MADELINE CARDENAS; ROLANDO MORA-HUERTA, Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA; LORETTA E. LYNCH, Attorney General; RAND BEERS, in his official capacity as Secretary of Homeland Security; JOHN F. KERRY, United States Secretary of State; IAN BROWNLEE, Consul General of The United States, City of Ciudad Juarez; JOHN DOES, 1–7, Consular Officers, American Consulate General Visa Section at Ciudad Juarez, Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted May 5, 2016

Portland, Oregon

Filed June 21, 2016

Before: Richard C. Tallman and Andrew D. Hurwitz, Circuit Judges and Anthony J. Battaglia,* District Judge.

Opinion by Judge Hurwitz

SUMMARY**

Immigration

The panel affirmed the district court’s dismissal for failure to state a claim of United States citizen Madeline Cardenas’ complaint challenging the denial by the U.S. consulate in Ciudad Juárez, Mexico, of her husband’s visa application.

The panel held that Justice Kennedy’s concurrence in Kerry v. Din, 135 S. Ct. 2128 (2015), is the controlling opinion regarding the standard of judicial review applicable to a visa denial. The panel held that the consular officer in this case satisfied the “facially legitimate and bona fide reason” test, because he cited a valid statute of inadmissibility and gave a bona fide factual reason that provided a “facial connection” to the ground of inadmissibility: the belief that Cardenas’ husband was a gang associate with ties to the Sureno gang.

COUNSEL

Maria Elena Andrade, (argued) and Benjamin Stein, Andrade Legal, Boise, Idaho; Robert Pauw (argued), Gibbs Houston Pauw, Seattle Washington, for Plaintiffs-Appellants.

Katherine E.M. Goettel, (argued) and Stacey I. Young, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; William C. Peachey, Director; United States Department of Justice, Office of Immigration Litigation, Chicago, Illinois, for Defendants-Appellees.

Robert Pauw, Gibbs Houston Pauw, Seattle Washington; Charles Roth, Director of Litigation, National Immigrant Justice Center, Chicago, Illinois; Hiroshi Motomura, Los Angeles, California; for Amicus Curiae Law School Professors.

Deborah S. Smith, Immigration Clinic Director, University of Idaho College of Law, Moscow, Idaho, for Amicus Curiae American Immigration Lawyers Association.

OPINION

HURWITZ, Circuit Judge:

A consular officer denied the visa application of Rolando Mora-Huerta, a Mexican national, on the ground that he was a “gang associate” who intended to enter the United States to engage in unlawful conduct. See 8 U.S.C. § 1182(a)(3)(A)(ii). This suit, by Mora’s wife, Madeline Cardenas, a United States citizen, attacks the consular officer’s decision. The district court dismissed Cardenas’ complaint for failure to state a claim.

The critical issue on appeal is the standard of judicial review applicable to the visa denial. In Kleindienst v. Mandel, the Supreme Court explained that judicial review of a denial that implicates a constitutional right is limited to ensuring that the decision was supported by a “facially legitimate and bona fide reason.” 408 U.S. 753, 770 (1972). But, because that standard “is used relatively infrequently,” its precise meaning has long been “elusive.” Marczak v. Greene, 971 F.2d 510, 517 (10th Cir. 1992). The Supreme Court again addressed the issue in Kerry v. Din, 135 S. Ct. 2128 (2015), but was unable to agree on a single rationale for denying relief. We hold today that, under Marks v. United States, 430 U.S. 188, 193 (1977), and our recent en banc decision in United States v. Davis, No. 13-30133 (9th Cir. June 13, 2016), Justice Kennedy’s concurrence in Din is the controlling opinion. Applying that opinion, we affirm the district court’s dismissal of Cardenas’ complaint.

I. Background1

In June 2008, Mora, who had no lawful status allowing his presence in this country, was routed into removal proceedings after a traffic stop. U.S. Immigration and Customs Enforcement (“ICE ”) created a Form I-213 “Record of Inadmissible Alien” that states, “MORA was identified as a Sureno gang associate . . . by Nampa Police Department” and that “MORA was a passenger in a vehicle owned and driven by a [REDACTED] who had identifiers consistent to being a member of the Sureno gang.”

Mora voluntarily departed to Mexico, and Cardenas filed an immediate-relative petition on his behalf.2 The Citizenship and Immigration Service approved the petition and Mora applied for a visa. On March 5, 2010, he was interviewed by a consular officer in Ciudad Juárez, Mexico, who asked him whether he was in a criminal gang; Mora denied gang membership.

Several months later, the consulate denied Mora’s visa application, citing 8 U.S.C. § 1182(a)(3)(A)(ii), which makes inadmissible “[a]ny alien who a consular officer or the

Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any other unlawful activity.”3 An official with the Ciudad Juárez consulate later clarified the basis for this decision in an email to Mora’s prior counsel:

At the time of Mr. Mora’s June 16, 2008

arrest, Mr. Mora was identified as a gang

associate by law enforcement. The

circumstances of Mr. Mora’s arrest, as well

as information gleaned during the consular

interview, gave the consular officer sufficient

“reason to believe” that Mr. Mora has ties to

an organized street gang.

In September 2010, Mora submitted evidence to the consulate in support of his continued denial of gang association. On February 8, 2012, the consulate stated that, after “careful review” of the additional evidence, it would not overturn the inadmissibility determination. Mora asked the State Department to issue an Advisory Opinion overturning the consular officer’s decision; the Department declined.

Cardenas and Mora (collectively, “Cardenas”) then filed this suit challenging the § 1182(a)(3)(A)(ii) inadmissibility determination. The parties stipulated to an extension of time

Mora’s visa application was also denied under 8 U.S.C. § 1182(a)(9)(B)(i)(II), which renders inadmissible for 10 years any alien unlawfully present in the United States for one year or more. Plaintiffs ... ..........................................................