“The doctrine of consular nonreviewability was born broken.” That’s how the Fred T. Korematsu Center and Asian Americans Advancing Justice described this little-known doctrine that gives significant powers to consular officials in immigration matters. The line was in a legal brief they submitted to the recently ruled Supreme Court case, “Department of State v. Muñoz,” which many see as a setback for immigration marriage rights.
The groups make a strong case that the doctrine was built on a series of anti-Asian and racist policies that began in the late 1800s. But this case highlights even more. It sheds a small light on the nation’s separate “legal” system that can leave immigrants and refugees – including those sponsored by spouses and with U.S. citizen family members in the U.S. – vulnerable to the whims of officials and of the day.
“It’s completely unfair; it’s resulted in countless families getting split up, mothers and fathers, husbands and wives being banned for life from entering the United States …and worse than that … in most cases the courts say that you don’t even have the right to bring a lawsuit in federal court to challenge those denials,” said Eric Lee of Diamante Law Group in a video Q&A about the doctrine in 2022.
A person applying for a spousal visa, for example, as Justice Sotomayor notes in her dissent, can be denied one, tearing a family apart. Why? In this case of a U.S. citizen and her El Salvadorian husband, because “A consular officer’s bare assertion that her husband, who has no criminal record in the United States or El Salvador, planned to engage in ‘unlawful activity.’”
The consular system may lack accountability, but the overall system for immigration is flawed as well. This is a system that at its worst can be so cruel as in the case of people like Lan Le (see cover story) that even refugees and immigrants who’ve spent nearly their entire lives in the U.S. but run afoul of the law can be forced to return to a birth country they might be completely unfamiliar with.
But what the case also highlights is how racism and xenophobia can influence policy and law. It was only in the 1940s that Japanese Americans – including U.S. citizens – were forced into internment camps because we were at war with Japan. The sole reason: their Japanese ancestry. Going back further we have a history of anti-Chinese policy that started it all.
These events, however, are not necessarily confined to history. People with a hate and fear of the other lurk at all times. What happens when some event causes American politicians to target another “other,” whether it be Chinese, Arabs, Palestinians, Muslims, Latinos? In fact, these groups are always being targeted, and are always at risk. Immigrants are always at risk. If the case of Fred T. Korematsu – the U.S. citizen son who defied reporting to a virtual open-air prison for Japanese Americans – could happen in the U.S. just decades ago, what could happen in another time of conflict? If the nation’s highest court could uphold Korematsu’s conviction then, what’s stopping something similar from happening in the future? There is one thing to stop it: You. Speaking up, voting, advocating for your rights and, just as importantly, the rights of the others. Your rights are only protected if your neighbor’s are also protected.
