The ABA urged the US Supreme Court to require the factual basis for visa denials
The American Bar Association (ABA) has filed an amicus brief with the US Supreme Court, urging it to require the US government to provide a factual basis for the denial of visas, particularly when affecting the lives of US citizens and their noncitizen spouses.
The Supreme Court is set to review two pivotal questions. First, it will determine whether a US citizen has a due process interest in their noncitizen spouse’s visa denial. Second, it will decide if due process is upheld when a consular officer denies a visa application by merely citing a broad federal statute, which deems the applicant inadmissible due to the potential for unspecified "unlawful activity."
The ABA’s brief specifically addressed the latter, advocating for a requirement that consular officers disclose the reasons behind visa denials and the evidence supporting such decisions. The ABA argued that the current practice, which often relies on undisclosed "secret evidence," violates due process rights and hinders attorneys from providing accurate legal advice to their clients.
According to the ABA, merely informing visa applicants of their inadmissibility without specifying the reasons falls short of due process. The brief condemned the reliance on vague provisions, which effectively allowed the government to use undisclosed evidence in making crucial decisions that can drastically affect applicants and their families in the United States.
The ABA supports the US Court of Appeals for the Ninth Circuit’s 2022 decision, which stated that due process demands the government to offer timely and adequate notice of decisions impacting US citizens' constitutional rights. The Department of State is currently challenging this decision, underscoring the importance of the upcoming Supreme Court's deliberation.
According to the ABA, this issue bears significant implications, especially for non-citizens required to travel abroad for visa interviews, risking denial of re-entry into the US. Without clear government communication on visa denial reasons, legal advisors are left in the dark, unable to effectively assess risks or contest visa denials for their clients.
