“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
Seventh Circuit Trump judge Amy Coney Barrett of the Seventh Circuit was the author and deciding vote in a 2-1 decision in Yafai v. Pompeo in January 2019 that affirmed a lower court order that dismissed U.S. citizen Mohshin Yafai’s claim that the denial of his wife’s application for a visa violated his right to due process of law. Judge Kenneth Ripple, who was appointed to the Seventh Circuit by President Reagan, strongly dissented, explaining that Barrett’s decision “deprives Mr. Yafai of an important constitutional right.”
Mr. Yafai and his wife Zahoor Ahmed were born in Yemen. When he became a naturalized U.S. citizen in 2001, he filed petitions with the Department of Homeland Security to permit his wife and several of their children to apply for immigrant visas, which were granted. But a consular official denied his wife’s application, making what the dissent called a “single laconic statement” that she had improperly attempted to smuggle children into the United States. Despite clear evidence submitted by Yafai and Ahmed denying that claim, the denial stood and they filed suit in federal court.
The district court dismissed the claim as a matter of law under the “consular non-reviewability doctrine,” a standard designed by the Supreme Court based on its interpretation of federal immigration law. Under that doctrine, a court should not review a decision by a consular official to deny a visa when the official acts “on the basis of a facially legitimate and bona fide reason.” Barrett’s 2-1 opinion affirmed the lower court decision, maintaining that the non-reviewability doctrine requires “nothing more” than the “assertion” of a legitimate reason for visa denial, as the consular official did in this case.
Judge Ripple vigorously disagreed. Based on a careful analysis of Supreme Court precedent, he explained that as a U.S. citizen, Mr. Yafai has a “constitutionally protected interest” in his wife’s “presence in the United States,” and that interest is “secured by ensuring that our Government’s consular officials evaluate fairly her visa application.” Even under the non-reviewability doctrine, however, Ripple concluded that such a fair evaluation had not occurred based on the record in the case.
Ripple explained that in previous cases, the Seventh Circuit had carefully taken “notice of the evidence supporting the stated ground for inadmissibility.” In this case, however, there was no such evidence, and the record suggested it was possible that the consular official “never considered the evidence submitted” that actually refuted any smuggling concerns. In fact, the government did not even submit “an affidavit or similar” assurance that “it actually took into consideration the evidence submitted by the applicant,” nor did it attempt to “point to some factual support for the consular officer’s decision.”
Rather than directing the lower court to at least consider the merits of Yafai’s claim, Ripple wrote, Barrett had decided to “rubber stamp the consular decision” based on an “overly expansive version” of the “judge-made” non-reviewability doctrine. The result, he concluded, was to ignore the principle that “Congress has given the judiciary the obligation to curb arbitrary action” with “no exception for the action of consular officials.”