Muñoz v. U.S. Dep't of State

Docket Number21-55365
Decision Date05 October 2022
Citation50 F.4th 906
Parties Sandra MUÑOZ; Luis Ernesto Asencio-Cordero, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF STATE; Antony J. Blinken, United States Secretary of State; Brendan O'Brien, United States Consul General, San Salvador, El Salvador, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Eric Lee (argued) and Alan Diamante, Diamante Law Group APLC, Los Angeles, California, for Plaintiffs-Appellants.

Joshua S. Press (argued), Senior Litigation Counsel; William C. Silvis, Assistant Director; William C. Peachey, Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Mary M. Schroeder, Kermit V. Lipez,* and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lipez;

Dissent by Judge Lee

LIPEZ, Circuit Judge:

After the government denied the immigrant visa application of plaintiff-appellant Luis Asencio-Cordero under 8 U.S.C. § 1182(a)(3)(A)(ii), Asencio-Cordero and his U.S.-citizen spouse, plaintiff-appellant Sandra Muñoz, sought judicial review of the government's visa decision and challenged the statute as unconstitutionally vague.1 Concluding that the government was entitled to invoke the doctrine of consular nonreviewability to shield its decision from judicial review, the district court granted summary judgment on all claims to defendants-appellees, the U.S. Department of State, Secretary of State Antony Blinken, and U.S. Consul General in El Salvador, Brendan O'Brien. This appeal followed. Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero's visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability. We therefore vacate and remand to the district court for further proceedings.

I.

Appellants' suit directly implicates the doctrine of consular nonreviewability, the longstanding jurisprudential principle that, "ordinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review." Khachatryan v. Blinken , 4 F.4th 841, 849 (9th Cir. 2021) (quoting Allen v. Milas , 896 F.3d 1094, 1104 (9th Cir. 2018) ). As with many judicially created rules, however, consular nonreviewability admits an exception. See Kleindienst v. Mandel , 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Where the denial of a visa affects the fundamental rights of a U.S. citizen, judicial review of the visa decision is permitted if the government fails to provide "a facially legitimate and bona fide reason" for denying the visa, id. ,2 or if—despite the government's proffer of a facially legitimate and bona fide reason—the petitioner makes an "affirmative showing" that the denial was made in "bad faith," Kerry v. Din , 576 U.S. 86, 105, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) (Kennedy, J., concurring in the judgment).3

This circuit has distilled the analytic framework articulated in Din for evaluating whether the Mandel exception to consular nonreviewability applies to a petitioner's claim into a three-step inquiry. At steps one and two, we consider whether the government carried its burden of providing a "facially legitimate and bona fide reason" for the visa denial:

First, we examine whether the consular officer denied the visa "under a valid statute of inadmissibility." Second, we consider whether, in denying the visa, the consular officer "cite[d] an admissibility statute that specifies discrete factual predicates the consular officer must find to exist before denying a visa" or whether, alternatively, there is "a fact in the record that provides at least a facial connection to the statutory ground of inadmissibility."

Khachatryan , 4 F.4th at 851 (citations omitted) (quoting Cardenas v. United States , 826 F.3d 1164, 1172 (9th Cir. 2016) ).4 Only if we conclude that the government gave a facially legitimate and bona fide reason for denying the visa do "we proceed to the third step, which requires us to determine whether the plaintiff has carried his or her ‘burden of proving that the [stated] reason was not bona fide by making an affirmative showing of bad faith’ " by the consular officials involved in the visa denial. Id. (quoting Cardenas , 826 F.3d at 1172 ).

II.
A. Factual Background

The following facts in this case are undisputed. Sandra Muñoz is a U.S. citizen. She married Luis Asencio-Cordero, a citizen of El Salvador, on July 2, 2010. Asencio-Cordero first arrived in the United States in 2005.5 Together, he and Muñoz have a child, who is a U.S. citizen. Asencio-Cordero has multiple tattoos.

Muñoz filed an immigrant-relative petition for Asencio-Cordero,6 which was approved along with an inadmissibility waiver. In April 2015, Asencio-Cordero returned to El Salvador for the purpose of obtaining his immigrant visa from the U.S. Consulate in San Salvador. He attended an initial interview at the Consulate on May 28, 2015. At all times, including during his visa interview, he has denied any association with a criminal gang.

In December 2015, the Consular Section denied Asencio-Cordero's visa application by citing 8 U.S.C. § 1182(a)(3)(A)(ii),7 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 inadmissible.8

Muñoz sought assistance from Congresswoman Judy Chu, who sent a letter on Muñoz's behalf to the State Department on January 20, 2016. The following day, Consul Landon R. Taylor responded to Congresswoman Chu's letter by again citing 8 U.S.C. § 1182(a)(3)(A)(ii). Counsel for Muñoz contacted the State Department on January 29, 2016, and again in April 2016, requesting the factual basis for the Consulate's determination that Asencio-Cordero was inadmissible.

On April 8, 2016, the Consulate notified Muñoz and Asencio-Cordero that his visa application would be forwarded to the immigration visa unit for review. On April 13, 2016, Consul Taylor notified appellants that "[t]he finding of ineligibility for [Asencio-Cordero] was reviewed by the Department of State in Washington, D.C., 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."

On April 18, 2016, counsel for appellants wrote to the State Department's Office of Inspector General and requested the "reason" for the inadmissibility decision. The letter stated counsel's belief that "an immigration visa application is being denied just for the simple fact that the applicant has tattoos when the rest of the underlying evidence and facts demonstrate the applicant has no criminal history and is not a gang member."

At some point,9 appellants submitted a declaration from Humberto Guizar, an attorney and court-approved gang expert, who attested that Asencio-Cordero "does not have any tattoos that are representative of the Mara Salvatrucha[ ] gang or any other known criminal street gang," and that none of his tattoos "are related to any gang or criminal organization in the United States or elsewhere."10 Guizar explained that "[m]ost of the tattoos ... are merely commonly known images, such as images of Catholic icons, clowns, and other non-gang related tattoos."

On May 18, 2016, the Chief of the Outreach and Inquiries Division of Visa Services replied to appellants' letter, stating that the State Department lacks authority to overturn consular decisions based on INA § 104(a) and that the Department "concurred in the finding of ineligibility."11 The following day, Consul Taylor wrote again to appellants, listing the entities that had reviewed Asencio-Cordero's visa application12 and noting that "[n]one of the above-mentioned reviews have revealed any grounds to change the finding of inadmissibility, and there is no appeal."13

B. Procedural History

Appellants initiated this lawsuit in January 2017. The Complaint asserts that (1) the denial of Asencio-Cordero's visa was not facially legitimate and bona fide, such that it infringed on Muñoz's fundamental rights; (2) the denial violated the Equal Protection Clause of the Fifth Amendment; (3) the denial violated the separation of powers; (4) the Consulate denied the visa in bad faith, (5) the denial violated the Administrative Procedure Act ("APA"); and (6) the statute under which the visa was denied, 8 U.S.C. § 1182(a)(3)(A)(ii), is unconstitutionally vague. Appellants seek a declaration that the adjudication of Asencio-Cordero's visa application was not bona fide, a declaration that § 1182(a)(3)(A)(ii) is unconstitutional, and other just and proper relief.14

The government filed a motion to dismiss in September 2017, invoking the doctrine of consular nonreviewability. Two months later, the district court granted the motion with respect to Asencio-Cordero's challenge to the visa adjudication, concluding that he lacked a right to judicial review of the visa denial as an unadmitted, non-resident alien. The court denied the motion with respect to Muñoz, however, stating that she has a constitutional liberty interest in her husband's visa application and that the government had failed to offer a bona fide factual reason for denying the visa. The motion to dismiss did not address appellants' vagueness challenge to § 1182(a)(3)(A)(ii). Appellants subsequently filed, and the district court denied, a motion for judgment on the pleadings.15

Appellants sought discovery on the facts supporting the Consulate's denial of Asencio-Cordero's visa application. In a joint Rule 26(f) report filed on September 11, 2018, the government asserted for the first time that "the consular officer who denied Mr....

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