Lead Opinion
Order; Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge BEA.
ORDER
The opinion for Rivas v. Napolitano,
Remove <the government denies a visa without a “facially legitimate and bona fide reason.” >
Insert in its place <“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. >
OPINION
Hilario Alfonso Rivas (“Rivas”) and his daughter Lorena Rivas appeal the district court’s order granting Defendants’ motion to dismiss for lack of subject matter jurisdiction. Rivas submitted an application for an immigrant visa based on an approved 1-130 petition filed by his daughter. The United States Consulate in Ciudad Juarez, Mexico, denied Rivas’s immigrant visa application. Rivas moved the district court for an order compelling the Defendants to act upon Rivas’s Permission to Reapply for Admission (“Form 1-601”) and his letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien Registration Form.
I. Consular Nonreviewability
Federal courts are generally without power to review the actions of consular officials. Li Ring of Hong Kong, Inc. v. Levin,
II. Rivas’s Form 1-601
The district court correctly concluded that neither of the exceptions to the doctrine of consular nonreviewability apply to Rivas’s Form 1-601. See Li Hing of Hong Kong,
Nor did the district court err by finding that there is a “facially legitimate and bona fide reason” for the consular official’s rejection of Rivas’s Form 1-601. The consu
III. Rivas’s Request for Reconsideration
The district court erred, however, in its finding that the doctrine of consular nonreviewability applies to the consulate’s inaction on Rivas’s request for reconsideration. The “facially legitimate and bona fide reason” exception does not apply to Rivas’s request for reconsideration because the government took no action on the request.
The regulation found at 22 C.F.R. § 42.81(e), that governs the procedure in refusing individual visas, is applicable here. It states:
Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.
(emphasis added). The mandatory language used in the regulation makes the act of reconsideration non-discretionary when the applicant within a one year period from the denial of a visa “adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based.... ” Id. Once this is done, consular officials have a duty to reconsider a case and must take action.
Because 22 C.F.R. § 42.81(e) by its plain terms imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility, the district court has subject matter jurisdiction under the Mandamus Act where the government fails to comply with the regulation. See 28 U.S.C. § 1361; Patel,
Rivas submitted his request for reconsideration on August 5, 2008, less than one year after the January 2, 2008 refusal of his visa application. With his request for reconsideration, Rivas submitted records showing arrests—but not convictions—for conspiracy to commit alien smuggling and for harboring illegal aliens. The original rejection of Rivas’s immigration visa application was premised on Rivas’s alleged admission to alien smuggling, in violation of INA § 212(a)(6)(E). Defendants, however, have failed to provide any evidence regarding the details of Rivas’s purported admission,
If it is true that his 'admission was only as to the arrest, and there is no evidence that Rivas actually committed, or was convicted of, alien smuggling, then Rivas has submitted “evidence tending to overcome the ground of ineligibility on which the refusal was based” and his case must be reconsidered. 22 C.F.R. § 42.81(e).
The record on appeal is insufficient for us to determine whether jurisdiction exists in this case because there is no evidence as to what Rivas actually said in his consular interview.
For the foregoing reasons, we AFFIRM the district court’s order dismissing Rivas’s claims as to Form 1-601 and VACATE that part of the district court’s order dismissing Rivas’s claims as to his request for reconsideration. We REMAND for the district court to consider whether it has jurisdiction under the Mandamus Act, the APA, and the Declaratory Judgment Act. We remand to the district court for further proceedings consistent with the views expressed in this opinion. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
Notes
. Although Rivas styled his letter to the Consular General as a “Motion to Reopen,” the letter is not a “Motion” but instead constitutes a request for reconsideration of his visa application.
. Unlike the Form 1-601, Rivas's ■ letter requesting reconsideration of his immigrant visa application was never acted upon because the government claims not to have received it. Rivas, however, claims that he submitted the letter and offers a United States Postal Service Label/Receipt Number and a "signed-for” signature as proof that it was received. The district court's order assumes, without deciding, that the U.S. Consulate accepted Rivas's letter. We leave it to the district court to make this factual determination.
. Nor does the government provide any proof that Rivas admitted to attempting to smuggle someone other than his spouse, parent, son, or daughter, thereby making him ineligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(ll).
. The BIA has adopted a three part test for the acceptance of an admission in the immigration context: (1) the admitted conduct must constitute the essential elements of the crime; (2) the applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and (3) the admission must be voluntary. See Pazcoguin,
. Defendants' argument that 22 C.F.R. § 42.81(e) does not compel reconsideration of applications where an applicant was deemed to have an "unwaivable ineligibility” is unconvincing. Persons convicted of murder have a non-waivable ineligibility for a visa, but if an applicant found ineligible on the basis of a murder conviction could later submit evidence that the conviction had been vacated, such evidence would tend to overcome the ground of ineligibility. In any event, Rivas would be eligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(ll) if he attempted to smuggle his spouse, parent, son, or daughter. If Rivas had produced evidence that any smuggling he had admitted to was of a spouse, parent, son, or daughter, such a submission would clearly fall within the boundaries of 22 C.F.R. § 42.81(e).
.The only evidence offered by Defendants on this point is the Declaration of Santiago M. Burciaga, which states that "the consular officer determined that Mr. Rivas Lopez is inadmissible as a matter of law, having admitted to a violation of 8 U.S.C. § 1182(a)(6)(E).” This hearsay statement is insufficient to prove that Rivas in fact admitted to the alleged violation.
Concurrence in Part
concurring in part and dissenting in part:
I agree with the majority that the district court correctly concluded that the doctrine of consular nonreviewability prevents the federal courts from reviewing Rivas’ Permission to Reapply for Admission (“Form 1-601”). But I would conclude, as did the district court, that because Rivas admitted he violated the law which prohibits alien smuggling, consular nonreviewability also deprives us of subject matter jurisdiction to review Rivas’ letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien Registration Form (“Reconsideration Letter”). Thus, I respectfully dissent.
As the majority states, the federal courts generally do not have jurisdiction to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin,
Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an individual application fee shall not be required.
22 C.F.R. § 42.81(e) (emphasis added).
Rivas’ visa application was denied because he admitted to a violation of alien
Rivas then filed an action in mandamus, declaratory relief and other claims in the Central District of California. Nowhere in the complaint does Rivas deny smuggling aliens. In the facts section, Rivas states that he “was ordered deported on June 2, 1973,” and that when he returned to the United States in 1974, he “was arrested for conspiracy to commit alien smuggling and harboring aliens.” (emphasis added.) Indeed, Rivas appears to admit some violation of law in his complaint: “The one incidence of removal in 1974 should be afforded little weight ... Plaintiff has provided show [sic] the government with evidence that he has been rehabilitated and has been law abiding in the years following this incident.”
Defendants filed a Motion to Dismiss under, inter alia, Fed.R.Civ.P. 12(b)(1). Defendants’ main argument was straightforward:
There is nothing to adjudicate ... Because the consular officer determined that Mr. Rivas was involved in alien smuggling of persons other than his spouse, parent, so, or daughter, he did not qualify [for a visa] ... The Court is without jurisdiction under the doctrine of consular nonreviewability to review the actions of the consular officer in denying the visa application, and lacks jurisdiction to compel the State Department to reopen its decision to deny the visa.
In support of the Motion to Dismiss, Defendants submitted the declaration of Santiago M. Burciaga, the Chief of Immigrant Visas at the Ciudad Juarez consulate (“Burciaga Declaration”).
The nondiscretionary duty to reconsider a visa refusal, under 22 C.F.R. § 42.81(e), is triggered only when the applicant adduces evidence tending to overcome the
The problem with the sufficiency of his proof is that 8 U.S.C. § 1182(a)(6)(E) does not make ineligible for visas only those who have been convicted of alien smuggling. It bars those who have committed alien smuggling, regardless whether they have escaped conviction. Unfortunately for him, Rivas had already admitted he had committed alien smuggling in violation of section 1182(a)(6)(E), prior to his Reconsideration Letter.'
The sole remaining point to be discussed is whether the record evidence proves that Rivas indeed did admit to alien smuggling.
The majority opinion’s arguments that Rivas did not admit to alien smuggling are unconvincing.
First, the majority states that Defendants “have failed to provide any evidence regarding the details of Rivas’s purported admission.” Majority Op. at 9. But if the evidence in the record shows that Rivas admitted to violating the alien smuggling statute, what further “details” would be relevant to a consular official’s decision not to grant a visa account the applicant violated the law against alien smuggling?
The majority next states that Defendants have failed to prove that Rivas’ admission was “valid.” Majority Op. at 1112 (citing Pazcoguin v. Radcliffe,
As was the case with its requirement of “details” to validate the admission, the majority fails to state what provision of law requires the government to prove that an admission of facts establishing inadmissibility before a consular official is “valid”— much less what constitutes the elements of when an admission is “valid.” Certainly, Pazcoguin is of no help to such an argument. Besides taking place in a totally different context, Pazcoguin’s admission was valid enough to exclude him from admission even after he had been granted a visa. See infra note 4. If general standards by which an admission can be questioned as “valid” are invoked—such as force, coercion or hoodwinking—I can see nothing in the record to suggest that Rivas was so dealt with by the Juarez consular officials. Certainly, the majority do not cite any such record evidence, nor did Rivas even claim that to be the fact in his district court papers or his brief on appeal.
Indeed, Rivas did not say one word about his admission of alien smuggling detailed in Burciaga’s declaration. Not in the district court; not in his briefs on appeal. Even Rivas does not claim his admission to alien smuggling is not “valid.” It is thus quite difficult to understand the majority’s dismissal of Rivas’ admission on the ground it was not proved “valid,” whatever that might mean.
The majority criticizes the Burciaga Declaration as a “hearsay statement [that] is insufficient to prove that Rivas in fact admitted to the alleged violation.” Majority Op. at 1112.
First, the majority’s characterization of the Burciaga Declaration as “hearsay” is plainly and demonstrably wrong. Rivas’ admission is not hearsay. Under Fed. R.Evid. 801(d)(2)(A), a statement “offered against an opposing party” that “was made by the party” is not hearsay. Rivas’ admission, offered against him here, is an “admission by a party-opponent,” and is thus not hearsay under the Federal Rules of Evidence.
The majority would have a better argument if it characterized Burciaga’s statement as lacking foundation or personal knowledge. Under Fed. R. Evid. 602, “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Indeed, the Burciaga Declaration mentions “[t]he consular officer” who interviewed Rivas. Since it appears ambiguous whether Burci-aga, who is the Chief of Immigrant Visas at the Ciudad Juarez Consulate, was that “consular officer” who himself interviewed Rivas, Burciaga may have lacked personal knowledge of Rivas’ admission.
However, Rivas never objected to the admission of the Burciaga Declaration on grounds of lack of personal knowledge, nor indeed on any other grounds. Thus, it became permissible evidence on the Motion to Dismiss for lack of subject matter jurisdiction. See, e.g., Pfingston v. Ronan Engineering Co.,
Last, the majority notes that where the “jurisdictional questions in this appeal overlap completely with the merits of the question remaining in this case ..., dismissal for lack of subject matter jurisdiction was not appropriate.” Majority Op. at 1112-13. It is true that the merits of this case overlap with the jurisdictional question: both issues hinge on whether the consulate had a nondiscretionary duty to act based on additional materials submitted by Rivas. But the case the majority cites for its conclusion that dismissal is not warranted actually supports quite the opposite conclusion. In Roberts v. Corrothers, we said:
A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits. In such a case, the district court assumes the truth of allegations in a complaint or habeas petition, unless controverted by undisputed facts in the record.
For the above reasons, I would affirm the district court’s order dismissing Rivas’ claims for lack of subject matter jurisdiction.
. In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may consider “affidavits or any other evidence properly before the court.” Sommatino v. United States,
. 8 U.S.C. § 1182(a)(6)(E) provides: "Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”
.Regarding Rivas' admission, the consular official also determined that "no waiver provision exists" under 8 U.S.C. § 1182(d)(l 1). Such discretionary waivers are available "if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.” Id.
. The majority also criticizes the government for failing to "provide any proof that Rivas admitted to attempting to smuggle someone other than his spouse, parent, son, or daughter, thereby making him ineligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(ll).” Majority Op. at 1112. Wrong. The Burciaga Declaration explicitly states that "no waiver provision exists per INA § 212(d)(l 1) (8 U.S.C. § 1182(d)(ll)).”
. Pazcoguin asked whether petitioner "admitted] committing acts which constitute the essential elements ... of a violation of ... any law or regulation of ... a foreign country relating to a controlled substance....”
.The majority states: “We express no opinion on whether the BIA standard applies to the consular interview context.” Majority Op. at 1112 If that is so, why cite Pazcoguin?
. I can think of only one crime for which the testimony of more than one witness is required, and that is because of the explicit mandate of the United States Constitution. "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const, art. Ill, § 3, cl. 1. Treason is not at issue here.