Fauzia Din v. John F. Kerry
718 F.3d 856
9th Cir.2013Background
- Din filed a visa petition for her Afghan husband Berashk in 2008; USCIS approved the petition but a visa denial followed in 2009 under INA § 1182(a)(3)(B) (terrorist activities).
- Embassy staff provided only a citation to § 1182(a)(3)(B) with no specific factual basis for the denial and stated no detailed explanation could be given.
- Din sued alleging mandamus to adjudicate, APA violation, and constitutional challenge to § 1182(b)(3) as applied to her; the district court dismissed on consular nonreviewability and lack of standing.
- The majority held that the government failed to present a facially legitimate and bona fide reason for the denial, requiring remand for further proceedings.
- The dissent argues that the statute § 1182(a)(3)(B) itself is a facially legitimate basis and that the majority improperly expands judicial review beyond Bustamante’s limited standard.
- The court remanded for further proceedings consistent with the opinion, reversing and vacating the district court’s dismissal as to the mandamus and APA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consular nonreviewability bars review when a U.S. citizen challenges a spouse’s visa denial. | Din alleges Mandel/Bustamante review applies to protect her constitutional rights. | Government contends consular nonreviewability, with no need for deeper factual inquiry under Mandel. | Not barred; limited Mandel review required to identify a facially legitimate reason. |
| Whether the Government provided a facially legitimate and bona fide reason for Berashk’s denial. | Citation to § 1182(a)(3)(B) alone is insufficient without particularized facts. | Statutory basis itself can be facially legitimate; need not disclose detailed facts. | Citation to § 1182(a)(3)(B) without factual allegations is not facially legitimate; remand. |
| Whether Din has standing to challenge § 1182(b)(3) as applied to her. | Din has procedural due process interest and can challenge the statute’s application. | Statutory notice provisions apply to aliens, not Din; standing lacking. | Din has standing to challenge the statute as applied to her husband’s case. |
| Whether the court may require the Government to disclose more information about the denial under 1182(b)(1)(B) or related rules. | Limited judicial review should demand sufficient information to assess facial legitimacy. | Statutory framework does not require disclosure for 1182(a)(3) denials. | The majority’s approach to disclosure is adopted; evaluation remains limited but not a mere rubber stamp. |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (U.S. 1972) (establishes limited Mandel review for facially legitimate reasons in visa decisions)
- Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (limits review to facially legitimate and bona fide reasons when citizen rights implicated)
- American Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (discusses grounding for facially legitimate grounds under § 1201(g) and related issues)
- Adams v. Baker, 909 F.2d 643 (1st Cir. 1990) (cites use of substantive grounds for exclusion with some evidentiary context)
- Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) (recognizes limited search for constitutional rights in visa context)
- Am. Acad. v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (relevant to statutory construction and facial legitimacy of grounds)