Hernando Jose De Castro Polo v. Deborah Fairman , 164 F. App'x 930 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 31, 2006
No. 05-12829 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-23026-CV-PCH
HERNANDO JOSE DE CASTRO POLO,
Plaintiff-Appellant,
versus
DEBORAH FAIRMAN,
Consul, U.S. Embassy, Bogota, Columbia,
RAYMOND MCGRATH,
General Consul, U.S. Embassy, Bogota, Columbia,
LORI GIL,
Vice Consul, U.S. Embassy, Bogota, Columbia,
JOSEPH RUNYON,
Vice Consul, U.S. Embassy, Bogota, Columbia,
LYNN LEWIS,
Vice Consul, U.S. Embassy, Bogota, Columbia,
WILLIAM B. WOOD,
U.S. Ambassador to Columbia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 31, 2006)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Hernando Jose De Castro Polo (“De Castro”) appeals the district court’s
dismissal for lack of subject-matter jurisdiction of his petition for a writ of
mandamus, filed pursuant to 28 U.S.C. § 1361, by which he seeks to compel
Deborah Fairman, Consul; Raymond McGrath, General Consul; Lori Gil, Vice
Consul; Joseph Runyon, Vice Consul; Lynn Lewis, Vice Consul; and William B.
Wood, Ambassador (collectively referred to as “Defendants”), all of the United
States Embassy in Bogota, Colombia, to process his wife’s visa application and
issue her a visa. We affirm the decision of the district court.
In April of 2002, De Castro, who is apparently a naturalized citizen living in
Miami, Florida, filed an immigrant visa petition to have his wife, who lives in
Barranquilla, Colombia, classified as an immediate relative. The Immigration and
Naturalization Service (“INS”) approved De Castro’s petition in August of 2002.
De Castro’s wife then applied, through him, for an immigrant visa, at the United
2
States Embassy in Bogota, Colombia. Approximately two months later, a consular
officer notified De Castro’s wife in writing that her application was rejected
pursuant to Immigration and Nationality Act (“INA”) § 212(a)(2)(C), 8 U.S.C.
§ 1182(a)(2)(C). Under that provision, an alien who a consular officer (or the
Attorney General) “knows or has reason to believe . . . is or has been an illicit
trafficker in any controlled substance or in any listed chemical . . . or is or has been
a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit
trafficking in any such controlled or listed substance or chemical, or endeavored to
do so . . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(C). Claiming that there was no
evidence for the decision, and that his wife was not involved in drug trafficking,
De Castro filed the mandamus petition at issue. He contends that his rights under 8
U.S.C. §§ 1154(a) and 1255(a) have been violated and seeks an order compelling
the processing and issuance of an immigrant visa for his wife.
The district court dismissed De Castro’s petition based on the doctrine of
consular nonreviewability, rejecting his claim that review was available under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. De Castro contends
that this decision constituted legal error. According to De Castro, his mandamus
petition alleges a constitutional violation of his due process rights (and a violation
of his rights under the INA) that renders the doctrine of consular nonreviewability
3
inapplicable. De Castro further argues that jurisdiction exists because he is merely
seeking to ensure that consular officials process his wife’s visa application in a
lawful and proper manner, not that they exercise their discretion to reach a
particular result.
“Whether a district court has subject-matter jurisdiction over an action is a
question of law that we review de novo.” Kent v. Secretary of Labor, 148 F.3d
1264, 1265 (11th Cir. 1998) (per curiam). “The doctrine [of consular
nonreviewability] holds that a consular official’s decision to issue or withhold a
visa is not subject to judicial review, at least unless Congress says otherwise.”
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). Although our
research discloses no published opinion in which we have directly addressed this
doctrine, it has been recognized in binding precedent and applied by numerous
sister circuits. See, e.g., Te Kuei Liu v. Immigration and Naturalization Serv., 645
F.2d 279, 285 (5th Cir. Unit A May 1981) (explaining that actions of American
consul in Winnipeg, Canada, where alien’s relative visa petition had been
forwarded, were not “within the ambit of our review”) 1; Centeno v. Shultz, 817
F.2d 1212, 1214 (5th Cir. 1987) (per curiam) (citing Te Kuei Liu for proposition
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
4
that “decisions of United States consuls on visa matters are nonreviewable by the
courts”); Saavedra, 197 F.3d at 1159 (defining doctrine of consular
nonreviewability); Doan v. Immigration and Naturalization Serv., 160 F.3d 508,
509 (8th Cir. 1998) (holding that decision of INS district director, who was
functional equivalent of a consular official, in denying visa-related waiver was not
subject to judicial review because there was no clear statutory grant of authority);
Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986) (“[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.”); Burrafato v. United
States Dep’t of State, 523 F.2d 554, 556 n.2 (2d Cir. 1975) (recognizing that court
would lack jurisdiction to review denial of visa application by consul in Palermo,
Italy).
De Castro does not deny the viability of the consular nonreviewability
doctrine, but contends that it does not apply to his mandamus petition because he
alleges a constitutional due process violation. He notes that the Saavedra court
acknowledged that jurisdiction would exist where “United States sponsors of a
foreign individual claim that the State Department’s denial of a visa to an alien
violated their constitutional rights.” Saavedra, 197 F.3d at 1163 (citing Abourezk
v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986), aff’d by an equally divided
5
court, 484 U.S. 1, 108 S. Ct. 252, 98 L. Ed. 2d 1 (1987)). We find this argument
unpersuasive for several reasons. First of all, De Castro’s claimed due process
violation appears in his initial brief on appeal, not his mandamus petition. The
petition appears to allege no more than a violation of De Castro’s “rights” under
§§ 1154(a) and 1255(a). “With respect to purely statutory claims, courts have
made no distinctions between aliens seeking review of adverse consular decisions
and the United States citizens sponsoring their admission; neither is entitled to
judicial review.” Saavedra, 197 F.3d at 1164. Second, the citizen-plaintiffs in
Abourezk alleged that their First Amendment rights were violated by the denial of
visas to foreigners whom they had invited to speak at various gatherings in the
United States. See Abourezk, 785 F.2d at 1048-50. De Castro, by contrast, does
not explain the nature of the due process right of which he was allegedly deprived
by the denial of his wife’s visa application.2 He does not claim that consular
officials failed to follow any particular statutory or regulatory provision governing
the issuance or denial of visas. Moreover, the Burrafato court indicated that
generalized due process claims like De Castro’s would likely fall within the scope
of the consular nonreviewability doctrine. See 523 F.2d at 556 n.2.
2
We note that De Castro’s wife, as an unadmitted and nonresident alien, “had no
constitutional right of entry to this country as a nonimmigrant or otherwise.” Kleindienst v.
Mandel, 408 U.S. 753, 762, 92 S. Ct. 2576, 2581, 33 L. Ed. 2d 863 (1972).
6
De Castro also argues that the doctrine of consular nonreviewability is
inapplicable because he is simply challenging the handling of his wife’s visa
application, and not seeking to force a consular official to make a particular
decision. The language of De Castro’s mandamus petition, which clearly seeks a
judgment ordering Defendants to process and issue an immigrant visa to his wife,
belies this argument. Furthermore, notwithstanding De Castro’s claim that
Defendants’ decision (in denying the visa) was not based on any evidence, he
offers no explanation as to how Defendants failed to comply with any applicable
statutory or regulatory provisions. Indeed, it is uncontroverted that De Castro’s
wife received a written statement of the reason for the rejection of her visa
application, even though it appears that Defendants were not statutorily obligated
to issue one. See 8 U.S.C. § 1182(b); 22 C.F.R. § 41.121.3Finally, we reject De Castro’s argument that the APA, in conjunction with
28 U.S.C. § 1331, provides for review of his claims. We have previously noted
“Congress’s intent to preclude judicial review of administrative determinations
concerning aliens who have never presented themselves at the borders of the
country,” and concluded that “[r]eview under the APA would be inconsistent with
3
De Castro also claims that if evidence existed supporting Defendants’ belief that his
wife fell within the scope of § 1182(a)(2)(C), it should have been disclosed. However, the State
Department’s records pertaining to the issuance or refusal of visas or permits to enter the United
States are confidential. See 8 U.S.C. § 1202(f).
7
that intent.” Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir.
1992) (per curiam); cf. Saavedra, 197 F.3d at 1162 (“To put the matter in terms of
APA § 701(a)(1), we may infer that the immigration laws preclude judicial review
of consular visa decisions.”).
Having considered the doctrine of consular nonreviewability and found De
Castro’s arguments against its application unavailing, we agree that the district
court properly dismissed his mandamus petition for lack of subject matter
jurisdiction. Accordingly, we affirm the district court’s decision.
AFFIRMED.
8