Rivas v. Napolitano, 714 F.3d 1108

Rivas applied for an immigrant visa based on an approved 1-130 petition from his daughter; the U.S. Consulate in Ciudad Juarez denied the visa.
The district court dismissed for lack of subject matter jurisdiction under consular nonreviewability, and also denied relief under the Mandamus Act, the APA, and the Declaratory Judgment Act.
The court found two consular nonreviewability exceptions inapplicable to the Form 1-601 claim (actionability of the consulate's conduct and lack of facially legitimate reason).
The court held a potential nonreviewability exception might apply to a reconsideration request if the government failed to act, and discussed 22 C.F.R. § 42.81(e) as imposing a nondiscretionary duty to reconsider when new evidence is adduced.
Rivas timely submitted a reconsideration request on August 5, 2008 with arrest records but no convictions, raising questions about the grounds for ineligibility and whether reconsideration was triggered; the record lacked clarity on what Rivas said during the consular interview, necessitating remand for jurisdictional fact finding.
The panel affirmed the district court on Form 1-601, vacated it on the reconsideration claim, and remanded for proceedings consistent with mandamus, APA, and Declaratory Judgment Act principles.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether consular nonreviewability bars review of Form 1-601	Rivas argues the district court has jurisdiction because the denial involved an official action.	The government contends consular nonreviewability precludes such review.	No; the exceptions do not apply to Form 1-601.
Whether 22 C.F.R. § 42.81(e) creates a nondiscretionary duty to reconsider	Rivas contends § 42.81(e) required reconsideration upon submitting additional evidence.	The government asserts no mandatory duty to act beyond discretionary review.	§ 42.81(e) imposes a nondiscretionary duty to reconsider when evidence overcomes the ground of ineligibility.
Whether the district court lacked jurisdiction over the reconsideration claim or properly remanded	Rivas argues the district court should decide jurisdiction; the record concerns admission details.	The government argues no jurisdiction under consular nonreviewability.	Remand to determine jurisdiction under Mandamus Act, APA, and Declaratory Judgment Act.
Whether Rivas’s purported admission to alien smuggling invalidates reconsideration jurisdiction	Rivas argues evidence may overcome ineligibility; the admission may be misunderstood.	Defendants rely on Burciaga Declaration showing admission.	Jurisdiction depends on factual resolution about the admission; remand for factual development.

Li Ring of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986) (general rule of consular nonreviewability with limited exceptions)
Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (exception when suit challenges consul's authority to act or fails to act)
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (exception when a U.S. citizen's rights are alleged to be violated without a facially legitimate reason)
Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (admission standards in immigration context; supports review of admissions evidence)
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (APA action can be compelled when action is legally required)
Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158 (9th Cir. 2005) (declaratory judgment action for federal questions when regulations violated)
Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987) (appropriately dismiss when jurisdictional facts are disputed and merits depend on them)