” after minutes-long interviews.
In such a pressure-packed environment with limited information, bias creeps in and mistakes are inevitable.
At its worst, this discretion enables consular officers to exploit their positions for personal gain or to promote racist ideologies.
But even in ordinary applications, the discretion still creates arbitrary results. Visa acceptance rates vary widely by officer and location.
The unfortunate reality of the visa process is that Mr. Colindres’s rejection was likely influenced more by the officer adjudicating his application than the merits of his case.
Notwithstanding the potential for error, visa denials are almost impossible to challenge in court.
When reviewing visa decisions, courts apply consular nonreviewability—an extensive form of deference originating from the racially motivated Chinese Exclusion Case of 1889.
Under consular nonreviewability, judges do not second-guess consular visa decisions. Historically, there has been a small exception when a decision “allegedly burdens the constitutional rights of a U.S. citizen.”
Even then, the courts limit its review to only consider whether the consular officer gave a “facially legitimate and bona fide reason” for the denial.
Despite an increase in judicial scrutiny over other areas of immigration law
and broader antideference and antidelegation trends,
consular nonreviewability remains robust.
In fact, days before overturning Chevron deference,
the Court expanded the discretion of consular officers over visa decisions.
In United States Department of State v. Muñoz, the Court reversed a successful visa denial challenge
and curtailed consular nonreviewability’s already limited exception.
The Muñoz decision has enormous implications both for the families involved in the visa process
and the prevalence of judicial review in immigration law.
Every year, hundreds of thousands of people rely on the spousal visa process to establish lawful permanent resident status in the United States.
For people like Mr. Colindres, who are denied a visa based on a mere citation to a catch-all statutory provision, judicial review makes the ultimate difference.
And given broader trends in immigration and administrative law, it is worth questioning the logic of empowering unelected administrative officials with such unchecked authority.
This Note discusses the future of consular nonreviewability after Muñoz and its implications for the immigration system. Part I provides a history of consular nonreviewability, explaining its theoretical foundation, legal development, and application to spousal unity cases. Part II introduces the Ninth Circuit’s short-lived Muñoz exception, discusses how the Supreme Court struck it down, and describes the consequences of this decision for the visa system and broader administrative law. Recognizing the practical impossibility of judicial review, Part III charts a path forward. By requiring consular officers to provide factual and timely explanations for visa denials, Congress can inject greater fairness into the visa application process and better align consular nonreviewability with broader immigration and administrative law—while respecting national security concerns, consular and judicial efficiency, and immigration exceptionalism.