Madeline Cardenas v. Loretta E. Lynch, 2016 U.S. App. LEXIS 11177

Background

Rolando Mora-Huerta, a Mexican national, was identified in a 2008 I-213 record as a Sureno gang associate after a traffic stop; he voluntarily departed and his U.S. citizen wife, Madeline Cardenas, filed an immediate-relative petition that was approved.
Mora applied for an immigrant visa and was interviewed in Ciudad Juárez in March 2010; he denied gang membership but the consular officer later denied the visa under 8 U.S.C. § 1182(a)(3)(A)(ii) as a "gang associate."
Mora submitted additional evidence and sought a second interview; consular officers refused to accept certain documents at the second interview and again denied the visa; the State Department declined to issue an Advisory Opinion overturning the decision.
Cardenas sued on behalf of her marital interest, alleging the denial burdened her constitutional liberty interest in marriage and claiming the consular decision was not bona fide and was tainted by racial stereotyping.
The district court dismissed the amended complaint for failure to state a claim, finding the consular officer cited a facially legitimate and bona fide reason (ties to a gang) and Cardenas appealed.
The Ninth Circuit affirmed, applying Justice Kennedy’s concurrence in Kerry v. Din as the controlling standard: a visa denial citing a valid inadmissibility statute plus a facial factual connection is upheld unless plaintiffs plausibly allege the consular officer acted in bad faith.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of judicial review for visa denials implicating citizen rights	Cardenas: adopt Din (9th Cir.) requiring factual basis disclosure so courts can evaluate denial	Government: apply Mandel/Din concurrence—review limited to whether a facially legitimate statutory ground and facial factual connection exist; no further fact disclosure required	Court: Kennedy’s Din concurrence controls under Marks; review requires valid statutory citation plus facial factual connection; plaintiff must show bad faith
Whether consular citation to § 1182(a)(3)(A)(ii) was facially legitimate	Cardenas: statute was applied too broadly and she was entitled to more factual detail	Government: citation to the statute is a facially legitimate reason for exclusion	Held: citation to § 1182(a)(3)(A)(ii) was a facially legitimate statutory ground
Whether the record contained a facial factual connection to the statutory ground	Cardenas: consular reliance on an I-213 and alleged interview failures do not establish a bona fide factual basis	Government: I-213 identification and interview information provided a facial connection to gang association	Held: the belief Mora was a gang associate supplied a facial connection to the statute
Whether Cardenas plausibly alleged consular bad faith (required to overcome the Din concurrence presumption)	Cardenas: refusal to accept documents, interview remarks, and alleged racial stereotyping show bad faith	Government: actions do not show bad faith and the second-interview conduct cannot retroactively invalidate the original bona fide finding	Held: allegations did not plausibly show bad faith with sufficient particularity; dismissal affirmed

Key Cases Cited

Kleindienst v. Mandel, 408 U.S. 753 (establishes "facially legitimate and bona fide" review standard for visa denials implicating constitutional rights)
Kerry v. Din, 135 S. Ct. 2128 (fractured decision; Justice Kennedy concurrence limits review where statute cited and facial factual connection exists; plaintiffs must allege bad faith)
Marks v. United States, 430 U.S. 188 (governs how to treat fragmented Supreme Court decisions; narrowest concurrence controls)
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (recognized citizen spouse’s liberty interest in marriage can trigger review of consular denials)
Fiallo v. Bell, 430 U.S. 787 (plurality recognition of plenary congressional/executive power over alien admission and traditional nonreviewability)