Rivas v. Napolitano
2012 U.S. App. LEXIS 8290
9th Cir.2012Background
- Rivas sought an immigrant visa based on an approved I-130 filed by his daughter; consulate in Ciudad Juarez denied the visa.
- Rivas moved to compel action on his Form I-601 and reconsideration request; district court dismissed for lack of subject matter jurisdiction under consular nonreviewability and other acts.
- Court analyzes consular nonreviewability and its exceptions, focusing on discretionary decisions versus ministerial actions to act.
- Discretionary exceptions reviewed: authority to act vs. decision within consul's discretion; case law requires facially legitimate reasons for denial to defeat review.
- Second avenue concerns a nondiscretionary duty to reconsider under 22 C.F.R. § 42.81(e) when applicant adduces evidence tending to overcome ground of ineligibility.
- Record shows Rivas submitted evidence after denial; district court found jurisdiction uncertain pending factual determinations about actual admission and receipt of reconsideration letter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do consular nonreviewability exceptions apply to Form I-601 claim? | Rivas argues exceptions permit review when action is to be taken, not discretionary decision. | Authorities hold exceptions do not apply since consular denial was discretionary and supported by facially legitimate reason. | No jurisdiction under nonreviewability for Form I-601. |
| Does mandamus/APA/Declaratory Judgment Act jurisdiction exist for reconsideration request? | Non-discretionary duty under 22 C.F.R. § 42.81(e) mandates reconsideration and supports mandamus/APA/Declaratory relief. | No duty to act unless regulation requires reconsideration; claims fail absent action. | Jurisdiction may exist to review reconsideration request under 22 C.F.R. § 42.81(e), mandamus, APA, and Declaratory Judgment Act; remand proper to determine jurisdiction. |
| Does 22 C.F.R. § 42.81(e) require reconsideration when applicant adduces evidence tending to overcome ground of ineligibility? | Statute imposes nondiscretionary duty to reconsider when new evidence is provided. | Regulation does not compel if evidence does not tend to overcome ground. | Regulation imposes nondiscretionary duty to reconsider if evidence tends to overcome the ground of ineligibility. |
| Did Rivas admit to alien smuggling, thus affecting admissibility and reconsideration? | Admission evidence may be insufficient or improperly proven; reconsideration could proceed. | Rivas admitted to violating INA § 212(a)(6)(E); Burciaga declaration supports inadmissibility. | Record insufficient on jurisdictional merits; remand to determine actual admission and its impact. |
Key Cases Cited
- Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986) (consular nonreviewability generally, with limited exceptions)
- Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (limits on nonreviewability; challenge to authority to act vs. discretion)
- Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (facially legitimate and bona fide reason standard for visa denials)
- Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (admission standards in immigration context (three-part test in BIA context))
- Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987) (jurisdictional dismissal should not preclude merits when facts are disputed)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (APA action capability and requirement that agency actions be legally compelled)
- Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158 (9th Cir. 2005) (declaratory relief when government action within agency's power; federal questions)