A New Crack in the Consular Nonreviewability Armor: Arias v. Garland

Arias v. Garland

"The Court is sensitive to consular officers’ broad—and usually unreviewable—authority to adjudicate visa applications. Even so, Mandel places a burden on the Government to provide a modicum of explanation for a visa denial when a citizen’s constitutional rights are implicated. Here, without more specific information as to why Mr. Sandoval’s visa was denied, Ms. Arias lacked “the ability to vindicate her liberty interest, whether through the presentation of additional evidence or initiation of a new petition.” Muñoz, 50 F.4th at 922. Accordingly, the Court finds that the consular officer failed to provide a facially legitimate and bona bide factual basis for the denial of Mr. Sandoval’s visa, and under the Mandel exception, Ms. Arias has stated a claim for the denial of her due process rights. ... If the consular officer could satisfy the Mandel exception to the doctrine of consular nonreviewability simply by citing any valid statutory basis for inadmissibility—without regard for whether the statute specifies discrete factual predicates—Mandel would be a dead letter. ... Defendants are ORDERED to answer the Amended Complaint no later than 14 days from the date of this Order and provide initial disclosures no later than 30 days from the date of this Order."

[Hats way off to Sabrina Damast and Amy Lenhert!  Sabrina comments, "Huge shoutout to Eric Lee, who did a lot of heavy lifting in helping me draft an opposition to the motion to dismiss (and who was lead counsel in Muñoz, the case cited by Judge Brooks)."]