Muñoz v. U.S. Dep't of State

• Decision Date: 18 March 2021
• Docket Number: Case No. CV 17-0037 AS
• Citation: 526 F.Supp.3d 709
• Parties: Sandra MUÑOZ and Luis Ernesto Asencio-Cordero, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — Central District of California

526 F.Supp.3d 709

Sandra MUÑOZ and Luis Ernesto Asencio-Cordero, Plaintiffs,

v.UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

Case No. CV 17-0037 AS

United States District Court, C.D. California.

Signed March 18, 2021

Francisco Manuel Alejandro Delgado, Monica Teresa Guizar, Weinberg Roger and Rosenfeld APC, Alan R. Diamante, Eric T. Lee, Pro Hac Vice, Law Office of Alan Diamante, Los Angeles, CA, for Plaintiffs.

Joshua Samuel Press, Stacey Ilene Young, Nicole N. Murley, Michael Anthony Celone, United States Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ALKA SAGAR, UNITED STATES MAGISTRATE JUDGE

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,¹ 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 FACTS⁴

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.⁵ (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."⁶ (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, in addition to information provided by law enforcement which identified Asencio-Cordero as a member of the MS-13 gang.⁷

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., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250, 106 S.Ct. 2505.

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...