Wednesday, June 22, 2016
The Ninth Circuit revisited the review of consular visa decisions in the wake of the plurality decision in Kerry v. Din (2015). The panel affirmed the district court’s dismissal for failure to state a claim of U.S. citizen Madeline Cardenas’ complaint challenging the denial of her husband's visa application by the U.S. consulate in Ciudad Juárez, Mexico. In an opinion by Judge Andrew Hurwitz, joined by Judge Richard Tallman and District Court Judge Anthony Battaglia, the court held that Justice Kennedy’s concurrence in Kerry v. Din is the controlling opinion regarding the standard of judicial review applicable to a visa denial. The court found 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. Note that the Ninth Circuit did not invoke the doctrine of consularnon reviewability but engaged in limited judicial review of the visa denial.