ALEKSAN KHACHATRYAN; DANIEL DANUNS, Plaintiffs-Appellants, v. ANTONY J. BLINKEN, in his official capacity as U.S. Secretary of State; JOHN J. SULLIVAN, in his official capacity as U.S. Ambassador to the Russian Federation; MERRICK B. GARLAND, in his official capacity as Attorney General; ALEJANDRO MAYORKAS, in his official capacity as Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF STATE; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; DOES, 1–10, Consular Officers, American Embassy Visa Section at Moscow, Defendants-Appellees.
No. 18-56359
D.C. No. 2:18-cv-01358-MWF-KS
United States Court of Appeals for the Ninth Circuit
Filed July 14, 2021
Michael W. Fitzgerald, District Judge, Presiding
Submitted April 14, 2020* Pasadena, California
Opinion by Judge Collins;
Dissent by Judge Presnell
Visas/Consular Nonreviewability
Affirming the district court‘s judgment dismissing for failure to state a claim a civil action brought by Aleksan Khachatryan and Daniel Danuns, respectively a Russian citizen and his U.S. citizen adult son, challenging the Government‘s decision to deny Khachatryan an immigrant visa, the panel held that (1) Khachatryan has no cause of action to challenge the visa denial because he is an unadmitted and nonresident alien; (2) Danuns‘s complaint pleaded sufficient facts with particularity to raise a plausible inference that Khachatryan‘s visa was denied in bad faith in violation of Danuns‘s Fifth Amendment right to due process; and (3) the district court nevertheless properly dismissed Danuns‘s claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father.
The panel explained that although decisions regarding the admission and exclusion of foreign nationals are subject to the doctrine of consular nonreviewability, the Supreme Court has identified a “circumscribed judicial inquiry” for review of consular decisions that involve a violation of constitutional rights. However, the panel concluded that, as a foreign national seeking admission into the United States, Khachatryan has no constitutional right to entry, and so he personally has no ability to bring a cause of action challenging his denial of admission. The panel explained
Following the approach of Justice Kennedy‘s concurrence in Kerry v. Din, 576 U.S. 86 (2015), the panel first addressed whether, assuming that Danuns has a protected liberty interest, he had sufficiently alleged a due process violation. The panel reasoned that only if it concluded that Danuns had alleged a failure of due process would it then need to address the Government‘s broader contention that Danuns lacks an underlying liberty interest that is protected by due process. Applying the three-part test set forth in Justice Kennedy‘s concurrence, the panel held that Danuns had adequately pleaded that the handling of his father‘s visa application did not satisfy the relevant due process standards. First, the panel concluded that the Government had sufficiently cited a valid statutory provision under which the visa was denied. Second, the panel concluded that the cited statute specifies discrete factual predicates that must exist before the consular officer may deny a visa. The panel explained that because the Government had carried its burden to establish these first two requirements, the burden shifted to Danuns to plead and prove that the cited reason was not bona fide by making an affirmative showing of bad faith on the part of the consular officer who denied the visa. The panel concluded that Danuns had pleaded sufficient facts with particularity to raise a plausible inference of subjective bad faith on the part of the consular official who denied the visa.
The panel wrote that the question before it was whether the “liberty” specially protected by the Due Process Clause includes a right of familial association that itself includes a right of an adult child to bring his or her alien parent into the United States. The panel wrote that it was aware of no precedent that has recognized any such right. Explaining that this court may recognize a new fundamental liberty interest only if it is objectively, deeply rooted in this Nation‘s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed, the panel concluded that Danuns‘s claimed right to bring his father to the United States did not meet that standard. Thus, the panel concluded that Danuns has no protected liberty interest under the approach of the Din plurality.
The panel found no basis for reaching a different conclusion under the approach of the Din dissenters. Explaining that the dissenters also posited a further set of constitutionally based liberty interests entitled to procedural due process protection, but that are not fundamental rights
Dissenting, District Judge Presnell wrote that the majority departs from established Ninth Circuit precedent by concluding that Danuns has no protectable liberty interest to assert—a ruling that effectively eviscerates the exception to consular nonreviewability and makes it virtually impossible for anyone other than a spouse to rectify the Government‘s bad faith denial of a visa application. Judge Presnell wrote that by claiming that this case involves a novel liberty interest, the majority fails to adhere to this Court‘s clear precedent recognizing a constitutional liberty interest between parent and child. Because Danuns adequately pled bad faith on the part of the Government, and Danuns has a protected liberty interest in his relationship with his father, Judge Presnell wrote that Danuns is entitled to judicial review of his procedural due process challenge to the Government‘s denial of Khachatryan‘s visa.
H. Henry Ezzati, Ezzati Law P.C., Irvine, California, for Plaintiffs-Appellants.
Nicola T. Hanna, United States Attorney; David M. Harris, Chief, Civil Division; Daniel O. Blau, Assistant United States Attorney; United States Attorney‘s Office, Los Angeles, California; for Defendants-Appellees.
OPINION
COLLINS, Circuit Judge:
Plaintiffs-Appellants Aleksan Khachatryan and Daniel Danuns, respectively a Russian citizen and his U.S. citizen adult son, appeal the district court‘s dismissal of their civil complaint challenging the Government‘s decision to deny Khachatryan an immigrant visa. Because Khachatryan is an unadmitted and nonresident alien, he has no cause of action to challenge the visa denial, and his claims were properly dismissed. Danuns claims that his Fifth Amendment right to due process was violated by the denial of his father‘s visa because a consular officer allegedly denied that visa in bad faith. We agree that Danuns‘s complaint pleads sufficient facts with particularity to raise a plausible inference that Khachatryan‘s visa was denied in bad faith. Nevertheless, we conclude that the district court properly dismissed Danuns‘s claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father. We therefore affirm.
We begin by recounting Khachatryan‘s ultimately unsuccessful effort, over a period of more than 14 years, to obtain an immigrant visa to reside in the United States. We then briefly set forth the procedural history leading up to the district court‘s dismissal of the case at the pleading stage.
A
In reviewing the dismissal of Plaintiffs’ operative complaint for failure to state a claim, we take as true the well-pleaded allegations of that complaint, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “we ‘consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice,‘” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted). Applying those standards, we take the following facts as true.1
Khachatryan, a native of Armenia, married Karine Galustian in Armenia, in the former Soviet Union, in March 1990. The couple had three children, including Arman Khachatryan, who is now known as Daniel Danuns. At some point, Khachatryan became a citizen of the Russian Federation and moved from Armenia to Moscow. After Khachatryan‘s marriage to Galustian ended in divorce in
Khachatryan later married Ripsime Akhverdian, a U.S. citizen, in Moscow in June 2001. That same month, Akhverdian filed with the U.S. Immigration and Naturalization Service (“INS“), at the U.S. Embassy in Moscow, a “petition for alien relative” (Form I-130) sponsoring Khachatryan for an immigrant visa.2 Three months later, the INS “Officer-in-Charge” at the Embassy issued a “Notice of Intent to Deny,” asserting that Khachatryan‘s decree of divorce from Galustian, which had been submitted with the Form I-130, was fraudulent. The notice requested additional documents and set a due date for Akhverdian to respond.
In January 2002, prior to that due date, Akhverdian formally withdrew the petition, explaining that she had not had sufficient time to obtain the requested documents. Nonetheless, the INS Officer-in-Charge at the Embassy thereafter sent a “Decision” denying Akhverdian‘s petition on January 18, 2002. Although the INS decision acknowledged the agency‘s receipt of the withdrawal notice, the decision expressly disregarded that withdrawal and proceeded to deny the petition on the ground that the divorce certificate was fraudulent and that there was evidence that
In October 2002, Akhverdian filed a new Form I-130 on Khachatryan‘s behalf, but this time she did so at the INS office in Los Angeles. In August 2003, the INS‘s successor agency, USCIS, denied Akhverdian‘s renewed petition, based solely on its assertion that her previous visa petition had been denied on grounds of fraud on January 18, 2002. Given the INS‘s earlier acknowledgment that the January 2002 denial was invalid under Matter of Cintron and that the previous application had been withdrawn before decision, the stated ground for this denial was plainly erroneous. Nonetheless, USCIS reiterated its denial of the second petition on this ground on October 6, 2003.
Khachatryan and Akhverdian subsequently divorced in 2005. After the divorce, Khachatryan had repeated difficulties in attempting to obtain a tourist visa to visit his children in the United States. In trying to resolve that problem, Khachatryan and his attorneys made numerous administrative inquiries over several years in an effort to correct the administrative record. Those efforts bore fruit when, in January 2009, USCIS, on its own motion, formally
Despite this development, Khachatryan continued to have difficulty obtaining a tourist visa, and his family reached out to their elected representatives for help. In October 2011, the U.S. Customs and Border Protection (“CBP“) responded to an inquiry from then-U.S. Senator Barbara Boxer concerning the situation. The CBP‘s letter acknowledged that the “documentation” the Senator‘s office had provided “indicates that Mr. Khachatryan has been unable to obtain an immigrant visa due to inaccurate charges contained in U.S. Customs and Border Protection (CBP) records relating to fraud.” The CBP stated that, while it could not disclose specific law-enforcement records, it could assure the Senator that “we have undertaken a review of our records, and any required changes or updates have been made.” Two months later, however, the U.S. Embassy in Moscow sent a letter by email to U.S. Representative Howard Berman‘s office, stating that Khachatryan had been denied a tourist visa because he was presumptively an
On March 26, 2012, Danuns, who was then a U.S. citizen, filed a new Form I-130 petition seeking to sponsor his father so that the latter could obtain an immigrant visa. Under the Immigration and Nationality Act (“INA“), a parent seeking an immigrant visa ordinarily may be sponsored by a U.S.-citizen child only if that child is “at least 21 years of age,”
In October 2012, USCIS approved Danuns‘s petition. Its approval notice cautioned that approval “does not guarantee that the alien beneficiary will subsequently be found to be eligible for a visa.” Khachatryan applied for the immigrant visa, and he appeared for an interview at the U.S. Embassy in Moscow on October 16, 2013. The Embassy, however, thereafter sent the petition back to USCIS for further consideration in light of USCIS‘s 2003 determination that Khachatryan had presented a fraudulent divorce certificate in support of a prior visa application.
On July 25, 2014, USCIS issued a “Notice of Intent to Revoke” its approval of Danuns‘s petition sponsoring his father. The notice correctly noted that Akhverdian‘s first sponsorship petition had been withdrawn, but it nonetheless stated that the “U.S. Embassy, Moscow reviewed the second visa petition and determined that the submitted record failed to reflect any new circumstances or any new information to be considered and the Service adhered to the previous decision.” The notice did not mention that, because the first petition had been withdrawn, the Officer-in-Charge at the Embassy had acknowledged in March 2002 that there was
After Plaintiffs submitted their response to the notice, USCIS in September 2014 again reversed course and decided to reaffirm its prior approval of Danuns‘s sponsorship petition. Accordingly, it forwarded the petition to the Department of State. Over the next seven months, counsel for Danuns and his father made repeated inquiries as to the status of the matter, but to no avail. In April 2015, the National Visa Center (“NVC“) at the State Department responded that it had never received the petition back from USCIS. After further inquiries, counsel learned a month later that the petition had somehow been sent to “archives” rather than to the State Department. The NVC finally forwarded the petition to the U.S. Embassy in Moscow in July 2015.
Counsel for Danuns and his father thereafter followed up with the Embassy in Moscow to find out about the status of the matter, and counsel was told on November 11, 2015 that the Embassy had denied Khachatryan‘s visa petition. Counsel was provided with a “Refusal Worksheet” that was actually dated more than six weeks earlier—“30-Sep 2015“—but which had not previously been received by Khachatryan or his counsel. The Refusal Worksheet was a barebones check-the-box form, and it simply stated that the visa was denied under INA “Section 212(a)(6C) 1 [sic]” due
Dear Ms. Gambourian,
Your client, Mr. Aleksan Khachatryan, was found ineligible for a visa under INA [§] 212(a)(6)(C)(1), for fraud and misrepresentation. Mr. Khachatryan was found to have applied for and received U.S. visas three times under a false identity from 2000–2002. He was also found to have submitted a false divorce certificate in support of a previous immigrant visa petition. [Section] 212(a)(6)(C)(1) [ineligibility] is a permanent ineligibility, and under U.S. immigration law no waiver is available for Mr. Khachatryan‘s visa classification.
B
Khachatryan and Danuns filed this lawsuit on February 18, 2018, naming as defendants USCIS, the Departments of State and Homeland Security, the heads of those Departments, the U.S. Ambassador to Russia, the Attorney General, and unnamed “Doe” Embassy consular officers (collectively, “the Government“). After the district court dismissed Plaintiffs’ original complaint with leave to amend,
The district court dismissed the First Amended Complaint for failure to state a claim under
Danuns and Khachatryan timely appealed. We have jurisdiction under
II
Decisions regarding the admission and exclusion of foreign nationals are a “‘fundamental sovereign attribute exercised by the Government‘s political departments.‘”
Nonetheless, the Supreme Court has recognized a “circumscribed judicial inquiry” for review of consular decisions that involve a violation of constitutional rights. Trump v. Hawaii, 138 S. Ct. at 2419 (tracing this exception to Kleindienst v. Mandel, 408 U.S. 753 (1972)); see also Allen, 896 F.3d at 1097 (“[T]he only standard by which we can review the merits of a consular officer‘s denial of a visa is for constitutional error.“).4 However, as a “foreign national[] seeking admission” into the United States,
It follows that the rule of consular nonreviewability bars all of Khachatryan‘s claims and that it also bars Danuns‘s claims except to the extent that his claims are based on a cognizable violation of his own constitutional rights.5 Indeed, Plaintiffs do not meaningfully contest these points in their briefs in this court. Instead, they contend only that Danuns adequately pleaded that the denial of a visa to his father was done in bad faith and that, as a result, the visa denial violated his rights under the Due Process Clause, which he asserts protects his interest in being reunited with
The Supreme Court addressed a similar set of questions in Kerry v. Din, in which a U.S. citizen (Fauzia Din) asserted that her due process rights were violated in connection with the denial of a visa to her husband, an Afghan citizen living in Afghanistan. 576 U.S. at 88 (plurality). A plurality of three Justices held that the denial of a visa to Din‘s husband did not implicate any “fundamental liberty interest” of Din and that, as a result, “there is no process due to her under the Constitution” with respect to that denial. Id. at 97, 101. However, two concurring Justices—Justice Kennedy and Justice Alito—found it unnecessary to reach the constitutional question of whether Din “has a protected liberty interest in the visa application of her alien spouse,” because they concluded that, “even assuming she has such an interest, the Government satisfied due process” in denying the visa. Id. at 102 (Kennedy, J., concurring in the judgment).
Confronted with the novel constitutional question of whether Danuns has a protected liberty interest in his father‘s visa application, we conclude that we should follow the same approach as Justice Kennedy‘s Din concurrence, and that we should first address whether, assuming that Danuns has such a protected interest, he has sufficiently alleged a violation of due process under the standards set
III
We therefore turn first to the question of whether, assuming Danuns has a constitutionally protected liberty interest, he has adequately pleaded that the handling of his father‘s visa application did not satisfy the relevant due process standards. We conclude that he has.
A
In Cardenas, we held that Justice Kennedy‘s concurrence in Din was the controlling opinion and that, as a result, the standards he articulated for determining what process was “due” in the visa-denial context were binding. 826 F.3d at 1171–72. We described those standards as establishing a three-part inquiry. First, we examine whether the consular officer denied the visa “under a valid statute of inadmissibility.” Id. at 1172. Second, we consider whether, in denying the visa, the consular officer “cite[d] an admissibility statute that ‘specifies discrete factual
The Government contends, however, that the three-part framework described in the Din plurality and Cardenas was abrogated by the Supreme Court in Trump v. Hawaii. We disagree. The Government notes that, in Trump v. Hawaii, the Court described Justice Kennedy‘s concurrence in Din as establishing “that the Government need provide only a statutory citation to explain a visa denial,” see 138 S. Ct. at 2419, and the Court did not mention the additional portions of the Din concurrence that addressed the need for “discrete factual predicates” or the possibility of making “an affirmative showing of bad faith.” But this dog-that-didn‘t-bark theory provides no basis for concluding that the five-Justice majority in Trump v. Hawaii—which included Justice Kennedy and Justice Alito—thereby silently jettisoned these other aspects of the Din plurality.
The Government overlooks the fact that Trump v. Hawaii did not involve review of a discrete individual visa denial, but rather, a broad-based challenge to a presidential proclamation that imposed certain generally applicable restrictions on the entry of aliens from specified countries.
B
We therefore proceed to apply the three-part framework of the Din concurrence, as set forth in our decision in Cardenas. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).
1
First, we conclude that the Government sufficiently cited a valid statutory provision under which the visa was denied. Although it would seemingly be a very easy task to supply a statutory citation, the Embassy nonetheless managed to misidentify the relevant provision in both of its communications with Khachatryan‘s counsel. In the initial “Refusal Worksheet,” the Embassy identified INA “Section 212(a)(6C) 1” as the relevant provision that rendered Khachatryan inadmissible, and in its follow-up email to counsel, it cited the provision as section “212(a)(6)(C)(1).” The actual provision is
Second,
Because the Government has carried its burden to establish these first two requirements, the burden shifts to Danuns to plead and prove that the cited reason “was not bona fide by making an ‘affirmative showing of bad faith on the part of the consular officer who denied [the] visa.‘” Cardenas, 826 F.3d at 1172 (quoting Din, 576 U.S. at 105 (Kennedy, J., concurring in the judgment)).
Because this case was decided at the pleading stage, Danuns‘s burden was to affirmatively allege facts “with sufficient particularity” to raise a “plausibl[e]” inference that the consular officer acted in “bad faith.” Din, 576 U.S. at 105 (Kennedy, J., concurring in the judgment); see also Cardenas, 826 F.3d at 1173. In Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), we construed this requirement as imposing a burden to allege subjective “bad faith,” i.e., that “the consular official did not in good faith believe the information he [or she] had” or that the “Consulate acted upon information it knew to be false.” Id. at 1062–63 (emphasis added). Consequently, it “is not enough to allege that the consular official‘s information was incorrect.” Id. But that does not mean that the objective unreasonableness of a stated reason for a visa denial is irrelevant, particularly at the pleading stage. On the contrary, the more objectively unreasonable a stated basis for denying a visa is, the more plausible is the inference that the consular officer who accepted it acted in subjective bad faith. The unreasonableness of a consular officer‘s actions thus remains a factor to consider in assessing whether the plaintiff has pleaded facts with sufficient particularity to give rise to a plausible inference of subjective bad faith. Cf. CRST Van Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1112 (9th Cir. 2007) (fact that litigant‘s claim was “objectively specious” was a factor that permitted district court to “infer subjective bad faith” in litigant‘s persisting in asserting the claim).
In evaluating Danuns‘s allegations, we begin by addressing the Embassy‘s reliance on the ground that Khachatryan had assertedly submitted a false divorce certificate in connection with his earlier visa application in
First, on at least three separate occasions, USCIS specifically examined the allegation that Khachatryan had committed marriage fraud and had submitted a false divorce certificate, and each time USCIS concluded that this charge was unsubstantiated. Specifically, USCIS in 2009 formally reopened its prior denial of Khachatryan‘s second visa application, and in doing so USCIS expressly concluded that “the Service did not prove that [Khachatryan‘s] marriage was entered into for the purpose of evading immigration laws.” The 2009 reopening order also expressly mentioned the prior allegation of a fraudulent divorce certificate and necessarily found that allegation unsupported as well. USCIS evidently reached the same conclusion again in October 2012, when it approved Danuns‘s sponsorship petition, because the applicable statute governing such petitions expressly forbids approval if the sponsored relative engaged in marriage fraud. See
Thus, on three separate occasions, the other agency charged with reviewing the same marriage-fraud allegations—USCIS—specifically examined the matter and concluded that the charges were unsubstantiated.9 In Bustamante, we concluded that a consular official‘s reliance upon information supplied by another agency was a factor that weighed strongly against a finding of bad faith. See 531 F.3d at 1063. Conversely, the Embassy‘s persistent and unexplained refusal to accept the repeated conclusions of USCIS—and to do so even after the Embassy had specifically asked USCIS to take another look at the matter—is a factor that weighs in favor of an inference of bad faith.
Second, in addition to stubbornly refusing to accept USCIS‘s contrary conclusions, the Embassy erroneously continued to assert that Khachatryan‘s prior visa application had been denied rather than withdrawn. In a declaration from a State Department attorney submitted to the district court, the Government explained that, after receiving the reaffirmed approval from USCIS, the Embassy then “reviewed the basis for the prior finding of ineligibility under
The Government nonetheless insists that, even if such considerations might support an adverse inference with respect to the Embassy‘s reliance upon prior marriage fraud in denying Khachatryan‘s visa, that does not affect the Embassy‘s alternative conclusion that Khachatryan had obtained visas under a false name in 2000–2002. We disagree.
Our obligation in reviewing the motion to dismiss is to examine the allegations of the complaint as a whole and to draw all reasonable inferences in favor of Danuns. See Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir. 2017). We conclude that, when considered against the backdrop of the other factual allegations set forth above, the Embassy‘s much-belated and out-of-the-blue assertion that Khachatryan had committed a different form of fraud more than 13 years earlier supports, rather than defeats, a reasonable inference of bad faith. Taken as a whole, the allegations establish that Khachatryan engaged in a 14-year effort to obtain a visa during which the Embassy continually
We hold that Danuns has carried his substantial burden to plead sufficient facts with particularity to raise a plausible inference of subjective bad faith on the part of the consular official who denied Khachatryan‘s visa.
IV
Because Danuns has sufficiently pleaded bad faith, we cannot sustain the dismissal in this case on that ground that, even assuming that Danuns has a protected liberty interest at stake, he received whatever process was “due.” We therefore turn to the Government‘s argument that the
A majority of the Supreme Court reaffirmed in Din that procedural due process rights attach to “liberty interests” that are based on “nonconstitutional law, such as a statute” or that are properly recognized as constitutionally based. Din, 576 U.S. at 97–98 (plurality); id. at 108 (Breyer, J., dissenting). Here, Danuns does not point to any statute or other source of nonconstitutional law that would grant him a protected liberty interest in having his father come to the United States. Rather, his contention is that he possesses a constitutionally based liberty interest similar to the one that we recognized for spouses in Bustamante. See Bustamante, 531 F.3d at 1062; see also supra note 7.
The plurality and the dissent in Din nonetheless differed in articulating the standards for determining what constitutionally based liberty interests are entitled to procedural due process protection. Both agreed—and therefore a majority of the Court agreed—that procedural due process at least extends under the Court‘s current caselaw to any “implied fundamental liberty,” i.e., to any liberty that is protected against substantive deprivation by the Constitution. Din, 576 U.S. at 93 (plurality) (emphasis added); id. at 107–08 (Breyer, J., dissenting).11 But they differed as to whether procedural due process protects some new set of additional “nonfundamental liberty interests“—i.e., liberty interests that are assertedly based in the
A
Under the applicable standards that the Supreme Court has articulated for assessing whether a claimed unenumerated right is fundamental, Danuns lacks any relevant fundamental right in having his father admitted into the United States.
1
Danuns‘s due process claim is based on the contention that his “freedom to make personal choices in family life” is a constitutionally protected liberty interest and that the denial of his father‘s visa deprives him of that liberty so as to trigger procedural due process protections. We think that Danuns defines the asserted interest at too high a level of generality.
The Supreme Court has instructed us to “exercise the utmost care” before “break[ing] new ground” in the area of unenumerated fundamental rights, Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992), and the Court has insisted on “a ‘careful description’ of the asserted fundamental liberty interest,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citation omitted). Thus, new fundamental rights ordinarily “must be defined in a most circumscribed manner, with central reference to specific historical practices.” Obergefell v. Hodges, 576 U.S. 644, 671 (2015) (citing Glucksberg, 521 U.S. at 721). The only
Because we must thus define the asserted fundamental right at issue here “in a most circumscribed manner,” see Obergefell, 576 U.S. at 671, we cannot ignore the fact that what Danuns claims here is a right to a particular type of relationship with his father—namely, one in which both he and his nonresident alien father will both physically live in the United States. As a result, the “question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes” a right of familial association that “itself includes” a right of an adult child to bring his or her alien
The dissent contends that we have already recognized the relevant liberty interest on which Danuns relies, because we have held “‘that a parent has a fundamental liberty interest‘” in the “‘companionship and society‘” of his or her adult child, Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (citation omitted), and we have also stated that this “‘constitutional interest in familial companionship and society logically extends to protect children‘“—including adult children—“‘from unwarranted state interference with their relationships with their parents,‘” Lee v. City of Los Angeles, 250 F.3d 668, 676, 685 (9th Cir. 2001) (citation omitted) (applying this principle in the context of an adult child with significant mental difficulties).13 See also Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013); Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411, 1418–19 (9th Cir. 1987), overruled in part on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc). But in each of these cases, the state actors at issue allegedly directly interfered with a parent/adult-child relationship that already existed within the United States, either by causing the death of the plaintiff‘s adult child or parent, see Johnson, 724 F.3d at 1164 (son shot and killed during arrest); Toguchi, 391 F.3d at 1055 (son died under care of prison doctor); Ward, 967 F.2d at 283 (son
The dissent contends that, under Bustamante and the panel opinion that the Supreme Court reviewed in Din, we are obligated to define the relevant liberty interest at the very highest level of generality, so that it would include adult-child relationships and presumably many others as well. See Dissent at 46, see also id. at 50 & n.7. That is wrong. Neither decision even considered, much less decided, whether there is a relevant cognizable liberty interest in the visa application of any family member other than a spouse. See Din v. Kerry, 718 F.3d 856, 860 (9th Cir. 2013) (“In Bustamante, we recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse‘s visa.” (emphasis added)). Likewise, in describing the limited review of visa denials that emerged from the Supreme Court‘s fractured decision in Din, we held in Cardenas only that the narrow review afforded by Justice Kennedy‘s Din concurrence applies “at least in a case only raising the due process rights of a citizen spouse.” 826 F.3d at 1171 (emphasis added). The dissent‘s suggestion that our precedent has already decided that visa-
Moreover, the dissent‘s broader framing of the liberty interests at stake cannot be reconciled with the Supreme Court‘s decision in DinGlucksberg‘s requirement of a “‘careful description of the asserted fundamental liberty interest,‘” the Din plurality defined the liberty interest at issue as a “right to live in the United States with [one‘s] spouse” and concluded that “[t]here is no such constitutional right.” 576 U.S. at 88, 93 (plurality) (quoting Glucksberg, 521 U.S. at 721). While disagreeing as to whether Din actually had a protected liberty interest, the dissenters in Din did not differ as to the proper level of generality for framing that question: they likewise defined the liberty interest involved as the ability to live together as spouses in the United States. See id. at 107 (Breyer, J., dissenting) (stating that the “liberty interest” at issue was Din‘s “freedom to live together with her husband in the United States” (emphasis added)); id. at 108 (noting that the “institution of marriage . . . encompasses the right of spouses to live together and to raise a family” (emphasis added)); id. at 110 (concluding that the Constitution protects a citizen‘s “freedom to live together with her spouse in America” (emphasis added)). And in assuming arguendo that Din had a protected liberty interest, Justice Kennedy‘s concurrence similarly defined that interest as being “a protected liberty interest in the visa application of her alien spouse.” Id. at 102 (Kennedy, J., concurring in the judgment); see also id. at 101 (characterizing the right asserted as the “constitutional right to live in this country with [her] husband“). But in all events,
Accordingly, the question presented here is whether, under the standards set forth in applicable Supreme Court precedent, we should now recognize a fundamental liberty interest of an adult child to bring an alien parent into the United States. For the reasons explained in the next section, the answer to that question is no.
2
Under Glucksberg, we may recognize a new fundamental liberty interest only if it is “objectively, deeply rooted in this Nation‘s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Glucksberg, 521 U.S. at 720–21 (citations and internal quotation marks omitted). Danuns‘s claimed right to bring his father to the United States does not meet this standard.
As an initial matter, we note that the right that Danuns asserts finds no support from the original understanding of the “liberty” protected against deprivation, without adequate procedures, by the Fifth Amendment‘s Due Process Clause.14 As the Din plurality explained, “at the time of the
Magna Carta itself mentioned the right not to “‘be taken, or imprisoned, or be disseised of his [or her] freehold . . . or be outlawed, or exiled, or any otherwise destroyed.‘” Id. at 91 (quoting Magna Carta, ch. 29 (1225 ed.)). Coke elaborated on these rights as including the liberty to pursue one‘s “livelihood” and “franchises,” as well as the rights to not be “forejudged of life, or limbe, disherited, or put to torture, or death.” Edward Coke, The Second Part of the Institutes of the Laws of England 46–48 (W. Rawlins, 6th ed. 1681), quoted in Din, 576 U.S. at 91 (plurality). Blackstone‘s articulation included “the power of loco-motion, of changing situation, or removing one‘s person to whatsoever place one‘s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 William Blackstone, Commentaries *134.
Against this backdrop, we perceive little basis for concluding that the right claimed by Danuns satisfies Glucksberg‘s test for recognizing a new “fundamental liberty interest,” which requires a grounding in “[o]ur Nation‘s history, legal tradition, and practices.” 521 U.S. at 721. Nor does Danuns‘s claimed liberty interest find any support in historical practices specifically relating to the immigration of relatives. On the contrary, the relevant history confirms that, “[a]lthough Congress has tended to show ‘a continuing and kindly concern . . . for the unity and the happiness of the immigrant family,’ this has been a matter of legislative grace rather than fundamental right.” Din, 576 U.S. at 97 (plurality) (citation omitted).
For example, a 1790 statute automatically naturalized the resident minor children of naturalizing parents, but made no provision for nonresident parents of naturalized adults. See
Danuns relies on the Supreme Court‘s decision in Moore v. City of East Cleveland, 431 U.S. 494 (1977), but Moore provides no support for the fundamental right claimed here. In Moore, the Supreme Court invalidated, on substantive due process grounds, an ordinance that applied criminal penalties to a grandmother for living in the same household with her two grandsons, who were cousins. 431 U.S. at 496–99, 503–06 (plurality); id. at 520–21 (Stevens, J., concurring in the judgment) (relying upon property rights rather than familial rights). In reaching this conclusion, the plurality explained that “[t]he tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” Id. at 504. But the Moore plurality was referring only to a tradition of extended family members who are already in the United States choosing to live together. Id. at 501 (affording constitutional protection “to the family choice involved in this case“). It framed its constitutional holding in terms of a prohibition on the city‘s
Because an adult citizen has no fundamental right to have his or her unadmitted nonresident alien parent immigrate into the United States, Danuns has no constitutional liberty interest that is protected by the Due Process Clause under the approach set forth in the Din plurality.
B
We find no basis for reaching a different conclusion under the approach set forth by the Din dissenters.15 The Din dissenters differed with the plurality as to the circumstances in which “nonconstitutional law” might create “‘an expectation‘” that a particular liberty will not be taken away “without fair procedures,” 576 U.S. at 108 (Breyer, J., dissenting) (citation omitted); id. at 98–99 (plurality) (criticizing the dissent‘s position as erroneously expansive), but we need not address that particular debate here given that Danuns does not rely upon any such
In describing this asserted category of nonfundamental liberty interests “arising under the Constitution,” the Din dissent pointed to the following cases, which it described using the following parentheticals:
Paul v. Davis, 424 U.S. 693, 701 (1976) (right to certain aspects of reputation; procedurally protected liberty interest arising under the Constitution); Goss v. Lopez, 419 U.S. 565, 574–575 (1975) (student‘s right not to be suspended from school class; procedurally protected liberty interest arising under the Constitution); Vitek v. Jones, 445 U.S. 480, 491–495 (1980) (prisoner‘s right against involuntary commitment; procedurally protected liberty interest arising under the Constitution); Washington v. Harper, 494 U.S. 210, 221–222 (1990) (mentally ill prisoner‘s right not to take psychotropic drugs; procedurally protected liberty interest arising under the Constitution).
None of the reasoning relied upon by the Din dissenters extends to Danuns‘s claimed liberty interest here. As noted earlier, the relationship of an adult child with his or her parents bears no relationship to the unique “institution of marriage.” 576 U.S. at 108 (Breyer, J., dissenting).16 Adult
The other cases cited by the Din dissenters are likewise dissimilar in a way that confirms the weakness of Danuns‘s claim to a constitutionally based liberty interest here. These cases involved intrusions on physical integrity, Harper, 494 U.S. at 221–22 (forced administration of antipsychotic drugs); Vitek, 445 U.S. at 491–94 (involuntary commitment in mental hospital), and reputational harms, Paul, 424 U.S. at 701–02 (declining to recognize a relevant liberty interest in “reputation alone“); Goss, 419 U.S. at 574–75 (reputational interests associated with suspension from school, which also deprived the student of state-law
* * *
We hold that an adult citizen lacks a constitutionally protected liberty interest, protected by the
AFFIRMED.
PRESNELL, District Judge, dissenting:
The doctrine of consular non-reviewability is a substantial barrier for a U.S. citizen to overcome when asserting a due process challenge to the denial of a family member‘s visa application. The only avenue for relief is reliance on the Mandel exception, which requires a showing of bad faith on the part of the consular official and the implication of a constitutional right. Needless to say, this exception is extremely difficult to sustain and is rarely successful.
This is, therefore, a rare case because it makes the remarkable finding (with which I agree) that the petitioner has met his burden of pleading bad faith. Unfortunately, this
In Din v. Kerry, this Court held that “Din has a constitutionally protected due process right to limited judicial review of her husband‘s visa denial, which stems from her ‘[f]reedom of personal choice in matters of marriage and family life,‘” 718 F.3d 856, 868 (9th Cir. 2013) (citing Bustamante v. Mukasey, 531 F.3d 1059, 1061–62 (9th Cir. 2008)). The Supreme Court‘s ruling in Kerry v. Din, 576 U.S. 86 (2015) did not disturb the Ninth Circuit‘s holding as to Bustamante. Indeed, this Court later held in Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) that Justice Kennedy‘s opinion—which declined to comment on whether Din‘s constitutional rights were implicated—controls. See Din, 576 U.S. at 104–06 (Kennedy, J., concurring) (determining that the Government provided adequate process without deciding whether Din‘s constitutional rights were implicated). We are therefore bound to apply our holding in Bustamante and must adhere to our interpretation of that holding in Din. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir. 1984) (only en banc decisions, Supreme Court decisions, or subsequent legislation overrule the decisions of prior panels).
The majority concedes, as it must, the precedential effect of Bustamante and this Court‘s opinion in Din. See Cardenas, 826 F.3d at 1171–72. This Circuit clearly recognizes a protected liberty interest between spouses in the immigration context. What the majority fails to do is adhere
In Smith, this Court held that “a parent has a constitutionally protected liberty interest in the companionship and society of his or her child” and that “this constitutional interest . . . logically extends to protect children from unwarranted state interference with their relationships with their parents.” Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (determining that adult children have this protected interest); see also Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001) (recognizing that a parent‘s fundamental liberty interest in the companionship of a child is “well established” and logically extends to protect a child‘s interest in a parent‘s companionship); Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1991) (recognizing that familial relationship between parent and child gave rise to due process action in Smith); Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018) (“[C]hildren‘s
In Bustamante, this Court held that when considering a Mandel challenge, we must look to the general right that is implicated. See Bustamante, 531 F.3d at 1062. Bustamante, a U.S. citizen, sought to obtain a visa for her husband, a Mexican citizen. Id. at 1060. Bustamante claimed that the denial of her petition violated her “protected liberty interest in her marriage.” Id. at 1062. Applying Mandel, this Court first determined that the “[f]reedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the
Smith establishes that Danuns has a constitutionally protected liberty interest in his father‘s companionship. See Smith, 818 F.2d at 1418. Taken with this Court‘s analysis in Bustamante, the general liberty interest identified by Smith clearly encompasses Danuns’ petition for his father to enter the United States and is therefore sufficient to support his due process claim.
Instead of applying Bustamante to this case, the majority disregards Smith and contends that we must apply Glucksberg to analyze a new fundamental right. The Government contends that it did not interfere with Danuns’
This Court held in Bustamante that the general liberty interest in personal choice in marriage and family life was sufficient to support a Mandel claim. Bustamante, 531 F.3d at 1062. We did not limit that interest by redefining it as a separate, previously unrecognized right to bring one‘s spouse into the United States. Indeed, the majority‘s approach is almost identical to the Government‘s argument in Din, which we rejected as an attempt to overturn Bustamante. Din v. Kerry, 718 F.3d 856, 860 n.1 (9th Cir. 2013) (“The Government‘s contention that Bustamante is not good law is meritless.“). Bustamante held that a citizen family member‘s right to judicial review under Mandel is based on a more general liberty interest, rather than a limited right of an alien to reside in the United States. Id. Neither Bustamante‘s holding, nor this Court‘s interpretation of that holding were overturned by the Supreme Court‘s ruling in Din. See Cardenas, 826 F.3d at 1171–72 (holding that Justice Kennedy‘s concurrence represents the holding in Kerry v. Din).
The majority attempts to circumvent our holding in Smith by noting that Bustamante did not address a parent-
Justice Scalia reasoned that the right to marriage does not extend to immigration decisions. Din, 576 U.S. at 101. The majority similarly determines that Danuns’ liberty interest in his father‘s companionship is not implicated by the Government‘s denial of Khachatryan‘s visa. The majority then frames Danuns’ claim here as the right of “an adult child to bring his or her alien parent into the United States.” But Justice Scalia‘s plurality opinion does not control here and, as confirmed by Cardenas, did not overturn Bustamante. We are bound by Bustamante and we must therefore recognize that Danuns’ right to companionship with his father supports his right to judicial review under Mandel.5
The majority‘s approach not only contravenes our own precedent; it undermines the Supreme Court‘s intent in establishing the Mandel exception in the first place. Indeed, the majority seems to implicitly acknowledge its error here by admitting that it would decide this case differently if it involved a spousal relationship. This statement is not consistent with the majority‘s approach to framing the constitutional issue in this case and is detached from this Circuit‘s analysis in Bustamante. It is unclear why the majority would recognize spousal rights in a Mandel claim aside from the simple reason that this Court already did so in Bustamante.
In an effort to elide Smith, the majority notes that Smith and its progeny involved pre-existing relationships in the United States. But those were not immigration cases, so that distinction has questionable relevance to the issue here.
Moreover, even if this were a valid distinction, it would not apply here because Khachatryan has an extensive history of his relationship with Danuns in the United States. Khachatryan has been involved in Danuns’ life since an early age and has a history of visiting Danuns in this country. Khachatryan visited the United States twelve times before his initial application was denied, including a 35 day visit to spend time with his children. As recognized by the majority, there is not a shred of evidence that Khachatryan engaged in any untoward behavior or that there is anything else going on here aside from Danuns’ attempt to enjoy a meaningful relationship with his father. It is unclear what else the parties could do for their relationship to find protection under the majority‘s test.
Khachatryan has spent nearly twenty years attempting to lawfully reside with his son in this country, thwarted by the Government‘s errors and bad faith. Since he has adequately pled bad faith on the part of the Government, and because he has a protected liberty interest in his relationship with his father, Danuns is entitled to judicial review of his procedural due process challenge to the Government‘s denial of Khachatryan‘s visa. I would therefore reverse and remand