Jerrid Allen v. Kevin Milas , 896 F.3d 1094 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRID ALLEN, No. 16-15728
Plaintiff-Appellant,
D.C. No.
v. 1:15-cv-00705-
MCE-SAB
KEVIN C. MILAS, Consul General,
U.S. Consulate, Frankfurt, Germany;
CHARLES J. WINTHEISER, Consular OPINION
Section Chief, U.S. Consulate,
Frankfurt, Germany; KIRSTJEN M.
NIELSEN, Secretary, U.S.
Department of Homeland Security;
L. FRANCIS CISSNA, Director, U.S.
Citizenship and Immigration
Services; MIKE POMPEO, U.S.
Secretary of State,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted October 12, 2017
San Francisco, California
Filed July 24, 2018
2 ALLEN V. MILAS
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and Matthew Frederick Leitman,* District Judge.
Opinion by Judge Bybee
SUMMARY**
APA/Consular Visa Processing
The panel affirmed the district court’s dismissal of Jerrid
Allen’s action brought under the Administrative Procedure
Act challenging the U.S. Consulate’s denial of Allen’s visa
application filed on behalf of his wife Dorothea Allen, a
native and citizen of Germany.
The panel held that the district court had subject matter
jurisdiction in this case under 28 U.S.C. § 1331, and that the
doctrine of consular nonreviewability did not strip the district
court of that jurisdiction. The panel explained that the
consular nonreviewability doctrine addresses the scope of
review, rather than the federal courts’ power to hear a case.
The panel held that the APA provides no avenue for
review of a consular officer’s adjudication of a visa on the
merits. The panel explained that the only standard by which
it could review the merits of a consular officer’s denial of a
*
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALLEN V. MILAS 3
visa is for constitutional error, where the visa application is
denied without a “facially legitimate and bona fide reason.”
The panel concluded that the consular officer’s citations
to the INA and identification of Mrs. Allen’s criminal history
constituted facially legitimate and bona fide reasons for
rejecting her visa application.
COUNSEL
Anna Benvenue (argued) and Robert Jobe, Law Office of
Robert B. Jobe, San Francisco, California, for Plaintiff-
Appellant.
Audrey Hemesath (argued), Assistant United States Attorney;
Phillip A. Talbert, United States Attorney; United States
Attorney’s Office, Sacramento, California; for Defendants-
Appellees.
OPINION
BYBEE, Circuit Judge:
Jerrid Allen petitions under the Administrative Procedure
Act (APA), 5 U.S.C. § 551 et seq., for review of a decision by
the U.S. Consulate in Frankfurt, Germany to deny a visa to
his wife. Allen claims that the consular officer committed
legal error in denying Mrs. Allen a visa, and that the error
was “arbitrary, capricious, . . . or otherwise not in accordance
with law.” Id. § 706(2)(A). We hold that the APA provides
no avenue for judicial review in this case. Rather, the only
standard by which we can review the merits of a consular
4 ALLEN V. MILAS
officer’s denial of a visa is for constitutional error, where the
visa application is denied without a “facially legitimate and
bona fide reason.” Kleindienst v. Mandel, 408 U.S. 753, 769
(1972). We affirm the district court’s denial of Allen’s
petition for a writ of mandamus.
I
Allen is a U.S. citizen and a Major in the United States
Army. While stationed in Germany following deployment to
Iraq, Allen married Dorothea Baer (“Mrs. Allen”), a German
citizen. They now have three children. In 2013, the Army
ordered Allen to return from Germany to the United States for
restationing. Mrs. Allen applied for a visa so she and the
children could join him. The U.S. Citizenship and
Immigration Services (“USCIS”) approved Allen’s Petition
for Alien Relative (“Form I-130”). But after hosting Mrs.
Allen for an interview, an officer with the U.S. Consulate in
Frankfurt denied her visa application, stating in relevant part:
This office regrets to inform you that your
visa application is refused because you are
ineligible to receive a visa under section
212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act. On July 16, 1998, you were
convicted in a German court of theft pursuant
to paragraphs 242 and 248a of the German
criminal code. This crime constitutes
behaviour reflecting moral turpitude. The
maximum punishment is over one year in
prison. You are eligible to seek a waiver of
the grounds of ineligibility by filing an I-601
with USCIS in the United States.
ALLEN V. MILAS 5
....
Additionally your visa application is refused
because you are ineligible to receive a visa
under section 212(a)(2)(A)(i)(II) of the
Immigration and Nationality Act. On March
20, 1997 you were convicted in a German
court for illicit acquisition of narcotics
pursuant to paragraphs 29, 25, 1 and 3 of the
German criminal code. There is no waiver for
this ineligibility.
The letter is signed “Consular Officer.” The consular
officer’s decision rested on two statutory grounds of
inadmissibility in the Immigration and Nationality Act
(“INA”):
[A]ny alien convicted of, or who admits
having committed, or who admits committing
acts which constitute the essential elements
of—
(I) a crime involving moral turpitude (other
than a purely political offense) or an attempt
or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt
to violate) any law or regulation of a State, the
United States, or a foreign country relating to
a controlled substance (as defined in section
802 of Title 21),
is inadmissible.
6 ALLEN V. MILAS
8 U.S.C. § 1182(a)(2)(A)(i).
Allen brought this action in the Eastern District of
California against the Consul General of the U.S. Consulate
in Frankfurt, the Consular Section Chief of the same, the
United States Secretary of Homeland Security, the Director
of the United States Citizenship and Immigration Services,
and the United States Secretary of State. Allen’s one and
only cause of action was under the APA: Allen argues that
the consular decision was legal error, that he had a right to
judicial review under the cause of action codified at 5 U.S.C.
§ 702, and that the district court should set aside the decision
as “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” id. § 706(2)(A). Allen argues
that the consular officer committed legal error when he
identified Mrs. Allen’s 1998 theft conviction as a “crime
involving moral turpitude,” because the German theft statute
does not categorically require an intent to deprive a person of
property permanently—which he alleges is an element of the
generic offense under federal law in the United States. See
Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61 (9th Cir.
2009). Similarly, Allen claims that the consular officer
committed legal error when he identified Mrs. Allen’s 1997
conviction for illegal acquisition of narcotics under the
German Criminal Code as her disqualifying “violation of . . .
any law . . . relating to a controlled substance,” allegedly
because those proceedings did not result in a “conviction,” as
the German court applied only the ameliorative,
rehabilitative, diversionary provisions of German juvenile
law in consideration of Mrs. Allen’s youth. See Lujan-
Armendariz v. INS, 222 F.3d 728, 742–43 (9th Cir. 2000).
The Government moved to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
ALLEN V. MILAS 7
12(b)(1), which the district court construed as a motion to
dismiss for failure to state a claim under Rule 12(b)(6), and
granted. The district court assumed without deciding that
Allen’s constitutional rights were implicated, Bustamante v.
Mukaskey, 531 F.3d 1059, 1061 (9th Cir. 2008), and
conducted a narrow inquiry to ensure the denial was based on
“facially legitimate and bona fide” reasons. Kerry v. Din,
135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring)
(quoting Mandel, 408 U.S. at 770). The court characterized
the consular officer’s statutory citations and references to the
convictions triggering Mrs. Allen’s exclusion as precisely
such legitimate and bona fide reasons, and dismissed Allen’s
petition for failure to state a claim on which relief can be
granted.
Allen appeals. We have appellate jurisdiction under
28 U.S.C. § 1291 and we review this question of law de novo.
II
Section 1201(g)(3) of Title 8 provides that no visa shall
be issued if “the consular officer knows or has reason to
believe that such alien is ineligible to receive a visa or such
other documentation under section 1182 of this title, or any
other provision of law.” In accord with this provision, the
consular officer here advised Mrs. Allen of the two grounds
on which he believed she was not eligible for a visa under
§ 1182. First, because she had been convicted of a theft
offense, the consular officer determined that she was
ineligible for a visa because theft is a crime involving moral
turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). Second, the officer
determined that because Mrs. Allen had been convicted of
“illicit acquisition of narcotics” under German law, she was
ineligible for a visa because she had been convicted of “a
8 ALLEN V. MILAS
violation of . . . any law or regulation of . . . a foreign country
relating to a controlled substance.” Id. § 1182(a)(2)(A)(i)(II).
Allen, on his own behalf as Mrs. Allen’s husband,1 seeks
review of the consular officer’s decision under the APA. The
government contends that we lack subject matter jurisdiction
to review the consular officer’s decision. We will turn first
to the government’s claim. Finding that we have subject
matter jurisdiction, we then turn to Allen’s claim.
A
The government argues that the doctrine of consular
nonreviewability means that “federal courts lack subject
matter jurisdiction to review a consular officer’s issuance or
refusal of a visa.” In the same breath, the government tells us
that the doctrine “precludes the Court from reviewing the
findings of a consular officer under the guise of the APA.”
The government’s argument has conflated our power to hear
“Cases” and “Controversies,” U.S. Const. art. III, § 2, cl. 1,
with the scope of our review over a case in which we are
properly vested with jurisdiction.
In his petition, Allen asserted subject matter jurisdiction
under the federal question statute, 28 U.S.C. § 1331, under
the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, and
under the APA, 5 U.S.C. § 702. The Declaratory Judgment
Act does not confer subject matter jurisdiction. Medtronic,
1
As an excluded noncitizen, Mrs. Allen has no personal right to entry,
nor a right to judicial review absent a personal detention by the United
States. In that case she could challenge her detention by writ of habeas
corpus. See 28 U.S.C. § 2241; INS v. St. Cyr, 533 U.S. 289, 301–04
(2001).
ALLEN V. MILAS 9
Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848
(2014); see also Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 240 (1937). Nor does the APA. The APA provides that
“[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court
are subject to judicial review.” 5 U.S.C. § 704. Any person
“suffering legal wrong” or “adversely affected or aggrieved
by agency action” may bring an action in federal court for
“relief other than money damages,” id. § 702. These
provisions of the APA waive the sovereign immunity of the
United States, but such a waiver is on its terms neither
coextensive with subject matter jurisdiction nor a guarantee
of a federal forum. See United States v. Park Place Assoc.,
Ltd., 563 F.3d 907, 923–24 (9th Cir. 2009). “It is beyond
question . . . that the APA does not provide an independent
basis for subject matter jurisdiction in the district courts.”
Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641,
645 (9th Cir. 1998); see Califano v. Sanders, 430 U.S. 99,
107 (1977) (“[T]he APA does not afford an implied grant of
subject-matter jurisdiction permitting federal judicial review
of agency action.”). Although the Declaratory Judgment Act
and the APA do not provide for subject matter jurisdiction in
this case, unless some other provision deprives the district
court of jurisdiction, § 1331 supplies ample basis for its
subject matter jurisdiction.
The government cites no provision from Title 28, the
INA, or the APA that would divest the district court of
subject matter jurisdiction in this case. Instead, it cites
four of our cases for the proposition that the doctrine of
consular nonreviewability deprives courts of subject matter
jurisdiction. Rivas v. Napolitano, 714 F.3d 1108, 1111 (9th
Cir. 2013); Li Hing of Hong Kong., Inc. v. Levin, 800 F.2d
970, 971 (9th Cir. 1986); Ventura-Escamilla v. INS, 647 F.2d
10 ALLEN V. MILAS
28, 30 (9th Cir. 1981); Loza-Bedoya v. INS, 410 F.2d 343,
347 (9th Cir. 1969). We admit that some statements in these
cases might be read to suggest the district courts lack subject
matter jurisdiction over cases in which a plaintiff requests the
court order a consular officer to issue a visa, but the cases
cannot bear the weight the government places on them.
In the earliest of these cases, Loza-Bedoya, we stated that
a consular officer’s “determination is not subject to either
administrative or judicial review.” Id. Loza-Bedoya had
been excluded because of a conviction of assisting unlawful
entry into the United States, but Loza-Bedoya claimed this
was error. We stated that “a correction of the record would
not in any manner affect the deportation [Loza] seeks to
avoid.” Id. We then stated, infelicitously, that “[t]hough
erroneous this Court is without jurisdiction to order an
American consular official to issue a visa to any alien
whether excludable or not.” Id. (emphasis added). By
“jurisdiction” we could not have meant subject matter
jurisdiction because, in the end, we found there was “no
abuse [of discretion] and affirm[ed] the final order of
deportation.” Id. Had we been convinced that we lacked
subject matter jurisdiction, we could not have reviewed the
officer’s exercise of discretion, and we would have dismissed
the action rather than affirm the judgment.
In Ventura-Escamilla, we stated that “review of the
Consul’s decision denying [an] application for a visa” was
“beyond the jurisdiction of the Immigration Judge, the BIA,
and this court.” 647 F.2d at 30. However, we were not
discussing subject matter jurisdiction, but rather the origins
and context of the doctrine of consular nonreviewability.
Affirming the decision of the BIA, we concluded we were
“without power to substitute [our] judgment for that a Consul
ALLEN V. MILAS 11
. . . on the issue of whether a visa should be granted or
denied.” Id. at 32. Our passing reference to “jurisdiction”
went to our remedial power—our power to “substitute [our]
judgment”—not our adjudicatory power. Id. at 33.
In Li Hing, the U.S. Consulate in Hong Kong denied a
visa to a noncitizen employee who was to be transferred by
his U.S. employer from Hong Kong to California. We
affirmed dismissal of the suit because “[e]xercising
jurisdiction over this case would . . . violate the long-
recognized judicial nonreviewability of a consul’s decision to
grant or deny a visa.” 800 F.2d at 971. Our choice of
language was unfortunate, because elsewhere in the opinion
we stated the rule of consular nonreviewability thusly: “the
consular official’s decision to issue or withhold a visa is not
subject either to administrative or judicial review.” Id.(citing, inter alia, Mandel). Thus, we were “without power
to substitute [our] judgment for that of a Consul.” Id.(citation omitted). That was not to say that the district court
lacked subject matter jurisdiction over the case. Rather, by
“jurisdiction” we meant that the district courts lack the power
to grant the relief requested—“substitut[ing] [our] judgment
for that of a Consul”—and thus evaluation of the merits of Li
Hing’s case was foreclosed by “judicial nonreviewability.”
Id. (quoting Ventura-Escamilla, 647 F.2d at 32).
Most recently, in Rivas, we reviewed two claims brought
by Mr. Rivas and his daughter, noncitizens, arising out of the
consulate’s denial of their visas. 714 F.3d at 1110. The
district court found that “the doctrine of consular
nonreviewability deprived the court of subject matter
jurisdiction to review the consular official’s discretionary
decisions.” Id. at 1110. Citing Li Hing, we observed that
“[f]ederal courts are generally without power to review the
12 ALLEN V. MILAS
actions of consular officials.” We noted two exceptions to
this “without power” rule: First, where the official has failed
to act at all. Id. (citing Patel v. Reno, 134 F.3d 929, 931–32
(9th Cir. 1997)). Second, where “‘a U.S. citizen’s
constitutional rights are alleged to have been violated by the
denial of a visa to a foreigner’ without a ‘facially legitimate
and bona fide reason’ for the denial.” Id. (quoting
Bustamante, 531 F.3d at 1060). Finding that “neither of the
exceptions to the doctrine of consular nonreviewability
apply,” we simply “affirm[ed] the district court’s denial of
Riva’s claims . . . for lack of subject matter jurisdiction.” Id.
at 1110, 1111. The two brief references to subject matter
jurisdiction—one a description of what the district court did,
and the second our affirming what the district court did—are
the beginning and the end of our analysis of subject matter
jurisdiction. As with Li Hing, Ventura-Escamilla, and Loza-
Bedoya, we should not read too much into such passing
references. We were undoubtedly correct when we wrote that
we are generally “without power” to review a consular
official’s decision, but we may lack the power to do many
things in cases in which we are fully vested with subject
matter jurisdiction. That we considered in Rivas several
“exceptions” to the “doctrine of consular nonreviewability”
shows that we could not have been referring to district court’s
power to hear the case in the first place.
That power—the federal courts’ subject matter
jurisdiction, including our appellate jurisdiction—is conferred
by Article III of the Constitution, subject to “such Exceptions,
and under such Regulations as the Congress shall make.”
U.S. Const. art. II, § 2, cls. 1, 2. See Bowles v. Russell,
551 U.S. 205, 212 (2007) (“Within constitutional bounds,
Congress decides what cases the federal courts have
jurisdiction to consider.”). No statute purports to strip us of
ALLEN V. MILAS 13
jurisdiction over consular decisions; nor does any statute
purport to confer subject matter jurisdiction over the two
exceptions we described in Rivas. See Trump v. Hawaii, No.
17-965, 2018 WL 3116337, at *8, slip op. at 9 (U.S. June 26,
2018) (“The Government does not argue that the doctrine of
consular nonreviewability goes to the Court’s jurisdiction, nor
does it point to any provision of the INA that expressly strips
the Court of jurisdiction over plaintiffs’ claims.”) (citations
omitted). The doctrine of consular nonreviewability, which
is judicial in origin, is surely informed by our respect for the
separation of powers, but it is not, for that reason, a constraint
on subject matter jurisdiction; our deference goes to our
willingness, not our power, to hear these cases.
Understandably, we have sometimes treated the doctrine of
consular nonreviewability as though it were a constraint on
our subject matter jurisdiction because it appears to function
in the same way as such constraints. But a rule of decision is
different from a constraint on subject matter jurisdiction, even
if the result is roughly the same for the parties. See Steel Co.
v. Citizens for Better Environment, 523 U.S. 83, 89 (1998)
(“[T]he absence of a valid . . . cause of action does not
implicate subject-matter jurisdiction, i.e., the courts’ statutory
or constitutional power to adjudicate the case.”) (emphasis in
original).
We are not the only court to have had such looseness in
our language. “Courts—including this Court—have
sometimes mischaracterized claim-processing rules or
elements of a cause of action as jurisdictional limitations,
particularly when that characterization was not central to the
case, and thus did not require close analysis.” Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154, 161 (2010). The Court has
thus admonished that “the word ‘jurisdiction’ has been used
by courts . . . to convey ‘many, too many, meanings,’” and
14 ALLEN V. MILAS
has cautioned “against profligate use of the term.” Union
Pac. R.R. Co. v. Bhd. of Teamsters Eng’rs & Trainmen Gen.
Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009)
(quoting Steel Co., 523 U.S. at 90). The Court later explained
that because “‘[j]urisdiction’ refers to ‘a court’s adjudicatory
authority,” the term “properly applies only to ‘prescriptions
delineating the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction)’ implicating [the
court’s adjudicatory] authority.” Reed Elsevier, 559 U.S. at160–61 (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).
Over time, we have all “miss[ed] the ‘critical difference[s]’
between true jurisdictional conditions and nonjurisdictional
limitations on causes of action.” Id. at 161 (quoting Kontrick,
540 U.S. at 456).
We conclude that the district court had subject matter
jurisdiction in this case under 28 U.S.C. § 1331 and the
doctrine of consular nonreviewability did not strip the district
court of that jurisdiction. Subject matter jurisdiction over this
class of claims, otherwise amply provided here by the federal
question statute, is constrained only if we identify and apply
some “prescripti[ve] delineati[on]” on our “adjudicatory
authority.” Id. at 160–61 (quoting Kontrick, 540 U.S. at 455);
see Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013) (requiring a “clear statement” from Congress that “the
rule is jurisdictional”). We know of no such “prescriptive
delineation,” and the government has not pointed to any. The
rule at issue here, that is, the rule of consular
nonreviewability, supplies a rule of decision, not a constraint
on the subject matter jurisdiction of the federal courts. See
Fiallo v. Bell, 430 U.S. 787, 795–96 n.6 (1977) (denying that
“the Government’s power in this area [of immigration] is
never subject to judicial review,” but “only to limited judicial
review”); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976) (“The
ALLEN V. MILAS 15
reasons that preclude judicial review of political questions
also dictate a narrow standard of review of decisions made by
the Congress or the President in the area of immigration and
naturalization.”); Matushkina v. Nielsen, 877 F.3d 289, 294
n.2 (7th Cir. 2017) (“We treat the doctrine of consular
nonreviewability as a matter of a case’s merits rather than the
federal courts’ subject matter jurisdiction.”). We discuss
consular nonreviewability and Mandel in greater detail below,
but it suffices at present to observe that the Court’s “facially
legitimate and bona fide” standard is not the language of
subject matter jurisdiction, but the language of the discretion
courts afford consular officers. It is a scope of review, the
contours of which we turn to now. The district court was
correct to treat the government’s Rule 12(b)(1) motion as a
motion under Rule 12(b)(6).
B
The core of Allen’s petition is that he was entitled to
judicial review of the non-issuance of his wife’s visa under
the “scope of review” provisions of the APA found in § 706.
More particularly, Allen contends that the consular officer
failed to apply the appropriate legal standards to Mrs. Allen’s
German convictions, and that this legal error renders the
consular officer’s decision “arbitrary, capricious, and
otherwise not in accordance with law.”
We start with some first principles. The APA provides
the fundamental framework for how executive agencies are
expected to conduct business. It prescribes the rules by
which agencies may promulgate regulations, 5 U.S.C. § 553,
and conduct adjudications, id. §§ 554–58. The APA provides
for judicial review of agency decisionmaking, id. §§ 701–06.
“Agency” is defined by the statute as “each authority of the
16 ALLEN V. MILAS
Government of the United States, whether or not it is within
or subject to review by another agency.” Id. § 701(b).
Congress may exempt an agency altogether from the APA, id.
§ 551(1), or from its judicial review provisions, id.
§ 701(b)(1). Congress may also preempt application of some
or all of the APA, such as by expressly providing for an
otherwise inconsistent procedure or standard for judicial
review. See id. §§ 701(a)(1)–(2), 702(1)–(2); Marcello v.
Bonds, 349 U.S. 302, 305–10 (1955). It is undisputed here
that the Department of State is an agency for purposes of the
APA. See ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th
Cir. 2015).
The immigration laws provide a good example of these
principles. Shortly after the APA was adopted in 1946, the
Supreme Court held that the APA’s provisions relating to
adjudicatory hearings governed deportation hearings. Wong
Yang Sung. v. McGrath, 339 U.S. 33, 48–51 (1950). Just
months later, Congress exempted such hearings from the
APA. Supplemental Appropriation Act, Pub. L. 81-843, 64
Stat. 1044, 1048 (1951) (“Proceedings under law relating to
the exclusion or expulsion of aliens shall hereafter be without
regard to the provisions of sections 5, 7, and 8 of the
Administrative Procedure Act.”). Following Congress’s
adoption of comprehensive immigration reform, see
Immigration and Nationality Act of 1952, Pub. L. 82-414,
66 Stat. 163 (1952) (INA), the Court held in Marcello that the
Congress had not reinstated the APA as the framework for
immigration hearings. 349 U.S. at 305–10. The Court
observed that in the INA “Congress was setting up a
specialized administrative procedure . . . , drawing liberally
on the analogous provisions of the Administrative Procedure
Act and adapting them to the particular needs of the
deportation process.” Id. at 308. But where Congress
ALLEN V. MILAS 17
“depart[ed] from the Administrative Procedure Act . . . it was
the intention of the Congress to have the deviation apply and
not the general model.” Id. at 309. Congress confirmed this
when it provided that “[t]he procedure (herein prescribed)
shall be the sole and exclusive procedure for determining the
deportability of an alien under this section.” Id. (quoting
8 U.S.C. § 1252(b) (1952)). The INA thus gave a “clear and
categorical direction . . . meant to exclude the application of
the Administrative Procedure Act.” Id.; see also Ardestani v.
INS, 502 U.S. 129 (1991) (applying Marcello, and noting that
the attorneys fees provisions of the Equal Access to Justice
Act, 5 U.S.C. § 504, do not apply to removal proceedings);
Heikkila v. Barber, 345 U.S. 229, 235–36 (1953) (finding the
APA inapplicable in light of the finality provisions of the
predecessor statute to the INA).
We recognize that the APA’s judicial review provisions
supply a “strong presumption that Congress intends judicial
review of administrative action.” Bowen v. Mich. Acad. of
Family Physicians, 476 U.S. 667, 670 (1986). Sections
701–06 of the APA supply a “default rule . . . that agency
actions are reviewable under federal question jurisdiction . . .
even if no statute specifically authorizes judicial review.”
ANA Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004).
The presumption of judicial reviewability is so strong that
“only upon a showing of ‘clear and convincing evidence’ of
a contrary legislative intent should the courts restrict access
to judicial review.” Abbott Labs. v. Gardner, 387 U.S. 136,
140–41 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 379–80
(1962)); see also Dickinson v. Zurko, 527 U.S. 150, 154, 155
(1999) (because of “the importance of maintaining a uniform
approach to judicial review of administrative action,” any
“departure from the norm must be clear”). Even in the
immigration context, that is, the context of adjudicating
18 ALLEN V. MILAS
matters affecting claims brought by those wishing to acquire
constitutional rights, we have never abrogated our “[j]udicial
supremacy” to order relief if, in any individual case,
“fundamentals were violated”:
Judicial supremacy has been maintained upon
the ground that our government is founded
upon law. It is incumbent upon the executive,
whether elective or by divine right as a Stuart
king, to act according to rules of law. There
is no doctrine of omnipotence of Parliament
here as there is in England. Therefore, even
final action of an administrative agency,
although declared unappealable by legislation,
has always been subject to attack in court if
fundamentals were violated.
Bustos-Ovalle v. Landon, 225 F.2d 878, 880 (9th Cir. 1955).
Nevertheless, the APA itself anticipates that, on occasion,
Congress might itself abrogate the presumption of judicial
review. First, the APA recognizes that a statute may preclude
judicial review. 5 U.S.C. § 701(a)(1). Second, the APA
provides that its judicial review provisions do not apply
where “agency action is committed to agency discretion by
law,” id. § 701(a)(2), a “rare instance[] where statutes are
drawn in such broad terms that in a given case there is no law
to apply.” Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 410 (1971)); see also, e.g., Ekimian v. INS, 303 F.3d
1153, 1157–58 (9th Cir. 2002) (finding no judicially
reviewable standard to examine BIA decision’s not to reopen
a case). The government does not contend that either of these
exceptions to judicial review applies.
ALLEN V. MILAS 19
The APA recognizes two other instances in which at least
some provisions of §§ 701–06 might not apply. Section 702
confers the broad right to judicial review and sets out the
cause of action, but then concludes in limiting fashion:
Nothing herein (1) affects other limitations on
judicial review or the power or duty of the
court to dismiss any action or deny relief on
any other appropriate legal or equitable
ground; or (2) confers authority to grant relief
if any other statute that grants consent to suit
expressly or impliedly forbids the relief which
is sought.
This narrows our focus: Is the doctrine of consular
nonreviewability either (1) a “limitation[] on judicial review”
or (2) based on statutes that “impliedly forbid[] the relief
which is sought”? In other words, is Allen entitled to APA
review of the consular official’s decision not to issue his wife
a visa, or is the standard set forth in Mandel his only avenue
for judicial relief? The D.C. Circuit has addressed this
precise question, and it concluded that Mandel supplies the
only standard by which the federal courts can review a
consular officer’s decision on the merits. Saavedra Bruno v.
Albright, 197 F.3d 1153, 1162–63 (D.C. Cir. 1999). We start
with Mandel and the rule of consular nonreviewability, and
we then turn to Saavedra Bruno.
We have long recognized that “ordinarily, a consular
official’s decision to deny a visa to a foreigner is not subject
to judicial review.” Bustamante, 531 F.3d at 1060; see also
Li Hing, 800 F.2d at 970–71; Ventura-Escamilla, 647 F.2d at
30–31. The rule is based on “the recognition that the power
to exclude or expel aliens, as a matter affecting international
20 ALLEN V. MILAS
relations and national security, is vested in the Executive and
Legislative branches of government.” Ventura-Escamilla,
647 F.3d at 30; see also Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 210 (1953); United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 542–43 (1950); Kaoru
Yamataya v. Fisher, 189 U.S. 86, 97–98 (1903). Unless we
are otherwise “authorized by treaty or by statute,” or where
we are “required by the paramount law of the constitution[]
to intervene,” Hampton v. Mow Sun Wong, 426 U.S. 88, 101
n.21 (1976) (quoting Fong Yue Ting v. United States,
149 U.S. 698, 712 (1893)), Congress may “prescribe the
terms and conditions upon which [noncitizens] may come to
this country, and to have its declared policy in that regard
enforced exclusively through executive officers, without
judicial intervention.” Lem Moon Sing v. United States,
158 U.S. 538, 547 (1895); see also Fok Yung Yo v. United
States, 185 U.S. 296, 305 (1902) (“Congressional action has
placed the final determination of the right of admission in
executive officers, without judicial intervention, and this has
been for many years the recognized and declared policy of the
country.”). If our review is not required by some other
provision of law, such as the Constitution, the APA, or the
INA, the long-standing rule foreclosing review of the merits
of consular visa decisions is precisely the kind of
“limitation[] on judicial review” or “implied” prohibition on
relief that forms an exception to the APA’s cause of action
and review provisions. 5 U.S.C. § 702(1), (2).
In Mandel, the Court reaffirmed that where Congress
entrusts discretionary visa-processing and ineligibility-waiver
authority in a consular officer or the Attorney General, the
courts cannot substitute their judgments for those of the
Executive. 408 U.S. at 769–70. But the Court also
recognized a narrow exception for review of constitutional
ALLEN V. MILAS 21
claims. Belgian Marxist Ernest Mandel was denied a visa to
visit the United States for academic activities. Id. at 756–57.
He and six American professors brought suit challenging the
Attorney General’s failure to waive Mandel’s ineligibility,
claiming injury to the professor plaintiffs’ First Amendment
rights. Id. at 760. A divided three-judge district court held
that the professor-plaintiffs had a First Amendment right to
hear Mandel’s views, and that plaintiffs’ were entitled to an
order enjoining the Attorney General from denying Mandel
admission to the United States. Mandel v. Mitchell, 325 F.
Supp. 620, 632–33 (E.D.N.Y. 1971). Reversing, the Supreme
Court began with the proposition that Mandel had no right of
entry and thus no personal right to judicial review. 408 U.S.
at 762. The Court assumed the professor plaintiffs had First
Amendment rights to hear Mandel speak, and sought a means
to balance their rights against Congress’s grant of
discretionary waiver authority to the Attorney General. It did
so against the presumption of consular nonreviewability that
had embedded itself as a rule of decision, the provenance of
which the Court was “not inclined in the present context to
reconsider.” Id. at 767. Rejecting Mandel’s request for an
“arbitrary and capricious” standard of review, id. at 760, the
Court recognized an exception to the rule of consular
nonreviewability for review of constitutional claims. The
exception itself is quite narrow, requiring deference to the
consular officer’s decision so long as “that reason was
facially legitimate and bona fide.” Id. at 769. The Court
concluded:
We hold that when the Executive exercises
this power [of exclusion] negatively on the
basis of a facially legitimate and bona fide
reason, the courts will neither look behind the
exercise of that discretion, not test it by
22 ALLEN V. MILAS
balancing its justification against the First
Amendment interests of those who seek
personal communication with the applicant.
Id. at 770.
The Court returned to Mandel in Fiallo v. Bell, 430 U.S.
787 (1977). There, three sets of fathers and sons challenged
immigration laws giving preference to natural mothers of
“illegitimate” children, thereby alleging constitutional injury
through “‘double-barreled’ discrimination based on sex and
illegitimacy.” Id. at 788, 794. The government argued that
these claims were not subject to judicial review at all, a claim
the Court rejected. But the Court also rejected any review
beyond that set out in Mandel: “We can see no reason to
review the broad congressional policy choice at issue here
under a more exacting standard than was applied in
Kleindienst v. Mandel.” Id. at 795.
The Mandel rule was again upheld in Din. 135 S. Ct. at
2141. Din, a U.S. citizen, challenged a consular officer’s
decision to deny an entry visa to her husband, and sought a
writ of mandamus and a declaratory judgment to remedy her
alleged constitutional injury arising out of the visa denial. Id.at 2131–32 (plurality opinion of Scalia, J.). Justice Scalia,
joined by Chief Justice Roberts and Justice Thomas, found in
a plurality opinion that Din had no such constitutional right
and so received the process due. Id. at 2138–40. But Justice
Kennedy, joined by Justice Alito, concurred in the judgment
alone, in the narrowest and thus controlling opinion in that
case. See Cardenas v. United States, 826 F.3d 1164, 1171
(9th Cir. 2016). Justice Kennedy found it unnecessary to
answer whether Din had a protected constitutional interest,
because even assuming she did “[t]he reasoning and the
ALLEN V. MILAS 23
holding in Mandel control here.” Din, 135 S. Ct. at 2139,
2140 (Kennedy, J., concurring in the judgment). Moreover,
Mandel “extends to determinations of how much information
the Government is obliged to disclose about a consular
officer’s denial of a visa to an alien abroad.” Id. at 2141. In
Din, the consular officer offered no explanation other than a
citation to 8 U.S.C. § 1182(a)(3)(B), prohibiting visas to
persons engaged in or otherwise related to statutorily defined
“terrorist activity.” See 8 U.S.C. § 1182(a)(3)(B)(iii). For
Justice Kennedy, “the Government satisfied any obligation it
might have had to provide Din with a facially legitimate and
bona fide reason for its action.” Din, 135 S. Ct. at 2141(Kennedy, J., concurring in the judgment).
Mandel, Fiallo, and Din all involved constitutional
claims. We have applied the Mandel rule in a variety of
circumstances involving visa denials and claimed violations
of constitutional rights. E.g., Cardenas, 826 F.3d at 1171;
Bustamante, 531 F.3d at 1061 (describing Mandel as “a
limited exception to the doctrine [of consular
nonreviewability] where the denial of a visa implicates the
constitutional rights of American citizens”). Most recently,
in Trump v. Hawaii, the Court observed that its “opinions
have reaffirmed and applied [Mandel’s] deferential standard
of review across different contexts and constitutional claims.”
2018 WL 3116337, at *20, slip op. at 31. Allen concedes
Mandel’s limited scope of review as to constitutional
challenges to visa denials. He argues nonetheless that he is
entitled to APA review of his claims, which he characterizes
24 ALLEN V. MILAS
as a nonconstitutional statutory challenge to the consular
officer’s allegedly nondiscretionary duty.2
The D.C. Circuit rejected this argument in Saavedra
Bruno. When a consular officer in Bolivia refused to issue a
visa to Saavedra Bruno, he brought suit under the APA,
arguing that he was entitled to review for the purpose of
challenging factual errors on which the official ostensibly
made his decision. 197 F.3d at 1155–56. After a careful
review of the historical origins of the consular
nonreviewability rule, the court wrote:
[W]e may infer that the immigration laws
preclude judicial review of consular visa
decisions. There was no reason for Congress
to say as much expressly. Given the historical
background against which it has legislated
over the years, . . . Congress could safely
assume that aliens residing abroad were
barred from challenging consular visa
decisions in federal court unless legislation
specifically permitted such actions. The
2
In addressing a series of challenges to an executive order affecting
the issuing of entry visas to foreign nationals from eight countries, the
Court stated that “[a] conventional application of Mandel, asking only
whether the policy is facially legitimate and bona fide, would put an end
to our review.” 2018 WL 3116337, at *21, slip op. at 32. The Court,
however, did not end its analysis with Mandel, but “assume[d]” “[f]or our
purposes today” that it could look behind the executive order and apply
rational basis review. Id.In this case, we do not have broad constitutional challenges to an
executive policy. Indeed, Allen does not raise a constitutional challenge
at all, only a statutory challenge. We will confine our focus to the only
relief Allen seeks—review under the APA.
ALLEN V. MILAS 25
presumption, in other words, is the opposite of
what the APA normally supposes.
Id. at 1162. From this the court deduced that “[i]n terms of
APA § 702(1), the doctrine of consular nonreviewability—the
origin of which predates passage of the APA,” constitutes
precisely such a “limitation[] on judicial review” unaffected
by § 702’s otherwise glad-handing statutory cause of action
and right of review to those suffering “‘legal wrong’ from
agency action.” Id. at 1160 (quoting 5 U.S.C. § 702). In
sum, “the immigration laws preclude judicial review of
consular visa decisions.” Id. at 1162; see also Morfin v.
Tillerson , 851 F.3d 710, 714 (7th Cir. 2017) (rejecting a
claim brought under the APA that a consular decision was
arbitrary and capricious and not supported by substantial
evidence, and concluding that “the denial of a visa application
is not a question open to review by the judiciary”).
We agree with the D.C. Circuit’s analysis and conclusion
in Saavedra Bruno. If Allen were correct, then constitutional
claims would be reviewable under the limited Mandel
standard, and nonconstitutional claims would be reviewable
under the APA; in other words, all claims would be
reviewable under some standard. Allen’s theory converts
consular nonreviewability into consular reviewability. The
conclusion flies in the face of more than a century of
decisions limiting our review of consular visa decisions.
Allen attempts to narrow our focus to legal error, which he
argues is within the province of the judiciary. We reject his
argument for several reasons. First, the burden the INA
places on consular officers—who may or may not have any
formal legal training—is not to make legal determinations in
a way that an administrative agency (such as the BIA) or a
court might do. Rather the officer is charged with
26 ALLEN V. MILAS
adjudicating visas under rules prescribed by law, and the
officer is instructed not to issue a visa if the officer “knows or
has reason to believe that such alien is ineligible to receive a
visa” under any provision of law. 8 U.S.C. § 1201(g)(3).3
Second, the distinction Allen presses for would eclipse
the Mandel exception itself. The claims in Mandel, Fiallo,
and Din were all legal claims. To be sure, they were legal
claims based on the law of the Constitution, as opposed to
statutory law, but we fail to see why legal claims based on
statute should receive greater protection than legal claims
based on the Constitution. Indeed, we think the Court has
already rejected such an argument in Webster, 486 U.S. at
594. There the Court addressed whether a statute giving the
Director of the CIA blanket authority to terminate any officer
or employee when deemed “necessary or advisable in the
interests of the United States,” rendered the Director’s
decisions unreviewable under § 701(a)(2). Id. at 594, 601
(quoting 50 U.S.C. § 403(c)). Although the Court found that
Doe’s claims could not be reviewed under the APA, it did
find that Doe could nonetheless otherwise raise constitutional
claims arising out of his termination, namely that his
termination deprived him of liberty and property interests,
denied him equal protection under the law, and impaired his
right to privacy. Webster, 486 U.S. at 601–05. After
Webster, we have assumed that the courts will be open to
3
During oral argument, Allen’s counsel acknowledged that the phrase
“knows or has reason to believe,” when used elsewhere in the INA, see,
e.g., 8 U.S.C. § 1182(a)(2)(C), does confer discretion to deny visa
applications. We do not see how Allen can reconcile that position with his
insistence that a consular officer makes a purely legal decision when,
acting under 8 U.S.C. § 1201(g)(3), the officer denies a visa on the basis
of the officer’s “reason to believe” that the applicant has been convicted
of an offense rendering the applicant inadmissible.
ALLEN V. MILAS 27
review of constitutional claims, even if they are closed to
other claims. See, e.g., Am. Fed’n of Gov’t Employees Local
1 v. Stone, 502 F.3d 1027, 1034–39 (9th Cir. 2007). Allen’s
argument would flip Webster on its head: Statutory arguments
would be subject to full APA review even if constitutional
arguments, per Mandel, are not. We find no support for
Allen’s position.
Allen also argues that we have previously applied APA
review to consular decisions. The cases cited by Allen do not
help him. We subjected a State Department decision to APA
review in ASSE Int’l Inc., 803 F.3d at 1064–68. But it was
not a consular visa decision that we reviewed, but rather a
State Department decision to disqualify a U.S.-based third-
party sponsor participating in the Exchange Visitor Program.
Id. Similarly, Singh v. Clinton, 618 F.3d 1085 (9th Cir.
2010), also did not concern a challenge to a consular officer’s
adjudication of the noncitizen’s visa application, but rather
was a suit against the State Department for failure to follow
the INA and its own regulations. Singh does not guide us
here. Patel v. Reno, 134 F.3d 929 (9th Cir. 1997), likewise
does not aid Allen’s argument. Patel did involve the non-
issuance of a visa. But what we faced was the State
Department’s failure to issue any decision on a visa
application at all, a clear violation of a nondiscretionary duty,
as “[a] consular office is required by law to act on visa
applications,” because “[i]ssuance or refusal [is] mandatory.”
Id. at 932 (quoting 22 C.F.R. § 42.81). In other words, a visa
application must be adjudicated one way or the other. We
acknowledged the consular nonreviewability principle, but
distinguished the case as one that “challenges the authority of
the consul to take or fail to take an action as opposed to a
decision taken within the consul’s discretion.” Id. at 931–32.
28 ALLEN V. MILAS
We remanded with instructions “to order the consulate to
either grant or deny the visa applications.” Id. at 933.4
We join the D.C. Circuit in holding that the APA provides
no avenue for review of a consular officer’s adjudication of
a visa on the merits. Whether considered under § 702(1) or
(2), the doctrine of consular nonreviewability is a limitation
on the scope of our judicial review and thus precludes our
review under § 706. Allen raises no claim to review under
Mandel, and regardless, we agree with the district court that
the consular officer’s citations to the INA and identification
of Mrs. Allen’s criminal history constituted facially
legitimate and bona fide reasons for rejecting her visa
application.
III
We are sympathetic to Major Allen’s efforts to unite his
family in the United States during his next miliary
assignment. Section 706 of the APA, however, provides no
avenue for our review of the consular officer’s decision.
4
We are not persuaded by Allen’s references to Wong v. Department
of State, 789 F.2d 1380 (9th Cir. 1986), or Braude v. Wirtz, 350 F.2d 702(9th Cir. 1965). In Wong, the State Department revoked the nonimmigrant
visas of Mr. Wong’s wife and children after the family had arrived in the
United States from Hong Kong. Id. at 1381–82. We held that the
consular officer’s grounds for such revocation—that Mrs. Wong and the
children had failed to attend the visa interview in Pago Pago—fell outside
the limited “authorized grounds for visa revocation.” Id. at 1386. As
such, like Patel, Wong found that “[t]he consular officer had no authority”
to conduct the act complained of. Id. In Braude, California growers
sought review under what is now § 706 of visa denials to Mexican
laborers. We never reached the § 706 question because we held the
growers lacked standing. 350 F.2d at 708.
ALLEN V. MILAS 29
The judgment of the district court is AFFIRMED.