Case Update (31 Jan 2024): Humaid v. Garland; doctrine of consular nonreviewability divested the federal court of jurisdiction in this visa dispute

International family lawyers routinely work with clients who move between countries. Therefore, a large part of their practice revolves around clients who apply for travel documents, including passports and visas.

In this case, a father (a U.S. naturalized citizen) sought to bring his three daughters to the United States. In the statement of facts, the court concluded that the three daughters were citizens of Yemen. Their mother is now deceased, and their biological father is the petitioner. However, at the time of their respective births, their mother was married to another man, and each daughter took his middle and last names, and not the names of their petitioner father. In 2007, the biological petitioner father submitted Form I-130, seeking to classify his daughters as his immediate relatives. The petitioner and daughters submitted to DNA testing to establish their biological relationship. After submitting the test results to USCIS, it approved the I-130 petitions in 2009. In 2013, the three daughters then appeared in Sanaa, Yemen at the U.S. Embassy for their immigrant visa interviews. At their interviews, they presented documents to consular officers that reflected their birth names (i.e., the middle and last names of their mother’s husband at the time of their births). The consular officer who was conducting the interview concluded that each daughter “intended to deceive the officer because her ‘correct identity’ matched the middle and last name of her biological father rather than the name listed on the identity documents that she presented at the interview.” Their visa applications were rejected for “making a material misrepresentation.” Despite the rejection indicating that their petitions would be sent back to USCIS for revocation, they were actually forwarded to the U.S. Embassy in Djibouti, where, on June 5, 2022, the daughters underwent immigrant visa interviews again, and their visa applications were rejected, again, on the same grounds. On some unspecified date, the daughters obtained a court order in Yemen to legally change their middle and last names to match their petitioner father, instead of their mother’s former husband, also obtaining new identity documents. On November 1, 2022, they submitted a request to the Embassy in Djibouti to approve their visa applications or suspend action and return their petitions to USCIS for further action. Their father now petitions for relief, and the U.S. federal government seeks to dismiss his lawsuit.

The court dismissed the lawsuit. “Federal courts generally lack jurisdiction to review a consular officer’s rejection of a visa application under the doctrine of consular nonreviewability.” The only exception is if a citizen’s constitutional rights are violated, but this narrow exception is not available if the consular officer provided a “facially legitimate and bona fide reason” for denying the visa, which occurred here. The consular officer, both in Sanaa and in Djibouti, found that the daughters had violated 8 USC 1182(a)(6)(C)(i) and made a willful material misrepresentation, which is a facially legitimate and bona fide reason for the consular officer to deny the visa application. Therefore, this matter is not reviewable by the court. Furthermore “visas are not a ‘life, liberty, or property interest sufficient to invoke the protections of due process.’”