A Sharpened Pencil Lying Diagonally Across A U.S. Visa Application Form

Feb. 14, 2024 – Iranian nationals who had their visa applications denied because of their service in the Islamic Revolutionary Guards (IRGC) failed to show that consular officials acted in bad faith, the U.S. Court of Appeals for the Seventh Circuit has ruled in Pak v. Biden, No. 23-1392 (Jan. 31, 2024).

Visa Applications to Be With Family

At different times between 1980 and 2008, Iranian nationals Ali Pak, John Doe 2, Vahid Fatouraee, and Armin Fathinejad completed compulsory military service in the IRGC.

Each of the four has a loved one who lives in the United States; Pak’s daughter Melody lives in Madison, Wis.

Between 2013 and 2017, each of the four Iranians, from outside the U.S., filed an immigrant visa petition with the U.S. Customs and Immigrations Service (USCIS).

In April 2019, the U.S. State Department designated the IRGC a foreign terrorist organization. That declaration made the IRGC a Tier 1 terrorist organization under the federal Immigration and Nationality Act (INA).

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Thereafter, U.S. consular officials began denying visa applications for petitioners who had served in the IRGC after April 2019, on terrorism-related inadmissibility (TRIG) grounds.

Under the INA, members of the executive branch may grant waivers and exemptions to certain applicants who otherwise would be denied visas on TRIG grounds.

Applications Denied

U.S. consular officials also denied the visa applications of Pak, Doe 2, Fatouraee, and Fathinejad – even though each had completed service in the IRGC years before the State Department designated the IRGC as a terrorist organization.

The four denials included no explanation beyond a citation to 8 U.S.C. section 1182(a)(3)(b), the section of the INA that defines a terrorist organization as one designated as such by the State Department.

Federal Lawsuit

In May 2022, Fatouraee, Fathinejad, John Doe 2, Ali Pak and their relatives living in the U.S. (collectively, Plaintiffs) sued the federal government in the U.S. District for the Western District of Wisconsin, under the federal Administrative Procedures Act and the Due Process Clause of the Fifth Amendment to the U.S Constitution.

The Plaintiffs argued that the U.S. government systematically denied visa applicants an opportunity to establish their eligibility for TRIG exemptions.

They sought a writ of mandamus ordering the defendants to set up a procedure for consistently and, in good faith, considering visa applications for TRIG exemptions.

Each visa-applicant Plaintiff claimed that his service in the IRGC was limited to non-military duties, such as washing dishes, distributing clothes to poor communities, or construction in rural areas.

The district court dismissed the lawsuit for failure to state a claim, based on the doctrine of consular non-reviewability.

The Plaintiffs appealed.

Executive Branch Decision

Judge Diane Wood began her opinion for a three-judge panel by explaining that Congress has delegated to the executive branch the power to decide who may legally enter the U.S., and that under U.S. Supreme Court and Seventh Circuit caselaw, courts generally lack the authority to second-guess the executive’s decisions.

Judge Wood noted that the Plaintiffs had framed their appeal not as a review of a single consular officer’s decision but as a challenge to the administrative framework the defendants had set up for processing requests for TRIG exemptions.

But even such an indirect challenge was subject to the doctrine of consular non-reviewability.

“What Plaintiffs really want is to be granted TRIG exemptions (or to have exemptions granted for their close relatives),” Wood wrote.

“Yet Congress left exemption determinations to the ‘sole unreviewable discretion’ of the Secretaries of State and Homeland Security, which makes Plaintiffs’ choice to target the exemption process particularly untenable.”

Constitutional Rights Implicated?

Judge Wood acknowledged that the U.S. Supreme Court has created a narrow exception to the doctrine of consular non-reviewability that applies when a visa denial implicates the constitutional rights of a U.S. citizen.

The plaintiffs argued that that exception applied because the visa denials robbed them of their right under the Due Process Clause of the Fifth Amendment to live with their family members.

Wood pointed out that a majority of the U.S. Supreme Court has never recognized such a right.

Judge Wood concluded that even if the visa denials implicated such a right, the denials were valid, because the Plaintiffs had presented no evidence to overcome the presumption that the decisions of the consular officers were facially legitimate.

She noted that the U.S. Supreme Court has held that, in order to support a visa denial, the government need only give a citation to a valid statute.

Wood pointed out that with regard to the Plaintiffs, the record supplied at least a factual connection to terrorist activity, and that that was enough to validate the visa denials.

“Each of them submitted their IRGC military identification card to the consular officer as part of the visa application process,” Judge Wood wrote. “The record thus ‘forecloses any contention that the [consular officers were] imagining things.”

No Bad Faith

Wood also concluded that the Plaintiffs failed to make an affirmative showing that the consular officers had acted in bad faith.

The Plaintiffs argued that each visa-applicant plaintiff had explained that their service in the IRGC consisted of performing non-military tasks.

But Judge Wood pointed out that that information was provided after the visa applications were denied.

“Once a visa denial has been issued, no statute or regulation obligates consular officers to re-open an application just because new evidence has been presented,” Wood wrote.

Sympathy for Plaintiffs

Judge Wood acknowledged that the court had sympathy for the visa-applicant plaintiffs; she also noted that the Foreign Affairs Manual allows the granting of exemptions to overcome ineligibility for past terrorist activity linked to a Tier I terrorist organization “if the applicant acted under duress or without the relevant knowledge.”

“It seems from the record before us that the visa-applicant plaintiffs are strong candidates for this criterion, as they completed their compulsory service long before the IRGC was designated a Tier I terrorist organization,” Wood wrote.