Judicial Review of Visa Decisions After the Supreme Court’s Decision in Department of State v. Muñoz

In Department of State v. Muñoz, 602 U.S. 899 (2024), the U.S. Supreme Court concluded that a U.S. citizen and her noncitizen spouse had no access to judicial review of a consular officer’s denial of an immigrant visa. The Court held that a U.S. citizen has no “fundamental liberty interest” in her spouse’s admission to the United States. This practice advisory, by the American Immigration Council, the International Refugee Assistance Project, and the Consular Accountability Project, is intended to counter the perception and fear that Muñoz is the end of efforts to hold consular officers accountable.  

Topics include: 

• Overviews of—  
  • The judicially-created consular nonreviewability doctrine;
  • Kleindienst v. Mandel, 408 U.S. 753 (1972) and Kerry v. Din, 576 U.S. 86 (2015) to aid in understanding Muñoz and the post-Muñoz landscape;  
  • The path of Muñoz to the Supreme Court 
• A discussion of the Supreme Court decision in Muñoz 
• A discussion of potential causes of action that remain viable after Muñoz, including— 
  • Constitutional claims pursuant to Mandel and demonstrating bad faith (since Mandel precludes judicial review of a consular officer’s “facially legitimate and bona fide reason”);  
  • Accardi challenges for failure to follow agency regulations; 
  • Challenges to visa refusals when dictated by another agency (and not a decision by the consular officer) 
  • Challenges to delays in visa adjudication 
  • Challenges to “administrative processing” as agency delay and not visa “refusal.”