293 F. Supp. 3d 419
S.D. Ill.2018Background
- Saleh, a Yemeni citizen, had an I-130 filed on her behalf by her deceased U.S.-citizen husband; the petition was approved and transferred to consular processing.
- Saleh interviewed at the U.S. Embassy in Djibouti in Nov. 2015; she received a note suggesting approval but her case remained in “administrative processing” through 2016.
- Petitioners (Saleh and her children) filed a mandamus petition Dec. 28, 2016 seeking issuance of Saleh’s immigrant visa (and initially a passport for one son).
- While the suit was pending, the consular post issued a Refusal Worksheet (Apr. 26, 2017) stating denial under INA § 212(a)(3)(B) (terrorism inadmissibility); the Government moved to dismiss the amended petition.
- Petitioners alleged the denial violated their Fifth Amendment Due Process rights and urged the consular decision was made in bad faith and in retaliation for filing the mandamus petition.
- The district court dismissed the amended petition: it held consular non-reviewability bars review because the consular officer provided a facially legitimate and bona fide reason (citation to § 1182(a)(3)(B)), and the complaint failed to plausibly allege bad faith or retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may review consular visa denials invoking due process | Saleh/children: denial of mother’s immigrant visa violates their Fifth Amendment liberty interest in family unity; consular decision should be reviewable | Government: consular non-reviewability bars judicial review except limited cases; here the consular officer cited § 1182(a)(3)(B), a facially legitimate basis | Dismissed: consular non-reviewability applies; exception requires only a facially legitimate and bona fide reason, which the statutory citation supplies |
| Whether citation to INA § 1182(a)(3)(B) is insufficient without factual support | Petitioners: mere citation is not facially legitimate absent indicia of factual support; here no known terrorism ties | Government: Din concurrence and Mandel mean a citation to the terrorism bar suffices absent an affirmative showing of bad faith | Held for Government: under Mandel and Kennedy’s concurrence in Din, a citation to § 1182(a)(3)(B) indicates a bona fide reason and ends judicial inquiry absent bad faith |
| Whether petitioners plausibly alleged bad faith or retaliation sufficient to permit review | Petitioners: denial followed litigation and after earlier indication of approval, suggesting retaliatory motive and lack of terrorism nexus | Government: allegations are conclusory, remote in time, and administrative processing predated the suit; petitioners offer no particularized facts showing the consular officer acted in bad faith | Held for Government: allegations of retaliation and lack of terrorism ties are conclusory and implausible; no affirmative, particularized showing of bad faith was pled |
| Whether earlier embassy communications showing “approval” undermine the consular denial | Petitioners: November 2015 note signaled approval; subsequent denial suggests improper motive | Government: the record shows case remained in administrative processing and no final approval was issued; procedural sequence is consistent with legitimate review | Held for Government: administrative processing predated suit; earlier note did not establish final approval and does not support an inference of retaliation |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (courts generally may not review consular visa denials; limited review only if a U.S. citizen asserts a constitutional right and the government provides a facially legitimate, bona fide reason)
- Galvan v. Press, 347 U.S. 522 (1954) (recognizes congressional/executive power to exclude aliens and the historical practice of limited judicial intervention)
- American Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (applies Mandel; courts must accept a consular officer’s facially legitimate and bona fide reason absent a well‑supported allegation of bad faith)
- Kerry v. Din, 135 S. Ct. 2128 (2015) (plurality and concurrence reached same result vacating Ninth Circuit; Kennedy concurrence held that a statutory citation to the terrorism bar suffices absent an affirmative showing of bad faith)
- Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (to overcome nonreviewability a plaintiff must plausibly allege the consular officer lacked a good‑faith belief in the facts relied upon)
- Ngassam v. Chertoff, 590 F. Supp. 2d 461 (S.D.N.Y. 2008) (even if a consular decision was contrary to agency regulations, courts generally do not look behind consular visa denials)