Sintigo v. Blinken

• Decision Date: 17 November 2021
• Docket Number: 2:19-cv-00465-APG-VCF
• Parties: SUSAN SINTIGO, Plaintiff v. ANTONY BLINKEN, et al., Defendants
• Court: U.S. District Court — District of Nevada

SUSAN SINTIGO, Plaintiff
v.
ANTONY BLINKEN, et al., Defendants

No. 2:19-cv-00465-APG-VCF

United States District Court, D. Nevada

November 17, 2021

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

[ECF NO. 44]

ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

United States citizen Susan Sintigo sues various government officials and entities, alleging in her second amended complaint that United States Citizenship and Immigration Services (USCIS) violated her constitutional rights of due process and equal protection when it denied a visa for her husband. She also alleges that 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague and the visa denial violates the separation of powers. Sintigo also seeks review of the visa denial under the Administrative Procedure Act (APA).

I previously granted the defendants' motion to dismiss the due process claim because Sintigo failed to plead any facts that suggested the consular officer acted in bad faith. Sintigo filed a second amended complaint. The defendants again move to dismiss, arguing that Sintigo has not plausibly alleged that the consular officer denied the visa in bad faith and she has been given all process that is due.

At a hearing on November 10, 2021, Sintigo withdrew her separation of powers claim. I grant the motion to dismiss the due process and equal protection claims with prejudice because Sintigo again failed to plead facts that plausibly suggest the consular officer acted in bad faith and she has repeatedly failed to cure deficiencies in her amended complaints. I also grant the

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motion to dismiss the void-for-vagueness claim because Sintigo has not plausibly alleged that the statute is unconstitutionally vague. I grant Sintigo leave to amend that claim only.

I.BACKGROUND

Sintigo seeks a visa for her foreign national spouse. ECF No. 43 at 2. She filed a visa petition for her husband, which the USCIS approved. Id. at 3-4. Her husband then appeared at an interview arranged by the United States Consulate in San Salvador. Id. at 2. Sintigo's husband was asked if he knew someone named Fercho Olla. Id. Sintigo's husband responded that his brother's cousin is named Frecho^[1] “Fernando” Olla, but he had not seen Olla in a long time. Id. The consular officer informed Sintigo's husband that because his tattoos were “similar gang tattoos to Olla's tattoos, ” the consular officer was going to investigate him. Id. The officer denied the visa in a letter dated February 8, 2019. Id. at 4. The letter states the denial is based on § 212(a)(3)(A)(ii) of the Immigration and Naturalization Act (INA), which is codified at 8 U.S.C. § 1182(a)(3)(A)(ii). ECF No. 44-1 at 11. That statute provides that “[a]ny alien who a consular officer . . . has reasonable grounds to believe[] seeks to enter the United States to engage . . . in any . . . unlawful activity . . . is inadmissible.”

Sintigo alleges constitutional violations of her substantive and procedural due process and equal protection rights. See ECF No. 43 at 3-4, 6. According to the second amended complaint, the consular officer's decision to deny the visa lacked a facially legitimate and bona fide reason because “it appears that the consular officer refused to consider . . . strong evidence” that Sintigo's husband was not a gang member. Id. at 9. Sintigo alleges the consular officer denied the visa in bad faith because he could not reasonably believe that her husband's tattoos made him inadmissible under the law. Id. at 4. She seeks declaratory relief that she can petition

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for her husband to become a permanent resident of the United States. Id. at 5. Sintigo also alleges the State Department should have provided her husband with “a more thorough explanation for the visa denial.” Id. at 8. She states that the visa denial is arbitrary and capricious, and she seeks judicial review under the APA. Id. at 4-5. She also claims that 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague. Id. at 7.

II. DISCUSSION

I employ a two-step approach when evaluating a complaint's sufficiency on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). I must first accept as true all well-pleaded factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Mere recitals of a claim's elements, supported only by conclusory statements, are insufficient. Id. I must then consider whether the well-pleaded factual allegations state a plausible claim for relief. Id. at 679. A claim is facially plausible when the complaint alleges facts that allow me to draw a reasonable inference that the defendant is liable for alleged misconduct. Id.

Congress has “virtually complete” power over the admission of aliens. Li Hing of Hong Kong, Inc. v Levin, 800 F.2d 970, 970 (9th Cir. 1986). “When Congress delegates this plenary power to the Executive, the Executive's decisions are likewise generally shielded from administrative or judicial review.” Andrade-Garcia v. Lynch, 828 F.3d 829, 834 (9th Cir. 2016). “[I]t has been consistently held that the consular official's decision to issue or withhold a visa is not subject either to administrative or judicial review.” Li Hing, 800 F.2d at 971. “Despite these rulings, ‘courts have identified a limited exception to the doctrine of consular nonreviewability where the denial of a visa implicates the constitutional rights of American citizens.'” Andrade-Garcia, 828 F.3d at 834 (quoting Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008))

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(alteration omitted). That limited exception is based on Kleindienst v. Mandel, 408 U.S. 753 (1972). Bustamante, 531 F.3d at 1061. “[U]nder Mandel, a U.S. citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision.” Id. at 1062. “[J]udicial review of a denial that implicates a constitutional right is limited to ensuring that the decision was supported by a facially legitimate and bona fide reason.” Cardenas v. United States, 826 F.3d 1164, 1167 (9th Cir. 2016) (quotation omitted). If there is a facially legitimate and bona fide reason for the denial, the plaintiff must prove “the reason was not bona fide by making an ‘affirmative showing of bad faith on the part of the consular officer who denied [] a visa.'” Id. at 1172 (quoting Kerry v. Din, 576 U.S. 86, 105 (2015) (Kennedy, J., concurring)).

The deferential Mandel standard of review applies to a variety of constitutional claims, including due process and equal protection claims, where a visa denial may burden a citizen's constitutional rights. Trump v. Hawaii, 138 S.Ct. 2392, 2419 (2018); Bustamante, 531 F.3d at 1062. Equal protection is a direction that “all persons similarly circumstanced shall be treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982). Substantive due process protects individual fundamental rights and liberties against government interference. Washington v. Glucksberg, 521 U.S. 702, 719-21 (1997). Procedural due process analysis looks to whether a person has been deprived of a liberty or property interest, and if so, whether the procedures the government followed in carrying out the deprivation were constitutionally sufficient. Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

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The fundamental right of a citizen to live in America with her spouse has not been conclusively established.^[2] See Din, 576 U.S. at 88, 104. But even assuming a citizen spouse's rights are burdened by a consular officer's visa denial, the denial is valid if the officer gives a facially legitimate and bona fide reason and does not act in bad faith. Id. at 104. Under those circumstances, substantive and procedural due process requirements and equal protection rights are satisfied. See Bustamante, 531 F.3d at 1062; see also Fiallo v. Bell, 430 U.S. 787, 794-95 (1977) (applying a form of deferential review akin to Mandel to uphold an entry classification that discriminated on the basis of sex and legitimacy).

A. Facially Legitimate and Bona Fide Reason

To determine whether a consular officer's reason for denying a visa is facially legitimate and bona fide, I look to see whether two requirements are met. First, the consular officer must deny the visa under a valid inadmissibility statute. Cardenas, 825 F.3d at 1172. Second, the consular officer must cite a statute that “‘specifies discrete factual predicates the consular officer must find to exist before denying a visa' or there must be a fact in the record that ‘provides at least a facial connection to' the statutory ground of inadmissibility.” Id. (quoting Din, 576 U.S. at 105).

The defendants attached to their motion the February 8, 2019 consular official's letter. I can consider this letter because the second amended complaint relies on it and Sintigo does not contest its authenticity. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).^[3] The

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February letter provides a facially legitimate and bona fide reason, as explained in my order granting the earlier motion to dismiss. ECF No. 41. Taken together with the allegations in the second amended complaint, there is further support that the consular officer had a facially legitimate and bona fide reason to deny the visa. Sintigo alleges that the consular officer suspected her husband was a member of a criminal gang and that the consular officer stated he had reason to believe her husband was seeking to enter the United States to engage in “unlawful activity.” ECF No. 43 at 8. The February letter cites § 212(a)(3)(A)(ii) of the INA, codified at 8 U.S.C. § 1182(a)(3)(A)(ii). ECF No. 44-1 at 11. Because that is a valid statutory basis for inadmissibility, the denial reason is facially legitimate. And § 1182(a)(3)(A)(ii) “specifies discrete factual predicates” that exist, so the denial reason is bona fide. Din, 576 U.S. at 105....