896 F.3d 1094 (9th Cir. 2018), 16-15728, Allen v. Milas

• Docket Nº: 16-15728
• Citation: 896 F.3d 1094
• Opinion Judge: BYBEE, Circuit Judge:
• Party Name: Jerrid ALLEN, Plaintiff-Appellant, 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....
• Attorney: 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...
• Judge Panel: Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman, District Judge.
• Case Date: July 24, 2018
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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896 F.3d 1094 (9th Cir. 2018)

Jerrid ALLEN, Plaintiff-Appellant,

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, Defendants-Appellees.

No. 16-15728

United States Court of Appeals, Ninth Circuit

July 24, 2018

Argued and Submitted October 12, 2017 San Francisco, California

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[Copyrighted Material Omitted]

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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.

Appeal from the United States District Court for the Eastern District of California, Morrison C. England, Jr., District Judge, Presiding, D.C. No. 1:15-cv-00705-MCE-SAB

Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman,^[*] District Judge.

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 28 U.S.C. § 1331, and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction. The panel explained that the consular nonreviewability doctrine addresses the scope of review, rather than the federal courts' power to hear a case.

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 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.

OPINION

BYBEE, Circuit Judge:

Jerrid Allen petitions under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., for review of a decision by the U.S. Consulate in Frankfurt, Germany

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to deny a visa to his wife. Allen claims that the consular officer committed legal error in denying Mrs. Allen a visa, and that the error was "arbitrary, capricious, ... or otherwise not in accordance with law." Id. § 706(2)(A). We hold that the APA provides no avenue for judicial review in this case. Rather, the only standard by which we can review the merits of a consular 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, 92 S.Ct. 2576, 33 L.Ed.2d 683 (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.

....

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.

8 U.S.C. § 1182(a)(2)(A)(i).

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,

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that he had a right to judicial review under the cause of action codified at 5 U.S.C. § 702, and that the district court should set aside the decision as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," id. § 706(2)(A). Allen argues that the consular officer committed legal error when he identified Mrs. Allen’s 1998 theft conviction as a "crime involving moral turpitude," because the German theft statute does not categorically require an intent to deprive a person of property permanently— which he alleges is an element of the generic offense under federal law in the United States. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1159-61 (9th Cir. 2009). Similarly, Allen claims that the consular officer committed legal error when he identified Mrs. Allen’s 1997 conviction for illegal acquisition of narcotics under the German Criminal Code as her disqualifying "violation of ... any law ... relating to a controlled substance," allegedly because those proceedings did not result in a "conviction," as the German court applied only the ameliorative, rehabilitative, diversionary provisions of German juvenile law in consideration of Mrs. Allen’s youth. See Lujan-Armendariz v. INS, 222 F.3d 728, 742-43 (9th Cir. 2000).

The Government moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 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, __ U.S. __, 135 S.Ct. 2128, 2140, 192 L.Ed.2d 183 (2015) (Kennedy, J., concurring) (quoting Mandel, 408 U.S. at 770, 92 S.Ct. 2576). 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 28 U.S.C. § 1291 and we review this question of law de novo .

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. 8 U.S.C. § 1182(a)(2)(A)(i)(I). Second, the officer determined that because Mrs. Allen had been convicted of "illicit acquisition of narcotics" under German law, she was ineligible for a visa because she had been convicted of "a violation of ... any law or regulation of ... a foreign country relating to a controlled substance." Id. § 1182(a)(2)(A)(i)(II).

Allen, on his own behalf as Mrs. Allen’s husband,^[1] seeks review of the consular officer’s

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decision under the APA. The government contends that we lack subject matter jurisdiction to review the consular officer’s decision. We will turn first to the government’s claim. Finding that we have subject matter jurisdiction, we then turn to Allen’s claim.

A

The government argues that the...