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 do not challenge that ground, which can be waived. See 8 U.S.C. § 1182(a)(9)(B)(v). The government also initially denied Mora’s visa under 8 U.S.C. § 1182(a)(9)(A)(i), which makes inadmissible any alien ordered removed under certain provisions of law, but later withdrew that ground for denial because Mora had voluntarily departed.

to answer the complaint to allow a second consular interview and presentation of additional evidence. At the second interview, Mora attempted to present an expert opinion stating that he has never been a member of a gang, along with a letter stating that he was accepted into a tattoo removal program, but consular officers refused to accept or review these documents. The consulate again denied Mora’s visa application under § 1182(a)(3)(A)(ii).

Cardenas then moved to compel the government to answer the complaint and attached as exhibits to her motion 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 granted the motion to amend, construed the motion to dismiss the original complaint as a motion to dismiss the first amended complaint, and granted the motion. Citing Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008), the court held that Cardenas had a protected liberty interest in marriage entitling her to seek review of the denial of Mora’s visa application. But, the court found the consular officer’s determination “facially legitimate and bona fide” because he had reason to believe that Mora had “ties” to a gang.

Cardenas timely appealed. We have jurisdiction under 28 U.S.C. § 1291. We review a dismissal for failure to state a claim de novo. Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).

II. Discussion

A. The Doctrine of Consular Non-Reviewability

The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). Congress has “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Mandel, 408 U.S. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)). “When Congress delegates this plenary power to the Executive, the Executive’s decisions are likewise generally shielded from administrative or judicial review.” Andrade- Garcia v. Lynch, No. 13-74115, — F.3d —, 2016 WL 1719320, at *3 (9th Cir. Apr. 29, 2016).

“Despite these rulings, ‘courts have identified a limited exception to the doctrine of consular nonreviewability where the denial of a visa implicates the constitutional rights of American citizens.’” Id. (quoting Bustamante, 531 F.3d at 1061) (alteration omitted). This limited exception traces to the Supreme Court’s decision in Mandel. Ernest Mandel was a Belgian journalist, author, and revolutionary Marxist, who had been temporarily admitted to the United States in 1962 and 1968 as a journalist and campus speaker. Mandel, 408 U.S. at 756. On both occasions, Mandel was found ineligible for admission under § 212(a)(28) of the Immigration and Nationality Act, which barred aliens who advocate world communism, but the Attorney General gave him a discretionary waiver. Id. at 757. In 1969, Mandel was invited to speak at several American universities. Id. at

756–57. The consulate denied Mandel’s visa application, again finding him inadmissible under § 212(a)(28). Id. at 757–58. The Attorney General declined to grant a waiver because Mandel’s 1968 travels “went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.” Id. at 759. Mandel sued, joined by a number of American professors who had invited him to speak or expected to participate in colloquia with him. Id. at 759–60.

While the Supreme Court held that “Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry,” the Court found that the denial of Mandel’s visa implicated the professors’ First Amendment rights to receive ideas. Id. at 762, 765–67. The Supreme Court found, however, that Congress’s plenary power to exclude aliens prevailed. Id. at 765–69. Congress could have enacted a blanket prohibition on the admission of communist aliens; instead, it had delegated to the Attorney General the discretion to waive this prohibition. Id. at 767, 770. And, “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id. at 770.

The Supreme Court returned to the reviewability of consular visa decisions last year in Din. Fauzia Din, a U.S. citizen, was married to Kanishka Berashk, an Afghan citiz..................