Matushkina v. Nielsen
877 F.3d 289
| 7th Cir. | 2017Background
- Elena Matushkina (Russian citizen) applied for an immigrant visa after her daughter, Svetlana Son, became a U.S. citizen and filed an I-130; the U.S. Consulate denied the immigrant visa in 2015 because of an earlier CBP determination of inadmissibility.
- In 2009 at O’Hare, a CBP officer concluded Matushkina willfully misrepresented a material fact (failing to disclose her daughter’s employment in the U.S.), entered the inadmissibility finding in the State Department lookout system, cancelled her nonimmigrant visa, and Matushkina withdrew her application and left.
- In 2016 Matushkina and Son sued CBP and DHS officials under the Administrative Procedure Act seeking to set aside the 2009 inadmissibility determination and declare she did not make a material misrepresentation.
- The district court dismissed for lack of standing, reasoning an unadmitted alien lacks a right of entry and Son lacked standing because she was not a citizen in 2009.
- The Seventh Circuit held Matushkina had Article III standing (concrete, traceable, redressable injury) but concluded the claim nonetheless fails on the merits under the doctrine of consular nonreviewability because the suit effectively challenges the visa denial.
- The court modified the dismissal to one on the merits for failure to state a claim and affirmed, explaining this indirect attack on a visa decision is barred and that neither exception to consular nonreviewability applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under APA for the 2009 CBP inadmissibility finding | Matushkina argued the 2009 finding injured her concrete interest in admissibility and can be redressed by setting it aside | Defendants argued an unadmitted alien lacks a legal right to entry and thus lacks standing | Court: Matushkina has Article III standing (injury, causation, redressability) |
| Whether the suit is a permissible challenge to CBP action distinct from a consular visa denial | Matushkina framed claim as attacking the CBP determination, not the consular denial | Defendants argued the claim is an indirect attack on a consular visa decision and thus nonreviewable | Court: The claim is essentially a challenge to the visa denial and is barred by consular nonreviewability |
| Applicability of exceptions to consular nonreviewability (facial legitimacy / citizen-rights exception) | Matushkina argued exceptions should allow review of CBP’s antecedent determination | Defendants maintained exceptions do not extend to antecedent CBP findings and facts here are facially legitimate | Court: Exceptions do not apply; the CBP finding was facially legitimate and bona fide, and Son was not a citizen in 2009 |
| Whether dismissal for lack of standing could be converted to merits dismissal without cross-appeal | N/A (plaintiffs appealed district court’s standing dismissal) | Defendants would benefit if judgment converted to merits dismissal | Court: Conversion allowed where jurisdictional dismissal would make no practical difference; modified judgment to dismiss for failure to state a claim |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. (standing doctrine; concreteness requirement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing elements)
- Kleindienst v. Mandel, 408 U.S. 753 (consular nonreviewability and limited exceptions)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (visa decisions generally nonreviewable)
- Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017) (facial-legitimacy exception discussion; treating nonreviewability as merits issue)
- Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017) (application of consular nonreviewability)
- Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016) (standing to challenge immigration petition revocation)
- Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir. 2014) (loss of opportunity to apply as injury)
- Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633 (6th Cir. 2013) (loss of opportunity to become permanent resident as injury)
- Garcia v. Sessions, 873 F.3d 553 (7th Cir. 2017) (denial of statutory right to apply for asylum as cognizable injury)
- U.S. Dep’t of State v. Legal Assistance for Vietnamese Asylum Seekers, Inc., 519 U.S. 1 (vacatur/remand and subsequent D.C. Cir. treatment of reviewability)