Fauzia Din v. John F. Kerry

Embassy, Islamabad, Pakistan; James during period which payment obligations, Cunningham, B. subject wage garnishments, be- Ambassador he was Brunner, Embassy, Kabul, Af bankruptcy. See filing fore United States Defendants-Appellees. (finding part ghanistan, faith in F.2d at 397 bad discharge one debtor filed for because 10-16772. No. date). payment month after first Appeals, United States Court sum, might though In even some dis- Ninth Circuit. bankruptcy good court’s agree with the clearly erroneous. finding, faith was July 2012. Argued and Submitted on substantial evidence in The court relied May Filed record, factual inferences were and its permissible.

IV. bankruptcy good court’s faith find- erroneous; we,

ing clearly was not there-

fore, contrary the district court’s reverse

holding. remand to the district court partial

with instructions to reinstate the

discharge bankruptcy ordered

court. and REMANDED

REVERSED with

directions. DIN, Plaintiff-Appellant,

Fauzia KERRY,* Secretary State; F.

John Napolitano, Secretary A.

Janet Security; Holder, Eric H.

Homeland

Jr., Attorney General, Attorney Gener States;

al of the Richard Ol United

son, Ambassador of the United States

Embassy, Islamabad, Pakistan; Chris

topher Richard, Consul General of at the

Consular Section United States * Olson, 43(c)(2). Kerry, pursuant R.App. John F. Richard and James B. cessors to Fed. P. Cunningham prede- are substituted for their Background (argued) and I.

Heidi Larson Howell C. LLP, Geoffrey DeBoskey, Sidley D. Austin following facts are taken from Din’s CA; Ling, and Sin Yen Asian Angeles, Los ESPN, complaint. Knievel Caucus, Francisco, CA, Ap- for Law San (9th Cir.2005) 1068, (accepting “all pellant. allegations complaint factual in the Stacey Young (argued), Trial At- llene reviewing granting true” when an order a torney, Department of Jus- United States dismiss). 2003, motion to From 1992 to tice, Immigration Litigation, Office of husband, Berashk, pay- Din’s worked as a D.C., Appellees. Washington, Afghan Ministry roll clerk for the of Social

Welfare. Since the Taliban controlled Af- 2001, ghanistan from 1996 to Berashk’s necessarily employment included work for government. 2003, the Taliban Since Ber- Afghan ashk has worked as a clerk in the Education, Ministry performs where he R. Before: RICHARD CLIFTON and duties, including low-level administrative MURGUIA, Judges, MARY H. Circuit processing paperwork. COLLINS, Judge.** RANER C. District September In Din and Berashk OPINION year, married. In October of the same Din petition filed visa on Berashk’s be- MURGUIA, Judge: Circuit February half. On United States States citizen Fauzia Din filed a United Citizenship Immigration Services petition on of her Kan- behalf husband (“USCIS”) Din that peti- notified the visa Berashk, ishka a citizen and resident of later, approved. tion was Several months later, Afghanistan. Nine months the visa the National Visa Center informed Din was denied. Consular officials informed that it completed processing the visa and Din only and Berashk the visa had scheduled a visa interview for Berashk been denied under Islamabad, Embassy Pakistan. The 1182(a)(3)(B), a broad that ex place Sep- interview took as scheduled on variety cludes aliens on a of terrorism- tember 2008. Berashk answered all grounds. grant related The district court questions truthfully, including inquiries ed the Government’s motion to dismiss on Afghan Ministry about his work for the nonreviewability, the basis of consular con during period Social Welfare of Tali- cluding put that the Government forth ban difficulty control and about the of life facially legitimate and bona fide reason for that regime. interviewing under con- denial, the visa in accordance with Busta sular officer told Berashk he expect should (9th mante v. Mukasey, 531 F.3d 1059 to receive his visa in two to six weeks. Cir.2008). disagree. Because the gave The officer a form Berashk to submit Government has not put forth Embassy, at the visa, Kabul which he submitted legitimate deny reason to with pro passport upon returning we reverse and remand for further his to Af- ceedings. ghanistan.

** Collins, zona, sitting by designation. The Honorable Raner C. United Judge States District for the District of Ari- later, In late Din attempted months on June to obtain Almost nine directly by traveling answers from phone calls to the following several United to the Embassy States Kabul Berashk, Din and Ber- Embassy from both Embassy. then the Islamabad Officials at informing a Form 194 letter ashk received both embassies to provide declined her had been denied under him that his visa specific explanation with more of the visa 212(a) Immigration and Na- Section denial. 1182(a). (“INA”), tionality Act action, “no The letter also stated that there was Din then asserting initiated this three claims for relief: a writ of man- ineligibility.” of a waiver of this possibility directing lawfully damus defendants to ad- 11, 2009, July Berashk sent an email to On (2) judicate Berashk’s visa application; Embassy clarifi- requesting the Islamabad declaratory judgment that 8 U.S.C. been cation as to the reason his visa had 1182(b)(3), § waiving the visa denial notice 2009, July 13, Embassy denied. On provisions for aliens deemed inadmissible response, stating emailed a the visa had grounds, under terrorism is unconstitu- 212(a)(3)(B), been denied under INA 8 Din; applied tional as a declara- 1182(a)(3)(B), section tory judgment that defendants are in viola- variety INA that lists a wide of conduct of tion the Administrative Procedure Act. that an alien inadmissible due to renders The granted district court the Govern- “terrorist activities.” The email added dismiss, ment’s motion concluding that possible not a de- that “[i]t Din failed to state claim because the for the explanation tailed reasons doctrine nonreviewability consular 212(b)(2), denial,” citing INA adjudication barred of her first and third 1182(b)(2)-(3), inapplicable §§ which makes claims. The district court also dismissed the aliens receive requirement claim, concluding Din’s second that Din did involving notice of the reason for denials standing challenge have the visa activity. criminal or terrorist provision. denial notice pro Din then obtained bono counsel II. of Review Standard inquiries and made several about de novo the district court’s We review denial. Din’s counsel sent a letter to the granting order a motion to dismiss. Immigrant Visa Unit of the Islamabad Knievel, ruling 393 F.3d at 1072. When reconsideration, or, Embassy requesting dismiss, accept on a motion to all factu alternatively, sup- a statement of facts allegations complaint al as true and port position of the Government’s light pleadings construe the most Embassy Berashk was inadmissible. The nonmoving party. Id. To favorable responded again referring with an email dismissal, the must al complaint survive 212(a)(3)(B). only to INA Counsel a claim to relief lege “enough facts to state a similar letter to the subsequently sent on its face.” Bell Atl. plausible Office of Visa Services at the State De- 544, 570, 127 Corp. Twombly, v. 550 U.S. Following several other un- partment. (2007). 1955, 167 929 S.Ct. L.Ed.2d attempts to contact different successful officials, Department State counsel re- III. Discussion again stating ceived an additional email nonreviewability and. the A. Consular that the visa had been denied under Sec- exception Mandel 212(a)(3) tion that a more detailed explanation possi- refusal was not begin with the doctrine of nonreviewability. An alien has ble. consular 860 ad right entry” to the held when the Government denies

“no constitutional Mandel, legiti Kleindienst v. mission “on the basis of States. United 2576, reason, 33 92 S.Ct. mate and bona fide the courts will 408 U.S. (1972). Supreme Court neither look behind the exercise of that L.Ed.2d 683 discretion, has sustained Con exception by balancing jus nor test it its “without power to make rules for the gress’ ‘plenary against tification in the First Amendment to exclude those of aliens and personal admission com terests those who seek characteristics which possess those who applicant.” munication with the ” Congress Mandel, has forbidden.’ Id. our S.Ct. 2576. Since INS, v. (quoting Boutilier S.Ct. Court and several of our sister circuits 18 L.Ed.2d U.S. 87 S.Ct. jurisdiction have exercised over citizens’ “[fjederal (1967)). Accordingly, courts challenges implicate to visa denials that power to review the generally are rights. the citizens’ constitutional Busta Na actions of consular officials.” Rivas v. mante, 1059; 531 F.3d at see also Am. (9th Cir.2012) 849, 850 politano, 677 F.3d Religion Napolitano, Acad. Hong Kong, Inc. v. (citing Hing Li (2d Baker, 115, Cir.2009); Adams v. of (9th Cir.1986)). Levin, 970, 971 800 F.2d (1st Cir.1990); 909 F.2d 647-48 Reagan, Abourezk v. 785 F.2d However, recognized a we have (D.C.Cir.1986). review the denials Courts of exception limited to the doctrine consu facially for “a legitimate and bona fide nonreviewability. the denial of lar When Bustamante, reason.” 531 F.3d at 1062. rights implicates a visa the constitutional Bustamante, citizen, In recognized of an American we exercise “a we solely protected liberty review to deter citizen has a interest in highly constrained marriage official that entitles the citizen to review mine whether the consular acted facially legitimate spouse’s on the basis of a and of the denial of a visa. 531 F.3d Bustamante, 531 F.3d at 1062.1 therefore consider bona fide reason.” We whether by right provided at 1060. This to review arises from the reason the consular offi Mandel, cials for the denial of Berashk’s is Supreme holding Court’s visa “facially legitimate and bona fide.” Id. professors which U.S. citizen asserted inquiry extremely This right First Amendment to “receive infor is narrow. Once mation and an alien. the Government offers a ideas” from denial, 92 S.Ct. 2576. The Mandel Court and bona fide reason for the courts spouse, 1. The Government's contention that Busta- States with an alien and because this First, good right repudiated, mante is not law is meritless. has been elsewhere Busta- INA, precedent argues Government that the text of the mante is in conflict with Circuit supported by legislative history, pre its should not be followed. The Government Bustamante; judicial cludes decisions. misreads nowhere review of consular does case argument holding right spouse This is irrelevant to of mention the of an alien to live in Rather, Bustamante, judicial explains which conditions review the United States. it that a citizens, rights spouse's right on the constitutional not an citizen review is "[fjreedom interpretation immigration general right statutes. See based on the more ("Presented proce personal marriage 531 F.3d at 1062 with a matters of choice in citizen, process by family power dural due claim a U.S. we life." Id. We have neither the to, explana questioning therefore consider the Consulate’s nor interest Busta Johnson, authority. application tion for the denial of mante 's See Montana v. [the] (9th Cir.1984) pursuant (only inquiry to the limited authorized 738 F.2d en decisions, Mandel.”). Second, decisions, according Supreme to the Govern banc Court or ment, predicated liberty subsequent legislation Bustamante is on a overrule decisions prior ability panels). interest in the to live in the United review, eliminating this authority jurisdiction go conclude that “have no is not. the facial reason to determine behind Chiang it is accurate.” v. Skeir

whether problem The first is that the Govern- Cir.2009). (1st ik, 238, 243 582 F.3d no deny- ment has offered reason at all for visa; ing simply points to a applica- on the guidance is little There might statute. While the statute demon- “facially legitimate and bona tion of particular strate that a reason legiti- Greene, Marczak v. fide” standard. See mate, in this case there are no factual Cir.1992) (“Be- (10th 510, 517 971 F.2d allegations that would allow us to deter- ‘facially fide’ legitimate cause the bona mine subsection relatively its infrequently, standard is used properly applied. was Din elusive.”) meaning (quoting Azizi v. alleges that neither she nor Berashk has (2d 1133 n. Thornburgh, any idea what Berashk could have done to Cir.1990)).2 agree with the Second found inadmissible on terrorism that “the identification of both Circuit grounds, provides and the Government no properly provides construed statute than reason other its citation offi- ground of exclusion and the consular 1182(a)(3)(B). cer’s assurance that he or she ‘knows or In Din regard, this and Berashk’s case is appli- has reason to believe’ that the visa distinguishable from Bustamante and oth- something fitting cant has done within the challenges by er visa denial a citizen. In proscribed category constitutes a applicant the visa was in- Acad., legitimate reason.” Am. 573 F.3d formed that the consulate had reason to (quoting 1201(g)). at 126 8 U.S.C. This trafficking illegal drugs he was believe in is consistent with which we inadmissible, therefore but that the evi- applicant stated that the visa “was denied supporting dence this conclusion was se- grounds a visa on the that the Consulate cret. DEA 1060. officials ‘had to believe’ that he was a con- reason applicant later asked the to become an trolled substance trafficker.” 531 F.3d at informant, did, stating that if he his visa problems go away.” at 1061. “would Id. Accordingly, we must determine if the applicant application The refused and his Government’s citation to a broad section of In response inquiry was denied. to an catego- the INA that contains numerous Bustamantes, from counsel for the the con- conduct, any proscribed ries of without sular official referenced letter “written to what the officer assurance as consular by Agent-in-Charge the ‘Resident of our done, facial- believes the alien has is also a Drug local Enforcement Administration ly legitimate reason. Office,’ Because we conclude ‘derogatory that contained informa- position that the would elim- Government’s support finding tion’ to that there was inate the limited review estab- a con- reason to believe Jose was by Supreme in Mandel up- lished Court trolled trafficker.” Id. We substance denial, recognized by noting this Court in Busta- held the visa that “the Bus- mante, authority support allegation and we find no tamantes’ that Jose was asked explaining "facially (asserting, 2. The of sis. See Dissent at 869-70 dearth cases legitimate requirement citation, and bona fide” ex- nothing facially ille- “[t]here we, dissent, plains why and the cannot cite gitimate in the identification of section any authority conclusively resolving whether 1182(a)(3)(B) as the basis for denial of sufficiently de- the Government’s rationale is application”). "facially legitimate” tailed ba- to constitute speech). in for other than The record here is exchange informant to become an completely allegations void of similar allege fails to bad immigration benefits in faith; support the official’s of the Government’s denial anything, reflects had access to infor- Berashk’s visa. that Jose sincere belief gov- in the be valuable mation that would problem compounded first drug traffick- to combat ernment’s effort nature of the cited section of the sweeping at 1063. ing.” Id. 1182(a)(3)(B) 1,000 INA. exceeds Section held, words. It contains ten subsections identi- “Jose specifically [Bustamante] grounds fying categories on the that the different of aliens who was denied a visa may that he for terrorism rea- reason to believe’ inadmissible Consulate ‘had ac- substance trafficker. sons.3 The section defines “terrorist was a controlled reason, tivities” with reference to six different plainly This is subsections, inadmissibility. containing statutory different kinds as it is a basis 1182(a)(2)(C).” in “engage 531 F.3d at conduct. It defines terrorist subsections, in in activity” for exclusion Busta- seven some 1062. The reason ‘had reason which are divided into further subsections. mante was that “the Consulate 1182(a)(3)(B) a controlled sub- The conduct described in that he was believe’ gave ranges participation from direct in violent trafficker.” Id. The statute stance support indirect legitimacy, but the statute terrorist activities to the reason participate not the those who in terrorist activi- standing alone was reason. The citation to con- ties. reviewing a citizen’s chal- Other circuits ground trasts with the much narrower have relied on lenge to a visa denial also inadmissibility at issue Bustamante. for exclusion that contained some reasons Adams, minimum, that, example, For It at a the Gov- appears factual elements. ground ernment must cite to a narrow the First Circuit observed evi- “[t]he enough dence of Adams’ involvement the violent to allow us to determine that has Army], been Am. Republican “properly [Irish activities of the construed.” See (“[T]he Acad., a maker and as a field 573 F.3d at 126 identifica- policy both as commander, ‘facially legitimate properly a tion of both a construed statute provides provides ground for his exclusion.” that of exclusion and and bona fide reason’ Shultz, 649; at see also Allende v. the consular officer’s assurance that he or 909 F.2d (1st Cir.1988) (con- to that 845 F.2d she ‘knows or has reason believe’ applicant Al- has done fit- cluding speaking engagements something that the ting proscribed category time in within the planned lende for her the United consti- ”). not a basis for exclusion be- tutes a reason.... States were 1182(a)(27), § prior cause 8 U.S.C. to its The Government’s citation here is so broad repeal, seeking engage excluded aliens that we are unable to determine whether “properly in activities that would be harmful to the the consular officer construed” States, dissent, activity required United an the statute. Unlike Dissent (7) (1) ganization; espouse 3. The subsections cover who: have endorse or terrorist aliens activities; (2) (8) engaged activity; military-type train- in terrorist are now or have received activities; (3) organiza- engaged ing behalf of a terrorist will be terrorist from or on activities; tion; (4) (9) repre- spouse person have incited terrorist are are the or child of subsection; organizations of terrorist or other found inadmissible under the or sentatives terrorism; officers, officials, (5) (10) representatives, groups espouse are or that are mem- recognized organization; spokespersons bers of a terrorist of the Palestinian Liberation 1182(a)(3)(B). Organization. § or- are members of an informal terrorist Circuit, we, 870-71, unwilling recognizing, to assume that as do that no we are properly has been construed evidentiary inquiry appropriate, the statute ex- construed, knowing being what is plained reviewing only that “a court need being By alone how it is construed. let satisfy alleged itself that the conduct fits contrast, analyzed the Second Circuit statutory provisions within the upon relied statutory construc- three distinct issues of as the reason for the visa denial.” Am. to a visa reviewing challenge tion in Acad., at (concluding that visa appli- 1182(a)(3)(B)(i)(I), one of denial based on alleged cant’s donations to a that group that could relevant the subsections provided support material to terrorists fits Acad., at 125-35. here. Am. 573 F.3d the statutory denying with basis for encompassed con- Given the breadth of visa). faith, Absent evidence of bad grounds the sheer number of duct and accept allegations the Government’s 1182(a)(3)(B) inadmissibility under it is facts. 531 F.3d at 1062-63 these, other, impossible any to know (“It enough allege is not that the consu- statutory are at interpretation issues of incorrect.”). lar official’s information was issue here. While the Government need not prove Additionally, some of subsections that performed activity Berashk an upon confer an alien the him renders inadmissible under the stat- right to to rebut the cited present evidence ute, Adams, see 909 F.2d at it must at inadmissibility. activity For reason for allege least what believes Berashk did that have support organizations him would render inadmissible. We Secretary designated by been of State only verify seek that the facts asserted organizations, may as terrorist an alien Government, bare, by the however consti- convincing offer “clear and evidence ground tute a for exclusion under the stat- know, the alien did not and should not Acad., ute. See Am. 126-29 known, reasonably organiza- have (reviewing alleged whether facts organization.” tion was a terrorist 8See exclusion, grounds Government were for 1182(a)(3)(B)(i)(VI); §§ declining any but to conduct review of the 1182(a)(3)(B)(iv)(IV)(cc); themselves). facts 1182(a)(3)(B)(iv)(V)(cc); 1182(a)(3)(B)(iv)(VI)(dd). citation Government’s The Second Cir- 1182(a)(3)(B), when combined with its language require cuit read this a consu- facts, present lar officer to the alien with the failure to assert is not inadmissibility permit legitimate ground denying evidence of him Acad., to offer a rebuttal. Am. 573 F.3d that citation to visa. Should we conclude knowing 1182(a)(3)(B) at 131-32. Without § rea Berashk, applicable subsection we can- visa, then son for denial Berashk’s not determine whether the consular officer 1182(a), § all citation to which lists required give opportu- was Berashk an grounds inadmissibility, would be suffi nity for rebuttal. Any judicial wholly cient. review would be “ requiring only that we ensure perfunctory clear, To do not ‘look we behind’ properly nothing said the Government has decisions,” Acad., exclusion Am. 573 F.3d 1182(a).” § more than “8 Limited 137, them, at at but we must at least look be, may as our review it cannot be that 194, Chenery Corp., see SEC v. (1947) (“We right to review is a 197, Din’s constitutional 67 S.Ct. 1575 must know only on the Gov right rubber-stamp to a duty what a decision means before the it.). conclusory vague becomes ours to” review The Second ernment’s assertion 864 Dissent at 871-73. Section inadmissibility. position. States v. United Cf. (9th 1182(b) requires Cir. that the consular officer

DeGeorge, F.3d 2004) (courts simply “not rubber- if notify should aliens their visa is denied and request, but hold stamp government’s “specific provision provi- or provide the burden”).4 to its government of law under which the alien is inad- sions 1182(b)(1). § In missible.” does not alleviate our con- The dissent and Effective part of the Antiterrorism approach cern that the Government’s (“AEDPA”), Penalty Congress Act Death judicial all re- essentially would eliminate (b)(3), § amended 1182 and added which view, right of even when the constitutional requirement states that the disclosure According to implicated. citizen is U.S. 1182(b)(1) if apply § does not the alien is dissent, to exclude aliens are decisions for a reason stated inadmissable officers, “exclusively by executive made 1182(a)(2) (a)(3). § or Pub. L. No. 104- at judicial intervention.” Dissent (1996) (codified § 110 Stat 1214 Mandel, (quoting U.S. 1182(b)(3)).5 § at 8 U.S.C. 2576). course, ignores, This S.Ct. exception have identified a limited “courts Despite provision, Depart this State the doctrine where the denial of a visa regulations require ment consular officers rights of implicates the constitutional applicant provision to “inform the American citizens.” implementing regulation law or on which only attempt at 1061. The dissent’s any statutory the refusal is based and of give meaning exception recognized to the implementing regula of law or state, in Mandel Bustamante is to tion under which administrative relief is “[tjhere nothing facially illegitimate available,” 42.81(b), 22 C.F.R. and make the identification of section exception no for denials based on as the basis for the denial of Berashk’s 1182(a)(2) (a)(3). result, or As consu do application.” Dissent 869-70. We lar appear regularly officers disclose think judi- that even the limited not most aliens, information to even if the denial is only cial review is so restrained as to ask 1182(a)(2) (a)(3). See, e.g., based on successfully provided the Government has Complaint (describing at 6 email from Is a citation to the U.S.Code. Embassy disclosing statutory lamabad ba denial); for Berashk’s visa sis Busta similarly persuaded by are mante, (describing 531 F.3d at 1061 letter argument by advanced the dissent 1182(b)(3) supports explaining the Government’s from Consulate basis for visa correctly govern- Clearly, 4. While that De- that U.S. An and his or her confederates. alien has 5. The was ex- rationale for this right no constitutional to enter the United plained by the House Committee on the Judi- right States and no to be advised of the ciary: privilege. basis for the denial of such a Currently, foreign all nationals who are de- Thus, impediment is no constitutional there nied a visa are to notice of the entitled basis in this sec- the a to the limitation on disclosure for denial. This creates difficult situa- tion in those instances where an alien is tion. basis, entry example, denied on the for 104-383, (1995). Rep. 102-03 H.R. being drug trafficker or a terrorist.

865 (de Acad., denial); remotely even close to Am. 573 F.3d at 118 the Government’s telephone call from Government scribing obligation Brady under Maryland, 373 that was de explaining applicant to U.S. 83 S.Ct. 10 L.Ed.2d 215 mate applicant provided nied because (1963), an drawing analogy Brady to ex organization).6 to a terrorist support rial poses the fault in the argu Government’s 1182(b)(3) ment. The Act dissent, provides Jencks an affir According to the statutory right not re- mative to that “the Government was information and means more information quired provide requires to produce “any Government to (as of Berashk’s visa. regarding” defined) the denial statement hereinafter of the is correct as a matter Dissent at 872. This [testifying] possession witness in the statutory interpretation. Under Brady United States.” 3500. scheme, statutory have a statutory aliens requires, request, at the defendant’s that to certain information their visa is right prosecution disclose evi “[material] reasons; have no denied for most aliens an dence favorable to accused.” 373 U.S. statutory right if the denial is based such not Brady 83 S.Ct. limited 1182(a)(3) (a)(2). This lack of an on by the Jencks Act and it “exists an is, statutory right to information alien’s independent preserve foundation to evi however, resolving ques- helpful not Bernard, dence.” United States v. tion we face: whether Berashk’s visa was (9th Cir.1979). F.2d It would be for “a and bona denied implausible suggest to that the Govern Bustamante, 531 F.3d at fide reason.” Brady ment need not disclose evidence determination, 1060. To make that a court scope that is outside the of the Jencks At needs some information. statutory because the defendant lacks a First, simply the statute creates statu- fact, right to the information. In it is information, tory right to and limits the granted Brady taken for that material can scope right. suggests of that The dissent scope exist outside the of the Jencks Act. that because the alien does not have a Cerna, F.Supp.2d See United States v. information, statutory right by implica- to (N.D.Cal.2009) (discussing, tion, right has an Government absolute controversy, Brady “non-Jencks everyone, to withhold the information from information”). including citizen and this Court. Dissent authority The dissent cites no Similarly, Congress 872-73. the fact that created support to its assertion that an alien’s lack obligation a limited disclosure in the con statutory an to infor- right affirmative text of visa denials does not mean an implied prohibition mation functions as Congress prohibited otherwise the disclo on to all people, disclosure agree of all other information. We sure adopt position. decline such makes no sense to read the stat “[i]t denials,” require ute to disclosure such it emphatically While we want to make added), (emphasis dissent at 873 but we do obligation clear that the Government’s way. read It would provide information this context is not not the statute 212(a)(2) Department Foreign provided 6. The U.S. of State Af- to the alien in all (3) (1) you recognizes explicitly Manual cases unless: We instruct fairs notice; (2) provide you provide only We instruct statute establishes the minimum amount 212(b) (i.e., restricting "although legal of disclosure and states that a limited citation (3) 212(a)); exempts findings ineligibility legal grounds or You also under of refusal 212(a)(2) request permission us not to INA and from the written notice from Foreign 42.81 N2. requirement, expect notices will notice.” 9 Affairs Manual such 866 had, nothing opinion compels in our dan- no sense to read the statute

also make any information re release of prohibit gerous imperfect the disclosure. Another denials, if because garding certain visa criminal analogy procedure exposes did, appears to vio the executive branch relying purpose fault in on the statute’s See, e.g., 22 regularly. late the statute justify withholding information. For the 6; 42.81(b); § at Complaint Busta C.F.R. Congress same reason added Acad., mante, 1061; at Am. 531 F.3d 1182(b)(3) jeopardize desire to not —the compel The statute does not F.3d ongoing investigation by announcing an its disclosure in this case. prohibit nor subjects criminal investiga- existence — Second, reading routinely are that they dissent’s tions not informed any concept with statute is inconsistent being investigated. example, are For judicial including the dissent’s proceedings search warrant are “necessar- review— reading of Bustamante. Because ily subject parte, ex since the of the search 1182(b)(3), when a visa denial is based tipped application cannot be off to the for a (a)(2) (a)(3), on or the Government is not destroy warrant lest he or evi- remove statutorily required spe- to disclosure “the Delaware, dence.” Franks v. 438 U.S. provisions cific of law under 154, 169, 98 S.Ct. 57 L.Ed.2d 667 inadmissible,” which the alien is (1978). not, secrecy The need for does 1182(b)(1)(B). By implication, the dis- however, change the fact that the constitu- suggests sent disclosure of in- “[n]o guarantees judicial tion determination of required,” formation is dissent at probable prior cause to the issuance of a therefore no information can re- ever be Grubbs, search warrant. v. United States quired by a court. But reviewing even 126 S.Ct. require the dissent reads Bustamante to (2006). L.Ed.2d 195 It is inconceivable provide the Government to the exact in- argue that the Government would that it 1182(b)(1)(B) formation listed in —the provide support- could not the factual basis statutory provision under which the alien ing probable cause based on the need to inadmissible —to demonstrate keep investigation a secret—an ex “facially legitimate.” visa denial is Dis- parte hearing investigation, conceals the By logic, sent at 869. the dissent’s own allowing while still review. that reading “directly of Bustamante is case, In necessary, this contradict[ed]” statute. Dissent Govern could, contexts, 873. If the statute ment allows Government does other to decline to more information in disclose the reason for Berashk’s visa deni case, See, this then it must C.I.A., allow the Govern- e.g., al in v. camera. Hunt provide any ment to decline to (9th Cir.1992) informa- F.2d (reviewing decisively judi- tion. This would eliminate justifying in camera affidavits the decision reading cial review and this of the statute to withhold information from Freedom of precluded by is therefore Information Act disclosure on national se review, guarantees which some no matter curity grounds); Jep see also Mohamed how limited. Inc., pesen Dataplan, 1079- (9th Cir.2010) (en banc) (describing the

The dissent’s concern about “this na- history procedure of the state secrets keep tion’s desire to persons connected case). doctrine dismissing Existing with terrorist from entering activities 872, is, course, procedures adequate are to address the country,” dissent at val- id, security national but the Government never asserted concerns that we share dissent, an argument unnecessary such here. And even if it with the and make it

867 1182(b)(3) ment that 8 U.S.C. judicial review and disclo is uncon- eliminate all to applied as to stitutional her because the sure. aliens, provisions apply notice to not to has not offered Because the Government an citizens with interest an alien’s visa. the facially legitimate reason for above, agree As discussed we with the denial, part first of the Mandel test is the 1182(b)(3) conclusion that apply does not met, subject the decision is not not and Din, and, reason, for that do not we It prohibition the on consular review. is it supports think the motion Government’s part necessary not to address the second to dismiss on consular nonreviewability test, the whether the citation to grounds. the When case is resolved on is bona fide. It is worth merits, the it possible may is that the court Bustamante, however, that in we noting, it reaching conclude that can avoid Din’s under the bona fide prevail held that to challenge by constitutional to the statute must prong plaintiff of the Mandel test statute, that determining the its own official did not in “allege that the consular terms, apply does not to her. See Nw. had,” information he good faith believe the Austin Mun. Util. Dist. No. One v. Hold- 1062-63, at the ar- 531 F.3d dissent er, 557 U.S. 129 S.Ct. impossible plain- that “it would gues (2009) (constitutional L.Ed.2d 140 issues she did not plead tiff to because [bad faith] statutory should be avoided issue re- particular know the basis for the denial case). reviewing solves the But in a mo- application.” her husband’s visa Dissent dismiss, tion to we project cannot inquiry at The “bona fide” is there- 869. outcome on the merits order to decide eliminated under the dissent’s ap- fore question standing. Maya See proach because the Government can sim- (9th Corp., Centex 658 F.3d only a ply cite a statute —and statute —and Cir.2011) (noting standing is distinct what plaintiff because the is not informed merits). purposes from the For the believes, the consular official she can never evaluating standing, “must construe the allege that the belief is held in bad faith. complaint in favor of complaining par- suggests This that the dissent has come to Here, ty.” complaint alleges Id. cita- the incorrect conclusion that a bare using the Government is the statute to tion to a is a statute justify an If injuring action that is Din. ground for exclusion. Because the Su- doing Government is so based on a flawed that the preme Court articulated Govern- statute, reading might put “facially legiti- ment must forward a ground a narrower to decide this case on reason,” mate and bona fide later, deprive merits but does not Mandel, (citing at 1062 Din standing challenge the law. See 2576) added), (emphasis S.Ct. Austin, Nw. U.S. S.Ct. unlikely “facially legitimate” requirement interpreted should be to allow to withhold information Government satisfy standing To Article Ill’s inquiry and make an into the “bona fide” “(1) requirements, Din must show [she] requirement “impossible.” (a) ‘injury has suffered an in fact’ that is (b) actual particularized concrete and standing challenge B. Din’s imminent, conjectural or hypotheti 1182(b)(3) (2) cal; injury fairly traceable to the defendant; challenged Din action of the The district court held that merely specula- standing declaratory judg- likely, opposed lacks to seek a it is 868 1182(b)(3) § by lenge a 8 as it has been

tive, injury will be redressed U.S.C. that 180-81, applied 129 to her. We remand Din’s claims decision.” Id. at favorable Further, proceedings for further consistent with “person a who has S.Ct. opinion. this procedural right pro- a to been accorded that concrete interests can assert tect his AND REMANDED. REVERSED all the normal stan- right meeting redressability immediacy.” CLIFTON, Judge, dissenting: dards for Circuit Wildlife, 504 U.S. Lujan v. Defenders of majority opinion acknowledges the n. 112 119 L.Ed.2d 573 S.Ct. nonreviewability and doctrine of consular (1992). ju- “highly constrained” nature of our visa, dicial of the denial of a review see constitutionally due protected Din a has Mukasey, Bustamante F.3d judicial right to limited review of process (9th Cir.2008), in practice but it fails denial, which stems her husband’s visa “[fjreedom accept to that doctrine and act within personal of choice in from her Instead, assuming constraint. marriage family of life.” Bus matters robust, imposes review must be more tamante, at 1061-62. To the upon obligation pro- the Government an to the Government relies on 8 extent that, 1182(b)(3) vide information about visa denial § to this interfere with statute, by government specifically standing challenge Din to right, has required provide when denies a alleges Din provision. Govern visa based on concerns for national securi- by deprived process ment has her of due ty or I respectfully terrorism. dissent. refusing either her her hus legitimate band with and bona I. The Limited Nature of Judicial Re- denying his In so fide reason visa. view refusing, part the Government in relies on 1182(b)(3). § A application plaintiffs court’s decision The visa hus- 1182(b)(3) band, Berashk, cannot defeat

that 8 U.S.C. Kanishka citizen and res- injury. Afghanistan, Din’s claim could redress her ident of was denied consu- 1182(b)(3) 1182(a)(3)(B). Therefore, injure appears to lar officials under 8 U.S.C. 1182(a)-identifies Din, it. standing challenge and she has Section “classes of aliens ineligible for visas or admission” into the IV. Conclusion United States. The statute lists ten differ- aliens, categories ineligible ent including We decline Government’s invitation provision, one “miscellaneous” subsection to turn our limited into a mere review 1182(a)(10), encompasses which un- several formality. conclude that the Govern- grounds. related One of the identified cat- 1182(a)(3)(B), ment’s citation to in the 1182(a) egories within section is subsection any allegations proscribed absence of 1182(a)(3), “Security entitled and related conduct, is not a reason which, grounds,” part one subsection deny Berashk’s visa. Because the Gov- 1182(a)(3)(B), captioned “Terrorist activ- proffered facially legiti- ernment has not ities.” That was identified as the reason, Din’s for a mate claims writ appli- basis for the denial of Berashk’s visa directing mandamus the Government cation. adjudicate application Berashk’s visa notes, declaratory judgment majority for a under the APA opinion As the at we Accordingly, may only survive dismissal. we also review the denial of a visa when Din standing rights conclude that has to chal- the constitutional of an American (2009). only by L.Ed.2d implicated are and then The district court was citizen solely right. way highly “a constrained review whether the consular official

to determine majority opinion bases its conclu- facially legitimate the basis of a acted on sion on what it describes as the lack of a Bustamante, fide reason.” and bona facially legitimate deny reason to Ber- two elements—facial- F.3d at 1060. Those ashk’s application says that it not does ly legitimate and bona fide—were drawn reach question whether the reason directly Supreme from the Court’s decision given was bona fide. Majority op. at 866- Mandel, 753, in Kleindienst v. 408 U.S. 67. The denial here was based on a stat- (1972). 92 S.Ct. 33 L.Ed.2d 683 ute, however. That provided statute a lawful reason for denying application. in specifically We held Bustamante that The relevant “legitimate” definition of statutory upon denial of a visa based a “accordant with law.” Webster’s Third inadmissibility basis for is a denial for “a (2002). Dictionary New International facially legitimate reason.” 531 F.3d at Because the denial of applica- inquiry also made clear that the law, tion was based on the reason was at into the reason for the visa denial whether “facially legitimate.” least question was bona fide is limited to the in good whether the decision was made Although majority opinion interprets deny faith. the decision to Whether differently, by my Bustamante reading Rather, visa correct is not the issue. was statutory that decision held that a basis for a must that the consular plaintiff “allege inadmissibility is a legitimate rea- official faith good did not believe the It son. stated: enough he It is information had. As set forth in the complaint, Jose allege that the consular official’s informa- grounds was denied a visa on the tion was incorrect.” Id. at 1062-63. the Consulate “had reason to believe” that he was a controlled traf- substance

The district court dismissed the action plainly facially legiti- ficker. This is upon application based its of Bustamante. reason, statutory mate as it is a for basis statute, It upon concluded reliance inadmissibility. 1182(a)(3)(B), specifically provided section 1182(a)(2)(C). denying reason for Bustamante, application. visa As for the bona fide ele 531 F.3d at 1062. The ma- ment, asserts, plaintiff jority opinion the district court noted that that citation to itself, alleged complaint enough by had not her that the the statute was not consular officials acted in faith or for exclusion in bad reason Busta- “[t]he good without a faith in the informa that ‘the belief mante was Consulate “had reason tion on which the denial was Fur that he a controlled based. to believe” was sub- ” ther, impos portion the court held that it would stance trafficker.’ But that our be plaintiff plead simply repeated sible for to that effect in Bustamante opinion in that al- particular complaint because she did not know the what the case had reason, leged basis for the denial of her was the stated one that the husband’s application necessarily plaintiffs disputed. finding and thus would There was no satisfy plausible pleading unable to or determination the court. The “fa- requirements Corp. legitimacy upon of Bell Atl. v. Twom cial” rested the citation to 544, 569, bly, is no 550 U.S. S.Ct. 167 the statute. This case different. (2007), illegitimate in the Iqbal, nothing facially L.Ed.2d 929 There is Ashcroft 129 S.Ct. 173 identification of section application section appli- of Berashk’s for the denial the basis 1182(a)(2)(C). Majority op. at 862-63. cation. length But the of a statute does not make for us to any factual basis Nor is there of a statute.1 less allege that the plaintiff for conclude or justifi- principled was not bona fide Nor does reason for the denial denying legitimacy the facial consular official who made cation because the alleg- decision. It is the in bad faith. Plaintiff the consular official’s decision acted application not of the statute to that Berashk was Government’s complaint es in her facts, of the not any activity in terrorist and that Berashk —its assessment engaged -support a conclusion that of the statute —that is no facts exist to “construction” key allega- disputed by plaintiff under the statute. The here. The he is inadmissible complaint that is that: similarly alleged plaintiffs Jose tion of Bustamantes a trafficker and drug was not Bustamante that suffi- good No faith basis exists is factu- that the case be remanded for asked a legitimate cient to constitute but we held that their development, al and bona fide reason for the denial of they must be dismissed because complaint application Mr. Berashk’s visa under 8 allege that the consular official did did not 1182(a)(3)(B). The fact of Mr. the information he good not in faith believe employment in the Berashk’s low-level Bustamante, at possessed. Afghan Ministry of Social Welfare be- The factual basis of the consu- 1062-63. fore, during, and after the Taliban occu- highly limit- lar’s decision is not within our pation Afghanistan trig- alone cannot Bustamante, held in ed review. As we inadmissibility ger any grounds above, simply enough it not to quoted is 1182(a)(3)(B), listed in 8 U.S.C. and no decision allege that the consular official’s grounds other facts relevant to those That is not for us to decide. wrong. was inadmissibility exist. majority opinion holds that the rea- The that argued Plaintiff has the cited subsec- excluding Berashk was inad- given son that not tion is an “umbrella” statute is ways, statutory in and factual. equate two specific enough for Berashk to know what persuasive. Neither is rebut, argued not try plaintiff to to but has might have Department the State First, complains the Govern- committed to misinterpreted this statute 1182(a)(3)(B) to is ment’s reference section authority by Congress, its and there is It sufficiently specific. contends nothing suggests in the record that that it statutory must cite to a the Government has. enough permit narrow the subsection by majority proper- given court to that it has been The second reason determine ly Majority op. opinion plaintiff at 862-63. It is that the and the court construed. cit- statutory provided observes that the subsection have not been Government enough factual information to “allow denying application, ed in sec- with 1182(a)(3)(B), longer tion is than the statu- us to determine subsection 1182(a)(3)(B) properly applied.” was tory subsection cited the denial of the below, 1182(a) unspecific a whole. As discussed 1. The citation was not as as 871-72, generally required majority opinion suggests. Section the Government is denial, subsections, 1182(a)(3)(B) explanation for a visa contains several some explicitly provides that pertain but the statute denials but all to "terrorist activities.” simply are different. did not cite to section under section Government Majority op. gets That closer 2576. Our review here is supposed to be perceive majority highly I to be the opin- what restrained. majority

ion’s actual concern. The opinion That does not mean that our review is on premised assumption purely or, formality majority as the opin- court must with provided whatever ad- it, ion describes stamp. rubber In many necessary ditional information we deem to instances there will be more specific infor- permit thorough us conduct more mation available about the basis for a visa corollary review and on the that we have denial. When there is more information power require the Government to available, it appropriate for a court to Thus, provide that additional information. information, examine that as our court did majority holds that opinion the Gov- albeit still the course of allege ernment “must at least what be- But, below, limited review. as discussed lieves Berashk did that would render him Congress specifically has provided that the Otherwise, inadmissible.” Id. the Government is not required provide to spe- asserts, majority opinion our review would cific information about what lies behind a only a “rubber-stamp.”2 be visa denial 1182(a)(3), under subsection the basis for the denial of applica- however, recognize, must that “[t]he tion. says When the statute that the Gov- power Congress to exclude aliens alto- ernment does not have to disclose that gether States, from pre- the United or to information, compelling to disclose the upon scribe terms and conditions anyway information in order to allow “lim- they may which come to country this and “highly ited” and judicial restrained” re- policy to have its declared in that regard justified. view cannot be exclusively officers, enforced by executive judicial intervention, is settled 1182(b) II. 8 U.S.C. previous adjudications.” our Kleindienst By requiring the Government to disclose Mandel, 408 U.S. 92 S.Ct. specific more information about the denial 2576, 33 (quoting L.Ed.2d 683 Lem of Berashk’s visa application, majority States, Sing Moon v. United 158 U.S. opinion effectively disregards the statute (1895)) 15 S.Ct. 39 L.Ed. 1082 says government that the is not obli- (internal omitted). quotations Analysis of gated to disclose that information. applicant’s underlying conduct has placed “been in the hands of the Execu- categories After the of aliens deemed Mandel, tive.” 92 S.Ct. ineligible for visas are identified majority opinion supports 2. The request government this state- of the to toll the stat- ment signal with a citation with a "cf.” ute of limitations because evidence was locat- DeGeorge, United States v. foreign country, ed in a based on a statute (9th Cir.2004), describing that case as tolling, that authorized such 18 U.S.C. holding simply that "courts should not rub- Moreover, noted, § 3292. as our decision ber-stamp government’s request, but hold judicial expressly review in that case was re- " government to its burden.' That citation quired by DeGeorge, that statute. 380 F.3d at provides support majority opin- no for the 3292(a)(1)). (citing 1213-14 with, begin ion’s conclusion here. To requires When a statute that the district court appeal nothing criminal had whatsoever to order, given finding issuing make a before an do with the issue in this case. It made no surprise reviewing it is no that in the district mention of the doctrine of consular nonre- court's order held that the Government viewability highly nor reference to the must be held to apply constrained its burden. No similar au- review that we are to here. Rather, it addressed a court order issued at thorization for review exists here. in the com- only vaguely described lenge is 1182(a), of the stat- part the next process under “procedural due 1182(b), plaint the notice provides for ute, section court The district of a visa the Fifth Amendment.” following the denial given to be only applies most of notice based on held that the denials For application. alien, visa, 1182(a), in this applicant some for the section to the the subsections Berashk, citizen and its statuto- not to his U.S. of the determination case notice statute, case, in wife, But the it conclud- in this so required.3 plaintiff ry basis de- 1182(b)(3), standing carves out to chal- explicitly plaintiff lacked ed that section 1182(a)(2) majority opinion subsections: on two The lenge based the statute. nials (“Criminal grounds”) part and related disagrees and reverses 1182(a)(3) related (“Security order as well. district court’s information is No disclosure grounds”). not conclude majority opinion The does is based on a visa denial required when unconstitutional, howev- that the statute one of those subsections. her yet presented er. Plaintiff has was based of Berashk’s visa The denial on the merits. argument effect 1182(a)(3). Under section on subsection that this nation’s desire proposition The 1182(b)(3), was not re- the Government ac- connected with terrorist keep persons information more quired country entering the must tivities from majority that denial.4 regarding for the plaintiffs desire subordinated con- giving serious otherwise without holds pro- due “procedural based on information impact of section to the sideration unlikely, partic- highly strikes me as cess” 1182(b)(3). that the allegation there is no ularly when poses this realizes that statute Plaintiff provide plaintiff or failed to Government claim, and in her to her serious obstacle process required that is her husband the separate as a complaint, presents she by applicable statute. challenge to the constitu- claim for relief a now, 1182(b) though, is that matters applied What tionality of section effectively nullifies majority opinion chal- basis for the her. The constitutional 1182(b) notes that United States Code Annotated provides: The 3. 8 U.S.C. language quoted section (b) above from of denials Notices (2) (3), (1) 1182(b)(1)(B) an Subject paragraphs way presented visa, for admission application for a alien’s "adjustment” should statute but that the word States, adjustment or for to the United preceded by "ineligible probably for.” by immigration or con- denied an status is the officer determines sular officer because assumption, Contrary majority's 4. to the under subsec- to be inadmissible the alien right compel affirmative the lack of an section, (a) the officer shall tion of this implied as an “function[] disclosure does not timely written no- provide the alien with Rather, prohibition” against disclosure. tice that— demanding prohibited disclo- courts are from determination, (A) states the context, sure, say it in this and our cases (B) provi- or lists explicitly. 531 F.3d at 1062 See the alien is of law under which sions argument (rejecting Bustamante’s for remand adjustment of status. inadmissible or government pres- require "to in order to (2) may Secretary waive the of State the as- specific evidence to substantiate ent (1) paragraph respect requirements with denial). the visa Accord- basis for serted]” particular any class or classes to a alien or majority’s inapposite ingly, discussion of inadmissible aliens. requiring Brady obligations, law an area of (1) (3) apply to Paragraph does not process, judicial due lends (2) review of robust paragraph alien inadmissible under holding. (a) support no to its section. of subsection of this simply asserting the statute America, UNITED apply Majority op.

“does not to Din.” STATES of Plaintiff-Appellee, point. 867.5 That misses the Even if the apply limitation on disclosure does not Din, nothing gives right else her the Pedro CABRERA-GUTIERREZ, provide demand that the Government Defendant-Appellant. broadly, information to her. More Con- No. 12-30233. gress required applicants has disclosure to denials, regarding of information ex- United States Court of Appeals, cept for denials based on criminal or secu- Ninth Circuit. rity grounds. It makes no sense to read Argued and Submitted April 2013. require the statute to disclosure for such Filed June simply denials because there might be a U.S. citizen interested in the application.

That ignored. statute should not be It

directly majority contradicts the opinion’s

holding that the Government must

more information about the denial of Ber- says

ashk’s visa. The statute otherwise. view,

In my the majority opinion has

gone astray in ways. two different It fails

to honor the highly constrained nature of deny review of a decision to a visa And,

application. process, in the it orders

the government to disclose information the relevant says statute

government provide. does not have to I

respectfully dissent. majority opinion

5. The standing, describes this as a cludes that Din does have but its concession Actually, Government. it is broader conclusion that the statute can be why argued, disregarded the reason the Government apply has because it does not to Din concluded, as the district court procedural that Din does process means that Din’s due standing challenge not have challenge the exclusions is irrelevant —in which case she ac- majority under the opinion tually statute. The standing. con- would lack the dissent notes information context, George arose in different do not drug are aware of traf- ment officials such review, think that form of wheth- highly ficking activity would be or terrorist product precedent, er a of statute or should may hamper valued the alien and further rubber-stamp abe for the Government. investigation prosecution of the alien

Case Details

Case Name: Fauzia Din v. John F. Kerry

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 23, 2013

Citation: 718 F.3d 856

Docket Number: 10-16772

Court Abbreviation: 9th Cir.