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Allen v. Milas

United States Court of Appeals, Ninth Circuit

July 24, 2018

Jerrid Allen, Plaintiff-Appellant,
v.
Kevin C. Milas, Consul General, U.S. Consulate, Frankfurt, Germany; Charles J. Wintheiser, Consular 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.

          Argued and Submitted October 12, 2017 San Francisco, California

          Appeal 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.

          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.

          Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman, [*] District Judge.

         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 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.

          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 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.
. . . .
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 ...

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