718 F.3d 856 (9th Cir. 2013), 10-16772, Din v. Kerry

Docket Nº:10-16772.
Citation:718 F.3d 856
Opinion Judge:MURGUIA, Circuit Judge:
Party Name:Fauzia DIN, Plaintiff-Appellant, v. John F. KERRY,[*] Secretary of State; Janet A. Napolitano, Secretary of Homeland Security; Eric H. Holder, Jr., Attorney General, Attorney General of the United States; Richard Olson, Ambassador of the United States Embassy, Islamabad, Pakistan; Christopher Richard, Consul General of the Consular Section at the U
Attorney:Heidi C. Larson Howell (argued) and Geoffrey D. DeBoskey, Sidley Austin LLP, Los Angeles, CA; and Sin Yen Ling, Asian Law Caucus, San Francisco, CA, for Appellant. Stacey Ilene Young (argued), Trial Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.,...
Judge Panel:Before: RICHARD R. CLIFTON and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS, District Judge.[**] CLIFTON, Circuit Judge, dissenting:
Case Date:May 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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718 F.3d 856 (9th Cir. 2013)

Fauzia DIN, Plaintiff-Appellant,

v.

John F. KERRY,[*] Secretary of State; Janet A. Napolitano, Secretary of Homeland Security; Eric H. Holder, Jr., Attorney General, Attorney General of the United States; Richard Olson, Ambassador of the United States Embassy, Islamabad, Pakistan; Christopher Richard, Consul General of the Consular Section at the United States Embassy, Islamabad, Pakistan; James B. Cunningham, Ambassador of the United States Embassy, Kabul, Afghanistan, Defendants-Appellees.

No. 10-16772.

United States Court of Appeals, Ninth Circuit.

May 23, 2013

Argued and Submitted July 18, 2012.

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[Copyrighted Material Omitted]

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Heidi C. Larson Howell (argued) and Geoffrey D. DeBoskey, Sidley Austin LLP, Los Angeles, CA; and Sin Yen Ling, Asian Law Caucus, San Francisco, CA, for Appellant.

Stacey Ilene Young (argued), Trial Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellees.

Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, Senior District Judge, Presiding. D.C. No. 3:10-cv-00533-MHP.

Before: RICHARD R. CLIFTON and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS, District Judge.[**]

OPINION

MURGUIA, Circuit Judge:

United States citizen Fauzia Din filed a visa petition on behalf of her husband Kanishka Berashk, a citizen and resident of Afghanistan. Nine months later, the visa was denied. Consular officials informed Din and Berashk only that the visa had been denied under 8 U.S.C. § 1182(a)(3)(B), a broad provision that excludes aliens on a variety of terrorism-related grounds. The district court granted the Government's motion to dismiss on the basis of consular nonreviewability, concluding that the Government put forth a facially legitimate and bona fide reason for the visa denial, in accordance with Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir.2008). We disagree. Because the Government has not put forth a facially legitimate reason to deny Berashk's visa, we reverse and remand for further proceedings.

I. Background

The following facts are taken from Din's complaint. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) (accepting " all factual allegations in the complaint as true" when reviewing an order granting a motion to dismiss). From 1992 to 2003, Din's husband, Berashk, worked as a payroll clerk for the Afghan Ministry of Social Welfare. Since the Taliban controlled Afghanistan from 1996 to 2001, Berashk's employment necessarily included work for the Taliban government. Since 2003, Berashk has worked as a clerk in the Afghan Ministry of Education, where he performs low-level administrative duties, including processing paperwork.

In September 2006, Din and Berashk married. In October of the same year, Din filed a visa petition on Berashk's behalf. On February 12, 2008, United States Citizenship and Immigration Services (" USCIS" ) notified Din that the visa petition was approved. Several months later, the National Visa Center informed Din that it completed processing the visa and scheduled a visa interview for Berashk at the Embassy in Islamabad, Pakistan. The interview took place as scheduled on September 9, 2008. Berashk answered all questions truthfully, including inquiries about his work for the Afghan Ministry of Social Welfare during the period of Taliban control and about the difficulty of life under that regime. The interviewing consular officer told Berashk he should expect to receive his visa in two to six weeks. The officer gave Berashk a form to submit at the Kabul Embassy, which he submitted with his passport upon returning to Afghanistan.

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Almost nine months later, on June 7, 2009, following several phone calls to the Embassy from both Din and Berashk, Berashk received a Form 194 letter informing him that his visa had been denied under Section 212(a) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1182(a). The letter also stated that there was " no possibility of a waiver of this ineligibility." On July 11, 2009, Berashk sent an email to the Islamabad Embassy requesting clarification as to the reason his visa had been denied. On July 13, 2009, the Embassy emailed a response, stating the visa had been denied under INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), a section of the INA that lists a wide variety of conduct that renders an alien inadmissible due to " terrorist activities." The email added that " [i]t is not possible to provide a detailed explanation of the reasons for the denial," citing INA § 212(b)(2), 8 U.S.C. §§ 1182(b)(2)-(3), which makes inapplicable the requirement that the aliens receive notice of the reason for denials involving criminal or terrorist activity.

Din then obtained pro bono counsel and made several inquiries about the visa denial. Din's counsel sent a letter to the Immigrant Visa Unit of the Islamabad Embassy requesting reconsideration, or, alternatively, a statement of facts in support of the Government's position that Berashk was inadmissible. The Embassy responded with an email again referring only to INA § 212(a)(3)(B). Counsel subsequently sent a similar letter to the Office of Visa Services at the State Department. Following several other unsuccessful attempts to contact different State Department officials, counsel received an additional email again stating that the visa had been denied under Section 212(a)(3) and that a more detailed explanation for the refusal was not possible.

In late 2009, Din attempted to obtain answers directly by traveling from the United States to the Kabul Embassy and then the Islamabad Embassy. Officials at both embassies declined to provide her with a more specific explanation of the visa denial.

Din then initiated this action, asserting three claims for relief: (1) a writ of mandamus directing defendants to lawfully adjudicate Berashk's visa application; (2) a declaratory judgment that 8 U.S.C. § 1182(b)(3), waiving the visa denial notice provisions for aliens deemed inadmissible under terrorism grounds, is unconstitutional as applied to Din; and (3) a declaratory judgment that defendants are in violation of the Administrative Procedure Act. The district court granted the Government's motion to dismiss, concluding that Din failed to state a claim because the doctrine of consular nonreviewability barred adjudication of her first and third claims. The district court also dismissed Din's second claim, concluding that Din did not have standing to challenge the visa denial notice provision.

II. Standard of Review

We review de novo the district court's order granting a motion to dismiss. Knievel, 393 F.3d at 1072. When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Id. To survive dismissal, the complaint must allege " enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

III. Discussion

A. Consular nonreviewability and the Mandel exception

We begin with the doctrine of consular nonreviewability. An alien has

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" no constitutional right of entry" to the United States. Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). The Supreme Court " without exception has sustained Congress' ‘ plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ " Id. at 766, 92 S.Ct. 2576 (quoting Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967)). Accordingly, " [f]ederal courts are generally without power to review the actions of consular officials." Rivas v. Napolitano, 677 F.3d 849, 850 (9th Cir.2012) (citing Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986)).

However, we have recognized a limited exception to the doctrine of consular nonreviewability. When the denial of a visa implicates the constitutional rights of an American citizen, we exercise " a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." Bustamante, 531 F.3d at 1060. This right to review arises from the Supreme Court's holding in Mandel, in which U.S. citizen professors asserted a First Amendment right to " receive information and ideas" from an alien. 408 U.S. at 770, 92 S.Ct. 2576. The Mandel Court held that when the Government denies admission " 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 with the applicant." 408 U.S. at 762, 92 S.Ct. 2576. Since Mandel, our Court and several of our sister circuits have exercised jurisdiction over citizens' challenges to visa denials that implicate the citizens' constitutional rights. Bustamante, 531 F.3d at 1059; see also Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 125 (2d Cir.2009); Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir.1990); Abourezk v. Reagan, 785 F.2d 1043, 1075 (D.C.Cir.1986). Courts review the denials for " a facially legitimate and bona fide reason." Bustamante, 531 F.3d at 1062.

In Bustamante, we recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse's visa. 531 F.3d at 1062.1 We therefore consider whether the reason provided by the consular officials for the denial of Berashk's visa is " facially...

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