Rola Chehade v. Rex Tillerson
712 F. App'x 598
| 9th Cir. | 2017Background
- Rana Chehade, an unadmitted nonresident alien, had an immigrant visa application denied by a consular officer under 8 U.S.C. § 1182(a)(3)(B).
- Rana has no constitutional right of entry and therefore lacks a judicial cause of action to challenge the visa denial.
- Rola Chehade, a U.S. citizen daughter, sued asserting her own due process interest in her relationship with her mother and challenged the denial under the limited review framework from Kleindienst v. Mandel and Kerry v. Din.
- The consular officer’s written notice cited § 1182(a)(3)(B) as the basis for denial; the government argued that citation supplied a facially legitimate and bona fide reason.
- The government met its burden to show a facially legitimate and bona fide reason, shifting to Rola the burden to plausibly allege consular bad faith.
- Rola’s amended complaint alleged bad faith in conclusory terms (harassment by DHS/USCIS) but failed to plead particularized facts showing the consular officer acted in bad faith; district court dismissed and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rana (nonresident alien) has a constitutional right of entry or a cause of action to challenge the visa denial | Rana contends she should be able to challenge denial | Government: unadmitted nonresident alien has no right of entry/no cause of action | Held: No right or cause of action (citing Mandel/Kerry v. Din) |
| Whether Rola (U.S. citizen) may press a due process challenge based on her relationship interest | Rola claims denial implicates her liberty interest and due process rights | Government contends any review is limited and notice given was sufficient | Held: Court assumed (without deciding) Rola has a protected interest but found government provided adequate process |
| Whether citation to § 1182(a)(3)(B) supplies a facially legitimate and bona fide reason for denial | Rola argues more was required to satisfy review standard | Government: statutory citation alone (which specifies factual predicates) suffices | Held: Citation to § 1182(a)(3)(B) provided a facially legitimate and bona fide reason (Din/Cardenas) |
| Whether Rola plausibly alleged consular bad faith to overcome the presumption of legitimacy | Rola alleged the denial was part of ongoing harassment by DHS/USCIS | Government: plaintiff must make an affirmative, particularized showing of bad faith | Held: Rola failed to plead bad faith with sufficient particularity; dismissal affirmed |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (holding unadmitted aliens lack a constitutional right of entry and no cause of action to press admission claims)
- Kerry v. Din, 576 U.S. 86 (clarifying limited review when a U.S. citizen challenges visa denial and that a consular citation to an inadmissibility statute can be dispositive)
- Bustamante v. Mukasey, 531 F.3d 1059 (Ninth Circuit: notice requirement and standards for consular denial review)
- Cardenas v. United States, 826 F.3d 1164 (Ninth Circuit: applying Din two-part test; statutory citation may suffice when statute specifies discrete factual predicates)