Loabat Amiri v. Dep't of Homeland Security ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0388n.06
No. 18-1819
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LOABAT AMIRI; MOHAMED AMIN LATIF; )
FARBOD LATIF, ) FILED
) Jul 02, 2020
Plaintiffs-Appellants, ) DEBORAH S. HUNT, Clerk
)
v. )
)
SECRETARY, DEPARTMENT OF HOMELAND )
ON APPEAL FROM THE
SECURITY; U.S. DEPARTMENT OF STATE; )
UNITED STATES DISTRICT
UNIDENTIFIED CBP AGENTS; U.S. CUSTOMS )
COURT FOR THE EASTERN
AND BORDER PROTECTION; FBI; NATIONAL )
DISTRICT OF MICHIGAN
SECURITY AGENCY; NATIONAL COUNTER )
TERRORISM CENTER; OFFICE OF THE )
OPINION
DIRECTOR OF NATIONAL INTELLIGENCE; )
TERRORISM SCREENING CENTER; FBI )
UNIDENTIFIED AGENTS; TSC UNIDENTIFIED )
AGENTS, )
)
Defendants-Appellees. )
BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.
JANE B. STRANCH, Circuit Judge. At issue in this case is a challenge to a foreign-
national’s visa denial. Dr. Loabat Amiri, Mohamed Amin Latif (Latif), Farbod Latif—wife,
husband, and son, respectively—filed a 10-count complaint alleging that Latif’s visa denial and
placement on a terrorist watchlist violates the Constitution, the Immigration and Nationality Act
of 1965 (INA), and the Administrative Procedure Act (APA). The district court dismissed the
plaintiffs’ claims over the course of two opinions. On appeal the plaintiffs raise only their direct
No. 18-1819, Amiri, et al. v. Dep’t of Homeland Security, et al.
challenge to the visa denial. Because review of Latif’s visa denial under the circumstances
presented and the theories maintained on appeal is precluded by the doctrine of consular non-
reviewability, we AFFIRM.
I. BACKGROUND
A. Factual Background
Amiri is an endocrinologist living in Midland, Michigan. During these proceedings, Amiri
was a permanent resident in the United States, a citizen of the United Kingdom, and a national of
Iran; on August 6, 2019, she notified the court that she is now a United States citizen. Her husband,
Latif, is a citizen and national of the United Kingdom, where he lives. Their son, Farbod Latif, is
a student, a United States citizen by birth, and—like his mother—a resident of Midland, Michigan.
Amiri entered the United States on an H-1B visa in 2006 to begin a medical residency at
Metro Health Medical Center in Cleveland, Ohio. Latif was able to join her under the H-4 visa
program. In the following years, Amiri and Latif were both granted visa extensions by the
Department of Homeland Security (DHS).
In 2010, Amiri and Latif traveled to Ottawa, Canada to renew their H visas and maintain
lawful status in the United States. Following two weeks of administrative processing without an
answer from the Consulate, they both reentered the United States: Latif used his British passport
and Amiri was paroled into the United States. Latif’s stay on his British passport eventually
elapsed and he too was granted parole to remain in the country with his minor children. On
November 30, 2010, Latif applied to renew his parole but this time he was denied and was instead
issued an expedited removal order. The plaintiffs allege that a TECS1 record had been created for
both Amiri and Latif on November 25, 2010. The expedited removal order was executed on
1
TECS (not an acronym) is the main database used by U.S. Customs and Border Protection to determine
the admissibility of individuals arriving at the border.
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No. 18-1819, Amiri, et al. v. Dep’t of Homeland Security, et al.
December 20, 2010, and Latif was deported to Great Britain.2 He has been unable to return to the
United States since.
In London, Latif filed a derivative application for permanent residency and interviewed at
the United States Embassy in London, where officials informed him that his case required
administrative processing. Latif ultimately received a letter stating that Section 212(a)(3)(B) of
the INA rendered him ineligible to receive an immigrant visa. His subsequent efforts to receive
further information and reconsideration have been to no avail.
Amiri, Latif, and Farbod Latif filed suit in federal district court raising claims under several
theories. The district court dismissed the complaint. The plaintiffs appeal only Latif’s visa denial.
B. Statutory Background
The INA, codified at 8 U.S.C. § 1101 et seq., governs the provision of visas. As a general
matter, a person without status in the United States cannot enter and permanently live in the United
States without a visa. Id. § 1181(a). A special visa process applies to persons abroad who are
sponsored by immediate relatives in the United States. Id. §§ 1151(b), 1153(a). The sponsored
relative must submit certain documents and interview with a consular officer at an embassy or
consular office abroad before a visa can be issued. Id. §§ 1201(a)(1), 1202. When reviewing a
visa application, consular officers are required to check whether the applicant may be considered
inadmissible under any provision of the INA. Id. § 1361. As relevant here, § 1182 (which
implements § 212(a)(3)(B) of the INA) proscribes issuing visas to applicants with a connection to
terrorist activities or terrorist organizations. Id. § 1182(a)(3)(B)(i). Here, it is alleged that a TECS
2
The plaintiffs do not challenge Latif’s deportation from the United States.
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No. 18-1819, Amiri, et al. v. Dep’t of Homeland Security, et al.
or Terrorism Screening Database (TSDB) entry contributed to the consular officer’s
§ 1182(a)(3)(B) citation and Latif’s denial.3
II. ANALYSIS
The issues in dispute have been narrowed on appeal. In its first opinion, the district court
dismissed all aspects of the amended complaint that challenged Latif’s inadmissibility
determination and visa denial pursuant to the doctrine of consular non-reviewability. In a second
opinion, the court then dismissed the plaintiffs’ claims regarding placement on the terrorist
watchlist for failure to state a claim under Rule 12(b)(6), for lack of standing, or for failure to
exhaust administrative remedies. The plaintiffs’ claims on appeal focus only on Latif’s visa denial
and both Latif and Amiri’s ability to travel in light of the alleged database listings. In their Reply
brief, however, plaintiffs abandoned the contention that defendants infringed on Amiri’s right to
3
As part of the visa application review process, consular officers run an applicant’s information through a
variety of terrorist watch lists. The most centralized database is the Terrorist Screening Database (TSDB),
which is managed by the Terrorism Screening Center and administered by the FBI. CONG. RES. SERV.
REP., THE TERRORIST SCREENING DATABASE AND PREVENTING TERRORIST TRAVEL,
https://fas.org/sgp/crs/terror/R44678.pdf (last visited May 6, 2020). It includes biographic and biometric
information about individuals who have, or are suspected to have, ties to terrorism. Id. Its data are
unclassified. Id. The Terrorist Identities Datamart Environment (TIDE) is a classified database that
contains all of the U.S. Government’s information on persons suspected to have a connection to terrorism.
CONG RES. SERV. REP, TERRORIST DATABASES AND THE NO FLY LIST: PROCEDURAL DUE PROCESS AND
HURDLES TO LITIGATION at 2, https://fas.org/sgp/crs/homesec/R43730.pdf (last visited May 6, 2020).
TIDE supplies the TSDB with identity information. The TSDB, meanwhile, pushes identity information
downstream to additional databases administered by various government agencies and departments
depending on their needs and legal authority. Id. at 3. TECS, for example, the database used by U.S.
Customs and Border Patrol for background checks and traveler screening at ports of entry, and on which a
record for Amiri and Latif was found in 2010, imports certain data from the TSDB. Id. at 2. DHS screens
U.S.-based petitioners and foreign beneficiaries of spousal visas through the TECS database. UNITED
STATES GOVERNMENT ACCOUNTABILITY OFFICE, NONIMMIGRANT VISAS: OUTCOMES OF APPLICATIONS
AND CHANGES IN RESPONSE TO 2017 EXECUTIVE ACTIONS (“GAO Nonimmigrant Visa Report”) at 11
https://www.gao.gov/assets/700/693763.pdf (last visited May 6, 2020).
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travel. At oral argument, plaintiffs also abandoned their theories of redress predicated on Latif’s
right to travel. The only issue remaining is a challenge to Latif’s visa denial.4
A. Standard of Review
When a complaint is dismissed in the district court as a matter of law, de novo review
applies. Beydoun v. Sessions, 871 F.3d 459, 464 (6th Cir. 2017). We construe the complaint in
the light most favorable to the plaintiffs, accept all well-pleaded factual allegations as true, and
examine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
B. Discussion
The doctrine of consular non-reviewability stems from Congress’s plenary power over
immigration, its authority to set the terms upon which a person without status in the United States
may procure a visa and enter the country, and its attendant prerogative to delegate the power to
welcome, exclude, or expel individuals without lawful status to the executive branch. See Fiallo
v. Bell, 430 U.S. 787, 792 (1977). “For more than a century, this Court has recognized that the
4
Plaintiffs’ procedural due process claims that are still before us on this appeal meet Article III standing
requirements. The heart of plaintiffs’ procedural due process claim on appeal is their argument that they
are entitled to information related to the denial of Latif’s visa application. The claim clearly presents a
redressable procedural claim because, first, plaintiffs will, if successful, obtain relief in the form of a
procedure and, second, the procedure affects a sufficiently concrete interest of the plaintiffs. As the
Supreme Court explained in Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992), a person who
asserts a “procedural right to protect his concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy.” An individual can enforce procedural rights “so long
as the procedures in question are designed to protect some threatened concrete interest of his that is the
ultimate basis of his standing.” Lujan, 504 U.S. at 573 n.8. Such a concrete ultimate interest is present in
Latif’s visa here, although it was absent in Lujan. See Lujan, 504 U.S. at 572 n.7. Further, the presence
of Article III standing is directly supported by our holding and reasoning in Wright v. O’Day, 706 F.3d 769,
771–72 (6th Cir. 2013), in which we held specifically that “a litigant can suffer an injury-in-fact from the
denial of procedural protections even if, when applied, the procedures might not result in relief.” Of course,
that plaintiffs have standing does not mean that they are entitled to the procedure that they seek, but only
that their procedural claim presents a case or controversy that a federal court may resolve.
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admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by
the Government’s political departments largely immune from judicial control.’” Trump v. Hawaii,
138 S. Ct. 2392, 2418 (2018) (quoting Fiallo, 430 U.S. at 792). These principles undergird the
consular non-reviewability doctrine: There is typically no judicial review available to challenge
visa-eligibility decisions made by consular officers abroad. See Matushkina v. Nielsen, 877 F.3d
289, 294 (7th Cir. 2017).
But there is an exception. As laid out in Kleindienst v. Mandel, judicial review of a visa
decision made by consular officers abroad is available if that determination implicates the
constitutional rights of persons in the United States.5 408 U.S. 753, 762–65 (1972). That review
is limited; it ends where the Government presents a facially legitimate and bona fide reason for the
denial. Mandel held that “when the Executive exercises [its delegated authority to deny a visa to
an applicant abroad,] on the basis of a facially legitimate and bona fide reason, the courts will
neither look behind the exercise of that discretion, nor test it by balancing its justification against”
the constitutional interests of individuals in the United States who seek, or would benefit from, the
applicant’s admission. Id. at 770.
In Kerry v. Din, 135 S. Ct. 2128 (2015), a U.S. citizen challenged a consular official’s
decision to deny her husband a visa based on the same “terrorist activities” provision of the INA
that is at issue here. Id. at 2139 (Kennedy, J., concurring). No opinion at the Supreme Court
commanded a majority. But the parties agree that because Justice Kennedy’s concurrence decided
the case on substantially narrower grounds than the plurality, its rationale is considered the holding
of the court. See Marks v. United States, 430 U.S. 188, 193 (1977); see also Cardenas v. United
5
Amiri and Farbod Latif are both U.S. citizens. The appellees do not argue that Amiri was entitled to fewer
constitutional protections when she was a lawful permanent resident.
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States, 826 F.3d 1164, 1171 (9th Cir. 2016). In Hawaii, 138 S. Ct. at 2419, the Supreme Court
majority subsequently relied on the rationale in Justice Kennedy’s concurring opinion in Din.
Justice Kennedy reasoned that assuming Din invoked a protected liberty interest in her
husband’s visa application, the consular officer’s citation of § 1182(a)(3)(B) was sufficient to
provide both a facially legitimate and bona fide reason for the denial. Din, 135 S. Ct. at 2139(Kennedy, J., concurring). Applying Mandel, Justice Kennedy concluded that the provisions of
§ 1182(a)(3)(B) “establish specific criteria for determining terrorism-related inadmissibility” and
the “consular officer’s citation of that provision suffices to show that the denial rested on a
determination that Din’s husband did not satisfy the statute’s requirements,” such that the visa
denial was facially legitimate. Id. at 2140. By the same token, because § 1182(a)(3)(B) lays out
“discrete factual predicates the consular officer must find to exist before denying a visa,” there
must have been a bona fide factual basis to deny the visa. Id. at 2140–41.
Din also interpreted Mandel to provide that where a plaintiff cannot show bad faith on the
part of the visa decisionmaker, the doctrine of consular non-reviewability bars judicial review,
regardless of the facially legitimate and bona fide basis for the denial under § 1182(a)(3)(B). Id.
at 2141. Justice Kennedy reasoned: “[a]bsent an affirmative showing of bad faith on the part of
the consular officer who denied Berashk [Din’s husband] a visa . . . Mandel instructs us not to
‘look behind’ the Government’s exclusion of Berashk for additional factual details beyond what
its express reliance on § 1182(a)(3)(B) encompassed.” Id. (quoting Mandel, 408 U.S. at 770).
Absent sufficient allegations of bad faith, therefore, a visa denial is not reviewable in federal court.
In this case, the district court concluded that the consular officer’s citation of § 212(a)(3)(B)
was a facially legitimate and bona fide reason to deny Latif’s visa. Without a particularized
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allegation of bad faith, the district court reasoned, it was not empowered to look beyond the
consular officer’s stated reason for the denial.
The plaintiffs first contend that the doctrine of consular non-reviewability does not apply
to their case because, once a terrorism database listing appears, the discretionary decision to grant
or deny the visa moves from the consular officer to DHS. And because DHS’s actions are
reviewable under the APA, they can challenge the visa denial under 5 U.S.C. § 706(2). The
Government maintains that while the APA may provide a cause of action to review some agency
actions, the doctrine of consular non-reviewability removes a visa denial challenge from the
purview of routine judicial review over agency actions. See 5 U.S.C. § 702. The doctrine’s
application, the Government asserts, does not turn on the identity of the agency that makes the
ultimate visa decision; it applies where the executive branch exercises discretion to deny a visa.
Courts to address the issue have reasoned that the APA does not provide an end-run around
the consular non-reviewability doctrine. While Congress could authorize a cause of action for
plaintiffs to broadly challenge visa denials in federal court—courts do not permit such a challenge
where the plaintiff does not first meet the requirements of Mandel and Din. See Allen v. Milas,
896 F.3d 1094, 1108 (9th Cir. 2018); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159–60 (D.C.
Cir. 1999). This result appears to accord with the doctrine’s genesis. In Mandel, the Court
reasoned: “when the Executive exercises” its power to exclude “on the basis of a facially legitimate
and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it
by balancing its justification” with the constitutional rights of those in the United States. 408 U.S.
at 770 (emphasis added). In Hawaii, the Court reiterated that the doctrine applies to the executive
branch. “We limit[] our review to whether the Executive gave a ‘facially legitimate and bona
fide’ reason for its action.” 138 S. Ct. at 2419. The plaintiffs’ argument that the doctrine of
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consular non-reviewability does not apply where the discretionary decision is made by DHS is
contradicted by Mandel, Din, and Hawaii; and the plaintiffs do not offer a rationale for why the
resolution of their case is not dictated by this precedent.6
In the alternative, the plaintiffs argue that even if the doctrine of consular non-reviewability
applies, their case is distinguishable from Din because Din’s husband had been affiliated with the
Taliban such that, unlike here, the plaintiffs had at least some inclination as to why the visa was
denied. See Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). They cite consular non-
reviewability cases where circuit courts have purportedly considered the underlying facts behind
a visa denial to assess whether the Government has provided “a facially legitimate and bona fide
reason.” Mandel, 408 U.S. at 770. See Yafai v. Pompeo, 924 F.3d 969, 970 (7th Cir. 2019)
(Barrett, J., concurring in the denial of rehearing en banc) (smuggling children); Allen, 896 F.3d
at 1109 (criminal history); Morfin v. Tillerson, 851 F.3d 710, 713 (7th Cir. 2017) (cocaine
distribution); Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017) (rock throwing); Cardenas,
826 F.3d at 1172 (gang-activity). Indeed, there is some support for the proposition that there must
be facts in the record to substantiate the “facially legitimate and bona fide reason” offered by the
executive branch. See, e.g., Hazama, 851 F.3d at 709 (“[W]e . . . look at the face of the decision,
see if the officer cited a proper ground under the statute, and ensure that no other applicable
constitutional limitations are violated. Once that is done, if the undisputed record includes facts
that would support that ground, our task is over.”). But the Seventh Circuit has also indicated
6
Moreover, the visa denial in Din was predicated on the very same statutory citation as Latif’s denial; and
there is no allegation here that the distribution of discretion within the executive branch has changed since
Din. Din squarely applied the doctrine long after authority over the visa process was vested in DHS. See
6 U.S.C. § 236(b)(1); Din, 135 S. Ct. at 2140 (Kennedy, J., concurring). Plaintiffs do not argue on appeal
that a database listing automated Latif’s visa denial, that the decision was made without the exercise of
human discretion, nor that the executive-branch decisionmaker was precluded by a database entry from
weighing other factors or ultimately deciding to grant Latif a visa.
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otherwise, reasoning: “[w]hen a statute ‘specifies discrete factual predicates that the consular
officer must find to exist before denying a visa,’ the citation of the statutory predicates is itself
sufficient. . . . [T]he consular officer need not disclose the underlying facts that led him to conclude
that the statute was satisfied.” Yafai v. Pompeo, 912 F.3d 1018, 1021 (7th Cir. 2019) (quoting Din,
135 S. Ct. at 2141 (Kennedy, J., concurring)).
In any event, Din indicates that a citation of § 1182(a)(3)(B) is enough, at least where the
executive-branch decisionmaker has reason to believe the applicant is engaged in terrorist activity.
“[T]he Government satisfied any obligation it might have had to provide Din with a facially
legitimate and bona fide reason for its action when it provided notice that her husband was denied
admission to the country under § 1182(a)(3)(B).” Din, 135 S. Ct. at 2141 (Kennedy, J.,
concurring). A citation of § 1182(a)(3)(B) is a sufficient justification for a visa denial because it
implies the necessary factual predicates were met. Id. at 2140–41. See Cardenas, 826 F.3d at
1172 (A bona fide reason under Din is established where the consular officer “cite[s] an
admissibility 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.” (emphasis added) (quoting Din, 135 S. Ct.
at 2141 (Kennedy, J., concurring))).
The doctrine of consular non-reviewability applies here, and the plaintiffs have put forth
no pathway around the rule that a citation of § 1182(a)(3)(B) is a facially legitimate and bona fide
reason for the Government’s action. To proceed on a bad faith theory, the plaintiffs must
adequately allege bad faith on the part of an executive branch decisionmaker who exercised
discretion in denying Latif’s visa. They have not done so. The plaintiffs argue that they cannot
because they are caught in a catch-22: without knowing the reasons for the denial, they are unable
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to investigate the possibility of a bad faith decision. But the plaintiffs conceded at argument that
the visa denial remains a discretionary decision even in light of a terrorism citation. Because a
citation of § 1182(a)(3)(B) is all that is required, absent bad faith, to insulate the visa decision
under the doctrine of consular non-reviewability, plaintiffs’ claims on appeal cannot survive the
motion to dismiss.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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