Munoz v. United States Dep't of State

Decision Date05 October 2022
Docket Number21-55365
PartiesSANDRA 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

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.

No. 21-55365

United States Court of Appeals, Ninth Circuit

October 5, 2022


Argued and Submitted February 10, 2022 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:17-cv-00037-AS Alka Sagar, Magistrate Judge, Presiding

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.

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SUMMARY[**]

Immigration

Vacating the district court's grant of summary judgment in favor of the government, and remanding, the panel held that (1) where the adjudication of a non-citizen's visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest; and (2) because the government failed to provide timely notice in this case, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.

After the U.S. Consulate in El Salvador denied the immigrant visa application of Asencio-Cordero, he and his U.S.-citizen spouse, Sandra Munoz, sought judicial review of the government's visa decision. Relying on the doctrine of consular nonreviewability, the district court granted summary judgment to the government.

The panel explained that, as set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 576 U.S. 86 (2015), the doctrine of consular nonreviewability admits an exception in certain circumstances where the denial of a visa affects the fundamental rights of a U.S. citizen. In evaluating

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whether the exception applies, this court employs a three-step inquiry. At steps one and two, the court considers whether the government provided a "facially legitimate and bona fide reason" for the denial. If the government did so, at step three, the court determines whether the plaintiff proved that the stated reason was not bona fide by making an affirmative showing of bad faith by the consular official.

The panel concluded that, under the precedent of this circuit, Munoz possessed a liberty interest in her husband's visa application. The panel explained that this court recognized the existence of this interest in Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), and Justice Kennedy's controlling concurrence Din declined to reach this issue. Because Munoz asserted this protected liberty interest, the panel proceeded to evaluate whether the government provided a "facially legitimate and bona fide reason" for denying the visa.

The panel explained that a consular officer satisfies Mandel's requirement to provide a "facially legitimate and bona fide reason" if - as relevant here - there exists "a fact in the record" that provides at least a facial connection to the stated statutory ground of inadmissibility. Here, Asencio-Cordero's visa was denied under 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 inadmissible. The panel concluded that a declaration that the government filed during district court proceedings provided a facial connection between the reason for the denial - the consular officer's belief that Asencio-Cordero is a member of the gang MS-13, which the officer reached based on a visa interview, a criminal review of

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Asencio-Cordero, and a review of Asencio-Cordero's tattoos - and the cited statute of inadmissibility.

However, the panel concluded that, where the adjudication of a non-citizen's visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest. The panel explained that, even though Din and Mandel establish that the substance of the notice is constitutionally adequate when the government produces a "facially legitimate and bona fide reason" for the visa denial, these decisions do not foreclose application of the requirement that the government provide any required notice in a timely manner. The panel also observed that the administrative provisions for review of visa applications - a 30-day period in which visa denials must be submitted for internal review and a 1-year period in which reconsideration is available upon the submission of additional evidence and approvals - provided contextual support for the proposition that receiving timely notice of the reason for a denial is essential for effectively challenging that denial.

By this standard, the panel concluded that the government's nearly three-year delay in providing appellants with the reason for the denial of Asencio-Cordero's visa did not meet the requirements of due process. Therefore, the panel concluded that the government was not entitled to invoke consular nonreviewability to shield its visa decision from judicial review and, as a result, the district court could "look behind" the government's decision on remand.

Dissenting, Judge Lee wrote that the majority tried to thread the needle and implicitly balance the competing interests in this difficult case: it recognized that courts

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generally cannot review the government's visa decisions but held that the court could review it here because the government did not give Munoz its reason for the visa denial within a "reasonable" time. But Judge Lee concluded that, by grafting a new "timeliness" due process requirement onto consular officers' duties, the court was infringing on the Executive Branch's power to make immigration-related decisions and effectively weigh policy interests.

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OPINION

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 Munoz, 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)

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(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 (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 (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
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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 C...

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