Jerrid Allen v. Kevin Milas ( 2018 )


Menu:
  •                 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. at
    160–61 (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.