Charlie Borah
94 Geo. Wash. L. Rev. 1250
Visa applicants who bring claims of unreasonable delay after having their applications placed in administrative processing face varied and disparate approaches within judicial districts and between circuits. Three approaches have developed: Some courts have declined to review on the grounds of consular nonreviewability, some have ruled that consular officers have no duty to further review an application placed in administrative processing, and others have reviewed these cases under the general standard set forth for reviewing claims of unreasonable delay against agencies.
This Essay makes three main arguments. First, it argues that consular nonreviewability does not apply to visa applications placed in administrative processing because such placement does not constitute a final decision. Second, this Essay explains that consular officers have a nondiscretionary duty to adjudicate a visa to a final decision after it has been placed in administrative processing. Finally, this Essay argues that the factors used to evaluate claims of unreasonable delay for visa applications that have been placed in administrative processing have shifted far from their original meaning and intent—and now weigh too heavily in the government’s favor. This Essay proposes that the factors be interpreted according to their original meaning and intent, which did not favor the government so heavily.
