RFRA’s Express‐Authorization Exception to Consular Nonreviewability: Judicial Review of Visa Decisions

Introduction

In Calvary Albuquerque Inc. v. Rubio (10th Cir. 2025), a New Mexico church (“Calvary”) and its intended South African worship leader, Stefan Green, challenged the denial of Mr. Green’s R-1 religious‐worker visa. After a brief exploratory visit on a B-1/B-2 tourist visa—during which Calvary compensated him for leading worship—Mr. Green applied for an R-1 visa so he could serve full-time as Calvary’s Worship Director. A U.S. consular officer in South Africa denied the application, citing misrepresentation (8 U.S.C. § 1182(a)(6)(C)(i)) and immigrant‐intent concerns (8 U.S.C. § 1184(b)). Calvary sued under the Religious Freedom Restoration Act (“RFRA”), seeking review of the consular decision. The district court held that (1) RFRA does not “expressly authorize” review of consular visa decisions under the consular nonreviewability doctrine, and (2) in any event the visa denial was supported by a “facially legitimate and bona fide” statutory ground and Calvary had not alleged consular bad faith. Exercising § 1291 jurisdiction, the Tenth Circuit affirmed dismissal.

Summary of the Judgment

Consular Nonreviewability Doctrine generally bars judicial review of visa denials because admission of noncitizens is a “fundamental sovereign attribute” delegated by Congress to executive branch consular officers.
Exceptions exist when (a) Congress “expressly authorizes” review, or (b) a constitutional claim (e.g., Free Exercise) is asserted, in which case courts ask only whether the consular officer gave a “facially legitimate and bona fide” reason and, if bad‐faith is plausibly alleged, may look behind the stated ground.
Expressly Authorize Exception: RFRA’s private‐right‐of‐action provision (42 U.S.C. § 2000bb-1(c)) and its “applies to all Federal law” clause do not “clearly and unmistakably” authorize review of consular visa decisions. RFRA was enacted to restore pre-Smith Free Exercise standards and was not aimed at displacing longstanding consular nonreviewability.
Constitutional‐Claim Exception: Even assuming RFRA claims could fit this narrow exception, Mr. Green’s visa denial was supported by a facially legitimate and bona fide statutory ground (misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i)), and Calvary did not plausibly allege bad faith.
Holding: The district court correctly dismissed the RFRA claim. The consular nonreviewability doctrine bars review, RFRA does not “expressly authorize” it, and no bad‐faith exception is shown.

Analysis

Precedents Cited

Nishimura Ekiu v. United States, 142 U.S. 651 (1892) & Fong Yue Ting v. United States, 149 U.S. 698 (1893): Founding decisions that admission/exclusion of aliens is a core executive/legislative foreign‐affairs function immune from judicial re-examination absent express statutory authority.
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950): Reaffirmed that consular visa denials are “final and conclusive” except when “expressly authorized by law.”
Kleindienst v. Mandel, 408 U.S. 753 (1972): Recognized a narrow Free Exercise exception—courts review only whether the denial was for a “facially legitimate and bona fide” reason.
Donald Trump v. Hawaii, 585 U.S. 667 (2018) & Dep’t of State v. Muñoz, 602 U.S. 899 (2024): Modern reaffirmations of consular nonreviewability and its two exceptions.
Khachatryan v. Blinken, 4 F.4th 841 (9th Cir. 2021) & Sesay v. United States, 984 F.3d 312 (4th Cir. 2021): Implemented “bad faith” exception inquiries under the constitutional‐claim exception.
Marczak v. Greene, 971 F.2d 510 (10th Cir. 1992): Applied “facially legitimate and bona fide” standard in reviewing immigration‐parole decisions analogously.
Mitchum v. Foster, 407 U.S. 225 (1972): Interpreted “expressly authorized” in the Anti-Injunction Act to require no explicit reference to the Act itself, relying on legislative purpose—analogous to RFRA analysis.
Ajaj v. Federal Bureau of Prisons, 25 F.4th 805 (10th Cir. 2022): Refused to displace qualified immunity under RFRA, illustrating that RFRA does not automatically override all judicially-created doctrines.

Legal Reasoning

At the heart of this decision is the interplay between RFRA’s protection of religious exercise and the longstanding doctrine that consular visa decisions are not judicially reviewable unless Congress “expressly authorizes” review.

1. Consular Nonreviewability

As part of the foreign‐affairs and national‐sovereignty prerogatives, Congress delegated visa decisions to consular officers (8 U.S.C. §§ 1104, 1201). Courts have held since the late 19th Century that those decisions are final and not subject to judicial re-examination (Nishimura Ekiu; Fong Yue Ting; Knauff).

2. Exceptions to Nonreviewability

Expressly Authorize Exception: Congress may overcome nonreviewability by clearly and unmistakably authorizing judicial review of visa decisions.
Constitutional‐Claim Exception: When a U.S. citizen’s constitutional right (e.g., free exercise of religion) is allegedly burdened, courts will review only whether the consular officer gave a “facially legitimate and bona fide” statutory ground for denial, and, if bad‐faith is plausibly alleged, may look behind the stated reason.

3. “Expressly Authorize” Requires Clarity

The Court interprets “expressly authorize” by reference to ordinary meaning (“in explicit or direct terms”), legislative history, the “background‐law” canon (presuming Congress knew and respected established doctrine), and analogous precedents (Mitchum). A mere cause-of-action or “all Federal law” clause in RFRA does not meet this demanding clear-statement test, especially given that consular nonreviewability was well‐entrenched when RFRA was enacted.

4. RFRA’s Text & Purpose

Cause-of-Action Provision: 42 U.S.C. § 2000bb-1(c) authorizes a private right to challenge burdens on religious exercise in “judicial proceeding,” but does not mention visa decisions or the nonreviewability doctrine.
“All Federal Law” Clause: 42 U.S.C. § 2000bb-3(a) declares that RFRA applies to all federal law, but is ambiguous as to judicially created doctrines like nonreviewability. The canon against unintended erosion of background rules strengthens the presumption that Congress didn’t mean to displace it.
Legislative History: RFRA was intended to restore the pre-Smith compelling‐interest test, not to alter foreign‐affairs prerogatives or consular nonreviewability that applied to First Amendment claims before Smith (Mandel).
Common Law Canon: Absent an “evident” contrary purpose, statutes are construed to preserve long‐established common-law principles (Kirtsaeng).
Ajaj Analogy: Just as qualified immunity survived RFRA’s enactment, so too did consular nonreviewability—both were venerable judicial doctrines when RFRA passed.

5. Constitutional‐Claim Exception Applied

Even if Calvary’s RFRA claim fit the constitutional exception, review is limited to whether the consular officer cited a facially legitimate and bona fide ground. Citing 8 U.S.C. § 1182(a)(6)(C)(i) for material‐misrepresentation inadmissibility satisfies this test. Calvary did not plausibly allege that the consular officer acted in bad faith, so there is no basis to look behind the statutory citation.

Impact

This decision confirms that RFRA does not per se override the consular nonreviewability doctrine. Going forward:

RFRA litigants challenging visa decisions will face a high bar—Congress must provide unmistakable statutory language to permit review.
Consular officers can continue to rely on statutory inadmissibility grounds without fear of extended judicial fact-finding so long as no bad-faith is shown.
Future statutory enactments aimed at visa decision review must meet the “clear directive” standard, with explicit reference to consular reviewability.
RFRA’s protections remain robust within the United States, but do not extend beyond the strict exceptions to foreign‐affairs prerogatives.

Complex Concepts Simplified

Consular Nonreviewability: Courts normally cannot second-guess a U.S. official’s decision to grant or deny a visa—this is treated as part of the President’s foreign-affairs power unless Congress says otherwise.
Expressly Authorize Exception: If Congress passes a law that clearly says “courts may review visa decisions,” then courts will do so. Absent such clear language, no review.
Constitutional‐Claim Exception: If a U.S. citizen claims a constitutional right (e.g., religious freedom) is burdened by a visa denial, courts may review only whether the consular officer cited a legitimate ground for denial and whether there is a plausible allegation of official bad faith.
Facially Legitimate & Bona Fide: Citing a valid statute (e.g., fraud/misrepresentation) is enough to satisfy the “facially legitimate and bona fide” requirement—courts do not demand a detailed factual record at that stage.
Bad Faith Exception: If a plaintiff points to facts suggesting the official knowingly lied or ignored the truth, courts may look deeper. Merely disagreeing with the decision or pointing to an unfavorable outcome is not enough.
Statutory Interpretation Canons: Courts assume Congress knew existing law and did not intend to upend settled doctrines unless it spoke very clearly (“clear statement rule”).

Conclusion

The Tenth Circuit’s decision in Calvary Albuquerque v. Rubio reaffirms that consular visa decisions are shielded from judicial review absent an unmistakable congressional command. RFRA, though sweeping in its protection of religious exercise under all federal laws, does not “expressly authorize” such review. Even if a narrow constitutional‐claim exception applied, Calvary failed to show bad faith behind the consular officer’s facially legitimate citation of a material-misrepresentation ground. This ruling preserves the balance between robust religious‐freedom protections at home and deference to the executive branch’s exclusive authority over foreign‐affairs and visa determinations.