Visa Denial Standard of Review is the "Facially Legitimate and Bona Fide Reason" Test: Ninth Circuit | Practical Law

Visa Denial Standard of Review is the "Facially Legitimate and Bona Fide Reason" Test: Ninth Circuit | Practical Law

In Cardenas v. US, the US Court of Appeals for the Ninth Circuit held that Justice Kennedy's concurrence from Kerry v. Din states the applicable test to determine whether a visa denial is valid when the denial implicates a constitutional right.

Visa Denial Standard of Review is the "Facially Legitimate and Bona Fide Reason" Test: Ninth Circuit

by Practical Law Labor & Employment
Published on 05 Jul 2016 • USA (National/Federal)
In Cardenas v. US, the US Court of Appeals for the Ninth Circuit held that Justice Kennedy's concurrence from Kerry v. Din states the applicable test to determine whether a visa denial is valid when the denial implicates a constitutional right.
On June 21, 2016, in Cardenas v. US, the US Court of Appeals for the Ninth Circuit held that Justice Kennedy's concurrence from Kerry v. Din states the applicable standard of judicial review to determine whether a visa denial is valid when the denial implicates a constitutional right of a US citizen ( (9th Cir. June 21, 2016)).

Background

Rolando Mora-Huerta, a Mexican national, is married to Madeline Cardenas, a US citizen. In June 2008, Mora, who had no lawful status in the US, was identified as a gang associate and placed in removal proceedings. Mora voluntarily departed to Mexico.
Cardenas filed an immediate-relative petition on Mora's behalf. US Citizenship and Immigration Services (USCIS) approved the petition and Mora applied for an immigrant visa (green card). In 2010, a consular officer in Mexico, after interviewing Mora, denied Mora's visa application under Section 212(a)(3)(A)(ii) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1182(a)(3)(A)(ii)), on the ground that he had ties to an organized street gang.
In September 2010, Mora submitted evidence to the consulate in support of his continued denial of gang association. In February 2012, the consulate refused to overturn the inadmissibility determination. Mora asked the State Department to issue an Advisory Opinion overturning the consular officer's decision and the State Department declined.
Cardenas and Mora (Cardenas) filed suit challenging the Section 212(a)(3)(A)(ii) inadmissibility determination, after which:
  • At a second consular interview, consular officers refused to accept or review additional evidence including:
    • an expert opinion stating that Mora has never been a member of a gang; and
    • a letter stating that he was accepted into a tattoo removal program.
  • The consulate again denied Mora's visa application under Section 212(a)(3)(A)(ii).
  • Cardenas moved to compel the government to answer, attaching as exhibits:
    • the documents the consular officers had refused to accept; and
    • an affidavit from Mora describing the interview.
  • The government simultaneously moved to dismiss the complaint.
  • Cardenas sought leave to file a first amended complaint, adding defendants and describing the second interview and denial.
The district court:
  • Citing Bustamante v. Mukasey, held that Cardenas had a protected liberty interest in marriage entitling her to seek review of the denial of Mora's visa application (531 F.3d 1059, 1062 (9th Cir. 2008)).
  • Found the consular officer's determination "facially legitimate and bona fide" because he had reason to believe that Mora had ties to gang activity.
Cardenas appealed to the Ninth Circuit.

Outcome

The Ninth Circuit affirmed the judgment of the district court, holding that Justice Kennedy's concurrence from Kerry v. Din states the applicable standard of judicial review to determine whether a visa denial is valid when the denial implicates a constitutional right of a US citizen.
The Ninth Circuit noted that:
  • The critical issue on appeal is the standard of judicial review applicable to the visa denial.
  • Courts have identified a limited exception to the doctrine of consular non-reviewability where the denial of a visa implicates the constitutional rights of American citizens (see Andrade-Garcia v. Lynch, 820 F.3d 1076, 1081 (9th Cir. 2016); Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir.2008)).
  • On June 15, 2015, in Kerry v. Din, the US Supreme Court considered the reviewability of consular visa decisions, dismissing a due process claim brought by a US citizen contesting the State Department's denial of a visa to her Afghan husband because he was once part of the Taliban regime. The US Supreme Court ruled that:
    • the wife could not proceed with her due process claim, with a plurality opinion asserting that the wife was not deprived of any fundamental right triggering an entitlement to due process; and
    • regardless of whether the wife had a protected liberty interest to live in the US with her husband, the reason given to her by the State Department for denying her husband's visa application satisfied due process.
    ( (U.S. June 15, 2015); for more information, see Legal Update, SCOTUS: No Constitutional Right to Review Visa Denial.)
  • It would adopt the test established by Justice Kennedy's concurrence in Din as the standard in this case. This facially legitimate and bona fide reason test requires that the consular officer must both:
    • deny the visa under a valid statute of inadmissibility; and
    • cite an admissibility statute that "specifies discrete factual predicates the consular officer must find to exist before denying a visa," or there must be a fact in the record that "provides at least a facial connection to" the statutory ground of inadmissibility.
    Once the government has made that showing, the plaintiff has the burden of proving that the reason was not bona fide by making an "affirmative showing of bad faith on the part of the consular officer who denied [ ] a visa." ( (U.S. June 15, 2015).)
  • Adopting the Din test as the controlling opinion of the Court dooms Cardenas' claims in this case because the consular officer:
    • gave a facially legitimate reason to deny Mora's visa because he cited a valid statute of inadmissibility (Section 212(a)(3)(A)(ii)), which denies entry to an alien who intends to enter with the intent to engage in "unlawful activity;" and
    • gave a bona fide factual reason (the belief that Mora was a gang associate) that provided a facial connection to the statutory ground of inadmissibility.
  • Bad faith is not shown by the fact that that the consular officer:
    • did not accept Mora's new evidence at the second interview, because, during the second interview, Mora was extensively questioned by two officials and was given the opportunity to argue that he had no gang ties; and
    • remarked about the tattoos of one of Cardenas' friends. This remark does not plausibly establish that the decision to deny Mora a visa was made on a forbidden racial basis, as opposed to a possibly mistaken basis about what the tattoos signified.

Practical Implications

This decision denotes the importance of Kerry v. Din, and specifically of Justice Kennedy's concurrence, in establishing the applicable standard of judicial review to determine the validity of a visa denial when that denial implicates a constitutional right of a US citizen.