Case Update (25 Aug 2026): Quarcoo v. Edlow; consular nonreviewability doesn’t apply before a consular officer has even reviewed the application

This case involves an adoption of a Ghanaian child. In December 2016, the child’s biological mother abandoned her at a hospital in Ghana, who then notified the country’s Department of Social Welfare (DSW), which granted custody of the child to Jane Aggrey, the daughter of Petitioner Quarcoo. Aggrey decided to adopt the child. When granted custody, Aggrey was temporarily in Ghana, but she lived and worked in New Jersey. Petitioner lived in Silver Spring, Maryland, and is a lawful permanent resident of the USA. Petitioner’s family has a home in Ghana, and her sister lived there. Aggrey returned to NJ and started the intercountry adoption process. During this time Petitioner left Silver Spring, traveled to Ghana, and cared for the child at the family’s home for approximately 2 years. Aggrey visited the child in Ghana, taking “months of leave” from her job to do so. COVID-19 then shut down borders, and in April 2020, Aggrey unexpectedly passed away in New Jersey. Petitioner then returned to the USA, leaving the child in her sister’s care, and continued to pay for the child’s needs. At some point, she learned that she could adopt the child herself and petition for an immigrant visa, but only if she first became a U.S. citizen. She decided to naturalize. In conjunction with her naturalization application, she submitted a Ghanaian “Register of Births” (aka birth certificate) dated February 25, 2021, identifying the child’s parents as Aggrey and a man named Kofi Adom. Petitioner Quarcoo became a U.S. citizen in July 2022. She then sought to adopt the child, and secure a visa for the child. She filed a Form I-800A, which was approved by USCIS.

Certain legal developments then occurred in Ghana. On March 22, 2023, the High Court ordered the child placed in the care of its DSW, giving it legal authority over the child. On July 18, 2023, Ghana issued a Register of Births for the child, identifying the child’s biological mother as a woman named Mary Dankwah. This differed from the 2021 Register of Births that Petitioner submitted with her naturalization application. In August 2023, the Ghana Adoption Authority (GAA) issued a Child Study Report, which identified the child as an orphan eligible for adoption. It issued several additional documents, including a Declaration of Adoption, granting Petitioner clearance to proceed with the adoption under the Hague Adoption Convention. It also provided irrevocable consent to transfer legal custody of the child to Quarcoo. On August 31, 2023, Petitioner filed a Form I-800A visa petition with USCIS for preliminary approval. She attached the Child Study Report and other documents issued in Ghana. On January 3, 2024, the USCIS issued a Notice of Intent to Deny the Form I-800. It requested several additional documents, including a consent form from Kofi Adom. Quarcoo responded on February 6, 2024, with additional documents. In it, there was a letter from a GAA employee trying to explain the error in the 2021 Register of Births, which listed Kofi Adom as the child’s father. On May 7, 2024, USCIS denied the Form I-800, primarily based on the confusion of Ghana’s listing of Kofi Adom on the birth certificate. It was also concerned with the proof of Aggrey’s death, and the chain of the child’s custody from the agency to Aggrey to Quarcoo. Quarcoo filed a lawsuit challenging the denial of the Form I-800. She argued that USCIS acted arbitrarily, capriciously, and contrary to law because the DSW had legal custody and provided irrevocable consents, therefore the child’s natural parents need not consent. She also argued that USCIS ignored documents and improperly substituted its judgment for that of the GAA. USCIS sought to dismiss the complaint for failure to state a claim, and argued that the Petitioner’s claims were barred by the “doctrine of consular nonreviewability”.

What is the doctrine of consular nonreviewability? It means that federal courts generally may not review a consular officer’s decision to deny a noncitizen a visa, and is grounded in the principle that “the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” The presumption is that consular officers have special expertise that judges do not - including in local conditions in foreign countries, diplomatic relationships and protocols, and national security needs. “The Supreme Court has ‘assumed’ that there is a ‘narrow exception’ to the consular nonreviewability doctrine ‘when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.’” If this exception even exists, it is tight, and seemingly doesn’t apply so long as the Executive branch gives a facially legitimate and bona fide reason for denying the visa. Here, Quarcoo argues that she is asking the court to review a decision of USCIS, not the decision of a consular officer. Therefore, this doctrine does not apply, by her estimate.

The District Court agreed with Quarcoo. While there are some past cases where one may argue that acts by others are tantamount to consular officer decisions, the court felt there is a distinction to be drawn here. In other words, the District Court believes that USCIS officials who adjudicate Forms I-800 are not necessarily equal to consular officers so that they fall under the consular nonreviewability doctrine. “To draw that conclusion would ignore the basic design of the Hague Convention visa framework, which assigns USCIS and State Departmetn officials distinct roles: The former determine preliminary questions of visa eligibility and the latter determine whether to grant visas to those who qualify. Further … there is no suggestion that the USCIS officials who denied Quarcoo’s Form I-800 make admissibility determinations from posts outside the United States [like consular officers].” Here, the State Department had not yet even gotten involved, as the petition was denied at the USCIS stage. In this case, a visa denial by a consular officer has not yet even occurred. The doctrine does not apply.

The USCIS’s motion to dismiss is denied.