In Calvary Albuquerque Inc. v. Rubio, (10th Cir., May 6, 2025), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision upheld a consular officer’s denial of an R-1 (non-immigrant religious worker) visa to a South African minister who wanted to serve as the worship leader at an Albuquerque, New Mexico church. Plaintiff contended that the visa denial violated the Religious Freedom Restoration Act, but the majority concluded that it could not reverse the decision of a consular officer under the consular nonreviewability doctrine. The majority said in part:
RFRA’s cause-of-action provision plainly does not expressly authorize judicial review of consular officers’ visa decisions. Also, whether the provision stating RFRA applies to “all Federal law” expressly authorizes judicial review of consular officers’ visa decisions is ambiguous. Applying statutory construction tools to that clause, we conclude that RFRA does not do so…..
Calvary argues the constitutional claim exception to the consular nonreviewability doctrine applies because it brought a free exercise claim under RFRA, and RFRA is analogous to a constitutional right…. Even if a RFRA claim could qualify for the exception, Calvary has not plausibly alleged that (a) the consular officer failed to provide a facially legitimate and bona fide reason to deny Mr. Green’s visa application or (b) the officer acted in bad faith….
Judge Bacharach dissented, contending that RFRA’s language authorizes review of consular decisions.