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[Stepbrow]

In this article by Marc Ellis (http://www.ilw.com/articles/2004,0429-ellis.shtm)
he mentions this: "The doctrine of non-reviewability of consular decisions is statutory and found in the Immigration and Nationality Act."

I've looked all over the INA, and I can't find it. Does anyone know where this is stated in the INA?

Thanks

[Randy W]

This from a civil suit filed in 2007, against LYNNE SKEIRIK, Director of the National Visa Center,CONDOLEEZZA RICE, Secretary ofState, and MICHAEL CHERTOFF, Secretary of Homeland Security, Defendants.

 

Based on such information, the Consulate determined that Chiang and Amy did not have a bona fide relationship and the application was denied. Adhering to the doctrine of consular non-reviewability, this Court will not second-guess that decision.

 

Chiang offers no basis for jurisdiction as to his negligence

claims, perhaps because there is none. Under the Federal Tort

Claims Act (¡°FTCA¡±), the United States is the only proper

defendant to a negligence claim arising from acts or omissions of

its employees acting within the scope of their employment. 28

U.S.C. ¡ì 2679(B )(1). Moreover, when an employee so acts, the

FTCA provides the exclusive remedy for his or her tortious

conduct. Id. Consequently, federal employees are absolutely

immune from suit for torts committed within the scope of their

-10-

employment. Id.; Aversa v. United States, 99 F.3d 1200, 1203

(1st Cir. 1993).

The negligent acts Chiang alleges all occurred in the

context of processing Amy¡¯s visa application and therefore were

acts within the scope of the defendants¡¯ employment.

Accordingly, their motion to dismiss as to the negligence claim

will be allowed.

 

 

 

This case seems to me to raise a LOT of concerns similar to what has been brought up recently on this board (constitutional rights, etc.), and should be required reading.

 

http://pacer.mad.uscourts.gov/dc/cgi-bin/r...+to+dismiss.pdf

 

No, I haven't found the section in the INA.

Edited January 11, 2009 by Randy W (see edit history)

[Randy W]

INA 222(f)

 

(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, except that in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.

[Randy W]

This was part of a LONG discussion of the doctrine of consular nonreviewability

 

http://nefafoundation.org/miscellaneous/Fe...off_OpOrder.pdf

 

IV. The Doctrine of Consular Non-Reviewability

It is well-settled that the decision of a consular official to grant or deny a visa is

nonreviewable by courts, absent a Constitutional challenge by a United States citizen.13

This principle, now firmly rooted in our jurisprudence, has come to be known as the

¡°doctrine of consular nonreviewability.¡± The doctrine of consular nonreviewability

provides that when a consular officer decides to negatively exercise the visa authority

granted to the Executive by Congress, a court has no jurisdiction to review the exercise of

that authority. In other words, the decision of a consular official to deny a visa is final

and is not reviewable. It is not entirely clear why this is so¡ªbut it is.14 It has been

frequently challenged in the legislature and in the courts, but all judicial and legislative

proposals to limit the doctrine have been soundly rejected.

Edited January 11, 2009 by Randy W (see edit history)

[chilton747]

In this article by Marc Ellis (http://www.ilw.com/articles/2004,0429-ellis.shtm)

he mentions this: "The doctrine of non-reviewability of consular decisions is statutory and found in the Immigration and Nationality Act."

 

I've looked all over the INA, and I can't find it. Does anyone know where this is stated in the INA?

 

Thanks

 

Perhaps you could ask Marc himself and see what he says.

[Stepbrow]

Randy,

 

Thanks for your work on researching this question. The point is well clarified, even if the answer was one that I didn't want to know.