consular nonreviewability.pdf

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AI Disclaimer This Instant Memo was drafted entirely by Artificial Intelligence using a combination of proprietary models built by Alexi and large language models like GPT-4. AI is prone to error, and as such there may be small and large mistakes. You should review the cited cases to ensure conclusions drawn are accurate. You should also check to ensure the law reflected in this memo is up to date, especially in situations where new legislation may have recently been passed. Nevertheless, you CAN have confidence that all caselaw passages and case citations presented in the memo are accurate and will not be hallucinated (i.e. made up). For more specific questions about the capabilities of Alexi Instant Memos, please email [email protected]. Instant Memo Memo To: Heera Galma, Heera File: No File Selected Regarding: family based immigrant visa Research ID: #400035437f4f096 Jurisdiction: Federal State/Forum: Minnesota, United States of America Date: September 1, 2024 Issue Does the doctrine of consular nonreviewability apply to visa application refusals that potentially involve constitutional violations, such as due process concerns? Research Description Legal issue: I am writing regarding my DS-260 visa application. My husband and I have been in a relationship for six years and have been married for four years and eight months. During my interview on July 10, 2024, my visa application was refused under Section 221(g) of the Immigration and Nationality Act (INA), with further recommendations for visa revocation concerning 6C1. I am contacting you to address errors in my visa application and resolve concerns about misrepresentation that may lead to my petition being returned back to the USCIS. Alexi | Page 1 Argument to approach this issue: Consular Nonreviewability Doctrine. The doctrine of consular nonreviewability may not apply if there are constitutional violations, such as due process concerns, that have not been properly addressed. These violations must be considered in the review of the visa application refusal. Answer The doctrine of consular nonreviewability generally precludes judicial review of consular officers' decisions to issue or withhold visas due to the political nature of visa determinations and the absence of express statutory authorization for such review. However, there are exceptions to this doctrine: judicial review is permitted if the visa refusal burdens a United States citizen's constitutional rights or if a statute expressly authorizes review. This doctrine does not apply to non-final visa decisions, such as those in administrative processing, which have not been definitively refused. Furthermore, when a visa refusal constitutes a final decision and no constitutional claims are raised in the complaint, the doctrine bars review of the decision. A fundamental element of due process requires the government to provide an adequate reason for refusing to grant a visa, potentially including the factual basis for the decision or a specific statutory subsection. Courts have jurisdiction to review constitutional claims or questions of law, even in the context of consular nonreviewability, and review such claims de novo. An allegation that evidence was not considered may implicate due process concerns, thus providing jurisdiction to review the claim. The doctrine of consular nonreviewability generally applies to visa application refusals, shielding consular officers' decisions from judicial review. However, exceptions exist, particularly when the refusal implicates the constitutional rights of a U.S. citizen, such as due process concerns. In such cases, a limited judicial inquiry may be conducted to determine if the refusal was based on a 'facially legitimate and bona fide' reason. Furthermore, the doctrine does not apply to decisions that are not yet final. Therefore, if your visa application refusal potentially involves a violation of your constitutional rights, such as due process, it may be subject to judicial review. This analysis is a prediction, as the abstracts do not offer a definitive conclusion on the specific question asked. Alexi | Page 2 Legal Principles Consular officers have the exclusive authority to review applications for visas. The consular nonreviewability doctrine shields a consular official's decision to issue or withhold a visa from judicial review. However, two exceptions to this doctrine exist: one permits judicial review of a consular decision if the exclusion of a noncitizen burdens a citizen's constitutional rights, and the other if a statute expressly authorizes judicial review. The doctrine of consular non-reviewability precludes review only of final visa determinations and does not apply to challenges regarding decisions that are not yet final. Cases in administrative processing have not been finally refused and are therefore subject to judicial review for undue delay. (Asresash B.T. v. Blinken, 22-cv- 1300 (WMW/JFD) (D. Minn. 2023)) The doctrine of consular nonreviewability applies in light of the political nature of visa determinations and the lack of express statutory authorization of judicial review of consular officers' actions. A limited exception to the doctrine applies where the denial of a visa implicates the constitutional rights of a United States citizen. The doctrine applies to decisions that implicate any interest United States citizen spouses may have in their alien spouse's visa application, so long as the Government provides a 'facially legitimate and bona fide reason' for its decision to deny a visa. Plaintiffs can invoke an exception to the doctrine of consular nonreviewability if the government violated their constitutional rights based on the bad faith conduct of the consular officer. (Mendoza-Ayala v. Pompeo, Civil No. 19-2522 (DWF/TNL) (D. Minn. 2020) ) A noncitizen denied admission via consular processing is entitled to nothing more than a cite to the statute under which the consular officer decided to exclude him and has no opportunity for administrative or judicial review. Decisions often rely on stereotypes or tropes, even bias or bad faith, leading to disparate outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer they happen to be assigned. The State Department's Office of the Inspector General has documented numerous deficiencies in consular processing across several continents. When the Government requires one spouse to leave the country to apply for immigration status based on his marriage, it therefore asks him to give up the process he would receive in the United States and subject himself to the black box of consular processing. (Dep't. of State v. Munoz, 23-334 (U.S. 2024) ) Alexi | Page 3 A fundamental element of due process is a statement of reasons, allowing an individual to understand why the government acted as it did. Such a statement serves as a 'notice' of the proposed action and provides the individual an opportunity to meet the case causing the adverse effect. Due process cases often balance the private interest at stake, the risk of an erroneous deprivation without the sought-after protection, and the Government's interest in not providing additional procedure. Unless in highly unusual circumstances, the Constitution requires the Government to provide an adequate reason for refusing to grant a visa, which could be either the factual basis for the decision or a sufficiently specific statutory subsection. (Kerry v. Din, 576 U.S. 86, 192 L.Ed.2d 183, 135 S.Ct. 2128 (U.S. 2015)) No court has jurisdiction to review any final order of removal against an alien who is removable due to a criminal offense. This does not prevent review of constitutional claims or questions of law raised in a petition for review filed with an appropriate court of appeals. The court's jurisdiction does not extend to review of the agency's findings of fact or discretionary judgments. A petitioner cannot create jurisdiction by characterizing a factual question as a constitutional claim or question of law. The Court reviews de novo constitutional claims and questions of law, properly raised in a petition for review. An allegation of wholesale failure to consider evidence implicates due process, giving the court jurisdiction to review such a claim. (Mocevic v. Mukasey, 529 F.3d 814 (8th Cir. 2008)) Courts do not have jurisdiction to review consular officials' determinations. The position of an INS District Director is distinct from that of a State Department consular official, but can be functionally equivalent when the official is an Executive Branch official, located outside the United States, deciding questions of admissibility brought before him by aliens who are also located outside the United States. Administrative decisions excluding aliens are not subject to judicial review unless there is a clear grant of authority by statute. A consular official's discretionary decision to grant or deny visa petition is generally not subject to judicial review. (Doan v. I.N.S., 160 F.3d 508 (8th Cir. 1999)) The doctrine of consular nonreviewability applies when the refusal constitutes a final decision on the visa application, and the Complaint contains no constitutional claims. There is no constitutionally protected right to live with one's foreign-born-child inside the United States. The Court cannot consider claims for review of the denial of a visa application according to the Alexi | Page 4 doctrine of consular nonreviewability. An attempt to avoid the doctrine of consular nonreviewability based on an assertion of a violation of fundamental rights fails if a constitutional claim is not asserted in the Complaint. (Osman v. Clinton, Civil No. 11-2953 (JNE/SER) (D. Minn. 2012)) Discussion of Law In Asresash B.T. v. Blinken, 22-cv-1300 (WMW/JFD) (D. Minn. 2023) , the U.S. District Court — District of Minnesota grants consular officers “exclusive authority to review applications for visas.” The consular nonreviewability doctrine “shields a consular official's decision to issue or withhold a visa from judicial review.” Two exceptions to this doctrine exist, however, and permit judicial review of a consular decision if the exclusion of a noncitizen burdens a citizen's constitutional rights, or if a statute expressly authorizes judicial review. Moreover, “the doctrine of consular non-reviewability precludes review only of ‘final visa determinations' and ‘does not apply to challenges regarding decisions that are not yet final.'” “Cases in administrative processing have not been finally refused and are therefore subject to judicial review for undue delay.”: See Baan Rao Thai Rest. v. Pompeo , 985 F.3d 1020, 1024 (D.C. Cir. 2021) The Immigration and Nationality Act (INA) grants consular officers “exclusive authority to review applications for visas.” Id. (internal quotation marks omitted). Accordingly, the consular nonreviewability doctrine “shields a consular official's decision to issue or withhold a visa from judicial review.” Id.; see also Doan v. I.N.S., 160 F.3d 508, 509 (8th Cir. 1998); Osman v. Clinton, Civ. No. 11-2953 (JNR/SER), 2012 WL 1060053, at *2 (D. Minn. Mar. 29, 2012). Two exceptions to this doctrine exist, however, and permit judicial review of a consular decision if the exclusion 5 of a noncitizen burdens a citizen's constitutional rights, or if a statute expressly authorizes judicial review. Baan Rao Thai Rest., 985 F.3d at 1024-25. Moreover, “the doctrine of consular non-reviewability precludes review only of ‘final visa determinations' and ‘does not apply to challenges regarding decisions that are Alexi | Page 5 not yet final.'” Sawahreh v. U.S. Dep't of State, Civ. Action No. 22-1456 (JEB), 2022 WL 4365746, at *3 (D.D.C. Sep. 21, 2022). “Cases in administrative processing have not been finally refused and are therefore subject to judicial review for undue delay.” Id. (internal quotation marks and citations omitted). Defendants argue that dismissal is warranted because consular officers have rendered a final adjudication of Deratu H.S.'s visa application, and that the consular nonreviewability doctrine, therefore, precludes any judicial review of that decision. To the extent that Plaintiffs' claim pertains to the initial F2A visa application that Plaintiffs allege Deratu H.S. submitted and consular officials denied in 2014, the consular nonreviewability doctrine bars Plaintiffs' claim. Baan Rao Thai Rest. , 985 F.3d at 1024. The parties do not dispute that consular officials adjudicated and denied Deratu H.S.'s application in 2014. Plaintiffs do not assert that either exception to the consular nonreviewability doctrine applies, and neither does. Plaintiffs, therefore, fail to state a claim for relief as to this theory, and dismissal is warranted. Alternatively, to the extent that Plaintiffs' claim pertains to the reapplication that Plaintiffs allege Deratu H.S. submitted in 2019, Plaintiffs argue, the consular reviewability doctrine does not bar the claim because Plaintiffs do not allege that any final consular adjudication of Deratu H.S.'s F2B application has occurred. Indeed, 6 Plaintiffs' claim pertains to the delay in any such adjudication and, therefore, necessarily alleges that Defendants' decision is not yet final. See Sawahreh, 2022 WL 4365746 at *3. In response, Defendants contend that Plaintiffs misunderstand the law that governs the application process for an immigrant visa, and that no new application (or reapplication) could have occurred when consular officials reclassified Deratu H.S.'s visa applications. Under the INA, certain changes in an immigrant-visa applicant's preference status prompt automatic conversions of the underlying Form I-130 petition. Alexi | Page 6 In Mendoza-Ayala v. Pompeo, Civil No. 19-2522 (DWF/TNL) (D. Minn. 2020) , the U.S. District Court — District of Minnesota stated that the doctrine of consular nonreviewability applies in light of the political nature of visa determinations and the lack of express statutory authorization of judicial review of consular officers' actions. However, a limited exception to the doctrine applies where the denial of a visa implicates the constitutional rights of a United States citizen. The exception is rooted in Kleindienst v. Mandel, where the Supreme Court engaged in a limited judicial inquiry into whether a consular officer's decision was based on a 'facially legitimate and bona fide' reason. The doctrine applies to decisions that implicate any interest United States citizen spouses may have in their alien spouse's visa application, so long as the Government provides a 'facially legitimate and bona fide reason' for its decision to deny a visa. Plaintiffs invoke an exception to the doctrine of consular nonreviewability, arguing that the doctrine does not apply because the government violated Plaintiffs' constitutional rights based on the bad faith conduct of the consular officer. Plaintiffs maintain that their asserted claim of a constitutional violation based on the bad faith actions of the consular officer makes this decision reviewable: To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain "detailed factual allegations," it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. As the Supreme Court reiterated, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556.7 Defendants' main argument is that this case should be dismissed under the doctrine of consular nonreviewability. The doctrine of nonreviewability "holds that a Page 10 consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise." Saavedra Bruno v. Albright, 197 F.3d Alexi | Page 7 1153, 1159 (D.C. Cir. 1999). The doctrine applies in light of the political nature of visa determinations and of the lack of express statutory authorization of judicial review of consular officers' actions. Id.; see also Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008) ("[O]rdinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review."). However, a limited exception to the doctrine applies where the denial of a visa implicates the constitutional rights of a United States citizen. Bustamante, 531 F.3d at 1061 (citing Saavedra Bruno, 197 F.3d at 1163 (additional citations omitted)). The exception is rooted in Kleindienst v. Mandel, 408 U.S. 753 (1972). In Mandel, the Supreme Court engaged in a limited judicial inquiry into whether a consular officer's decision was based on a "facially legitimate and bona fide" reason. Mandel, 408 U.S. at 770. The doctrine of consular nonreviewability applies to decisions that implicate any interest United States citizen spouses may have in their alien spouse's visa application, so long as the Government provides a "facially legitimate and bona fide reason" for its decision to deny a visa. See Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018) (noting the "circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. Citizen"). Plaintiffs invoke an exception to the doctrine of consular nonreviewability, arguing that the doctrine does not apply because the government violated Plaintiffs' constitutional rights based on the bad faith conduct of the consular officer in Ciudad Juarez, Mexico. Specifically, Ruth Mendoza and I.R.M. argue that Ruth Mendoza's right Page 11 to marry and cohabit in the United States, as well as I.R.M.'s right to a parent-child relationship, are both recognized as "Constitutional liberty interest[s] to which the doctrine of consular nonreviewability necessarily bows." (Doc. No. 44 at 9-10.) In that same vein, Plaintiffs argue that the reason offered for Mendoza's visa denial were not "facially legitimate and bona fide."8 In addition, Plaintiffs argue that the Court may actually engage in a more searching inquiry upon "an affirmative showing of bad faith" from a consular officer. In support, Plaintiffs cite to a concurring opinion in Kerry Alexi | Page 8  v. Din, 135 S. Ct. 2128, 2141 (2015), which notes that absent an affirmative showing of bad faith on the part of the consular officer—that is plausibly alleged with sufficient particularity—Mandel instructs the court not to "look behind" the "facially legitimate and bona fide" reason. Plaintiffs maintain that their asserted claim of a constitutional violation based on the bad faith actions of the consular officer makes this decision reviewable. Further, Plaintiffs argue that under the standard of "facially legitimate and bona fide reason," judicial review is proper because the officer's decision is challenged as an incorrect statutory interpretation. Specifically, Plaintiffs argue that the consular officer incorrectly interpreted 9 FAM 302.9-5(B)(I)(U). In Dep't. of State v. Munoz , 23-334 (U.S. 2024) , the U.S. Supreme Court stated that a noncitizen denied admission via consular processing is entitled to nothing more than a cite to the statute under which the consular officer decided to exclude him. He has no opportunity for administrative or judicial review, and can only submit more evidence and request reconsideration. Former consular officers tell this Court that this lack of accountability, coupled with deficient information and inconsistent training, means decisions often rely on stereotypes or tropes, even bias or bad faith. Visa applicants may experience disparate outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer they happen to be assigned. The State Department's Office of the Inspector General has documented numerous deficiencies in consular processing across several continents. Supervisors are required by the State Department to review a certain percentage of visa denials but often fail to do so. When the Government requires one spouse to leave the country to apply for immigration status based on his marriage, it therefore asks him to give up the process he would receive in the United States and subject himself to the black box of consular processing: In contrast, a noncitizen denied admission via consular processing is entitled to nothing more than a cite to the statute under which the consular officer decided to exclude him. §1182(b)(1). He has no opportunity for administrative or 31 judicial review, and can only submit more evidence and request reconsideration. 22 CFR §42.81(e). Former consular officers tell this Court that this lack of accountability, Alexi | Page 9 coupled with deficient information and inconsistent training, means decisions often "rely on stereotypes or tropes," even "bias or bad faith." Brief for Former Consular Officers as Amici Curiae 8. Visa applicants may "experience disparate outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer... they happen to be assigned." Id., at 8-9. The State Department's Office of the Inspector General has documented numerous deficiencies in consular processing across several continents. See, e.g., ISP-I-19-14, Inspection of Embassy Bogota, Colombia, p. 16 (Apr. 2019) (finding consular managers in Bogota required visa adjudicators to maintain an average of 30 in-person interviews per hour). Supervisors are required by the State Department to review a certain percentage of visa denials but often fail to do so. See, e.g., Office of Inspector General, ISP-I-19- 17, Inspection of Embassy Santo Domingo, Dominican Republic, p. 12 (July 2019) (finding "managers did not review 284 (23 percent) of the refusals that should have been reviewed between April 1 and June 30, 2018"); Office of Inspector General, ISP-I-16-24A, Inspection of Embassy Ankara, Turkey, p. 20 (Sept. 2016) (finding visa adjudicator failed to review the required 10% of visa issuances and 20% of visa denials). When the Government requires one spouse to leave the country to apply for immigration status based on his marriage, it therefore asks him to give up the process he would receive in the United States and subject himself to the black box of consular processing. B Munoz, a celebrated workers' rights lawyer from Los Angeles, California, met Luis Asencio-Cordero in 2008, three years after he had arrived in the United States. They have 32 been married since 2010 and have a child together. In 2013, Munoz filed an immediate-relative petition for her husband, which USCIS approved. Because Asencio-Cordero had originally entered the United States without inspection, the Alexi | Page 10  Government required him to return to El Salvador, his country of origin, for consular processing to obtain his immigrant visa. Yet he also faced a bar to reentry if he left the country. DHS granted him a waiver of this bar upon his anticipated return to the United States because of the "extreme hardship" Munoz would suffer if he were excluded. 8 U.S.C. §1182(a)(9)(B)(v). In April 2015, Asencio-Cordero traveled from California to El Salvador. That was the last time he stood on American soil. In Kerry v. Din, 576 U.S. 86, 192 L.Ed.2d 183, 135 S.Ct. 2128 (U.S. 2015) , the U.S. Supreme Court stated that a fundamental element of due process is a statement of reasons, permitting an individual to understand why the government acted as it did. This is so in part because a statement of reasons, even one provided after a visa denial, serves much the same function as a 'notice' of a proposed action. It allows the individual, who suffered a 'serious loss,' a fair 'opportunity to meet' 'the case' that has produced the adverse effect. The court also recognized that due process cases often determine the constitutional insistence upon a particular procedure by balancing, with respect to that procedure, the 'private interest' at stake, 'the risk of an erroneous deprivation' absent the sought-after protection, and the Government's interest in not providing additional procedure. In the absence of some highly unusual circumstance, the Constitution requires the Government to provide an adequate reason why it refused to grant a visa. That reason could be either the factual basis for the Government's decision or a sufficiently specific statutory subsection that conveys effectively the same information: Here, we need not consider all possible procedural due process elements. Rather we consider only the minimum procedure that Ms. Din has requested—namely, a statement of reasons, some kind of explanation, as to why the State Department denied her husband a visa. We have often held that this kind of statement, permitting an individual to understand why the government acted as it did, is a fundamental element of due process. See, e.g., Goldberg, 397 U.S., at 267–268, 90 S.Ct. 1011 ; Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ; Morrissey v. Brewer, 408 U.S. 471, 485, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; Wolff, supra, at 563–564, 94 S.Ct. 2963 ; Goss, supra, at 581, 95 S.Ct. 729 ; Mathews v. Eldridge, 424 U.S. 319, 345– 346, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; Cleveland Bd. of Ed. v. Loudermill, 470 Alexi | Page 11 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ; Wilkinson, 545 U.S., at 224, 125 S.Ct. 2384 ; Hamdi, supra, at 533, 124 S.Ct. 2633 (plurality opinion). [576 U.S. 112] That is so in part because a statement of reasons, even one provided after a visa denial, serves much the same function as a "notice" of a proposed action. It allows Ms. Din, who suffered a "serious loss," a fair "opportunity to meet" "the case" that has produced separation from her husband. See Joint Anti–Fascist Refugee [135 S.Ct. 2145] Comm. v. McGrath, Hamdi, supra,Wolff, supra,supra, I recognize that our due process cases often determine the constitutional insistence upon a particular procedure by balancing, with respect to that procedure, the "private interest" at stake, "the risk of an erroneous deprivation" absent the sought-after protection, and the Government's interest in not providing additional procedure. Eldridge, supra, at 335, 96 S.Ct. 893 ; but cf. Hamdi, supra, at 533, 124 S.Ct. 2633 (plurality opinion) (suggesting minimal due process requirements cannot be balanced away). Here "balancing" would not change the result. The "private interest" is important, the risk of an "erroneous deprivation" is significant, and the Government's interest in not providing a reason is normally small, at least administratively speaking. Indeed, Congress requires the State Department to provide a reason for a visa denial in most contexts. 8 U.S.C. § 1182(b)(1). Accordingly, in the absence of some highly unusual circumstance (not shown to be present here, see infra, at 2146), the Constitution requires the Government to provide an adequate reason why it refused to grant Ms. Din's husband a visa. That reason, in my view, could be either the factual basis for the Government's decision or a [576 U.S. 113] sufficiently specific statutory subsection that conveys effectively the same Alexi | Page 12  information. In Mocevic v. Mukasey, 529 F.3d 814 (8th Cir. 2008) , the U.S. Court of Appeals — Eighth Circuit noted that no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense. However, this does not preclude review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals. The court's jurisdiction does not extend to review of the agency's findings of fact or discretionary judgments, which are insulated from judicial review. A petitioner may not create jurisdiction by characterizing a factual question as a constitutional claim or question of law. This Court reviews de novo constitutional claims and questions of law, which are properly raised in a petition for review. An allegation of wholesale failure to consider evidence implicates due process, providing the court with jurisdiction to review such a claim: We must first determine whether we have jurisdiction to review the BIA's denial of Mocevic's application. See Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir.2008) (addressing first whether the Court has jurisdiction to review the BIA's denial of petitioner's motion); Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir.2007) (same). Because Mocevic is removable as a "criminal alien," our jurisdiction to review Mocevic's petition is limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C) ("Notwithstanding any other provision of law..., no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2)...."); § 1252(a)(2)(D) ("Nothing in subparagraph... (C)... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals...."). Our jurisdiction, however, does not extend to review of the agency's findings of fact or discretionary judgments, "which are insulated from judicial review." Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007). In determining whether an argument advanced in a petition raises a constitutional claim or question of law, we look to the "nature of the argument advanced in the petition." Id. A petitioner may not create jurisdiction by characterizing a factual question as a constitutional claim or [529 F.3d 817] Alexi | Page 13  question of law. Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849-50 (8th Cir.2008); Hanan, 519 F.3d at 763. This Court reviews de novo constitutional claims and questions of law, which are properly raised in a petition for review. Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir.2007). On appeal, Mocevic argues that we have jurisdiction to review his petition because he raises both a constitutional claim and a question of law. Mocevic argues that he was denied due process because the IJ, in making an adverse credibility determination, failed to give any consideration to evidence that rehabilitated his credibility. Mocevic claims that the IJ failed to consider the totality of the circumstances when making his credibility determination and based the determination only on: (1) Mocevic's prior offense of knowingly providing false statements on his refugee form; and (2) his prior criminal conviction. Because "an allegation of wholesale failure to consider evidence implicates due process," we have jurisdiction to review Mocevic's due process claim. Hanan, 519 F.3d at 764. A careful review of the IJ's credibility determination, however, does not support Mocevic's claim that the IJ engaged in a wholesale failure to consider the evidence relating to Mocevic's credibility. In determining that Mocevic's testimony was not credible the IJ looked to several factors including the fact that Mocevic knowingly gave false information in order to obtain refugee status and that his prior felony "involved stealing and not being truthful." The IJ also considered other evidence relating to Mocevic's credibility, including the testimony of his son and statements from Mocevic's friends that were submitted to corroborate Mocevic's credibility. Indeed, the IJ supported his credibility finding with "specific, cogent reasons for disbelief." See Jalloh v. Gonzales, 423 F.3d 894, 898 (8th Cir.2005) ("We will defer to the IJ's credibility finding where the finding is supported by a specific, cogent reason for disbelief."). We therefore reject Mocevic's due process argument. In Doan v. I.N.S., 160 F.3d 508 (8th Cir. 1999) , the U.S. Court of Appeals — Eighth Circuit noted that courts do not have jurisdiction to review consular officials' determinations. The position of INS District Director is distinct from that of a State Department consular official. However, Director Martin is the functional equivalent of a consular official, because he is an Executive Alexi | Page 14 Branch official, located outside the United States, deciding questions of admissibility brought before him by aliens who are also located outside the United States. Administrative decisions excluding aliens are not subject to judicial review unless there is a clear grant of authority by statute. As there is no such statutory authority here, Director Martin's decision is not subject to judicial review. A consular official's discretionary decision to grant or deny visa petition is generally not subject to judicial review: Plaintiffs then filed the instant action with the District Court, seeking review of Director Martin's decision. The INS filed a motion to dismiss. Noting that courts do not have jurisdiction to review consular officials' determinations, the District Court concluded it lacked jurisdiction to review Director Martin's decision, and dismissed plaintiffs' claims with prejudice. Plaintiffs now appeal, asserting that the District Court erroneously found Director Martin's decision was a nonreviewable consular official's decision, and that Director Martin failed "to consider whether [Nguyen] is eligible for refugee classification." Because the position of INS District Director is distinct from that of a State Department consular official, we believe that the District Court may have mischaracterized Director Martin's decision under Section 207.1(d) as a consular official's decision. We conclude, however, that Director Martin is the functional equivalent of a consular official, because he is an Executive Branch official, located outside the United States, deciding questions of admissibility brought before him by aliens who are also located outside the United States. Administrative decisions excluding aliens are not subject to judicial review unless there is a clear grant of authority by statute. As there is no such statutory authority here, we conclude that Director Martin's decision is not subject to judicial review. See Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) ("unadmitted and nonresident alien" has no constitutional right of entry into United States as nonimmigrant or otherwise); Brownell v. We Shung, 352 U.S. 180, 184 & n. 3, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1505-07 (11th Cir.) (per curiam) (§ 1157 makes no provision for judicial review, demonstrating Congress's intent not to extend judicial review to aliens abroad; no judicial review under Administrative Procedure Act), cert. denied, 502 U.S. 1122, 112 Alexi | Page 15  S.Ct. 1245, 117 L.Ed.2d 477 (1992); cf. Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir.1997) (consular official's discretionary decision to grant or deny visa petition is generally not subject to judicial review). Accordingly, we affirm. In Osman v. Clinton, Civil No. 11-2953 (JNE/SER) (D. Minn. 2012) , the U.S. District Court — District of Minnesota contended that the doctrine of consular nonreviewability applies here because the refusal in August 2011 constituted a final decision on the visa application, that the Complaint contained no constitutional claims, that there is no constitutionally protected right to live with one's foreign-born-child inside the United States, and that the consular official gave a facially legitimate and bona fide reason for refusing to issue the visa. The United States Department of State has concluded the administrative processing for which Ahmed's visa application was originally refused. To the extent they sought review of the denial of Ahmed's visa application, the Court cannot consider their claims according to the doctrine of consular nonreviewability. The attempt to avoid the doctrine of consular nonreviewability based on an assertion of a violation of Osman's fundamental right to the sanctity of maintaining her family fails because Osman did not assert a constitutional claim in the Complaint: Osman and Ahmed opposed the motion. They asserted that the doctrine of consular nonreviewability does not apply because "they are seeking to compel the officer to apply the law properly, or, alternatively, to challenge the consular officer's violation of [Osman's] fundamental Page 3 rights." Osman and Ahmed argued that "there has been no final decision of the visa application," that "the consular office failed to comply with applicable regulations," and that "the consular officer's inadequate denial" deprived Osman of "her fundamental right to the sanctity of maintaining her family." In their reply, the Secretary of State and the Consular Chief contended that the doctrine of consular nonreviewability applies here because the refusal in August 2011 constituted a final decision on the visa application, that the Complaint contained Alexi | Page 16 no constitutional claims, that "there is no constitutionally protected right to live with one's foreign-born-child inside the United States," and that the consular official gave a facially legitimate and bona fide reason for refusing to issue the visa. More than one month after the submission of their reply, the Secretary of State and the Consular Chief filed a Notice of Superceding Final Agency Decision, which stated: On February 9, 2012, following a subsequent interview at which... Ahmed was permitted to provide additional information in support of her application, a consular officer once again refused... Ahmed's visa application.... The United States Department of State has concluded the administrative processing for which Ahmed's visa application was originally refused.... A Refusal Worksheet was attached to the Notice. It informed Ahmed that she was found ineligible to receive a visa under INA § 212(a)(3). To the extent Osman and Ahmed asserted the August 2011 denial was not a final decision and sought to compel a final decision on the visa application, the February 9 2 refusal of Ahmed's visa application renders their claims moot. To the extent they sought review of the denial of Page 4 Ahmed's visa application, the Court cannot consider their claims according to the doctrine of consular nonreviewability. The attempt to avoid the doctrine of consular nonreviewability based on an assertion of a violation of Osman's "fundamental right to the sanctity of maintaining her family" fails because Osman did not assert a constitutional claim in the Complaint. See De Castro Polo v. Fairman, 164 F. App'x 930, 933 (11th Cir. 2006) (per curiam) (finding plaintiff's argument to avoid doctrine of consular nonreviewability based on an alleged violation of due process unpersuasive where the alleged violation "appear[ed] in his initial brief on appeal, not his mandamus petition"). Even if she did, the claim fails. See de Lourdes Castro de Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009) ("[T]he Mercados point to Alexi | Page 17  no authority to suggest that the Constitution provides them with a fundamental right to reside in the United States simply because other members of their family are citizens or lawful permanent residents."); Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) ("The circuits that have addressed the constitutional issue (under varying incarnations of the immigration laws and in varying procedural postures) have uniformly held that a parent's otherwise valid deportation does not violate a child's constitutional right."). Cited Authorities Asresash B.T. v. Blinken, 22-cv-1300 (WMW/JFD) (D. Minn. 2023) Mendoza-Ayala v. Pompeo, Civil No. 19-2522 (DWF/TNL) (D. Minn. 2020) Dep't. of State v. Munoz , 23-334 (U.S. 2024) Kerry v. Din, 576 U.S. 86, 192 L.Ed.2d 183, 135 S.Ct. 2128 (U.S. 2015) Mocevic v. Mukasey, 529 F.3d 814 (8th Cir. 2008) Doan v. I.N.S., 160 F.3d 508 (8th Cir. 1999) Osman v. Clinton, Civil No. 11-2953 (JNE/SER) (D. Minn. 2012) Caselaw Selection Want to know more about how we answered this research question? Alexi considered the information that you provided and searched for binding and persuasive caselaw from both federal and state courts. We prioritized cases from Minnesota federal district courts, the Eighth Circuit Court of Appeals, and the United States Supreme Court. We focused next on Eighth Circuit district courts in other states and Minnesota state courts. Finally, we also searched for relevant cases from other state and federal courts. 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