Esmeralda Morfin v. Rex W. Tillerson
2017 U.S. App. LEXIS 4876
| 7th Cir. | 2017Background
- Adrian Ulloa, a Mexican citizen, married U.S. citizen Esmeralda Morfin in 2009; Morfin sought lawful permanent-resident status for Ulloa.
- Because Ulloa had been present in the U.S. without authorization, he needed to apply for a consular visa in Mexico; he applied in Ciudad Juarez in 2014.
- The consulate denied the visa after two interviews, citing reason to believe Ulloa was involved in drug trafficking based on a 2001 indictment for possession with intent to distribute over 500 grams of cocaine (the indictment had been later dismissed; no trial occurred).
- Morfin and Ulloa sued under the Administrative Procedure Act, arguing the visa denial was arbitrary and unsupported by substantial evidence; the government argued visa decisions are committed to agency discretion and not reviewable under 5 U.S.C. §701(a)(2).
- The district court dismissed for lack of subject-matter jurisdiction; the Seventh Circuit modified the judgment, rejecting dismissal for jurisdictional grounds and affirming on the merits under established precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether visa-denial decisions are judicially reviewable under APA | Morfin: Denial violated her Fifth Amendment due-process rights to live with spouse; courts can review procedural due-process claims | Government: Visa decisions are committed to agency discretion and not reviewable under §701(a)(2) | Court: §701(a)(2) is not jurisdictional here; but Mandel/Din foreclose review when consular officer gives a facially legitimate and bona fide reason |
| Whether Din controls and bars Morfin’s due-process claim | Morfin: Din does not preclude a due-process right to some procedure to challenge erroneous factual bases | Government: Din forecloses Morfin’s claim because consular explanation was facially legitimate | Held: Din (and Mandel) apply; when the Executive gives a facially legitimate and bona fide reason courts will not look behind it |
| Whether an indictment can supply "reason to believe" under 8 U.S.C. §1182(a)(2)(C) | Morfin/Ulloa: Indictment was dismissed and Ulloa denies the charge; consular denial should be reweighed | Government: An indictment provides reason to believe and is sufficient to support denial | Held: An indictment provides a reason to believe (probable cause); courts will not go behind the indictment to second-guess the consular finding |
| Whether plaintiffs alleged facts showing the consular reason lacked bona fides | Morfin: Claimed due-process injury but did not plausibly allege bad faith or that the consular officer ignored strong evidence of innocence | Government: No plausible allegation of bad faith or factual showing undermining the consular basis | Held: Plaintiffs did not allege facts showing lack of a facially legitimate and bona fide reason; Mandel bars further review |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1969) (courts will not look behind a facially legitimate and bona fide consular decision)
- Kerry v. Din, 135 S. Ct. 2128 (2015) (plurality and concurrence limiting due-process review of visa denials where Executive gives a facially legitimate ground)
- Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017) (§701(a)(2) is not a jurisdictional bar to review granted by other laws)
- Kaley v. United States, 134 S. Ct. 1090 (2014) (an indictment conclusively establishes probable cause for certain legal purposes)
- Marks v. United States, 430 U.S. 188 (1977) (method for identifying controlling Supreme Court precedent when opinions conflict)
- United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (Congress has plenary power to set conditions of entry and exclusions)