Fauzia Din v. John F. Kerry

Citations: 718 F.3d 856; 2013 WL 2249289; 2013 U.S. App. LEXIS 10408Docket: 10-16772

Court: Court of Appeals for the Ninth Circuit; May 23, 2013; Federal Appellate Court

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Fauzia Din, a U.S. citizen, filed a visa petition for her husband, Kanishka Berashk, a citizen of Afghanistan. After nine months, the visa was denied under 8 U.S.C. 1182(a)(3)(B), which pertains to terrorism-related exclusions. The district court dismissed Din’s case, citing consular nonreviewability and concluding that the Government provided a legitimate reason for the denial based on established case law. However, the Ninth Circuit reversed this decision, determining that the Government failed to present a "facially legitimate" reason for the denial. The Court also ruled that Din had standing to challenge the constitutionality of the visa denial notice provision. Judge Clifton dissented, arguing that the Government was not obligated to disclose information regarding visa denials based on national security concerns and maintained that the statutory basis for denial was lawful. The case was remanded for further proceedings.

On February 12, 2008, USCIS informed Din that Berashk's visa petition was approved. Subsequently, the National Visa Center completed processing the visa and scheduled an interview for Berashk at the Islamabad Embassy, which took place on September 9, 2008. During the interview, Berashk truthfully answered questions, including those regarding his work with the Afghan Ministry of Social Welfare under Taliban rule. The consular officer indicated Berashk would receive his visa in two to six weeks. However, on June 7, 2009, after multiple inquiries from Din and Berashk, they received a Form 194 letter stating that Berashk's visa was denied under Section 212(a) of the INA, with no possibility for a waiver. On July 11, 2009, Berashk sought clarification regarding the denial, and on July 13, the Embassy cited INA 212(a)(3)(B) related to terrorist activities as the reason, stating they could not provide further details due to INA 212(b)(2) restrictions.

Din engaged pro bono counsel to contest the denial, requesting reconsideration and more information from the Embassy and the State Department, all of which reiterated the denial under Section 212(a)(3)(B) without providing additional details. In late 2009, Din traveled to the Kabul and Islamabad Embassies seeking answers but was denied further explanation. Consequently, Din initiated legal action with three claims: 1) a writ of mandamus for lawful adjudication of Berashk’s visa application; 2) a declaratory judgment that 8 U.S.C. 1182(b)(3) is unconstitutional as applied to her; and 3) a declaratory judgment alleging violations of the Administrative Procedure Act. The district court dismissed Din’s claims, citing consular nonreviewability for the first and third claims, and determined Din lacked standing for the second claim. The standard of review for the dismissal is de novo, meaning all allegations in the complaint are accepted as true and must present a plausible claim for relief.

The doctrine of consular nonreviewability establishes that aliens do not possess a constitutional right to enter the United States, allowing Congress significant authority to regulate immigration and exclude certain individuals. Federal courts generally lack the power to review consular officials' decisions; however, a limited exception exists when a visa denial affects the constitutional rights of a U.S. citizen. Under this exception, courts conduct a constrained review to ensure that the consular official acted on a "facially legitimate and bona fide reason." This principle stems from the Supreme Court's decision in Kleindienst v. Mandel, which recognized a U.S. citizen's First Amendment right to receive information from an alien. Following Mandel, courts, including the Ninth Circuit, have upheld this review process, particularly regarding citizens' rights in marriage. The government’s argument that the Immigration and Nationality Act (INA) precludes judicial review is dismissed, as the review hinges on constitutional rights rather than statutory interpretation. Additionally, the government’s claim that the precedent set by Bustamante conflicts with other decisions is found to misinterpret the basis of that ruling, which centers on the citizen's rights rather than the alien spouse's rights to reside in the U.S. Ultimately, courts will only assess whether the consulate provided a facially legitimate and bona fide reason for visa denial, without delving into the accuracy of that reason.

The 'facially legitimate and bona fide' standard lacks clear guidance and is rarely applied, making its interpretation challenging. The Second Circuit has indicated that this standard requires both a properly construed statute providing grounds for exclusion and the consular officer’s assurance of belief regarding the applicant's conduct within those grounds. This principle aligns with the right to personal choice in marriage and family matters. The court lacks authority to question the consular officer's decisions, as only en banc or Supreme Court rulings can overrule prior panel decisions. The scarcity of cases addressing this standard leaves uncertainty about the adequacy of the Government's rationale in visa denials. Specifically, the Government failed to provide factual details justifying its invocation of a broad statutory section (INA 1182(a)(3)(B)), which includes various grounds for inadmissibility without clarifying the specific conduct attributed to the applicant. Unlike the Bustamante case, where the applicant was informed of specific allegations regarding drug trafficking, the current applicants, Din and Berashk, received no such clarity. The absence of factual allegations prevents a determination of whether the cited statute was applied correctly, leading to the conclusion that the Government's reasoning does not meet the 'facially legitimate' requirement.

Jose Bustamante’s visa denial was based on the Consulate's belief that he was a controlled substance trafficker, which is a legitimate statutory reason for inadmissibility under 8 U.S.C. § 1182(a)(2)(C). However, while this statute provides a basis for exclusion, it does not constitute the sole reason for the denial. Other circuit cases, such as Adams and Allende, illustrate that visa denials often rely on specific factual allegations supporting the grounds for exclusion. In contrast, the government’s denial of Berashk’s visa lacks any similar factual basis, failing to meet the necessary standards for statutory interpretation and application.

The cited section of the Immigration and Nationality Act (INA), § 1182(a)(3)(B), is extensive and outlines multiple categories of inadmissibility related to terrorism, including direct and indirect participation in terrorist activities. The broad scope of this section complicates the determination of whether the consular officer correctly applied the statute, as it consists of ten subsections detailing various forms of conduct linked to terrorism. The government must provide a sufficiently narrow basis for exclusion to establish that the statute was properly construed, as illustrated by the Second Circuit's detailed analysis of statutory issues in similar cases. Without specific allegations or a clear understanding of how the statute was construed in Berashk’s denial, it remains unclear if the consular officer's determination was appropriately justified.

Subsections of 8 U.S.C. § 1182(a)(3)(B) allow an alien to present evidence to contest a cited reason for inadmissibility, particularly regarding support for organizations not designated as terrorist groups. An alien can demonstrate, with clear and convincing evidence, a lack of knowledge of such designation. The Second Circuit mandates that consular officers must provide evidence of inadmissibility and allow for rebuttal; however, the specific applicability to Berashk remains unclear. While exclusion decisions are generally not subject to deep scrutiny, a reviewing court must ensure that the government’s allegations fit within the statutory framework for visa denial. The court accepts the government's factual allegations as true unless evidence of bad faith is presented, emphasizing that mere inaccuracies in the consular official's information are insufficient for rebuttal. The government must at least allege specific conduct by Berashk that would justify inadmissibility. Citation to § 1182(a)(3)(B) alone, without supporting facts, does not constitute a legitimate ground for visa denial. If such citation is deemed facially legitimate, a broader reference to § 1182(a) would suffice for judicial review, which should not be a mere rubber-stamp of the government’s claims. Concerns are raised regarding the potential for the government’s vague assertions to eliminate meaningful judicial review, especially when U.S. citizens' constitutional rights are implicated. The dissent argues against judicial intervention in exclusion decisions, but acknowledges a limited exception when such decisions affect the rights of American citizens, which the majority finds insufficiently addressed by the dissent. Judicial review cannot be reduced to merely confirming the government’s citation of the U.S. Code.

The dissent's argument that 8 U.S.C. 1182(b)(3) supports the Government's position is dismissed. Section 1182(b) mandates that consular officers notify aliens of visa denials and the specific legal grounds for inadmissibility. However, the 1996 amendment (part of the Antiterrorism and Effective Death Penalty Act) introduced 1182(b)(3), which exempts the disclosure requirement when an alien is inadmissible under 1182(a)(2) or (a)(3). The House Committee on the Judiciary noted that notifying aliens of their inadmissibility based on activities like drug trafficking or terrorism could jeopardize investigations. Consequently, aliens do not possess a constitutional right to enter the U.S. or to be informed of denial reasons. The U.S. Department of State's Foreign Affairs Manual acknowledges that while the statute sets minimum disclosure standards, notifications are generally expected except under specific circumstances.

The dissent asserts that 1182(b)(3) indicates the Government need not provide detailed reasons for visa denial. This interpretation is valid; however, it does not resolve whether Berashk’s visa was denied for a legitimate reason. The statutory framework grants aliens a right to information for most denial reasons but not under 1182(a)(2) or (a)(3). The dissent's claim that this lack of a right implies an absolute Government right to withhold information from all, including the Court, is unsupported and rejected. The Government's obligation to provide information in this context is distinct from its obligations under Brady v. Maryland and the Jencks Act, both of which establish specific rights to information that do not apply here.

Brady evidence operates independently of the Jencks Act, emphasizing the necessity for the government to disclose such evidence even if it falls outside the Act’s requirements. The assertion that the government can withhold Brady material due to a lack of statutory obligation is rejected, as it is acknowledged that Brady evidence can exist outside the confines of the Jencks Act. The existence of a limited disclosure obligation for visa denials does not imply a prohibition on disclosing other information, and interpretations suggesting such a prohibition conflict with the need for judicial review. The dissent's interpretation—which implies that no information disclosure is required—contradicts established judicial principles. Specifically, even under 8 U.S.C. 1182(b)(1)(B), which allows for non-disclosure of specific statutory provisions for visa denials, some degree of judicial review must be preserved. Concerns regarding national security and terrorism, while valid, do not negate the requirement for disclosure in this context. Drawing parallels to criminal procedures, the necessity for secrecy in ongoing investigations does not eliminate the constitutional requirement for judicial oversight, reinforcing that the government must provide a factual basis for its actions while maintaining investigatory confidentiality.

The Government may disclose the reasons for Berashk’s visa denial in camera, as allowed in cases like Hunt v. C.I.A. and Mohamed v. Jeppesen Dataplan, to address national security concerns without eliminating judicial review. The Government has not provided a legitimate reason for the visa denial, failing the first part of the Mandel test, which means the decision is not exempt from consular review. The second part of the test, concerning the bona fide nature of the citation to 8 U.S.C. 1182(a)(3)(B), does not need to be addressed. The dissent argues that it is impossible for the plaintiff to plead bad faith due to lack of information regarding the denial's basis, suggesting that a simple statutory citation is sufficient grounds for exclusion. This interpretation contradicts the Supreme Court's requirement for a "facially legitimate and bona fide reason." 

Regarding Din's standing to challenge the constitutionality of 8 U.S.C. 1182(b)(3), the district court ruled she lacks standing since the notice provisions apply to aliens, not citizens. The court agrees with this conclusion, which does not support the Government’s motion to dismiss based on consular nonreviewability. A ruling on the merits may avoid the constitutional question if the statute is found not applicable to Din. However, for standing purposes, the complaint must be construed in Din's favor, as it alleges injury from the Government’s application of the statute. To meet Article III standing requirements, Din must demonstrate a concrete and particularized injury that is actual or imminent, traceable to the Government's actions, and likely to be redressed by a favorable ruling.

A procedural right allows a person to assert their interests without adhering to typical standards for redressability and immediacy. In this case, Din has a constitutionally protected due process right to limited judicial review regarding her husband's visa denial, linked to her personal choices in marriage and family life. The Government's reliance on 8 U.S.C. § 1182(b)(3) to contest this right grants Din standing to challenge the provision, as she claims the Government denied her due process by not providing a legitimate reason for the visa denial. A court ruling that § 1182(b)(3) does not undermine Din's claim could remedy her injury, indicating that the provision has harmed her. 

The court declines to treat the Government's review as mere formality, asserting that the cited § 1182(a)(3)(B) lacks a legitimate basis for the visa denial, as no allegations of misconduct were presented. Consequently, Din's requests for a writ of mandamus for adjudicating her husband's visa and a declaratory judgment under the APA are allowed to proceed. The court remands Din's claims for further proceedings, affirming her standing to challenge § 1182(b)(3) as applied to her. 

In dissent, Judge Clifton emphasizes the principle of consular nonreviewability and the limited nature of judicial review concerning visa denials, arguing that the majority's decision imposes an obligation on the Government to disclose information not required by statute, particularly when national security concerns are involved. The dissent references the statutory framework under 8 U.S.C. § 1182, which identifies classes of aliens ineligible for visas, including those related to terrorist activities, as the basis for the denial of Din's husband's visa. Judicial review is permitted only when an American citizen's constitutional rights are at stake and should be highly constrained to verify whether the consular official provided a facially legitimate and bona fide reason for the denial.

In Bustamante, it was determined that a visa denial based on a statutory inadmissibility grounds constitutes a "facially legitimate reason." The inquiry regarding the bona fides of the denial is limited to whether the consular official acted in good faith, not whether the denial itself was correct. A plaintiff must specifically allege that the consular official did not genuinely believe the information leading to the denial; simply claiming the information was incorrect is insufficient.

The district court dismissed the case, applying Bustamante's principles and concluding that reliance on statute section 1182(a)(3)(B) provided a facially legitimate reason for the visa denial. The court pointed out that the plaintiff failed to allege that the consular officials acted in bad faith or without a good faith belief in the information used for the denial. The court found it impossible for the plaintiff to make such an allegation, as she lacked knowledge of the specific reasons for her husband's visa denial, thus failing to meet the pleading standards established by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

The majority opinion diverged by stating there was no facially legitimate reason for denying Berashk's application, not addressing the bona fide question. However, the denial was based on law, thus meeting the definition of "legitimate." The majority's interpretation of Bustamante differed, but the statutory basis for the denial remained valid. The court highlighted that the reason for exclusion in Bustamante was based on an allegation without judicial determination, emphasizing that the mere citation of the statute sufficed as a facially legitimate reason. The plaintiff had no factual basis to claim that the consular official acted in bad faith, despite her assertions that Berashk was not engaged in terrorist activities.

Jose Bustamante was alleged not to be a drug trafficker, prompting a request for factual development of the case. However, the court dismissed the complaint, stating that the Bustamantes failed to allege that the consular official did not genuinely believe the information he had. The court emphasized that it could not review the factual basis for the consular's decision. The majority opinion criticized the government's reasoning for excluding Berashk, claiming it was inadequate both statutorily and factually. The majority contended that the reference to section 1182(a)(3)(B) lacked specificity, requiring a narrower statutory citation for proper judicial review. They noted that the cited subsection is broader than the one in the Bustamante case, but the length of a statute does not diminish its validity. The government had referenced section 1182(a)(3)(B) concerning terrorism activities, and the majority argued that the government failed to provide sufficient justification for the consular decision's facial legitimacy. The plaintiffs claimed that the denial lacked a good faith basis, asserting that Berashk's low-level employment in the Afghan Ministry of Social Welfare did not meet grounds for inadmissibility under the statute. They suggested that the statute was too broad to allow for a proper rebuttal. The majority also expressed concern that the government had not provided enough factual information for adequate review, suggesting that the government should specify what actions rendered Berashk inadmissible; otherwise, the court's review would be superficial.

Congress holds the authority to exclude aliens from the U.S. and to establish the terms of their entry, with enforcement of these policies by executive officers. The majority opinion references United States v. DeGeorge to argue for a more rigorous judicial review of government actions; however, this case is not relevant as it dealt with a different issue concerning the tolling of the statute of limitations under 18 U.S.C. § 3292, which mandated judicial review. The principles established in Kleindienst v. Mandel confirm that the executive branch has the primary responsibility for reviewing an applicant's conduct, and judicial oversight should be limited. Although courts can review visa denials when specific information is available, the Government is not required to disclose such information under 8 U.S.C. § 1182(a)(3). The majority opinion's call for the Government to provide more information contradicts the statutory provisions that do not mandate disclosure, particularly for denials based on criminal or security grounds outlined in subsections 1182(a)(2) and 1182(a)(3). The statute allows for notice of visa denials but explicitly excludes the requirement for detailed justification in these categories.

An alien whose visa application, admission to the U.S., or adjustment of status is denied due to inadmissibility must receive a written notice from the immigration or consular officer detailing the determination and citing specific legal provisions for inadmissibility. The Secretary of State has the authority to waive these notice requirements for specific aliens or classes of inadmissible aliens. However, this notice requirement does not apply to aliens inadmissible under certain subsections. In the case of Berashk, the visa denial was based on subsection 1182(a)(3), which exempted the government from providing detailed information regarding the denial. 

The district court ruled that the notice provision applied only to Berashk, not to his U.S. citizen wife, the plaintiff, thereby concluding she lacked standing to challenge the statute. The majority opinion reversed this conclusion but did not rule the statute unconstitutional. The plaintiff's constitutional claim, vaguely referenced as a violation of procedural due process under the Fifth Amendment, has not been fully argued on its merits. The majority's discussion misinterpreted the prohibition against requiring disclosure of information in visa denial cases and neglected the statute's intent to restrict entry of individuals associated with terrorism. The majority opinion's assertion that the statute does not apply to the plaintiff undermines its legal framework.

Din lacks the right to compel the Government to disclose information regarding her visa application denial, as no applicable disclosure limitations pertain to her. Congress mandates that information about visa denials be disclosed to applicants, except in cases related to criminal or security grounds. The statute should be upheld, contradicting the majority opinion that suggests the Government must provide more details about Berashk's visa denial. The majority's assertion that the Government's position constitutes a concession is inaccurate; it is the basis for concluding that Din does not have standing to challenge the exclusions under the statute. While the majority finds that Din has standing, it erroneously suggests the statute can be overlooked, rendering her procedural due process challenge irrelevant and undermining her standing. The dissent emphasizes the restricted nature of judicial review in visa denial cases and criticizes the majority for requiring disclosure contrary to statutory provisions.