This amicus brief argues that when a consular officer reclassifies an immigrant visa petition based on agency policy, then the consular nonreviewability doctrine does not apply. The brief argues that the consular officer neither denied the visa nor made an individualized discretionary decision—and instead placed the applicant into a category with a much longer wait for a visa number to become available, based on a Department of Justice interpretation of the Child Status Protection Act (CSPA) that the officer was required to follow. The brief argues that the district court may decide whether the government is misinterpreting the CSPA because the lawsuit filed by a U.S. citizen father and his noncitizen son challenges the automatic reclassification of the visa petition.
The amicus brief supports the reversal of the district court’s decision to dismiss the lawsuit based on the court’s assumption that the consular nonreviewability doctrine applied.
The U.S. Court of Appeals for the First Circuit reversed the dismissal. The court concluded that the consular nonreviewability doctrine did not apply because the consular officer’s reclassification of the immigrant visa petition was not a visa denial. The court also rejected the government’s interpretation of the CSPA—finding legal error in the reclassification of the visa petition. The appellate court set aside (vacated) the judgment and remanded to the district court to determine the proper remedy.
The American Immigration Council filed this amicus brief with the American Immigration Lawyers Association.
