Bustamante v. Mukasey

• Decision Date: 09 July 2008
• Docket Number: No. 06-17228.,06-17228.
• Citation: 531 F.3d 1059
• Parties: Alma Lupe BUSTAMANTE; Jose Jesus Bustamante, Plaintiffs-Appellants, v. Michael MUKASEY, Attorney General; Michael Chertoff, Secretary, Department of Homeland Security; United States Citizenship and Immigration Services; Al Gallman, Acting District Director, Phoenix; Drug Enforcement Agency; Karen Tandy, Administrator; Condoleezza Rice, Secretary of State; Maurice Parker, Consul General of the United States, City of Ciudad Juarez, Mexico; Eric Cruz, United States Consular Official, in his official and individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

531 F.3d 1059

Alma Lupe BUSTAMANTE; Jose Jesus Bustamante, Plaintiffs-Appellants, v. Michael MUKASEY, Attorney General; Michael Chertoff, Secretary, Department of Homeland Security; United States Citizenship and Immigration Services; Al Gallman, Acting District Director, Phoenix; Drug Enforcement Agency; Karen Tandy, Administrator; Condoleezza Rice, Secretary of State; Maurice Parker, Consul General of the United States, City of Ciudad Juarez, Mexico; Eric Cruz, United States Consular Official, in his official and individual capacities, Defendants-Appellees.

No. 06-17228.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2008.

Filed July 9, 2008.

Marc Van Der Hout and Beth Feinberg, Van Der Hout, Brigagliano & Nightingale, San Francisco, CA, for the plaintiffs-appellants.

Daniel G. Knauss, Cynthia M. Parsons, and John Boyle, United States Attorney's Office for the District of Arizona, Phoenix, AZ, Christopher W. Hollis, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CIV-06-00052-PHX-ROS.

Before: BARRY G. SILVERMAN and MARSHA S. BERZON, Circuit Judges, and ROGER T. BENITEZ,^* District Judge.

SILVERMAN, Circuit Judge:

We hold today, as we did twenty-two years ago in Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986), that ordinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review. However, when a U.S. citizen's constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason. In this case, the consular official offered a facially valid reason for denying the visa: he had reason to believe that the visa applicant was a drug trafficker. Furthermore, it was not alleged that the consular official did not have a good faith belief in the truth of the information on which he relied.

I. FACTS

Alma Bustamante is a citizen of the United States and resides in Yuma, Arizona. Her husband, Jose Bustamante, is a citizen of Mexico and resides in San Luis Rio Colorado, Sonora, Mexico. Jose has a business in Mexico and for many years commuted between Mexico and the United States using a border-crossing card issued by the former Immigration and Naturalization Service.

Seeking to obtain lawful permanent resident status for her husband, Alma filed an immediate relative petition on Jose's behalf. Jose applied for an immigrant visa at the United States Consulate in Ciudad Juarez, Mexico. The Bustamantes were informed by Eric Cruz, a consular official, that the Consulate had reason to believe that Jose was trafficking in illegal drugs. By virtue of 8 U.S.C. § 1182(a)(2)(C), "[a]ny alien who the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance ... is inadmissible." Cruz refused to reveal the information upon which this determination was based, asserting that the information was secret.

At a subsequent meeting in Mexico with officials of the U.S. Drug Enforcement Administration, Jose was asked to become an informant. The Bustamantes were told that if Jose agreed to cooperate, his problems obtaining a visa "would go away." The Bustamantes were also told that if Jose declined to cooperate, he would never obtain a visa and would never become a lawful permanent resident of the United States. Jose refused to become an informant, and his visa application was denied on March 25, 2003. Consular officials also revoked Jose's border crossing privileges.

In a letter dated September 9, 2003, Cruz replied to an inquiry sent by a lawyer representing the Bustamantes. In explaining the Consulate's decision, Cruz referred to a letter, dated March 5, 2003 and written by the "Resident Agent-in-Charge of our local Drug Enforcement Administration Office," that contained "derogatory information" to support the finding that there was reason to believe that Jose was a controlled substance trafficker.

On January 6, 2006, the Bustamantes filed an action in district court against Cruz and a number of other U.S. government officials, alleging that Jose has not trafficked in illegal drugs and that the consular officials improperly conditioned the granting of a visa on Jose's agreement to become an informant. The Bustamantes asserted in the complaint that they suffered a procedural due process violation as a result of the allegedly improper condition.

The defendants moved to dismiss and for summary judgment, asserting lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. Noting that the defendants had provided a facially valid reason for the visa denial, the district court, relying on Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir.1986), dismissed the complaint on the grounds that the decisions of consular officers to grant or deny visas are not subject to judicial review; all other motions were denied as moot. The Bustamantes timely appealed, asserting that the district court failed to recognize an exception to the doctrine of consular nonreviewability applicable where a U.S. citizen raises a constitutional challenge to the consular decision.

II. ANALYSIS

"[I]t has been consistently held that the consular official's decision to issue or withhold a visa is not subject either to administrative or judicial review." Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, courts have identified a limited exception to the doctrine where the denial of a visa implicates the constitutional rights of American citizens. See, e.g., Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir.1990); Burrafato v. United States Dep't. of State, 523 F.2d 554, 556-57 (2d Cir.1975); Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C.Cir.1999). The exception is rooted in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), a suit brought by American citizens challenging on First Amendment grounds the exclusion of a Belgian national who was an advocate of "world communism." The Supreme Court specifically noted that an unadmitted and nonresident alien himself had no right of entry, and that the case came down to the "narrow issue" whether the First Amendment right to "receive information and ideas" conferred upon the American citizens the ability to compel Mandel's admission. Mandel, 408 U.S. at 762, 92 S.Ct. 2576. The Court acknowledged that First Amendment rights were implicated, but emphasized the longstanding principle that Congress has plenary power to make policies and rules for the exclusion of aliens. Id. at 765-66, 92 S.Ct. 2576. Noting that Congress had delegated to the executive conditional exercise of this power with regards to certain classes of excludable aliens, the Court held that "when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication...