Yafai v. Kerry, 1:16-cv-09728

Background

Mohsin Yafai (U.S. citizen) filed an approved I-130 for his wife Zahoor Ahmed, who remains in Yemen after a U.S. consular officer denied her immigrant visa under 8 U.S.C. § 1182(a)(6)(E) for alleged attempted smuggling of two children.
Plaintiffs sued for declaratory relief, seeking a judicial determination that the two children are theirs and challenging the visa denial.
The court previously dismissed the original complaint for failing to allege consular bad faith; plaintiffs filed an amended complaint and defendants moved to dismiss again.
The consular decision expressly cited the statutory ground of inadmissibility (§ 1182(a)(6)(E)) and identified specific alleged identities the officer believed were used in the smuggling attempt.
Plaintiffs contend the officer ignored voluminous documentary evidence demonstrating the children are theirs; they seek a declaratory judgment as to parentage and allege the officer acted in bad faith.
The court applied the doctrine of consular nonreviewability and the standard from Kerry v. Din: a consular citation to a valid statutory ground is a facially legitimate and bona fide reason unless plaintiffs plausibly allege bad faith.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court can review consular visa denial	Yafai/Ahmed argue the denial should be reviewed because it violates Yafai’s interest in his wife’s admission and the officer acted in bad faith	Defendants assert consular nonreviewability bars review where a facially legitimate statutory ground is given	Court held nonreviewability applies absent a plausible bad-faith allegation; case dismissed
Whether citation to § 1182(a)(6)(E) is a facially legitimate and bona fide reason	Plaintiffs argue the officer’s statutory citation is undermined by submitted evidence proving parentage	Defendants argue citation to the statute (with factual predicates) suffices to show a facially legitimate basis	Court held citation to the statute suffices under Din/Mandel; plaintiffs must plead bad faith to overcome it
Whether plaintiffs plausibly alleged consular bad faith	Plaintiffs claim the officer ignored evidence and effectively invented allegations	Defendants say ignoring or rejecting evidence, without more, is not bad faith	Court held plaintiffs’ allegations showed disagreement with the decision, not an affirmative showing that the officer did not in good faith believe the information; insufficient
Whether a declaratory judgment establishing the children are plaintiffs’ can avoid nonreviewability	Plaintiffs seek a declaration that the submitted evidence proves parentage to attack the denial	Defendants argue such a declaration directly questions the consular decision and is barred	Court held declaratory relief challenging the basis of the visa denial is barred by consular nonreviewability

Key Cases Cited

Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017) (discusses consular nonreviewability and exceptions for facially illegitimate denials or constitutional impacts)
Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017) (clarifies consular nonreviewability is a merits-based reason to reject claims)
Kleindienst v. Mandel, 408 U.S. 753 (1972) (courts defer to consular decisions when a facially legitimate and bona fide reason is provided)
Kerry v. Din, 135 S. Ct. 2128 (2015) (plurality/concurrence framework explaining that citation to a valid statutory ground establishes a facially legitimate reason unless bad faith is plausibly alleged)
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) (applies Din’s framework to consular denials and bad-faith pleading requirement)
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (explains that alleging the official’s information was incorrect is insufficient; must allege the official did not in good faith believe it)
American Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (district courts may not "look behind" a consular officer’s facially legitimate explanation absent well-supported bad-faith allegations)
Lleshi v. Kerry, 127 F. Supp. 3d 196 (S.D.N.Y. 2015) (refuses to consider additional submitted documents to rebut consular findings absent bad-faith allegations)