Bustamante v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA LUPE BUSTAMANTE; JOSE 
JESUS BUSTAMANTE,
Plaintiffs-Appellants,
v.
MICHAEL MUKASEY, Attorney
General; MICHAEL CHERTOFF,
Secretary, Department of
Homeland Security; UNITED STATES No. 06-17228
CITIZENSHIP AND IMMIGRATION
D.C. No.
SERVICES; AL GALLMAN, Acting
District Director, Phoenix; DRUG  CIV-06-00052-
ENFORCEMENT AGENCY; KAREN PHX-ROS
TANDY, Administrator; OPINION
CONDOLEEZZA RICE, Secretary of
State; MAURICE PARKER, Consul
General of the United States, City
of Ciudad Juarez, Mexico; ERIC
CRUZ, United States Consular
Official, in his official and
individual capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
May 13, 2008—Pasadena, California
Filed July 9, 2008
8301
8302 BUSTAMANTE v. MUKASEY
Before: Barry G. Silverman and Marsha S. Berzon,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Silverman
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
8304 BUSTAMANTE v. MUKASEY
COUNSEL
Marc Van Der Hout and Beth Feinberg, Van Der Hout, Bri-
gagliano & Nightingale, San Francisco, California, for the
plaintiffs-appellants.
Daniel G. Knauss, Cynthia M. Parsons, and John Boyle,
United States Attorney’s Office for the District of Arizona,
Phoenix, Arizona, for the defendants-appellees.
BUSTAMANTE v. MUKASEY 8305
OPINION
SILVERMAN, Circuit Judge:
We hold today, as we did twenty-two years ago in Li Hing
of Hong King v. Levin, 800 F.2d 970, 971 (9th Cir. 1986), that
ordinarily, a consular official’s decision to deny a visa to a
foreigner is not subject to judicial review. However, when a
U.S. citizen’s constitutional rights are alleged to have been
violated by the denial of a visa to a foreigner, we undertake
a highly constrained review solely to determine whether the
consular official acted on the basis of a facially legitimate and
bona fide reason. In this case, the consular official offered a
facially valid reason for denying the visa: he had reason to
believe that the visa applicant was a drug trafficker. Further-
more, it was not alleged that the consular official did not have
a good faith belief in the truth of the information on which he
relied.
I. FACTS
Alma Bustamante is a citizen of the United States and
resides in Yuma, Arizona. Her husband, Jose Bustamante, is
a citizen of Mexico and resides in San Luis Rio Colorado,
Sonora, Mexico. Jose has a business in Mexico and for many
years commuted between Mexico and the United States using
a border-crossing card issued by the former Immigration and
Naturalization Service.
Seeking to obtain lawful permanent resident status for her
husband, Alma filed an immediate relative petition on Jose’s
behalf. Jose applied for an immigrant visa at the United States
Consulate in Ciudad Juarez, Mexico. The Bustamantes were
informed by Eric Cruz, a consular official, that the Consulate
had reason to believe that Jose was trafficking in illegal drugs.
By virtue of 8 U.S.C. § 1182(a)(2)(C), “[a]ny alien who the
consular officer or the Attorney General knows or has reason
to believe is or has been an illicit trafficker in any controlled
8306 BUSTAMANTE v. MUKASEY
substance . . . is inadmissible.” Cruz refused to reveal the
information upon which this determination was based, assert-
ing that the information was secret.
At a subsequent meeting in Mexico with officials of the
U.S. Drug Enforcement Administration, Jose was asked to
become an informant. The Bustamantes were told that if Jose
agreed to cooperate, his problems obtaining a visa “would go
away.” The Bustamantes were also told that if Jose declined
to cooperate, he would never obtain a visa and would never
become a lawful permanent resident of the United States. Jose
refused to become an informant, and his visa application was
denied on March 25, 2003. Consular officials also revoked
Jose’s border crossing privileges.
In a letter dated September 9, 2003, Cruz replied to an
inquiry sent by a lawyer representing the Bustamantes. In
explaining the Consulate’s decision, Cruz referred to a letter,
dated March 5, 2003 and written by the “Resident Agent-in-
Charge of our local Drug Enforcement Administration
Office,” that contained “derogatory information” to support
the finding that there was reason to believe that Jose was a
controlled substance trafficker.
On January 6, 2006, the Bustamantes filed an action in dis-
trict court against Cruz and a number of other U.S. govern-
ment officials, alleging that Jose has not trafficked in illegal
drugs and that the consular officials improperly conditioned
the granting of a visa on Jose’s agreement to become an infor-
mant. The Bustamantes asserted in the complaint that they
suffered a procedural due process violation as a result of the
allegedly improper condition.
The defendants moved to dismiss and for summary judg-
ment, asserting lack of subject matter jurisdiction, lack of per-
sonal jurisdiction, and failure to state a claim upon which
relief can be granted. Noting that the defendants had provided
a facially valid reason for the visa denial, the district court,
BUSTAMANTE v. MUKASEY 8307
relying on Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970(9th Cir. 1986), dismissed the complaint on the grounds that
the decisions of consular officers to grant or deny visas are
not subject to judicial review; all other motions were denied
as moot. The Bustamantes timely appealed, asserting that the
district court failed to recognize an exception to the doctrine
of consular nonreviewability applicable where a U.S. citizen
raises a constitutional challenge to the consular decision.
II. ANALYSIS
[1] “[I]t has been consistently held that the consular offi-
cial’s decision to issue or withhold a visa is not subject either
to administrative or judicial review.” Li Hing of Hong Kong,
Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). However,
courts have identified a limited exception to the doctrine
where the denial of a visa implicates the constitutional rights
of American citizens. See, e.g., Adams v. Baker, 909 F.2d
643, 647-48 (1st Cir. 1990); Burrafato v. United States Dep’t.
of State, 523 F.2d 554, 556-57 (2d Cir. 1975); Saavedra
Bruno v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999). The
exception is rooted in Kleindienst v. Mandel, 408 U.S. 753(1972), a suit brought by American citizens challenging on
First Amendment grounds the exclusion of a Belgian national
who was an advocate of “world communism.” The Supreme
Court specifically noted that an unadmitted and nonresident
alien himself had no right of entry, and that the case came
down to the “narrow issue” whether the First Amendment
right to “receive information and ideas” conferred upon the
American citizens the ability to compel Mandel’s admission.
Mandel, 408 U.S. at 762. The Court acknowledged that First
Amendment rights were implicated, but emphasized the long-
standing principle that Congress has plenary power to make
policies and rules for the exclusion of aliens. Id. at 765-66.
Noting that Congress had delegated to the executive condi-
tional exercise of this power with regards to certain classes of
excludable aliens, the Court held that “when the Executive
exercises this power negatively on the basis of a facially legit-
8308 BUSTAMANTE v. MUKASEY
imate and bona fide reason, the courts will neither look
behind the exercise of that discretion, nor test it by balancing
its justification against the First Amendment interests of those
who seek personal communication with the applicant.” Id. at
770.
[2] Joining the First, Second, and D.C. Circuits, we hold
that under Mandel, a U.S. citizen raising a constitutional chal-
lenge to the denial of a visa is entitled to a limited judicial
inquiry regarding the reason for the decision. As long as the
reason given is facially legitimate and bona fide the decision
will not be disturbed. 408 U.S. at 770.1 Here, Alma Busta-
mante asserts that she has a protected liberty interest in her
marriage that gives rise to a right to constitutionally adequate
procedures in the adjudication of her husband’s visa applica-
tion. The Supreme Court has deemed “straightforward” the
notion that “[t]he Due Process Clause provides that certain
substantive rights — life, liberty, and property — cannot be
deprived except pursuant to constitutionally adequate proce-
dures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
541 (1985). Freedom of personal choice in matters of mar-
riage and family life is, of course, one of the liberties pro-
tected by the Due Process Clause. See Cleveland Bd of Educ.
v. LaFleur, 414 U.S. 632, 639-640 (1974); see also Israel v.
INS, 785 F.2d 738, 742 n.8 (9th Cir. 1986). Presented with a
1
We are unable to distinguish Mandel on the grounds that the exclusion-
ary decision challenged in that case was not a consular visa denial, but
rather the Attorney General’s refusal to waive Mandel’s inadmissibility.
The holding is plainly stated in terms of the power delegated by Congress
to “the Executive.” The Supreme Court said nothing to suggest that the
reasoning or outcome would vary according to which executive officer is
exercising the Congressionally-delegated power to exclude. Moreover,
holding that Mandel applies only to cases concerning the Attorney Gener-
al’s refusal to grant a waiver is inconsistent with those cases in which we
have been asked to review a consular official’s denial of a visa, and have
cited Mandel in declining to do so. See, e.g., Li Hing of Hong Kong, Inc.,
800 F.2d at 971, Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir.
1981).
BUSTAMANTE v. MUKASEY 8309
procedural due process claim by a U.S. citizen, we therefore
consider the Consulate’s explanation for the denial of Jose’s
visa application pursuant to the limited inquiry authorized by
Mandel. Concluding that, on the record presented to us, the
reason was both facially legitimate and bona fide, we affirm
the judgment of the district court.
[3] As set forth in the complaint, Jose was denied a visa on
the grounds that the Consulate “had reason to believe” that he
was a controlled substance trafficker. This is plainly a facially
legitimate reason, as it is a statutory basis for inadmissibility.
8 U.S.C. § 1182(a)(2)(C). The Bustamantes concede this, but
note that the district court did not also address whether the
reason given for the visa denial was bona fide as well as
facially legitimate. They urge that in order to complete the
analysis we must remand to the district court for factual
development, during which the defendants will be required to
present specific evidence to substantiate the assertion that
Jose was a drug trafficker. We decline to do so, because the
complaint fails to make an allegation of bad faith sufficient to
withstand dismissal.
[4] While the Bustamantes alleged in their complaint that
Jose is not and never has been a drug trafficker, they failed to
allege that the consular official did not in good faith believe
the information he had. It is not enough to allege that the con-
sular official’s information was incorrect. Furthermore, the
Bustamantes’ allegation that Jose was asked to become an
informant in exchange for immigration benefits fails to allege
bad faith; if anything, it reflects the official’s sincere belief
that Jose had access to information that would be valuable in
the government’s effort to combat drug trafficking. Moreover,
the Bustamantes do not allege that Jose was asked to do any-
thing illegal or improper. Under Mandel’s limited inquiry, the
allegation that the Consulate was mistaken about Jose’s
involvement with drug trafficking, and offered to make a deal
with Jose on the basis of this mistaken belief, fails to state a
claim upon which relief could be granted.
8310 BUSTAMANTE v. MUKASEY
[5] Nor does it appear that the defect can be cured by
amending the complaint. The Bustamantes themselves pro-
vided the district court with a letter from the consular official
identifying the head of the local DEA office as the source of
his information that Jose was involved in drug trafficking. We
express no opinion on the accuracy of this information; what
is significant is that the consular official relied on a fellow
government official assigned to investigate illicit drug traf-
ficking. The evidence that Jose was involved in drug traffick-
ing came from the agent in charge of the DEA office. The
Bustamantes do not allege that the transfer of information
between the DEA and the Consulate never took place, or that
the Consulate acted upon information it knew to be false. On
the record before us, there is no reason to believe that the con-
sular officer acted on this information in anything other than
good faith.
[6] The allegations in the complaint, taken as true, as well
as evidence presented by the Bustamantes themselves, illus-
trate that the reason given by the consular official in support
of the visa denial was both facially legitimate and bona fide.
The district court’s judgment is therefore AFFIRMED.