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History

The government argues that visa decisions are not reviewable by courts, leaving individuals impacted by denials with no recourse to challenge denials. Here is how this legal doctrine, called the "doctrine of consular nonreviewability," has evolved over time.

1788


U.S. Constitution ratified. Article One, Section Eight, Clause Four requires Congress "establish a uniform system of naturalization."

Admissibility decisions are not "uniform" when conducted by individual consular officers with varying experience, skill levels and biases. 

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1830s

Representatives of the State Department begin demanding checks on immigrants at foreign ports of departure, asserting that German and Irish immigrants are criminals and paupers.

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1856

Anti-immigrant Know Nothing Party introduces bill to establish consular interview system, but the bill, titled "A Bill to Prevent the Introduction into the United States of Foreign Criminals and Paupers," (H.R. 124, 34th Cong., 1st sess., 1856) is defeated.

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1861

"If there are any abroad who desire to make this the land of their adoption, it is not in my heart to throw aught in their way, to prevent them from coming to the United States."

— Abraham Lincoln, speech to German immigrants at Cincinnati, Ohio, February 12, 1861

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1875

Congress passes the Page Act, which restricts immigration of Chinese women, asserting the need to prohibit prostitution. This law also created a system of "certificates" for entry, establishing a pre-cursor of the visa system.

Inspection in the era of Chinese Exclusion

Husband has gone to a country far away.
The sorrows of separation are manifold in kind.
The bedroom is desolate; the quilt, chilly.
How can a single pillow be my mate in my lonely
     sleep?
My restless sleep?
With emotions suspended, depression lingers on. I am thinking of my man, who hasn't yet returned
from the ends of the earth;
I look up, and the moon, so round and full, brings
     me insurmountable frustration.

— A poem of a separated wife, c. 1911.
 
From Songs of Gold Mountain: Cantonese Rhymes from San Francisco Chinatown, edited by Marlon K. Hom.

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1892

Secretary of the Treasury Charles Foster reports to Congress that laborers immigrating from Europe should be subject to "foreign examination" by consulates abroad.

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European immigrants being inspected by authorities at Ellis Island (opened 1886)

 

The "finality period"

In 1892, the U.S. Supreme Court issued a decision in Nishimura Ekiu, a lawsuit filed by a 25-year-old woman traveled from Yokohama, Japan to join her husband with just $22 to her name. Immigration authorities  detained her on arrival in San Francisco and ordered her to be excluded from entering the country. The Court ruled that Congress had stripped courts of the power to review exclusionary decisions by immigration officials in the Immigration Act of 1891. As a result, Mrs. Ekiu had no right to sue in court to challenge the validity of the officer's exclusion order. The Court held: "The decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”

The State Department still cites this case to argue immigrants have no right to a day in court to challenge unlawful visa denials.

1894

Even after Nishimura Ekiu, some federal judges in California continued to hear suits challenging wrongful exclusionary decisions. Without public debate, Congress added a more explicit provision stripping judicial review as an amendment to an unrelated budget bill.

 

Stripping court jurisdiction in a period of anti-Chinese restriction

“Representatives in congress... sought to remove the Chinese cases from the court’s jurisdiction in a rider to the 1894 appropriations bill.”

 


“By 1905, policymakers had achieved their goal: the jurisdiction of the courts to hear Chinese and other immigration cases was sharply curtailed.”

— Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law

 

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1918

President Woodrow Wilson issues Executive Proclamation 1473, a war-time measure requiring immigrants acquire visas before embarking for the United States.

"No alien shall be allowed to enter the United States unless he bears a passport duly visaed..."

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1920

In an attempt to push Congress to enact a system of consular interviews and quotas on immigration, Wilbur Carr, the State Department's Director of Consular Affairs, submits  consular reports urging visa limitations to Congress. The reports make for difficult reading, denouncing Eastern European refugees as "not the European of a sturdier day...parasites." H.Rep. 1109, 66th Cong. 3d Sess. 1920

1924

As part of National Origins Quota Act, Congress permanently enacts system of consular interviews and visas in legislation. The law also restricted immigration from non-Northern and Western European countries.

 

knauffBrooklyn Daily Eagle

1950

Supreme Court decides "War Bride Case" of Ellen Knauff, a German who fled Hitler and married a U.S. Army employee. Immigration authorities arrested her at Ellis Island in 1948, claiming her entry would be "prejudicial to the interests of the United States." 

 

Mrs. Knauff was denied a hearing, and sued for her release. The Supreme Court, ultimately ruled against her, 4-3. 

Due to public outcry, Mrs. Knauff was ultimately given a hearing, where lawyers clearly established the charges against her were false. She was released and admitted to the country as a lawful permanent resident. 

 

Luis Asencio and Sandra Muñoz

Countless separated families are themselves a part of this history. The fight for accountability in the consular process continues today.

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