JERRID ALLEN v. KEVIN C. MILAS, Consul General, U.S. Consulate, Frankfurt, Germany; CHARLES J. WINTHEISER, Consular Section Chief, U.S. Consulate, Frankfurt, Germany; KIRSTJEN M. NIELSEN, Secretary, U.S. Department of Homeland Security; L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services; MIKE POMPEO, U.S. Secretary of State
No. 16-15728
United States Court of Appeals for the Ninth Circuit
July 24, 2018
D.C. No. 1:15-cv-00705-MCE-SAB; OPINION; FOR PUBLICATION
Appeal from the United States District Court for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted October 12, 2017
San Francisco, California
Filed July 24, 2018
ALLEN V. MILAS
Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman,* District Judge.
Opinion by Judge Bybee
SUMMARY**
APA/Consular Visa Processing
The panel affirmed the district court‘s dismissal of Jerrid Allen‘s action brought under the Administrative Procedure Act challenging the U.S. Consulate‘s denial of Allen‘s visa application filed on behalf of his wife Dorothea Allen, a native and citizen of Germany.
The panel held that the district court had subject matter jurisdiction in this case under
The panel held that the APA provides no avenue for review of a consular officer‘s adjudication of a visa on the merits. The panel explained that the only standard by which it could review the merits of a consular officer‘s denial of a
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visa is for constitutional error, where the visa application is denied without a “facially legitimate and bona fide reason.”
The panel concluded that the consular officer‘s citations to the INA and identification of Mrs. Allen‘s criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application.
COUNSEL
Anna Benvenue (argued) and Robert Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Plaintiff-Appellant.
Audrey Hemesath (argued), Assistant United States Attorney; Phillip A. Talbert, United States Attorney; United States Attorney‘s Office, Sacramento, California; for Defendants-Appellees.
BYBEE, Circuit Judge:
Jerrid Allen petitions under the Administrative Procedure Act (APA),
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officer‘s denial of a visa is for constitutional error, where the visa application is denied without a “facially legitimate and bona fide reason.” Kleindienst v. Mandel, 408 U.S. 753, 769 (1972). We affirm the district court‘s denial of Allen‘s petition for a writ of mandamus.
I
Allen is a U.S. citizen and a Major in the United States Army. While stationed in Germany following deployment to Iraq, Allen married Dorothea Baer (“Mrs. Allen“), a German citizen. They now have three children. In 2013, the Army ordered Allen to return from Germany to the United States for restationing. Mrs. Allen applied for a visa so she and the children could join him. The U.S. Citizenship and Immigration Services (“USCIS“) approved Allen‘s Petition for Alien Relative (“Form I-130“). But after hosting Mrs. Allen for an interview, an officer with the U.S. Consulate in Frankfurt denied her visa application, stating in relevant part:
This office regrets to inform you that your visa application is refused because you are ineligible to receive a visa under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. On July 16, 1998, you were convicted in a German court of theft pursuant to paragraphs 242 and 248a of the German criminal code. This crime constitutes behaviour reflecting moral turpitude. The maximum punishment is over one year in prison. You are eligible to seek a waiver of the grounds of ineligibility by filing an I-601 with USCIS in the United States.
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....
Additionally your visa application is refused because you are ineligible to receive a visa under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act. On March 20, 1997 you were convicted in a German court for illicit acquisition of narcotics pursuant to paragraphs 29, 25, 1 and 3 of the German criminal code. There is no waiver for this ineligibility.
The letter is signed “Consular Officer.” The consular officer‘s decision rested on two statutory grounds of inadmissibility in the Immigration and Nationality Act (“INA“):
[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21),
is inadmissible.
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Allen brought this action in the Eastern District of California against the Consul General of the U.S. Consulate in Frankfurt, the Consular Section Chief of the same, the United States Secretary of Homeland Security, the Director of the United States Citizenship and Immigration Services, and the United States Secretary of State. Allen‘s one and only cause of action was under the APA: Allen argues that the consular decision was legal error,
The Government moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
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12(b)(1), which the district court construed as a motion to dismiss for failure to state a claim under Rule 12(b)(6), and granted. The district court assumed without deciding that Allen‘s constitutional rights were implicated, Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008), and conducted a narrow inquiry to ensure the denial was based on “facially legitimate and bona fide” reasons. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (quoting Mandel, 408 U.S. at 770). The court characterized the consular officer‘s statutory citations and references to the convictions triggering Mrs. Allen‘s exclusion as precisely such legitimate and bona fide reasons, and dismissed Allen‘s petition for failure to state a claim on which relief can be granted.
Allen appeals. We have appellate jurisdiction under
II
Section 1201(g)(3) of Title 8 provides that no visa shall be issued if “the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law.” In accord with this provision, the consular officer here advised Mrs. Allen of the two grounds on which he believed she was not eligible for a visa under § 1182. First, because she had been convicted of a theft offense, the consular officer determined that she was ineligible for a visa because theft is a crime involving moral turpitude.
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violation of ... any law or regulation of ... a foreign country relating to a controlled substance.”
Allen, on his own behalf as Mrs. Allen‘s husband,1 seeks review of the consular officer‘s
A
The government argues that the doctrine of consular nonreviewability means that “federal courts lack subject matter jurisdiction to review a consular officer‘s issuance or refusal of a visa.” In the same breath, the government tells us that the doctrine “precludes the Court from reviewing the findings of a consular officer under the guise of the APA.” The government‘s argument has conflated our power to hear “Cases” and “Controversies,”
In his petition, Allen asserted subject matter jurisdiction under the federal question statute,
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Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848 (2014); see also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937). Nor does the APA. The APA provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”
The government cites no provision from Title 28, the INA, or the APA that would divest the district court of subject matter jurisdiction in this case. Instead, it cites four of our cases for the proposition that the doctrine of consular nonreviewability deprives courts of subject matter jurisdiction. Rivas v. Napolitano, 714 F.3d 1108, 1111 (9th Cir. 2013); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986); Ventura-Escamilla v. INS, 647 F.2d
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28, 30 (9th Cir. 1981); Loza-Bedoya v. INS, 410 F.2d 343, 347 (9th Cir. 1969). We admit that some statements in these cases might be read to suggest the district courts lack subject matter jurisdiction over cases in which a plaintiff requests the court order a consular officer to issue a visa, but the cases cannot bear the weight the government places on them.
In the earliest of these cases, Loza-Bedoya, we stated that a consular officer‘s “determination is not subject to either administrative or judicial review.” Id. Loza-Bedoya had been excluded because of a
In Ventura-Escamilla, we stated that “review of the Consul‘s decision denying [an] application for a visa” was “beyond the jurisdiction of the Immigration Judge, the BIA, and this court.” 647 F.2d at 30. However, we were not discussing subject matter jurisdiction, but rather the origins and context of the doctrine of consular nonreviewability. Affirming the decision of the BIA, we concluded we were “without power to substitute [our] judgment for that a Consul
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on the issue of whether a visa should be granted or denied.” Id. at 32. Our passing reference to “jurisdiction” went to our remedial power—our power to “substitute [our] judgment“—not our adjudicatory power. Id. at 33.
In Li Hing, the U.S. Consulate in Hong Kong denied a visa to a noncitizen employee who was to be transferred by his U.S. employer from Hong Kong to California. We affirmed dismissal of the suit because “[e]xercising jurisdiction over this case would ... violate the long-recognized judicial nonreviewability of a consul‘s decision to grant or deny a visa.” 800 F.2d at 971. Our choice of language was unfortunate, because elsewhere in the opinion we stated the rule of consular nonreviewability thusly: “the consular official‘s decision to issue or withhold a visa is not subject either to administrative or judicial review.” Id. (citing, inter alia, Mandel). Thus, we were “without power to substitute [our] judgment for that of a Consul.” Id. (citation omitted). That was not to say that the district court lacked subject matter jurisdiction over the case. Rather, by “jurisdiction” we meant that the district courts lack the power to grant the relief requested—“substitut[ing] [our] judgment for that of a Consul“—and thus evaluation of the merits of Li Hing‘s case was foreclosed by “judicial nonreviewability.” Id. (quoting Ventura-Escamilla, 647 F.2d at 32).
Most recently, in Rivas, we reviewed two claims brought by Mr. Rivas and his daughter, noncitizens, arising out of the consulate‘s denial of their visas. 714 F.3d at 1110. The district court found that “the doctrine of consular nonreviewability deprived the court of subject matter jurisdiction to review the consular official‘s discretionary decisions.” Id. at 1110. Citing Li Hing, we observed that “[f]ederal courts are generally without power to review the
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actions of consular officials.” Id. We noted two exceptions to this “without power” rule: First, where the official has failed to act at all. Id. (citing Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997)). Second, where “a U.S. citizen‘s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner’ without a ‘facially legitimate and bona fide reason’ for the denial.” Id. (quoting Bustamante, 531 F.3d at 1060). Finding that “neither of the exceptions to the doctrine of consular nonreviewability apply,” we simply “affirm[ed] the district court‘s denial of Riva‘s claims ... for lack of subject matter jurisdiction.” Id. at 1110, 1111. The two brief references to subject matter jurisdiction—one a description of what the district court did, and
That power—the federal courts’ subject matter jurisdiction, including our appellate jurisdiction—is conferred by Article III of the Constitution, subject to “such Exceptions, and under such Regulations as the Congress shall make.”
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jurisdiction over consular decisions; nor does any statute purport to confer subject matter jurisdiction over the two exceptions we described in Rivas. See Trump v. Hawaii, No. 17-965, 2018 WL 3116337, at *8, slip op. at 9 (U.S. June 26, 2018) (“The Government does not argue that the doctrine of consular nonreviewability goes to the Court‘s jurisdiction, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims.“) (citations omitted). The doctrine of consular nonreviewability, which is judicial in origin, is surely informed by our respect for the separation of powers, but it is not, for that reason, a constraint on subject matter jurisdiction; our deference goes to our willingness, not our power, to hear these cases. Understandably, we have sometimes treated the doctrine of consular nonreviewability as though it were a constraint on our subject matter jurisdiction because it appears to function in the same way as such constraints. But a rule of decision is different from a constraint on subject matter jurisdiction, even if the result is roughly the same for the parties. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998) (“[T]he absence of a valid ... cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.“) (emphasis in original).
We are not the only court to have had such looseness in our language. “Courts—including this Court—have sometimes mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010). The Court has thus admonished that “the word ‘jurisdiction’ has been used by courts ... to convey ‘many, too many, meanings,‘” and
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has cautioned “against profligate use of the term.” Union Pac. R.R. Co. v. Bhd. of Teamsters Eng‘rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009) (quoting Steel Co., 523 U.S. at 90). The Court later explained that because “‘[j]urisdiction’ refers to ‘a court‘s adjudicatory authority,‘” the term “properly applies only to ‘prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)’ implicating [the court‘s adjudicatory] authority.” Reed Elsevier, 559 U.S. at 160–61 (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Over time, we have all “miss[ed]
We conclude that the district court had subject matter jurisdiction in this case under
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reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.“); Matushkina v. Nielsen, 877 F.3d 289, 294 n.2 (7th Cir. 2017) (“We treat the doctrine of consular nonreviewability as a matter of a case‘s merits rather than the federal courts’ subject matter jurisdiction.“). We discuss consular nonreviewability and Mandel in greater detail below, but it suffices at present to observe that the Court‘s “facially legitimate and bona fide” standard is not the language of subject matter jurisdiction, but the language of the discretion courts afford consular officers. It is a scope of review, the contours of which we turn to now. The district court was correct to treat the government‘s Rule 12(b)(1) motion as a motion under Rule 12(b)(6).
B
The core of Allen‘s petition is that he was entitled to judicial review of the non-issuance of his wife‘s visa under the “scope of review” provisions of the APA found in § 706. More particularly, Allen contends that the consular officer failed to apply the appropriate legal standards to Mrs. Allen‘s German convictions, and that this legal error renders the consular officer‘s decision “arbitrary, capricious, and otherwise not in accordance with law.”
We start with some first principles. The APA provides the fundamental framework for how executive agencies are expected to conduct business. It prescribes the rules by which agencies may promulgate regulations,
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Government of the United States, whether or not it is within or subject to review by another agency.”
The immigration laws provide a good example of these principles. Shortly after the APA was adopted in 1946, the Supreme Court held that the APA‘s provisions relating to adjudicatory hearings governed deportation hearings. Wong Yang Sung v. McGrath, 339 U.S. 33, 48–51 (1950). Just months later, Congress exempted such hearings from the APA. Supplemental Appropriation Act, Pub. L. 81-843, 64 Stat. 1044, 1048 (1951) (“Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act.“). Following Congress‘s adoption of comprehensive immigration reform, see Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163 (1952) (INA), the Court held in Marcello that the Congress had not reinstated the APA as the framework for immigration hearings. 349 U.S. at 305-10. The Court observed that in the INA “Congress was setting up a specialized administrative procedure ..., drawing liberally on the analogous provisions of the Administrative Procedure Act and adapting them to the particular needs of the deportation process.” Id. at 308. But where Congress
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“depart[ed] from the Administrative Procedure Act ... it was the intention of the Congress to have the deviation apply and not the general model.” Id. at 309. Congress confirmed this when it provided that “[t]he procedure (herein prescribed) shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” Id. (quoting
We recognize that the APA‘s judicial review provisions supply a “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986). Sections 701-06 of the APA supply a “default rule ... that agency actions are reviewable under federal question jurisdiction ... even if no statute specifically authorizes judicial review.” ANA Int‘l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004). The presumption of judicial reviewability is so strong that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 379–80 (1962)); see also Dickinson v. Zurko, 527 U.S. 150, 154, 155 (1999) (because of “the importance of maintaining a uniform approach to judicial review of administrative action,” any “departure from the norm must be clear“). Even in the immigration context, that is, the context of adjudicating
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matters affecting claims brought by those wishing to acquire constitutional rights, we have never abrogated our “[j]udicial supremacy” to order relief if, in any individual case, “fundamentals were violated“:
Judicial supremacy has been maintained upon the ground that our government is founded upon law. It is incumbent upon the executive, whether elective or by
divine right as a Stuart king, to act according to rules of law. There is no doctrine of omnipotence of Parliament here as there is in England. Therefore, even final action of an administrative agency, although declared unappealable by legislation, has always been subject to attack in court if fundamentals were violated.
Bustos-Ovalle v. Landon, 225 F.2d 878, 880 (9th Cir. 1955).
Nevertheless, the APA itself anticipates that, on occasion, Congress might itself abrogate the presumption of judicial review. First, the APA recognizes that a statute may preclude judicial review.
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The APA recognizes two other instances in which at least some provisions of §§ 701-06 might not apply. Section 702 confers the broad right to judicial review and sets out the cause of action, but then concludes in limiting fashion:
Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
This narrows our focus: Is the doctrine of consular nonreviewability either (1) a “limitation[] on judicial review” or (2) based on statutes that “impliedly forbid[] the relief which is sought“? In other words, is Allen entitled to APA review of the consular official‘s decision not to issue his wife a visa, or is the standard set forth in Mandel his only avenue for judicial relief? The D.C. Circuit has addressed this precise question, and it concluded that Mandel supplies the only standard by which the federal courts can review a consular officer‘s decision on the merits. Saavedra Bruno v. Albright, 197 F.3d 1153, 1162–63 (D.C. Cir. 1999). We start with Mandel and the rule of consular nonreviewability, and we then turn to Saavedra Bruno.
We have long recognized that “ordinarily, a consular official‘s decision to deny a visa to a foreigner is not subject to judicial review.” Bustamante, 531 F.3d at 1060; see also Li Hing, 800 F.2d at 970–71; Ventura-Escamilla, 647 F.2d at 30-31. The rule is based on “the recognition that the power to exclude or expel aliens, as a matter affecting international
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relations and national security, is vested in the Executive and Legislative branches of government.” Ventura-Escamilla, 647 F.2d at 30; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542–43 (1950); Kaoru Yamataya v. Fisher, 189 U.S. 86, 97–98 (1903). Unless we are otherwise “authorized by treaty or by statute,” or where we are “required by the paramount law of the constitution[] to intervene,” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 712 (1893)), Congress may “prescribe the terms and conditions upon which [noncitizens] may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention.” Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895); see also Fok Yung Yo v. United States, 185 U.S. 296, 305 (1902) (“Congressional action has placed the final determination of the right of admission in executive officers, without judicial intervention, and this has been for many years the recognized and declared policy of the country.“). If our review is not required by some other provision of law, such as the Constitution, the APA, or the INA, the long-standing rule foreclosing review of the merits of consular visa decisions is precisely the kind of “limitation[] on judicial review” or “implied” prohibition on relief that forms an exception to the APA‘s cause of action and review provisions.
In Mandel, the Court reaffirmed that where Congress entrusts discretionary visa-processing and ineligibility-waiver authority in a consular officer or the Attorney General, the courts cannot substitute their judgments for those of the Executive. 408 U.S. at 769–70. But the Court also recognized a narrow exception for review of constitutional
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claims. Belgian Marxist Ernest Mandel was denied a visa to visit the United States for academic activities. Id. at 756–57. He and six American professors brought suit challenging the Attorney General‘s failure to waive Mandel‘s ineligibility, claiming injury to the professor plaintiffs’ First Amendment rights. Id. at 760. A divided three-judge district court held that the professor-plaintiffs had a First Amendment right to hear Mandel‘s views, and that plaintiffs’ were entitled to an order enjoining the Attorney General from denying Mandel admission to the United States. Mandel v. Mitchell, 325 F. Supp. 620, 632–33 (E.D.N.Y. 1971). Reversing, the Supreme Court began with the proposition that Mandel had no right of entry and thus no personal right to judicial review. 408 U.S. at 762. The Court assumed the professor plaintiffs had First Amendment rights to hear Mandel speak, and sought a means to balance their rights against Congress‘s grant of discretionary waiver authority to the Attorney General. It did so against the presumption of consular nonreviewability that had embedded itself as a rule of decision, the provenance of which the Court was “not inclined in the present context to reconsider.” Id. at 767. Rejecting Mandel‘s request for an “arbitrary and capricious” standard of review, id. at 760, the Court recognized an exception to the rule of consular nonreviewability for review of constitutional claims. The exception itself is quite narrow, requiring deference to the consular officer‘s decision so long as “that reason was facially legitimate and bona fide.” Id. at 769. The Court concluded:
We hold that when the Executive exercises this power [of exclusion] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, not test it by
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balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
The Court returned to Mandel in Fiallo v. Bell, 430 U.S. 787 (1977). There, three sets of fathers and sons challenged immigration laws giving preference to natural mothers of “illegitimate” children, thereby alleging constitutional injury through “‘double-barreled’ discrimination based on sex and illegitimacy.” Id. at 788, 794. The
The Mandel rule was again upheld in Din. 135 S. Ct. at 2141. Din, a U.S. citizen, challenged a consular officer‘s decision to deny an entry visa to her husband, and sought a writ of mandamus and a declaratory judgment to remedy her alleged constitutional injury arising out of the visa denial. Id. at 2131-32 (plurality opinion of Scalia, J.). Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, found in a plurality opinion that Din had no such constitutional right and so received the process due. Id. at 2138-40. But Justice Kennedy, joined by Justice Alito, concurred in the judgment alone, in the narrowest and thus controlling opinion in that case. See Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016). Justice Kennedy found it unnecessary to answer whether Din had a protected constitutional interest, because even assuming she did “[t]he reasoning and the
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holding in Mandel control here.” Din, 135 S. Ct. at 2139, 2140 (Kennedy, J., concurring in the judgment). Moreover, Mandel “extends to determinations of how much information the Government is obliged to disclose about a consular officer‘s denial of a visa to an alien abroad.” Id. at 2141. In Din, the consular officer offered no explanation other than a citation to
Mandel, Fiallo, and Din all involved constitutional claims. We have applied the Mandel rule in a variety of circumstances involving visa denials and claimed violations of constitutional rights. E.g., Cardenas, 826 F.3d at 1171; Bustamante, 531 F.3d at 1061 (describing Mandel as “a limited exception to the doctrine [of consular nonreviewability] where the denial of a visa implicates the constitutional rights of American citizens“). Most recently, in Trump v. Hawaii, the Court observed that its “opinions have reaffirmed and applied [Mandel‘s] deferential standard of review across different contexts and constitutional claims.” 2018 WL 3116337, at *20, slip op. at 31. Allen concedes Mandel‘s limited scope of review as to constitutional challenges to visa denials. He argues nonetheless that he is entitled to APA review of his claims, which he characterizes
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as a nonconstitutional statutory challenge to the consular officer‘s allegedly nondiscretionary duty.2
The D.C. Circuit rejected this argument in Saavedra Bruno. When a consular officer in Bolivia refused to issue a visa to
[W]e may infer that the immigration laws preclude judicial review of consular visa decisions. There was no reason for Congress to say as much expressly. Given the historical background against which it has legislated over the years, ... Congress could safely assume that aliens residing abroad were barred from challenging consular visa decisions in federal court unless legislation specifically permitted such actions. The
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presumption, in other words, is the opposite of what the APA normally supposes.
Id. at 1162. From this the court deduced that “[i]n terms of
We agree with the D.C. Circuit‘s analysis and conclusion in Saavedra Bruno. If Allen were correct, then constitutional claims would be reviewable under the limited Mandel standard, and nonconstitutional claims would be reviewable under the APA; in other words, all claims would be reviewable under some standard. Allen‘s theory converts consular nonreviewability into consular reviewability. The conclusion flies in the face of more than a century of decisions limiting our review of consular visa decisions. Allen attempts to narrow our focus to legal error, which he argues is within the province of the judiciary. We reject his argument for several reasons. First, the burden the INA places on consular officers—who may or may not have any formal legal training—is not to make legal determinations in a way that an administrative agency (such as the BIA) or a court might do. Rather the officer is charged with
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adjudicating visas under rules prescribed by law, and the officer is instructed not to issue a visa if the officer “knows or has reason to believe that such alien is ineligible to receive a visa” under any provision of law.
Second, the distinction Allen presses for would eclipse the Mandel exception itself. The claims in Mandel, Fiallo, and Din were all legal claims. To be sure, they were legal claims based on the law of the Constitution, as opposed to statutory law, but we fail to see why legal claims based on statute should receive greater protection than legal claims based on the Constitution. Indeed, we think the Court has already rejected such an argument in Webster, 486 U.S. at 594. There the Court addressed whether a statute giving the Director of the CIA blanket authority to terminate any officer or employee when deemed “necessary or advisable in the interests of the United States,” rendered the Director‘s decisions unreviewable under § 701(a)(2). Id. at 594, 601 (quoting
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review of constitutional claims, even if they are closed to other claims. See, e.g., Am. Fed‘n of Gov‘t Employees Local 1 v. Stone, 502 F.3d 1027, 1034–39 (9th Cir. 2007). Allen‘s argument would flip Webster on its head: Statutory arguments would be subject to full APA review even if constitutional arguments, per Mandel, are not. We find no support for Allen‘s position.
Allen also argues that we have previously applied APA review to consular decisions. The cases cited by Allen do not help him. We subjected a State Department decision to APA review in ASSE Int‘l Inc., 803 F.3d at 1064–68. But it was not a consular visa decision that we reviewed, but rather a State Department decision to disqualify a U.S.-based third-party sponsor participating in the Exchange Visitor Program. Id. Similarly, Singh v. Clinton, 618 F.3d 1085 (9th Cir. 2010), also did not concern a challenge to a consular officer‘s adjudication of the noncitizen‘s visa application, but rather was a suit against the State Department for failure to follow the INA and its own regulations. Singh does not guide us here. Patel v. Reno, 134 F.3d 929 (9th Cir. 1997), likewise does not aid Allen‘s argument. Patel did involve the non-issuance of a visa. But what we faced was the State Department‘s failure to issue any decision on a visa application at all, a clear violation of a nondiscretionary duty, as “[a] consular office is required by law to act on visa applications,” because “[i]ssuance or refusal [is] mandatory.” Id. at 932 (quoting
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We remanded with instructions “to order the consulate to either grant or deny the visa applications.” Id. at 933.4
We join the D.C. Circuit in holding that the APA provides no avenue for review of a consular officer‘s adjudication of a visa on the merits. Whether considered under § 702(1) or (2), the doctrine of consular nonreviewability is a limitation on the scope of our judicial review and thus precludes our review under § 706. Allen raises
III
We are sympathetic to Major Allen‘s efforts to unite his family in the United States during his next miliary assignment. Section 706 of the APA, however, provides no avenue for our review of the consular officer‘s decision.
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The judgment of the district court is AFFIRMED.
Notes
In this case, we do not have broad constitutional challenges to an executive policy. Indeed, Allen does not raise a constitutional challenge at all, only a statutory challenge. We will confine our focus to the only relief Allen seeks—review under the APA.