Moshin Yafai v. Mike Pompeo
912 F.3d 1018
7th Cir.2019Background
- Zahoor Ahmed (Yemeni citizen) had her immigrant visa denied twice by a consular officer under 8 U.S.C. § 1182(a)(6)(E) for attempted smuggling of two children identified as Yaqub and Khaled Mohsin Yafai.
- Mohsin Yafai, a U.S. citizen and Ahmed's husband, had previously obtained approved I-130 petitions for his wife and children and sponsored their immigrant visas.
- The family asserted Yaqub and Khaled were their children who had drowned; the applicants submitted vaccination records, school and hospital records, a passport, police report, prenatal records, and family photographs to rebut the smuggling allegation.
- The consular office requested those documents, a Fraud Prevention Unit reviewed the matter, and the consular officer reaffirmed the smuggling-based denial without detailing the underlying factual findings.
- Yafai and Ahmed sued under the Declaratory Judgment Act and the Administrative Procedure Act, alleging bad faith and that the denial infringed Yafai’s constitutional interest in living with his spouse; the district court dismissed the suit under consular nonreviewability.
- The Seventh Circuit affirmed, holding the officer cited a facially legitimate and bona fide statutory ground and plaintiffs failed to make an affirmative showing of bad faith sufficient to justify looking behind the stated reason.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consular visa denials are judicially reviewable when a U.S. citizen's constitutional interests are implicated | Yafai: denial of Ahmed's visa implicates his right to live with his spouse and is reviewable | Government: consular nonreviewability bars review; Mandel/Din limit review even if citizen interest asserted | Court assumed, without deciding, that a citizen interest might exist but resolved case on other grounds — consular nonreviewability still applies where denial is facially legitimate and bona fide |
| Whether citation to a statutory ground (§ 1182(a)(6)(E)) suffices as a "facially legitimate and bona fide" reason | Yafai: statutory citation insufficient where record shows substantial contrary evidence and possible failure to consider it | Government: citation to statute specifying discrete predicates satisfies Mandel/Din; no requirement to disclose underlying facts | Held: statutory citation plus the discrete factual predicate (attempted smuggling) met the Mandel standard; court will not ‘‘look behind’’ the stated ground |
| Whether plaintiffs made an "affirmative showing" of bad faith warranting deeper review | Yafai: submission of documentary evidence and claim that officer ignored it shows bad faith and that denial was a sham | Government: nonbelief of proffered evidence does not equal bad faith; officer requested documents and fraud unit reviewed them, showing good-faith consideration | Held: plaintiffs failed to make the required affirmative, particularized showing of bad faith; disagreement or disbelief of evidence is insufficient |
| Whether courts must require the Government to submit an affidavit or factual explanation that it actually considered applicants' evidence | Yafai: court should demand proof that the consular officer considered rebutting evidence (affidavit/in camera explanation) | Government: Mandel forbids routine probing behind facially legitimate, bona fide explanations; no blanket obligation to produce such affidavits | Held: Majority rejected imposing a routine government-affidavit requirement; only narrowly tailored bad-faith allegations might justify looking behind the decision |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (courts will not look behind an Executive exclusion if a facially legitimate and bona fide reason is given)
- Kerry v. Din, 576 U.S. 86 (2015) (Justice Kennedy concurrence: citation to statute with discrete predicates can satisfy the facially legitimate and bona fide standard absent an affirmative showing of bad faith)
- Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017) (Seventh Circuit applying Mandel/Din; stating citation to statutory predicates supplies a legitimate reason and noting bad-faith exception hypothetically)
- Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017) (refusing to recharacterize consular factual determinations; courts may note supporting facts but do not weigh them)
- Matushkina v. Nielsen, 877 F.3d 289 (7th Cir. 2017) (doctrine of consular nonreviewability bars judicial review of visa decisions abroad)