CA2 Addresses Consular Non-Reviewability and Material Support

Court remands for consideration of whether the consular officer properly applied the “unless” clause of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd) by confronting the applicant with the allegation that he knew he was providing material support to a terrorist org and giving him the chance to negate it. (American Academy of Religion v. Napolitano, 7/17/09).

Consular non-reviewability refers to the principle that decisions made by consular officers in issuing or denying visas are generally not subject to judicial review. This principle is rooted in the idea that visa decisions are a matter of national security and foreign policy, and that consular officers are in the best position to assess an individual’s eligibility for a visa.

In the context of material support, individuals who have provided material support to terrorist organizations or other designated groups may be ineligible for a visa to enter the United States. Consular officers are responsible for determining whether an individual has provided material support, based on criteria set forth in the Immigration and Nationality Act.

Consular non-reviewability in the context of material support means that consular decisions on visa eligibility based on material support are typically not subject to judicial review.