and Submitted October 12, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California D.C. No. 1:15-cv-00705-MCE-SAB
Morrison C. England, Jr., District Judge, Presiding.
Benvenue (argued) and Robert Jobe, Law Office of Robert B.
Jobe, San Francisco, California, for Plaintiff-Appellant.
Hemesath (argued), Assistant United States Attorney; Phillip
A. Talbert, United States Attorney; United States
Attorney's Office, Sacramento, California; for
Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges,
and Matthew Frederick Leitman, [*] District Judge.
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.
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.
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
visa is for constitutional error, where the visa application
is denied without a "facially legitimate and bona fide
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.
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 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.
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
. . . .
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.
letter is signed "Consular Officer." The consular
officer's decision rested on two statutory grounds of
inadmissibility in the Immigration and Nationality Act
[A]ny alien convicted of, or who admits having committed, or
who admits committing acts which constitute the essential
(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 ...