Case Information
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANDRA MUÑOZ and LUIS ERNESTO CASE NO. CV 17-0037 AS ASENCIO-CORDERO,
Plaintiffs,
MEMORANDUM OPINION AND ORDER v.
GRANTING DEFENDANTS’ MOTION UNITED STATES DEPARTMENT OF
STATE, et al., FOR SUMMARY JUDGMENT
Defendants. INTRODUCTION
On January 3, 2017, Sandra Muñoz and Luis Ernesto Asencio- Cordero filed a Complaint for Declaratory Relief against the U.S. Department of State (“DOS”); Antony Blinken, the U.S. Secretary of State; and Brendan O’Brien, the U.S. Consul General in San Salvador, El Salvador, challenging the denial of Asencio-Cordero’s visa application. (Dkt. No. 1). The Complaint raises six causes of action: (1) the visa denial was not facially legitimate and bona fide (Count One); (2) the visa denial violates the Equal Protection Clause of the Fifth Amendment (Count Two); (3) the visa denial violates the separation of powers (Count Three); (4) the visa denial was made in bad faith (Count Four); (5) the visa denial without judicial review violates the Administrative Procedures Act (Count Five); and (6) 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague (Count Six). (Compl. ¶¶ 34-51). Plaintiffs seek a declaration that the DOS’s reason for denying Asencio-Cordero’s visa application was not bona fide and 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague. (Id. at 12). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 25, 27, 29).
On September 29, 2017, Defendants filed a Motion to Dismiss, which the Court denied on December 11, 2017. (Dkt. Nos. 37, 47). On December 26, 2017, Defendants answered the Complaint (Dkt. No. 48), and on January 2, 2018, they filed an amended answer (Dkt. No. 49). On April 4, 2018, Plaintiffs filed a Motion for Judgment on the Pleadings, which the Court denied on June 8, 2018. (Dkt. No. 52, 59). On April 2, 2019, the Court granted Plaintiffs the authority to conduct limited discovery. (Dkt. No. 82).
Currently pending before the Court are the parties’ cross- motions for summary judgment, which have been fully briefed. (See Dkt. Nos. 101 (“Plaintiffs’ Motion”), 103 (“Defendants’ Motion”), 115 (“Defendants’ Opposition”), 116 (“Plaintiffs’ Opposition”) 117 (Defendants’ statement of genuine disputes of material facts), and 118 (Plaintiffs’ statement of genuine disputes of material facts)). [2] On January 6, 2021, the Court held a telephonic hearing on the motions. (Dkt. No. 119). [3] For the reasons discussed below, Defendants’ Motion is GRANTED, Plaintiffs’ Motion is DENIED, and the case is DISMISSED.
STATEMENT OF FACTS [4]
Plaintiff Asencio-Cordero is a native and citizen of El Salvador who arrived in the United States in March 2005. (Compl. ¶ 15). In July 2010, he married Plaintiff Muñoz, a U.S. citizen by birth. (Compl. ¶ 16). In April 2015, Asencio-Cordero departed the United States to pursue an immigrant visa. (Compl. ¶¶ 3, 18). The following month, after Muñoz’s immigrant relative petition was approved, Asencio-Cordero was interviewed for an immigrant visa at the U.S. Consulate in El Salvador. (Compl. ¶¶ 18, 19).
On or about December 28, 2015, the Consular Section denied Asencio-Cordero’s visa application by citing 8 U.S.C. § 1182(a)(3)(A)(ii), which states that “[a]ny alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any other unlawful activity” is ineligible to receive a visa and is ineligible to be admitted to the United States. (Compl. ¶¶ 20, 22).
On January 20, 2016, Congresswoman Judy Chu sent the DOS a letter on Muñoz’s behalf, and Consul Landon R. Taylor responded on January 21, 2016, by citing § 1182(a)(3)(A)(ii), with no further information. (Compl. ¶¶ 23, 24). In April 2016, the Consulate forwarded the case to the immigration visa unit for review. (Compl. ¶ 26). On April 13, 2016, Taylor reported to Plaintiffs: “[T]he finding of ineligibility for [Asencio-Cordero] was reviewed by the [DOS], which concurred with the consular officer’s decision. Per your request, our Immigration Visa Unit took another look at this case, but did not change the decision.” (Compl. ¶ 28).
Plaintiffs wrote to the DOS’s Office of Inspector General, requesting that a reason be given for the inadmissibility decision. (Compl. ¶ 30). Plaintiffs submitted a declaration from Humberto Guizar, an attorney and court-approved gang expert, who reviewed photographs of Asencio-Cordero’s tattoos and opined that “Asencio does not have any tattoos that are representative of the Mara Salvatrucha gang [(MS-13)] or any other known criminal street gang” in either El Salvador or the United States. (Dkt. No. 77-1, Exh. M (Guizar Decl.) at ¶¶ 1, 7-9). Guizar concluded that “Asencio is not a gang member, nor is there anything that I am aware of that can reasonably link him to any known criminal organization.” (Id. ¶ 10). At his May 2015 interview with the consular officer, moreover, Asencio-Cordero had denied ever being associated with a criminal gang. (Compl. ¶¶ 20-21). However, on May 18, 2016, Christine Parker, the DOS’s Chief of the Outreach and Inquiries Division of Visa Services, responded merely that the DOS “concurred in the finding of ineligibility.” (Compl. ¶ 33).
On November 8, 2018, during this litigation, DOS attorney advisor Matt McNeil, who reviewed DOS’s electronic database, asserted in a declaration: “[B]ased on the in-person interview, a criminal review of Mr. Asencio-Cordero, and a review of the [sic] Mr. Asencio-Cordero’s tattoos, the consular officer determined that Mr. Asencio-Cordero was a member of a known criminal organization identified in 9 FAM 302-5-4(b)(2), specifically MS-13.” (Dkt. No. 76-1 (McNeil Decl.) at ¶¶ 1-3).
At the telephonic hearing before the Court on January 6, 2021, counsel for Defendants clarified on the record that Asencio- Cordero’s tattoos were a basis for the consular officer’s decision, request for DOS’s reconsideration of the visa denial. (See Dkt. No. 77-1, Exh. M).
Department of State and . . . contains the functional statements, The Foreign Affairs Manual (FAM) “is published by the organizational responsibilities, and authorities of each of the major components of the U.S. Department of State, including Consular Officers.” Sheikh v. U.S. Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009).
in addition to information provided by law enforcement which identified Asencio-Cordero as a member of the MS-13 gang.
SUMMARY OF THE PARTIES’ ARGUMENTS Plaintiffs argue that they are entitled to summary judgment because the government gave no “bona fide factual reason” for denying Asencio-Cordero’s visa application. (Plaintiffs’ Motion at 4-5; Plaintiffs’ Opposition at 10-13). Plaintiffs also assert that Defendants acted in bad faith, including by failing to respond to Plaintiffs’ evidence rebutting the consular officer’s apparent determination that Asencio-Cordero is a gang member. (Plaintiffs’ Motion at 6-8; Plaintiffs’ Opposition at 15-20). Plaintiffs further contend that Defendants’ conduct violates the APA because it is arbitrary and capricious. (Plaintiffs’ Motion at 14-16; see Plaintiffs’ Opposition at 13). In addition, Plaintiffs assert that 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague, and they have standing to challenge it. (Plaintiffs’ Motion at 9-14; Plaintiffs’ Opposition at 20-25).
Defendants argue that Plaintiffs’ claims, including the APA claim, are foreclosed by the doctrine of consular nonreviewability. (Defendants’ Motion at 10-22; Defendants’ Opposition at 4-12, 17- 19). Defendants contend that the consular officer’s decision satisfied the requisite standard because the officer cited a legitimate statutory admissibility ground, 8 U.S.C. § 1182(a)(3) (A)(ii), which was applicable because the officer assertedly had reason to believe, based on information received from law enforcement, that Asencio-Cordero was associated with the MS-13 gang, an organized transnational criminal organization listed in 9 FAM 302.5-4(B)(2). (Defendants’ Motion at 13-14; Defendants’ Opposition at 1-2, 5-8). Defendants maintain that Plaintiffs were not entitled to any further information for the decision other than the mere citation to § 1182(a)(3)(A)(ii). (Defendants’ Motion at 15; Defendants’ Opposition at 4-6). Defendants thus assert that by disclosing any information regarding Asencio-Cordero’s suspected association with MS-13, they have given Plaintiffs “far more” than the law requires. (Defendants’ Motion at 17-18). Defendants further assert that Plaintiffs have not made any affirmative showing of bad faith, and there is no evidence to suggest that the consulate officer’s decision was based on knowingly false or improper grounds. (Defendants’ Motion at 18- 21; Defendants’ Opposition at 9-12). Defendants additionally argue that Plaintiffs’ vagueness challenge to § 1182(a)(3)(A)(ii) fails for lack of standing and on the merits. (Defendants’ Motion at 22-25; Defendants’ Opposition at 2, 12-16).
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure authorizes
the granting of summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The standard for granting a motion for summary judgment is
essentially the same as for granting a directed verdict. Anderson
v. Liberty Lobby, Inc.,
The moving party has the initial burden of identifying
relevant portions of the record demonstrating the absence of a fact
or facts necessary for one or more essential elements of each cause
of action upon which the moving party seeks judgment. Celotex
Corp. v. Catrett,
If the moving party sustains its burden, the burden then
shifts to the nonmovant to cite to “particular parts of materials
in the record” demonstrating a material fact is “genuinely
disputed.” Fed. R. Civ. P. 56(c)(1); Celotex Corp., 477 U.S. at
324; Anderson,
“[I]n ruling on a motion for summary judgment, the nonmoving
party’s evidence ‘is to be believed, and all justifiable inferences
are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526
U.S. 541, 552 (1999) (quoting Anderson,
DISCUSSION
A. The Visa Denial Did Not Violate Plaintiffs’ Rights
1. Applicable Law
“Although the Constitution contains no direct mandate relating
to immigration matters, the Supreme Court has long recognized that
the political branches of the federal government have plenary
authority to establish and implement substantive and procedural
rules governing the admission of aliens to this country.” Jean v.
Nelson, 727 F.2d 957, 964 (11th Cir. 1984), aff’d, 472 U.S. 846
(1985). “The exclusion of aliens is a fundamental act of
sovereignty. The right to do so stems not alone from legislative
power but is inherent in the executive power to control the foreign
affairs of the nation.” U.S. ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542 (1950). “In practice, however, the comprehensive
character of the [Immigration and Nationality Act (INA)] vastly
restricts the area of potential executive freedom of action, and
the courts have repeatedly emphasized that the responsibility for
regulating the admission of aliens resides in the first instance
with Congress.” Jean,
Nevertheless, the Government’s plenary power “does not mean that it is wholly immune from judicial review.” Jean, 727 F.2d at 975; see Hazama v. Tillerson, 851 F.3d 706, 708 (7th Cir. 2017) (“the Court has never entirely slammed the door shut on review of consular decisions on visas”). Rather, “courts have identified a limited exception to the doctrine of consular nonreviewability where the denial of a visa implicates the constitutional rights of American citizens.” Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008).
This limited exception to the doctrine of consular nonreviewability traces to the Mandel decision. Dr. Ernest Mandel
was a Belgian journalist and a self-described revolutionary
Marxist, who had been invited by college professors, all of them
U.S. citizens, to speak at a university conference. Mandel, 408
U.S. at 756-57. The consulate denied Mandel’s visa application,
finding him inadmissible under the immigration laws at that time,
which barred non-citizens who advocate world communism, and the
Attorney General declined to grant a waiver. Id. at 757; see
Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016).
Mandel, along with a number of American professors, challenged the
denial. Mandel,
The Supreme Court recently returned to the nonreviewability
issue in Din. Fauzia Din, a U.S. citizen, was married to Kanishka
Berashk, an Afghan citizen and former civil servant in the Taliban
regime. Din,
The Supreme Court reversed the Ninth Circuit in a plurality
opinion. Din, 576 U.S. 86. While a three-justice plurality
concluded that a citizen, such as Din, had no due process right
with respect to her spouse’s visa denial, that view did not garner
a majority of the Court. Instead, the two-justice concurrence,
which the Ninth Circuit subsequently held to be the controlling
Din analysis, assumed without deciding that Din’s constitutional
rights were burdened by the visa denial, but held that the reasons
given by the Government satisfied Mandel’s “facially legitimate
and bona fide” standard. Din, 576 U.S. at 102-06 (Kennedy, J.,
concurring);
[9]
see also Cardenas,
Court”). Specifically, Justice Kennedy, joined by Justice Alito,
concluded that the Government’s citation to § 1182(a)(3)(B) alone
sufficed as a “facially legitimate and bona fide reason” because,
“unlike the waiver provision at issue in Mandel, which granted the
Attorney General nearly unbridled discretion, § 1182(a)(3)(B)
specifies discrete factual predicates the consular officer must
find to exist before denying a visa.”
[10]
Din,
As construed by the Ninth Circuit in Cardenas, the Supreme
Court’s controlling Din concurrence laid out a two-part test for
determining whether the denial of a visa provides the “facially
legitimate and bona fide reason” required by Mandel. “First, the
consular officer must deny the visa under a valid statute of
inadmissibility.” Cardenas, 826 F.3d at 1172. “Second, the
consular officer must cite an admissibility statute that ‘specifies
discrete factual predicates the consular officer must find to exist
before denying a visa,’ or there must be a fact in the record that
‘provides at least a facial connection to’ the statutory ground of
inadmissibility.” Id. (quoting Din,
In Cardenas, the Ninth Circuit concluded that the test, under Mandel and Din, was satisfied because the consular officer (1) cited a valid statute of inadmissibility, § 1182(a)(3)(A)(ii), and (2) “provided a bona fide factual reason that provided a ‘facial connection’ to the statutory ground of inadmissibility: the belief that [the visa applicant] was a ‘gang associate’ with ties to the Sureno gang.” Id. The officer’s gang-association finding was expressly based on facts provided in the record, including the fact that the alien had been identified by police as a Sureno gang associate when arrested in June 2008 as a passenger in a vehicle owned and driven by a known Sureno gang member. Id. at 1167–68. When the alien’s visa application was denied, the consulate informed the alien, in writing, that “the circumstances of [the June 2008] arrest, as well as information gleaned during the consular interview, gave the consular officer sufficient ‘reason to believe’ that [the alien] has ties to an organized street gang.” Id. at 1168.
2. Analysis
Plaintiff Muñoz, as a U.S. citizen married to Plaintiff
Asencio-Cordero, has a protected liberty interest in the denial of
Asencio-Cordero’s visa. See Bustamante,
(Defendants’ Opposition at 4-6). The Court has already rejected
that argument. (See Dkt. No. 59 at 11-15). Unlike the provision
at issue in Din, § 1182(a)(3)(A)(ii) does not provide the “discrete
factual predicates” necessary to deny a visa because the statute
merely precludes admission to a non-citizen who a consular officer
“knows, or has reasonable ground to believe, seeks to enter the
United States to engage . . . in . . . any other unlawful
activity.” 8 U.S.C. § 1182(a)(3)(A)(ii); see also Din, 576 U.S.
at 105 (“But unlike the waiver provision at issue in Mandel, which
granted the Attorney General nearly unbridled discretion,
§ 1182(a)(3)(B) specifies discrete factual predicates the consular
officer must find to exist before denying a visa.”); Cardenas, 826
F.3d at 1172 (“[T]here must be a fact in the record that ‘provides
at least a facial connection to’ the statutory ground of
inadmissibility.”) (quoting Din,
Defendants cite to the Supreme Court’s decision in Trump v.
Hawaii, 138 S. Ct. 2392 (2018), as support for their contention
that the mere citation to § 1182(a)(3)(A)(ii) sufficed. (See
Defendants’ Opposition at 5). In dicta, the Hawaii Court provided
a limited summary of the Supreme Court’s ruling in Din, stating
that “the Government need provide only a statutory citation to
explain a visa denial.”
However, the Government has offered further explanations for the consulate officer’s decision. First, Defendants have informed Plaintiffs that the visa was denied based on § 1182(a)(3)(A)(ii) because the consulate officer determined that Asencio-Cordero was a member of MS-13, a recognized transnational criminal organization. Defendants submitted a declaration stating that the officer made this determination “based on the in-person interview, a criminal review of Mr. Asencio-Cordero, and a review of the [sic] Mr. Asencio-Cordero’s tattoos.” (Dkt. No. 76-1 (McNeil Decl.) at ¶ 5). Defendants also provided to Plaintiffs’ counsel and the Court several redacted documents from the Consolidated Consular Database regarding the officer’s determinations in Asencio- Cordero’s case, although the redactions encompass essentially all material portions of the documents. (See Dkt. No. 112). To the extent these documents and other representations still left unclear whether the consular officer’s investigation yielded any facts that “provide[d] at least a facial connection to” the consular officer’s determination, Defendants’ counsel later clarified, at the hearing on January 6, 2021, that the tattoos specifically contributed to the determination, as did law enforcement information which identified Asencio-Cordero as an MS-13 gang member.
Plaintiffs maintain that this still does not suffice, and that
Defendants have failed to identify any facts supporting the
decision. Among other things, Plaintiffs contend that at the
January 6 hearing, Defendants “conceded” that law enforcement
merely gave the consular officer its
conclusion
that Asencio-
Cordero was an MS-13 gang member, “without providing the consular
officer with any factual basis that led them to that conclusion.”
(Dkt. No. 123 at 5). However, Plaintiffs wrongly assume they have
a right to examine or dispute the officer’s assessment of evidence
underlying the decision. To the contrary, within the Court’s
limited jurisdiction to review consular decisions, it is enough
for the Government to have disclosed that the officer relied on
these
facts
– specifically, (1) that the tattoos signaled to the
officer that Asencio-Cordero was an MS-13 member, and (2) that law
enforcement also identified him as one. Although Defendants have
declined to publicly disclose any further information on this issue
(on the grounds of consular nonreviewability and law enforcement
privilege), the Court finds that these facts in the record satisfy
the government’s obligation under Cardenas and Din by “‘provid[ing]
at least a facial connection to’ the statutory ground of
inadmissibility.” Cardenas,
Because Defendants have shown that there were facts that
provided at least a facial connection to the statutory ground of
inadmissibility, Plaintiffs have “the burden of proving that the
reason was not bona fide by making an ‘affirmative showing of bad
faith on the part of the consular officer who denied [Asencio-
Cordero] a visa.’” Cardenas,
Plaintiffs argue that the Government acted in bad faith here by withholding the factual basis for the visa denial, and thus depriving Plaintiffs of “the opportunity to argue against it.” (Plaintiffs’ Opposition at 10, 17-18). The Court disagrees. The consular officer did not demonstrate bad faith by explaining the decision with nothing more than a citation to § 1182(a)(3)(A)(ii). Consular officers are not required to give applicants any further explanation.
The statute, for example, requires only that consular officers
provide denial notices that “list[] the specific provision or
provisions of law under which the alien is inadmissible” – and this
notice requirement does not even apply to non-citizens, such as
Asencio-Cordero, who are found inadmissible under § 1182(a)(2) or
§ 1182(a)(3). 8 U.S.C. § 1182(b); see Din, 576 U.S. at 105–06
(noting that while “Din perhaps more easily could mount a challenge
to her husband’s visa denial [(which was based on § 1182(a)(3)(B))]
if she knew the specific subsection on which the consular officer
relied,” the requirement to provide notice of the specific
subsection “does not apply when, as in this case, a visa application
is denied due to terrorism or national security concerns”) (citing
§ 1182(b)(3)). Also, to the extent that DOS’s own Foreign Affairs
Manual may direct officers to give more information, a failure to
adhere to such guidelines does not demonstrate bad faith. See
Baluch v. Kerry,
Moreover, the test under Mandel and Din requires only that
the officer cite the statute of inadmissibility and, at most, that
there be “a fact
in the record
that ‘provides at least a facial
connection to’ the statutory ground of inadmissibility.” Cardenas,
Decl.); Dkt. No. 103-2 at 7).
Because Plaintiffs’ only arguments for bad faith are based on the lack of information given by the consular officer, or on Defendants’ subsequent withholding of further information, they fail to make the requisite affirmative showing of bad faith. Absent that affirmative showing, Plaintiffs have no right to look behind the officer’s decision or to contest the evidence or inferences on which it was based. See, e.g., Sesay v. United States, 984 F.3d 312, 316 (4th Cir. 2021) (“For the doctrine of consular nonreviewability to have any meaning, we may not peer behind the decisional curtain and assess the wisdom of the consular determination.”); Baluch, 2016 WL 10636362, at *2 (“Baluch essentially asks us to do what Justice Kennedy’s controlling opinion in Din forbids - ‘look behind’ the government’s ‘exclusion of [her husband] for additional factual details[.]’”). Viewing the evidence in the light most favorable to Plaintiffs, the Court concludes that Plaintiffs have failed to create a genuine issue of material fact as to whether the consular officer’s decision violated their rights. Plaintiffs’ claims challenging that decision (Counts 1-5) therefore merit dismissal pursuant to Defendants’ Motion.
B. Section 1182(a)(3)(A)(ii) Is Not Unconstitutionally Vague
1. Applicable Law
The void-for-vagueness doctrine “guarantees that ordinary
people have ‘fair notice’ of the conduct a statute proscribes.”
Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). The doctrine
“guards against arbitrary or discriminatory law enforcement by
insisting that a statute provide standards to govern the actions
of police officers, prosecutors, juries, and judges.” Id. “The
degree of vagueness that the Constitution tolerates . . . depends
in part on the nature of the enactment.” Vill. of Hoffman Estates
v. Flipside, Hoffman Estates, Inc.,
2. Analysis
As an initial matter, the parties dispute whether Plaintiffs
have standing and a legal right to raise a constitutional void-
for-vagueness claim against an admissibility statute. (Defendants’
Motion at 22-24; Plaintiffs’ Opposition at 20-25). The answer is
unclear. It appears, for example, that both Plaintiffs have
suffered an actual injury that is fairly traceable to the statute,
since the visa denial has deprived Asencio-Cordero of the right to
live in the country he considered home for ten years, and it has
also deprived Muñoz of her right to live with her husband in their
home. See Bernhardt v. Cnty. of Los Angeles,
However, the
scope
of Plaintiffs’ due process rights remains
unclear. Specifically, it is unclear whether either Plaintiff’s
liberty interest entitles him or her to raise a void-for-vagueness
challenge to the admissibility statute. See, e.g., Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 823 n.8 (9th Cir. 2003) (“while the
Supreme Court has allowed aliens to bring vagueness challenges to
deportation statutes, an alien may not have the same right to
challenge exclusion provisions”) (citation omitted); Boggala v.
Sessions, 866 F.3d 563, 569 n.5 (4th Cir. 2017) (“It is unclear
whether an alien is allowed to bring a vagueness challenge to
admissibility laws.”); Beslic v. INS,
country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause.”). Asencio-Cordero was not “at the threshold of initial entry” when his visa was denied, since he had already “established connections in this country” while living here for ten years. As Plaintiffs point out, non-citizen plaintiffs have been 27 permitted to raise void-for-vagueness claims against admissibility statutes in some cases. (See Plaintiffs’ Opposition at 22-24). In such cases, however, the plaintiffs were in the United States
Regardless, the Court need not determine whether either Plaintiff has a legal right to bring the vagueness claim because Plaintiffs fail to demonstrate that the challenged statute, 8 U.S.C. § 1182(a)(3)(A)(ii), is unconstitutionally vague. They fail to do so particularly because they have not shown that the statute is vague as applied in this case. See Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019) (“[V]agueness challenges to statutes that do not involve First Amendment violations must be examined as applied to the defendant. . . . [A]s a general matter, a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute.”) (internal quotations and citations omitted).
The challenged statute provides that “[a]ny alien who a
consular officer or the Attorney General knows, or has reasonable
ground to believe, seeks to enter the United States to engage
solely, principally, or incidentally in . . . any other unlawful
activity” is ineligible to receive a visa and to be admitted to
the United States. Although the language of this provision
challenging their removal, and the purported basis for their
exclusion concerned criminal acts committed within the United
States. See Martinez-de Ryan v. Whitaker,
(1st Cir. 2020) (referencing the “notorious criminal gang, famously known as MS-13”); Solomon-Membreno v. Holder, 578 F. App’x 300, 302 n.2 (4th Cir. 2014) (“The plague that is MS–13 . . . has made significant inroads into the United States. A complete list of federal criminal cases involving MS–13 members would be pro- hibitively long. A cursory sample, however, reveals something of the breadth of the gang’s criminal activity.”) (collecting cases). A person of average intelligence would reasonably understand that membership in such an organization would imply an engagement in unlawful activity, at the very least, and thus render him ineligible for entry under § 1182(a)(3)(A)(ii). See United States v. Williams, 441 F.3d 716, 724 (9th Cir. 2006) (“In examining a statute for vagueness, we must determine whether a person of average intelligence would reasonably understand that the charged conduct is proscribed.”). Moreover, even though the officer’s determination on this point basically requires a prediction of future unlawful conduct, and does not depend on whether the applicant has a criminal record, that does not render the statute unconstitutionally vague. See Kashem, 941 F.3d at 364 (noting
challenged provisions are “not impermissibly vague merely because
they require a prediction of future criminal conduct”) (citations
omitted); see also Schall v. Martin,
CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ Motion for Summary Judgment and DENIES Plaintiffs’ Motion. Judgment shall be entered against Plaintiffs on all claims.
LET THE JUDGMENT BE ENTERED ACCORDINGLY
DATED: March 18, 2021 /s/ __________
ALKA SAGAR UNITED STATES MAGISTRATE JUDGE AT&T: 01/06/21 00 : 46
Notes
[1] The Complaint originally named John F. Kerry as U.S. Secretary of State and Mark Leoni as U.S. Consul General. Antony 26 Blinken, the current U.S. Secretary of State, and Brendan O’Brien, 27 Consul General at the U.S. Embassy in San Salvador, have been substituted for their predecessors. Fed. R. Civ. P. 25(d).
[2] On January 5, 2021, Defendants filed a notice of supplemental authority, and Plaintiffs filed a response. (Dkt. Nos. 120-121).
[3] On February 17, 2021, Defendants filed a notice of 24 supplemental authority, and Plaintiffs filed a response. (Dkt. Nos. 122-123). 25
[4] Based on the parties’ respective statements of undisputed 26 facts, the following facts are undisputed. (See Dkt. Nos. 101-1, 27 103-1, 117, 118). Citations to the Complaint and declarations are consistent with the parties’ citations.
[5] Guizar’s declaration is dated April 27, 2016, and seems to have been submitted around that date, in support of Plaintiffs’
[7] Because counsel made these statements at the January 6 hearing, they were not addressed in the parties’ statements of 26 facts, but the Court considers them as representations made on 27 behalf of the Government on the record in this case, which partially illuminate the Government’s redacted filings.
[8] The four-justice dissent concluded that Din had a due process
24
liberty interest in the matter, Din,
[9] All subsequent citations to Din refer to Justice Kennedy’s concurrence.
[10] Section 1182(a)(3)(B) precludes visas for non-citizens who have engaged in, incited, or endorsed, or are believed to be likely to engage in, any terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(i). However, the statute sets forth the specific types of facts needed to constitute “terrorist activity” and to qualify as “engag[ing] in terrorist activity.” Id. § 1182(a)(3)(B)(iii)-(iv). In contrast, the statute at issue in Mandel generally precluded visas for non-citizens “who advocate[d] the economic, international, and governmental doctrines of World communism,” 8 U.S.C. § 1182(a)(28)(D) (1964 ed.), but it also gave the Attorney General broad discretion to grant individual exceptions, allowing the alien to obtain a temporary visa, id. § 1182(d)(3); see Din, 576 U.S. at 102-03 (discussing Mandel).
[11] As noted above, this holding in Bustamante, which the Ninth
27
Circuit also relied on in Din,
[12] The documents include an October 2015 memorandum from the
20
Fraud Prevention Unit at the U.S. Embassy in El Salvador, as well
as an Advisory Opinion request submitted by a consular officer and
21
the Visa Office’s response to that request. Defendants submitted
22
unredacted copies to the Court for
in camera
review. (See Dkt.
No. 112). Since Plaintiffs have been unable to view these copies,
23
the Court agrees with Plaintiffs that it cannot consider the
redacted material in ruling on the substantive issues in this case.
24
See Am.-Arab Anti-Discrimination Comm. v. Reno,
[13] Defendants’ counsel’s clarifications in the January 6 hearing differed from the government’s prior statements on the record - and to some extent account for why the Court reaches a different conclusion here than in previous orders (see Dkt. Nos. 82, 93) - insofar as the Government’s prior statements, as phrased, expressed only that the officer had reviewed and considered all the facts in making the determination. In contrast, the Government has now clarified that the tattoos and law enforcement information actually connected Asencio-Cordero to MS-13.
[14] DOS’s Foreign Affairs Manual requires consular officials to provide “[t]he factual basis for the refusal” unless the DOS 26 instructs the consular official “not to provide notice” or the 27 consular official “receive[s] permission from the [DOS] not to provide notice.” 9 FAM 504.11-3(A)(1)(b)-(c).
[15] The gang expert’s sworn declaration states that none of Asencio-Cordero’s tattoos are associated with known gangs, and 26 nothing the expert is aware of “can reasonably link [Asencio- 27 Cordero] to any known criminal organization.” (Guizar Decl. ¶¶ 7- 10).
[16] This includes Plaintiffs’ claim under the APA. As noted
above, the APA offers no separate right to challenge consular
26
officers’ decisions because the test under Din and Cardenas is the
27
only recognized exception to consular nonreviewability. See Allen,
[17] The claims in Ibrahim concerned only the plaintiff’s
designation on a no-fly list, not specifically the revocation or
denial of her visa. Ibrahim,
[18] More recent Supreme Court cases cited by Defendants do not
seem to undermine this conclusion, as such cases draw a distinction
26
between non-citizens seeking
initial
entry and those in deportation
27
proceedings who have established connections in the United States.
See Dep’t of Homeland Sec. v. Thuraissigiam,
[20] The treasury secretary’s designation was made pursuant to 24 Executive Order 13581, which defines a “transnational criminal organization” as one that, among other things, “engages in an 25 ongoing pattern of serious criminal activity involving the jurisdictions of at least two foreign states” and “threatens the 26 national security, foreign policy, or economy of the United 27 States.” Exec. Order No. 13581, 76 Fed. Reg. 44,757 (July 24, 2011).