The extraordinary power of the US consular officers


People in other countries applying for US visas are well aware that the consular officer who happens to be the one who is assigned your file has great authority over you. Get an easy-going one and you are in luck. But more likely you will get a tough nut since that is the type that the US government seems to want, even if they give a bad impression of the US as being populated by rude, surly types. Or it may be that it is easier to turn people down if you have an unfriendly demeanor and so the consular officials adopt that pose.

But when I read judge William Alsup’s ruling in the case of Rahinah Ibrahim, I realized that these consular officers are even more powerful than I imagined.

The Immigration and Nationality Act confers upon consular officers exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations. See 8 U.S.C. 1104(a), 1201(a). The powers afforded to consular officers include, in particular, the granting, denying, and revoking of immigrant and non-immigrant visas. [My italics-MS]

I was surprised by that. Given that consular officers are employees of the State Department, it is surprising that Congress would pass a law that prevented the Secretary of State from issuing a direct order to grant or not grant a visa to someone. Perhaps it was intended as a way to prevent too much direct political influence but I cannot image that it is absolute. Surely if the US government deems the granting (or not) of a visa to be in the national interest, the president through the Secretary of State can order such an action and override the local consular official?

Comments

  1. machintelligence says

    It appears that Foreign Service Officers are appointed by the POTUS and confirmed by the senate. Presumably the president could remove one who refused a direct order.

  2. Pen says

    In fact, this is a situation that’s ripe for abuse based on people’s possibly unconscious biases. The decision makers are openly encouraged to rely on their gut feelings and we know how reliable those are. When I applied for my long-term tourist visa I got basically rubber-stamped. Was it because I’m white and a EU citizen? Who knows but some aspects of my relationship with an American made it quite possible that I was trying to sneak in permanently under a cheaper visa but all I got was a friendly warning not to do it. If I had been the consular officer I would have done checks on me. The French-Africans with whom I stood in line were still there when I left.

  3. jamessweet says

    I don’t think the particular situation you describe is all that extraordinary — checks and balances, and all. The president can’t just reach down and reverse a state law he doesn’t like. Perhaps more analogously, the Supreme Court can’t just unilaterally overturn my parking ticket, there’s a whole process that allows them to hear and rule on a case.

    This is all assuming there is a functional appeals process or some other reasonable oversight. Which there very well may not be. And the abuse potential described by Pen is very real either way. I’m just not sure that this “extraordinary power” thing is accurate — it sounds like a normal governmental check/balance to me…

  4. Michael Mayo says

    jamessweet – I’m not gonna just call you an idiot without providing a good explanation. You are an idiot. You compare what the president has been doing with such things as his obamacare act which is unconstitutional, as well as some of the other unconstitutional acts the president has committed, to a process here which has no check and balance I and of itself. Meaning that their decision is final and without review or reproach. Many hard working US citizens have families that are not us citizens and treated very poorly attempting to get immigrant and non-immigrant temporary visas that are either mistreated or denied although they meet the requirements. Their arbitrary decisions are in fact supported by a system that explicitly indicates that the consular can make these decisions ‘based on their overall feelings about the case in general…” without explanation or appeal.So… if your family member meets all the qualifications and is still denied, you can’t appeal to any entity including the consular general, your congressman or the secretary of state (like he would do anything anyway. Point being that you seem to have a very weak argument – perhaps the same one that created this closed system of dictators that currently run our country. Obviously you are a consular yourself and not an American citizen interested in true justice or controlling the absolutely authority of one individual without review… You’ve never heard of cops doing bad things – you’re likely drinking the Kool-Aid the democratic party feeds you sheep and are living in a fantasy land where you think that there is even one righteous man alive whose decisions are without reproach. This is a broken system and no wonder with people like you running around in fantasyland.

  5. Jack Tan says

    Thank you for this. I am currently writing an article about visa rejections and consular absolutism but it is difficult to find recent articles. You might be interested to know that this ruling is not new. If your so inclined, you could read Leon Wildes article: Review of Visa Denials: The American Consul as 20th Century Absolute Monarch (26 San Diego Law Review 887, 1989). The overall reasoning dates back to the founding of the US and is based not only on national sovereignty but the racist belief that if the US could not determine who could become voting citizens of American society, that the country could come under the influence of foreign powers. As an entry level position, I find it outrageous that consular officers are given carte blanche to determine a person´s right to transnational travel. As one person mentioned “checks and balances” … that is all well and fine … but in this case they do not exist. That is the point. There are NO checks and balances that could bring a consular officers decision about visa issuances … at least under the 214(b) … to account. It is very much about trusting your gut, knee-jerk reactions, and split second decision making. Most visa interviews last less than 5 minutes. How that cannot be subject to errors and therefore reviewable, is unconscionable.

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