Jerrid Allen v. Kevin Milas
896 F.3d 1094
9th Cir.2018Background
- Jerrid Allen (U.S. citizen, Army Major) petitioned under the APA to review the U.S. Consulate in Frankfurt’s denial of a visa to his German wife, Dorothea Baer, after criminal convictions in Germany (theft and illicit acquisition of narcotics) were cited as grounds for inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i).
- USCIS had approved the underlying Form I-130; the consular officer denied the visa citing INA inadmissibility provisions and advised available waiver procedures for one ground.
- Allen sued multiple federal officials in district court, alleging the consular officer committed legal error and seeking review under the APA (5 U.S.C. §§ 702, 706), and invoking federal-question jurisdiction under 28 U.S.C. § 1331.
- The government argued consular nonreviewability deprived courts of subject-matter jurisdiction and that APA review was unavailable for consular visa denials.
- The district court construed the government’s motion as a Rule 12(b)(6) dismissal, applied a narrow Mandel inquiry (facially legitimate and bona fide reason), and dismissed Allen’s APA petition; Allen appealed.
- The Ninth Circuit held the district court had subject-matter jurisdiction under § 1331 but affirmed that the APA does not authorize merits review of consular visa denials; only narrow constitutional review under Mandel applies, and the consular officer provided facially legitimate and bona fide reasons.
Issues
| Issue | Allen’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction | District court had jurisdiction under § 1331 and APA §§ 702/706 to hear APA claim | Consular nonreviewability deprives courts of jurisdiction over visa-denial merits | Court: § 1331 supplies jurisdiction; consular nonreviewability is a merits/scope-of-review rule, not a jurisdictional bar |
| APA applicability to consular visa denials | APA review applies to legal errors by consular officers (statutory interpretation/fact application) | APA does not provide a remedy for consular visa denials; doctrine of consular nonreviewability limits APA review | Court: APA § 706 does not provide a route to review consular visa denials; Saavedra Bruno reasoning adopted |
| Scope of judicial review for consular visa denials | Courts may correct legal errors committed by consular officers | Only limited review; courts must defer except for narrow constitutional claims per Mandel | Court: Mandel’s "facially legitimate and bona fide" standard is the only available merits review (constitutional claims); nonconstitutional/statutory APA claims foreclosed |
| Merits as applied to this visa denial | Allen: consular officer misclassified convictions under INA (moral turpitude and controlled-substance grounds) | Government: officer cited statutory grounds and identified convictions—facially legitimate reasons | Court: consular officer’s statutory citations and references were facially legitimate and bona fide; petition denied |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (establishes narrow judicial review for visa denials: courts will not look behind an Executive exclusion when the reason is facially legitimate and bona fide)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (holds APA does not provide a review avenue for consular visa denials; applies doctrine of consular nonreviewability to bar APA claims)
- Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (distinguishes failure-to-act by consulate from discretionary denial; consular duty to act is mandamus-eligible)
- Din v. Kerry, 135 S. Ct. 2128 (2015) (Kennedy J., controlling concurrence: reaffirms Mandel standard; a facially legitimate and bona fide reason satisfies the Government’s disclosure obligations)
- Fiallo v. Bell, 430 U.S. 787 (1977) (applies Mandel’s deferential standard to statutory challenges involving immigration policy)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (reaffirms Mandel’s deferential approach across different immigration contexts)