Mohsin Yafai v. Mike Pompeo , 924 F.3d 969 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1205
MOHSIN YAFAI and ZAHOOR AHMED,
Plaintiffs‐Appellants,
v.
MIKE POMPEO, Secretary of State, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16‐cv‐09728 — Sara L. Ellis, Judge.
____________________
On Petition for Rehearing En Banc.
____________________
MAY 23, 2019
____________________
Before WOOD, Chief Judge, and FLAUM, EASTERBROOK,
KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN,
SCUDDER, and ST. EVE, Circuit Judges.
PER CURIAM. On February 15, 2019, plaintiffs‐appellants
filed a petition for rehearing and rehearing en banc. The panel
voted to deny rehearing, and a majority of the judges in active
service voted to deny rehearing en banc. Chief Judge Wood
2 No. 18‐1205
and Judges Rovner and Hamilton voted to grant rehearing en
banc. It is therefore ordered that the petition for rehearing and
for rehearing en banc is DENIED.
No. 18‐1205 3
BARRETT, Circuit Judge, joined by FLAUM, Circuit Judge,
respecting the denial of rehearing en banc. In the ordinary
course, it is unnecessary to say anything more about a case
once it becomes the law of the circuit. But three of our
colleagues, dissenting from the denial of rehearing en banc,
have published an opinion that does more than just repeat the
arguments already made by the panel dissent. These new
points merit a response, lest it appear that the court did not
consider them in deliberating whether to rehear the case. It is
also important to clearly reject any implication that the
panel’s opinion in Yafai v. Pompeo endorses a system in which
the executive branch is free to deny visa applications on the
basis of bias or whim.
Yafai is about the amount of explanation that a consular
official must provide when he denies a visa application that
affects the constitutional right of an American citizen. The
Supreme Court has held that, absent a showing of bad faith, a
consular officer need only cite to a statute under which the
application is denied. See Kerry v. Din, 135 S. Ct. 2128 (2015)
(Kennedy, J., concurring); Trump v. Hawaii, 138 S. Ct. 2392,
2419 (2018). The officer in Yafai did that, but our dissenting
colleagues would require more. They are not alone in
pressing that argument: Supreme Court justices have made
the same point in dissents from the controlling cases. The
Court has repeatedly rejected it, however, so we are required
to reject it too.
***
The panel opinion provides a more thorough discussion
of the facts, see Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019),
but we provide an abbreviated version here. Mohsin Yafai
and Zahoor Ahmed were born, raised, and married in Yemen.
4 No. 18‐1205
Yafai became a naturalized United States citizen in 2001.
Several years later when Ahmed applied to become a citizen,
a consular officer denied her visa application. The officer
based the denial on attempted smuggling under 8 U.S.C.
§ 1182(a)(6)(E), which provides that “[a]ny alien who at any
time knowingly has encouraged, induced, assisted, abetted,
or aided any other alien to enter or to try to enter the United
States in violation of law is inadmissible.” The consular officer
both cited to the statute and provided the factual basis for the
decision: “You attempted to smuggle two children into the
United States using the identities Yaqub Mohsin Yafai and
Khaled Mohsin Yafai.”
Yafai and Ahmed requested that the consular officer
reconsider his decision. They said that Yaqub and Khaled
were their children but that both had tragically drowned. The
consular officer agreed to reconsider the application and
requested that Ahmed provide additional documents about
the children. While the decision was still pending, the officer
wrote in an email to Yafai and Ahmed’s attorney that “your
clients do not testify credibly, testify contradictorily, deny the
existence of evidence, and otherwise cast doubt on the
accuracy of their responses.” The officer later reaffirmed the
visa denial for attempted smuggling under § 1182(a)(6)(E).
Yafai and Ahmed subsequently filed suit challenging the
denial under the Declaratory Judgment Act and the
Administrative Procedure Act. They did not contend that the
officer’s decision resulted from racial, religious, political, or
any other kind of bias. Instead, their claim sounds in
procedural due process: they maintained that the officer
could not deprive Yafai of his liberty interest in bringing his
No. 18‐1205 5
wife to America absent a more detailed explanation for why
she is inadmissible.
Everyone agrees that due process is satisfied if the
consular officer provides a “facially legitimate and bona fide”
reason for his decision. See Kleindienst v. Mandel, 408 U.S. 753,
770 (1972). The dispute is about what it takes to satisfy this
standard. Our dissenting colleagues maintain that a consular
officer must provide more than a citation to a statutory basis
for the denial; in their view, the officer must also be able to
point to some factual support for his decision. Unfortunately,
that argument is foreclosed by Supreme Court precedent.
Mandel provides the foundational rule: it holds that when
the executive offers a “facially legitimate and bona fide
reason” for denying a visa, courts will not “look behind the
exercise of that discretion.” Id. The Court reached this result
over the dissent’s protest that “[t]here is no basis in the
present record for concluding that Mandel’s behavior”
violated the statutory provision that the Attorney General
cited as the basis for Mandel’s exclusion. Id. at 778 (Marshall,
J., dissenting); see also id. (“[W]ithout even remanding for a
factual hearing to determine whether there is any support for
the Attorney General’s determination, the majority declares
that his reason is sufficient to override the appellees’
[constitutional] interests.”). This is the very same argument
that our dissenting colleagues make here: they argue that the
consular officer’s decision lacks any basis in the record and
that he must be able to identify evidentiary support for it.
Dissenting Op. at 21–22. Whatever the virtues of that position,
we are not at liberty to embrace it. We are bound by the
Court’s opinion in Mandel, which held that the Attorney
6 No. 18‐1205
General was not required to identify the factual support for
his decision that Mandel was ineligible for admission.
If Mandel were not clear enough, Din dispels any doubt
about the applicable standard. In Din, the petitioner
contended that the State Department violated her due process
right by denying her spouse’s visa application with no more
explanation than a citation to a statute prohibiting the
issuance of visas to those who have engaged in terrorist
activities. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring).
Justice Kennedy’s concurrence explains:
Here, the consular officer’s determination that
Din’s husband [Berashk] was ineligible for a
visa was controlled by specific statutory factors.
The provisions of § 1182(a)(3)(B) establish
specific criteria for determining terrorism‐
related inadmissibility. The consular officer’s
citation of that provision suffices to show that
the denial rested on a determination that Din’s
husband did not satisfy the statute’s
requirements. Given Congress’ plenary power
to “suppl[y] the conditions of the privilege of
entry into the United States,” United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), it
follows that the Government’s decision to
exclude an alien it determines does not satisfy
one or more of those conditions is facially
legitimate under Mandel.
The Government’s citation of § 1182(a)(3)(B)
also indicates it relied upon a bona fide factual
basis for denying a visa to Berashk.
No. 18‐1205 7
Id. at 2140–41. This statement thus rejects the precise
argument that the dissenters advance here: that a consular
officer must do more than simply cite to a statute whose
provisions refer to discrete factual predicates. Justice
Kennedy could not be clearer that the statutory citation alone
suffices to show that the consular officer’s decision was both
facially legitimate and bona fide.
Just last year, the Supreme Court described Justice
Kennedy’s interpretation of Mandel as the one to which it has
long subscribed:
[O]ur opinions have reaffirmed and applied
[Mandel’s] deferential standard of review across
different contexts and constitutional claims. In
Din, Justice Kennedy reiterated that “respect for
the political branches’ broad power over the
creation and administration of the immigration
system” meant that the Government need
provide only a statutory citation to explain a
visa denial.
Trump v. Hawaii, 138 S. Ct. at 2419 (citation omitted). The
dissenters dismiss this passage, arguing that it
misunderstands what Justice Kennedy said. But we are not
free to treat the Court’s understanding of either Mandel or
Justice Kennedy’s opinion so lightly. And in any event, the
Court’s explanation of Justice Kennedy’s approach is
accurate.
In arguing that the Court misunderstood Justice
Kennedy’s concurrence, the dissenters reason that while
Justice Kennedy may have said that a statutory citation is
sufficient, the circumstances of Din show otherwise. They rely
8 No. 18‐1205
on Justice Kennedy’s observation that Din admitted in her
complaint that Berashk worked for the Taliban government.
See Din, 135 S. Ct. at 2141 (Kennedy, J., concurring) (“Din,
moreover, admits in her Complaint that Berashk worked for
the Taliban, which even if itself insufficient to support
exclusion, provides at least a facial connection to terrorist
activity.”). The dissenters take from this statement that Justice
Kennedy treated the statutory citation as sufficient only
because “[t]here can be no doubt that the government’s
reliance on the statutory terrorism bar encompassed Din’s
admission that Berashk worked for the Taliban.” Dissenting
Op. at 25.
There are a number of problems with the dissenters’ effort
to graft Din’s admission onto the test that Justice Kennedy
applied. Most significantly, Justice Kennedy himself didn’t
make it part of the test. He said that citing a statute alone was
enough. And neither the Din dissenters nor the Court in
Trump v. Hawaii understood his concurrence to require
anything more than that. See id. at 2145 (Breyer, J., dissenting)
(describing Justice Kennedy’s position); Trump v. Hawaii, 138
S. Ct. at 2419 (same). That is reason enough to reject the
dissenters’ position.
But even putting that aside, there was doubt about
whether Berashk’s low‐level administrative work for the
Taliban government was the basis for the visa denial. See Din,
135 S. Ct. at 2145 (Breyer, J., dissenting) (“Perhaps the
Department denied the visa because Ms. Din’s husband at one
point was a payroll clerk for the Afghan Government when
that government was controlled by the Taliban. But there is no
way to know if that is so.” (emphasis added) (citation omitted)).
His government work would not have been enough to
No. 18‐1205 9
disqualify him under the statute, so it was unclear whether
the officer judged Berashk’s work to be something more than
he said that it was or whether the officer thought that Berashk
had been involved in terrorist activity unrelated to his job.
And because the government’s explanation for denying
Berashk’s visa consisted of a citation to an umbrella statutory
provision—and not to a specific subsection within the
statute—Din had no idea what the government thought that
Berashk had done.
The Din dissenters protested that the government owed
Din more. The umbrella statutory citation “[did] not permit
Ms. Din to assess the correctness of the State Department’s
conclusion; it [did] not permit her to determine what kinds of
facts she might provide in response; and it [did] not permit
her to learn whether, or what kind of, defenses might be
available.” Id. at 2146. That argument did not move the
concurring justices, however, who maintained that “the
Government satisfied any obligation it might have had to
provide Din with a facially legitimate and bona fide reason
for its action when it provided notice that her husband was
denied admission to the country under § 1182(a)(3)(B).” Id. at
2141 (Kennedy, J., concurring).1
1 We are unsure why our dissenting colleagues say that “[w]e know
from the two concurring Justices and the four dissenting Justices that the
Din Court had before it basic information about the factual predicates
underlying the consular officer’s decision.” Dissenting Op. at 25. Din
disclosed the fact of Berashk’s government job in the complaint that she
filed in the district court, and the United States offered no information
about the role that the job played—if any—in its decision. And even if it
were permissible for us to piece together a test by counting heads in the
Din concurrences and dissents, the concurring and dissenting justices had
no common ground on this point. The dissenters thought that the process
10 No. 18‐1205
Here, our dissenting colleagues repeat the arguments that
Justice Kennedy’s concurrence rejected. It is worth noting,
moreover, that the standard they seek is even higher than the
one that the Din dissenters would have imposed. The Din
dissenters maintained that the government could satisfy due
process by providing “either the factual basis for the
Government’s decision or a sufficiently specific statutory
subsection that conveys effectively the same information.” Id.
at 2145 (Breyer, J., dissenting) (emphasis added). Our
dissenting colleagues want more: they argue that the consular
officer must “point to, or at least describe, some evidence
supporting the key conclusions she drew and link that
evidence to the admissibility determination.” Dissenting Op.
at 26–27 (emphasis added). In other words, the dissenters here
claim that a visa denial is not bona fide unless the consular
officer not only provides a statutory citation and the
underlying facts but also explains his reasoning.
That standard may be desirable but imposing it would be
inconsistent with Supreme Court precedent. It is squarely
foreclosed by Mandel, and, contrary to the dissent’s
suggestion, Trump v. Hawaii does not endorse a court’s ability
“to look behind the surface of the executive action” in the
ordinary course. Dissenting Op. at 30. The passage that the
was constitutionally inadequate because “the State Department’s reason
did not set forth any factual basis for the Government’s decision.” 135 S.
Ct. at 2146 (Breyer, J., dissenting). The concurrence thought that a factual
basis was unnecessary. Id. at 2141 (Kennedy, J., concurring) (“Mandel
instructs us not to ‘look behind’ the Government’s exclusion of Berashk
for additional factual details beyond what its express reliance on
§ 1182(a)(3)(B) encompassed.”).
No. 18‐1205 11
dissent invokes as support for that proposition undermines
rather than supports it. The Court explained:
A conventional application of Mandel, asking
only whether the policy is facially legitimate
and bona fide, would put an end to our review.
But the Government has suggested that it may
be appropriate here for the inquiry to extend
beyond the facial neutrality of the order. For our
purposes today, we assume that we may look
behind the face of the Proclamation to the extent
of applying rational basis review.
Trump v. Hawaii, 138 S. Ct. at 2420. In other words, the rule of
Mandel, also reflected in Justice Kennedy’s concurrence in
Din, is that a reviewing court looks to the face of the order
only. In Trump v. Hawaii, at the request of the government, the
Court assumed that it could look behind the face of the order
given the circumstances of that case. That assumption, which
the Court carefully confined as one “for our purposes today,”
does not purport to alter Mandel, which we remain bound to
follow.
It is telling that the dissenters draw on prison‐discipline
cases, rather than consular‐review cases, as support for the
due process standard that they propose. Dissenting Op. at 22–
23, 26. The dissenters argue that just as we do in prison‐
discipline cases, we should ask “only that the officer be able
to point to ‘some evidence’ that supports the critical finding.”
Dissenting Op. at 22 (quoting Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455–56 (1985)). It is true that when
a prison disciplinary proceeding may result in the loss of
good‐time credits, prison officials must provide, among other
things, “a written statement by the factfinder of the evidence
12 No. 18‐1205
relied on and the reasons for the disciplinary action.” Hill, 472
U.S. at 454 (citing Wolff v. McDonnell, 418 U.S. 539, 563–67
(1974)). And that statement must be “supported by some
evidence in the record.” Id. But the process due in the prison
disciplinary context cannot simply be transferred to the
entirely different context of consular review. See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976) (explaining that due process
is not unrelated to time, place, and circumstance but rather
calls for procedural protection as a situation demands). In the
latter context, as we have already explained, the executive has
only a limited obligation to disclose the basis of his decision.
See, e.g., Trump v. Hawaii, 138 S. Ct. at 2419 (“[A]lthough
foreign nationals seeking admission have no constitutional
right to entry, this Court has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly burdens
the constitutional rights of a U.S. citizen.” (emphasis added));
Mandel, 408 U.S. at 766 (“The power of congress to exclude
aliens from the United States, or to prescribe the terms and
conditions upon which they may come to this country, and to
have its declared policy in that regard enforced exclusively
through executive officers, without judicial intervention, is settled
by our previous adjudications.” (emphasis added) (quoting
Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895))).
There is no getting around the fact that the Court’s
approach narrows the scope of a court’s authority to review
the reasons for a visa denial. That said, the Din concurrence
does suggest one circumstance in which a court can peek
behind what otherwise appears to be a bona fide and
legitimate reason for the denial: when the petitioner makes an
“affirmative showing” that the consular officer acted in bad
faith. Din, 135 S. Ct. at 2140 (Kennedy, J., concurring). That is
a claim that the petitioner must “plausibly allege[] with
No. 18‐1205 13
sufficient particularity.” Id. Because Yafai has not plausibly
alleged bad faith here, we do not discuss it further.
***
The Supreme Court has repeatedly held that a citation to
a statutory provision suffices to show a legitimate and bona
fide reason for denying a visa application. It is free to revisit
that precedent, but we are not. To be clear, however, our
circumscribed role in this context does not invite the executive
to reject a visa application with no rational basis or because of
religious, racial, or any other kind of bias. Justice Kennedy put
it well:
There are numerous instances in which the
statements and actions of Government officials
are not subject to judicial scrutiny or
intervention. That does not mean those officials
are free to disregard the Constitution and the
rights it proclaims and protects. The oath that
all officials take to adhere to the Constitution is
not confined to those spheres in which the
Judiciary can correct or even comment upon
what those officials say or do. Indeed, the very
fact that an official may have broad discretion,
discretion free from judicial scrutiny, makes it
all the more imperative for him or her to adhere
to the Constitution and to its meaning and its
promise.
Trump v. Hawaii, 138 S. Ct. at 2424 (Kennedy, J., concurring).
14 No. 18‐1205
WOOD, Chief Judge, with whom ROVNER and HAMILTON,
Circuit Judges, join, dissenting from the denial of rehearing en
banc. This case requires our court to answer a question of fun‐
damental importance to our immigration system and the rule
of law. Is it true that a consular officer has unfettered author‐
ity to reject a visa application, no matter what the reason—
bias against a religious group, a bad headache, a unilateral
decision that people from the country where the officer is sta‐
tioned are undesirables, or (at best) a solid factual basis for the
decision—without any check from the courts? The panel ma‐
jority in this case (despite its protestations to the contrary)
says “yes.” Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019). It as‐
serts that this holding is compelled by the consular nonre‐
viewability doctrine.
I regard this as a dangerous abdication of judicial respon‐
sibility. The Supreme Court has never endorsed such a broad
understanding of the consular nonreviewability rule. To the
contrary, the Court took care to reject such an absolutist ap‐
proach in Kleindienst v. Mandel, 408 U.S. 753 (1972). Years later,
a majority of the Justices again declined to wash their hands
of these matters, in Kerry v. Din, 135 S. Ct. 2128 (2015). This
court’s opinions in Hazama v. Tillerson, 851 F.3d 706 (7th Cir.
2017), and Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017),
faithfully followed Mandel and Din, and in so doing illus‐
trated the line between the necessary and appropriate defer‐
ence to the consular officer’s decision, and the judicial review
that is essential to ensure that utterly arbitrary decisions, or
decisions flowing from impermissible bias or other unconsti‐
tutional bases, do not stand. The latter possibilities do not
seem to bother the majority of the full court. Instead, it is con‐
tent to allow a consular officer to offer a naked citation to a
statute, thereby concealing whatever reasons she may have
No. 18‐1205 15
for her decision and insulating herself from any shred of ac‐
countability. Even constitutional violations, such as a decision
based on racial or religious animus, would be, as a practical
matter, immune under the majority’s view. Because I view
this result as a deeply troubling extension of current law, I
dissent from the decision not to rehear this case en banc.
I begin with a brief word about whose constitutional
rights are violated here. The plaintiff, U.S. citizen Mohsin
Yafai, is trying to challenge the decision of a consular officer
to reject the visa application of his Yemeni‐citizen wife, Za‐
hoor Ahmed. The Supreme Court has not yet definitely ruled
on the question whether a U.S. citizen has a cognizable liberty
interest in living with his or her spouse. In Din, the Justices
split on the question: four Justices would have held that the
plaintiff did have such an interest, three maintained that she
did not, and two assumed for the sake of argument that such
an interest existed but found that she had received all the pro‐
cess that was due to her for purposes of the terrorism bar
(8 U.S.C. § 1182 (a)(3)(B)). As our court has done in the past,
the panel majority adopted the approach of the concurring
Justices in Din, assuming without deciding that Yafai has a
liberty interest in living with his wife.
I would go further, as did Judge Ripple in dissent, and
hold that Yafai indeed has such a liberty interest, and that it is
protected by the Fifth Amendment to the Constitution. There
can be no doubt that he has been personally and adversely
affected by the course of events that unfolded. Yafai learned
almost nothing about the reasons for the consular officer’s re‐
fusal to issue the visa for Ahmed. When Ahmed first applied,
the consular officer issued a statement accusing her of “at‐
tempting to smuggle children into the United States using the
16 No. 18‐1205
identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.”
These were two of Yafai and Ahmed’s children; tragically,
they drowned in an accident on July 8, 2012, while the visa
application was still pending. Yafai and Ahmed had no idea
why the consular officer thought that smuggling had oc‐
curred.
Yafai and Ahmed speculated that the officer doubted that
the drowned children were biologically related to them. On
that supposition, they attempted to supplement the record
with corroborating evidence (school records, pre‐natal rec‐
ords, immunization records, newspaper articles). But they did
not know if this material was pertinent to the consular of‐
ficer’s concerns, nor did they receive any indication that the
officer so much as glanced at their new evidence. Instead, the
officer issued a second denial that did no more than cite “sec‐
tion 6(e),” presumably referring to 8 U.S.C. § 1182(a)(6)(E), the
smuggling ground of inadmissibility. The majority decision
in this court, and now a majority of the full court, find nothing
wrong with this course of events. The panel held that what‐
ever due process rights Yafai might have were satisfied, and
that he was not entitled to any more information than he re‐
ceived—i.e., none—about the factual basis for the consular of‐
ficer’s belief that Ahmed has engaged in smuggling.
In dissent, Judge Ripple explained why he thought that
due process demanded more than Yafai received in this case.
He recognized that this conclusion required him to address
the question whether Yafai had a protected liberty interest in
living with his wife in the United States. I have nothing to add
to his analysis in that respect. His dissent compellingly
demonstrates that it would be “far more compatible with the
values of our constitutional tradition” to recognize such a
No. 18‐1205 17
right than to deny its existence. Yafai, 912 F.3d at 1023 (Ripple,
J., dissenting). A long line of cases, from Meyer v. Nebraska, 262
U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510
(1925), through Moore v. City of East Cleveland, 431 U.S. 494
(1977), holds that the government cannot break up or intrude
into the family unit without, at a minimum, affording the pro‐
tections of procedural due process to the family’s U.S. citizen
members. And, as Judge Ripple reminded us, “the Supreme
Court has long recognized the importance of family and the
principle that marriage includes the right of spouses to live
together and raise a family.” Yafai, 912 F.3d at 1024 (Ripple, J.,
dissenting). See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2598
(2015); Loving v. Virginia, 388 U.S. 1, 12–13 (1967).
That right is protected by the Due Process Clause of the
Fifth Amendment. I concur fully with Judge Ripple’s reason‐
ing on this issue. Like him, I would find that the government
cannot deny a U.S. citizen the possibility of pursuing a life in
the United States with his or her non‐citizen spouse without
observing the basic requirements of due process. Anything
less than that would amount to the right to banish any U.S.
citizen with the temerity to marry a non‐citizen, without so
much as a reason—hardly an outcome that comports with the
Constitution, as this court observed more than a century ago.
See Moy Suey v. United States, 147 F. 697, 698–99 (7th Cir. 1906)
(“Nativity gives citizenship, and is a right under the Consti‐
tution. It is a right that congress would be without constitu‐
tional power to curtail or give away. It is a right to be adjudi‐
cated in the courts. … The citizen deported is banished,
and banishment is a punishment that can follow only a judi‐
cial determination in due process of law.”)
18 No. 18‐1205
That said, I would not be urging our court to rehear this
case en banc only to reach the preliminary question of the right
of the U.S. citizen to object to a consular decision that forced
him to choose between permanent separation from his spouse
or banishment from the United States. If I thought that the
government had satisfied the demands of due process in this
case, I would, like the majority, leave for another day a defin‐
itive ruling on the question of a citizen’s liberty interest in his
spouse’s presence in the United States. But by holding that we
are compelled to leave unexamined the government’s no‐ad‐
missibility determination, the panel has wiped out our ability
to vindicate any constitutional claims brought by a U.S. citizen
affected by a visa denial. No matter whether a citizen is at‐
tempting to unify his family, asserting a First Amendment
right to hear the views of a foreign national (as in Mandel, 408
U.S. at 762–65), or seeking redress for some other constitu‐
tional injury, the rights in question are illusory if courts have
no power to protect them from the Executive’s arbitrary and
capricious decision‐making. Like Judge Ripple, I find the ma‐
jority’s approach inconsistent with our “limited, but im‐
portant, responsibility to ensure that the Executive adminis‐
ters the immigration process according to the standards en‐
acted by Congress.” Yafai, 912 F.3d at 1025 (Ripple, J., dissent‐
ing).
The issue that demands the attention of the en banc court
relates to the adequacy of the process followed by the consu‐
lar official. In order to explain why the government fell short
of the constitutional minimum of due process in this case, I
return briefly to the underlying facts. As I noted earlier, Yafai
is a U.S. citizen trying to obtain a visa for his non‐citizen wife,
Zahoor Ahmed. He filed the proper I‐130 petitions on behalf
of Ahmed and the couple’s children, but the consular officer
No. 18‐1205 19
in Yemen denied the application. The officer wrote that the
denial was based on 8 U.S.C. § 1182(a)(6)(E), which renders
inadmissible “[a]ny alien who at any time knowingly has en‐
couraged, induced, assisted, abetted, or aided any other alien
to enter or to try to enter the United States in violation of the
law.” The officer further asserted that Ahmed “attempted to
smuggle two children into the United States using the identi‐
ties Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” The of‐
ficer did not identify any factual basis whatsoever for that
contention, nor can one be found in the record.
The record does indicate, and Yafai freely admitted, that the
couple had indeed applied for visas on behalf of two children
with those names. Yafai and Ahmed explained that these were
in fact their children, but that the children had drowned while
their applications were pending. Yafai and Ahmed were also
seeking visas for their other children. Despite the consular of‐
ficer’s denial of Ahmed’s visa on the basis of the alleged at‐
tempt to smuggle Yaqub and Khaled into the United States,
most of the other children received U.S. visas or passports.
The consular officer did not explain what it was that justified
distinguishing among the couple’s children. Nor did the of‐
ficer offer even a hint about the basis on which she drew the
conclusion that Ahmed’s inclusion of Yaqub and Khaled in
the application amounted to a violation of Sec‐
tion 1182(a)(6)(E) rather than an honest attempt to obtain vi‐
sas for two of her children who were alive at the time of her
application but who later died. Neither Yafai nor we have any
idea whether the officer thought that Yafai and Ahmed had
never had two children named Yaqub and Khaled, or if the of‐
ficer thought that those two children had existed but were
somehow ineligible for admission, or if the parents were try‐
ing to smuggle two different children into the United States,
20 No. 18‐1205
or if the officer had some other concern. That information void
made it effectively impossible for Yafai to present an effective
rebuttal.
He did try, however. In his petition for rehearing in this
court, Yafai says that “[i]t appears that the consular officer de‐
termined with no known basis, that the drowned children
were not biologically related to Ms. Ahmed … .” Petition for
Rehearing at 7. On the assumption that this was the prob‐
lem—though again, they were left to guess—Yafai and Ah‐
med tried to respond by adducing a significant amount of ev‐
idence showing that Yaqub and Khaled were their biological
offspring. That evidence included pre‐natal records, immun‐
ization records, and school records. An embassy fraud‐pre‐
vention manager acknowledged receipt of the additional evi‐
dence.
In the end, Yafai’s efforts were unavailing. Several months
later the consular officer reaffirmed the initial denial, citing
the same statutory provision, again without any explanation
or even a hint that the records had been reviewed and re‐
jected, reviewed and found irrelevant, or thrown away. The
consular officer offered only a mysterious comment on Yafai
and Ahmed’s credibility, but the comment is singularly un‐
helpful. It has the ring of boilerplate: “your clients do not tes‐
tify, testify contradictorily, deny the existence of evidence,
and otherwise cast doubt on the accuracy of their responses.”
Which is it: A failure to testify? Testimony that contained con‐
tradictions? Refusal to accept incontrovertible evidence?
Shiftiness or some other reason to find them not worthy of
belief? Who knows? The only thing that is apparent is that the
officer’s comment is no more illuminating than silence.
No. 18‐1205 21
Yafai challenged the consular officer’s decision in the dis‐
trict court, which ruled against him; he then appealed to this
court. The panel majority found that the government had
done enough by citing a particular section of the statute, (sec‐
tion 1182(a)(6)E)), which for all we can tell was selected ran‐
domly. The panel held that the consular officer “need not dis‐
close the underlying facts that led him to conclude that the
statute [i.e. the inadmissibility ground] was satisfied.” 912
F.3d at 1021. It was enough, the majority thought, for the of‐
ficer to provide “a facially legitimate and bona fide reason for
denying Ahmed’s application,” id., and the majority accepted
that the officer’s stated reason for denial met that standard.
At that point, both the majority’s opinion and its supple‐
mental statement on the petition for rehearing en banc be‐
come hard to follow. On the one hand, the majority asserts in
both places that it is forbidden to look behind the stated rea‐
son. Yet it concedes that a facially legitimate decision might
have been made in bad faith, id. at 1022; rehearing statement
at 10–11, and if it was, that would be a reason to reject it. But
the majority leaves the applicant with no ability to ferret out
bad faith. We know this because the majority finds nothing in
the unexplained decision in Yafai’s case that supports even an
inquiry into bad faith. It is impossible to discover bad faith
(which includes a disingenuous explanation designed to
cover up arbitrariness) without some consideration of the un‐
derlying facts—here, the reason why the officer thought that
the children were being smuggled. No applicant would ever
be able to make “an affirmative showing of bad faith on the
part of the consular officer,” Din, 135 S. Ct. at 2141 (Kennedy,
J., concurring), without a right to a comprehensible descrip‐
tion of the information on which the officer relied.
22 No. 18‐1205
Unlike the majority, I do not believe that this limited in‐
quiry would put us on a slippery slope that ends up in ple‐
nary review of consular decisions. Other areas of the law pro‐
vide examples of highly deferential review of factual findings.
The majority’s supplemental opinion notes the uncontrover‐
sial proposition going back at least as far as Mathews v. El‐
dridge, 424 U.S. 319 (1975), that due process is context‐specific.
I have no quarrel with that. My point is only that when a con‐
stitutionally protected liberty interest is at stake, as I believe
it is here, some process is due. Nothing in Mathews contradicts
that point.
In the visa‐issuance context, I accept that the process due
is at the minimal end of the spectrum. Moreover, this is not
the only area in which substantial deference to executive au‐
thorities is appropriate. Another such area is the prison‐disci‐
plinary setting. There, we ask only that the officer be able to
point to “some evidence” that supports the critical finding.
See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 455–56 (1985). A comparable light touch would be appro‐
priate here—just enough to ensure that there was a permissi‐
ble basis for the consular officer’s action. The Constitution and
laws of this country require no less, as Judge Ripple ex‐
plained:
We cannot forget, however, that Congress has
given the Judiciary the obligation to curb arbi‐
trary action. It has made no exception for the ac‐
tion of consular officers. Congress did not, and
would not, sanction consular officers’ making
visa decisions in a purely arbitrary way that af‐
fects the basic rights of American citizens. We
have the responsibility to ensure that such
No. 18‐1205 23
decisions, when born of laziness, prejudice or
bureaucratic inertia, do not stand. As long as
Congress keeps in place our statutory responsi‐
bility, we show no respect for the Constitution
or for Congress by taking cover behind an
overly expansive version of a judge‐made doc‐
trine.
912 F.3d at 1030 (Ripple, J., dissenting).
Just as in Hill, “[a]scertaining whether this standard is sat‐
isfied does not require examination of the entire record, inde‐
pendent assessment of the credibility of witnesses, or weigh‐
ing of the evidence. Instead, the relevant question is whether
there is any evidence in the record that could support the con‐
clusion reached by the [responsible government actor].” 472
U.S. at 455–56. That limited disclosure would be invaluable to
a person seeking to meet his burden of showing bad faith or
mistake. I consider it telling that the Supreme Court has been
careful not to give the executive branch carte blanche to issue
visa denials that provide absolutely no information about the
facts on which the decision was based. To the contrary, the
Court has carefully reserved this issue each time it has en‐
countered one of these cases. We should respect the Court’s
caution as we now resolve the question.
The majority relies heavily on Justice Kennedy’s position,
but his view is more nuanced than they would have one be‐
lieve. His concurrence in Din captures the process that I be‐
lieve should have happened (but did not) in Yafai’s case. I re‐
fer to the following passage, in which he is discussing
Kleindienst v. Mandel, 408 U.S. 753 (1972), and its application
to Din’s case:
24 No. 18‐1205
The Government’s citation of § 1182(a)(3)(B)
[the terrorism bar] also indicates it relied upon
a bona fide factual basis for denying a visa to
Berashk [the spouse]. Cf. United States v. Chemi‐
cal Foundation, Inc., 272 U.S. 1, 14–15, (1926). Din
claims due process requires she be provided
with the facts underlying this determination, ar‐
guing Mandel required a similar factual basis. It
is true the Attorney General there disclosed the
facts motivating his decision to deny Dr. Man‐
del a waiver, and that the Court cited those facts
as demonstrating “the Attorney General validly
exercised the plenary power that Congress del‐
egated to the Executive.” 408 U.S., at 769. But
unlike the waiver provision at issue in Man‐
del, which granted the Attorney General nearly
unbridled discretion, § 1182(a)(3)(B) specifies dis‐
crete factual predicates the consular officer must find
to exist before denying a visa. Din, moreover, ad‐
mits in her Complaint that Berashk worked for
the Taliban government, … which, even if itself
insufficient to support exclusion, provides at
least a facial connection to terrorist activity. Absent
an affirmative showing of bad faith on the part of the
consular officer who denied Berashk a visa—
which Din has not plausibly alleged with suffi‐
cient particularity—Mandel instructs us not to
“look behind” the Government’s exclusion of
Berashk for additional factual details beyond
what its express reliance on § 1182(a)(3)(B) en‐
compassed. See 408 U.S., at 770.
No. 18‐1205 25
135 S. Ct. at 2140–41 (emphasis added).1
Justice Kennedy noted that he would not require the gov‐
ernment to disclose factual details “beyond what its express
reliance on § 1182(a)(3)(B) encompassed.” (emphasis added).
There can be no doubt that the government’s reliance on the
statutory terrorism bar encompassed Din’s admission that Be‐
rashk worked for the Taliban. We know from the two concur‐
ring Justices and the four dissenting Justices that the Din
Court had before it basic information about the factual predi‐
cates underlying the consular officer’s decision. It thus did not
face the naked assertion that a proper ground for denial ex‐
isted, which is what we have here.
It is also important to note that in Mandel, the Attorney
General had identified factual material supporting the visa
denial. He pointed to the applicant’s activities during a past
visit to the United States that went beyond the stated pur‐
poses of his trip. As Justice Kennedy acknowledged in the
passage from Din quoted above, the Mandel Court “cited
those facts as demonstrating ‘the Attorney General validly ex‐
ercised the plenary power that Congress delegated to the
1 Before this court, the government points to a passage in Trump v.
Hawaii, 138 S. Ct. 2392 (2018), that summarized this part of Justice Ken‐
nedy’s Din concurrence as a statement that the Government need provide
only a statutory citation to explain a visa denial. 576 U.S., at ––––, 135 S. Ct.,
at 2141 (opinion concurring in judgment). 138 S. Ct. at 2419. As I explain,
Justice Kennedy did not leave his remarks at that. His comment was par‐
ticular to the terrorism ground for inadmissibility and it relied on the fact
that the Court was able to identify relevant factual materials in the record
connecting the statutory ground to the decision—for example, the admis‐
sion that the spouse worked for the Taliban. Here, even if section
1182(a)(6)(E) also identifies potential factual predicates, the record con‐
tains no information to see if any of those predicates exists.
26 No. 18‐1205
Executive.’” 135 S. Ct. at 2140, quoting Mandel, 408 U.S. at 769.
My colleagues therefore significantly overstate the case when
they assert that Mandel “held that the Attorney General was
not required to identify the factual support for his decision to
show that Mandel was ineligible for admission.” Such a state‐
ment can be found nowhere in the Court’s opinion.
Similarly, the government identified factual material sup‐
porting the visa denials in our court’s earlier decisions in
Hazama, 851 F.3d at 709 (undisputed evidence of rock‐throw‐
ing) and Morfin, 851 F.3d at 713 (indisputable indictment for
possession of cocaine with intent to distribute). In all of these
cases, while the judiciary deferred to the government’s inter‐
pretation of the evidence, “the record foreclose[d] any conten‐
tion that the [government] was imagining things.” Morfin, 851
F.3d at 713. The same cannot be said for this case, in which—
for the first time—we endorse a visa denial that for all we
know was based on no real‐world facts at all.
My dispute with the majority turns largely on the meaning
and importance of the phrase “facially legitimate and bona
fide.” Given the facts in Mandel and Din, along with Justice
Kennedy’s statement in Din that the government had relied
upon a “bona fide factual basis” for the denial of Berashk’s
visa, 135 S. Ct. at 2140 (emphasis added), I take “bona fide” to
mean derived from actual facts rather than invented out of
whole cloth. In the absence of such facts, the agency’s mere
citation of a statutory ground usually says nothing about
whether it has done what the statute requires. Just as in Hill,
this does not mean that the consular officer must open her en‐
tire file to the disappointed applicant. She must merely point
to, or at least describe, some evidence supporting the key con‐
clusions she drew and link that evidence to the admissibility
No. 18‐1205 27
determination. And when undisputed facts in the record al‐
ready provide “at least a facial connection” to the factual
predicates in the cited statutory ground for inadmissibility—
as in Din—it is possible that no further explanation would be
required.
The scope of the court’s review will be narrow, as it typi‐
cally is when the law gives an executive or administrative of‐
ficer wide discretion. But that discretion is not unlimited; due
process—indeed, our constitutional structure and the rule of
law itself—demands some accountability. Cf. Mach Mining,
LLC v. E.E.O.C., 135 S. Ct. 1645, 1651 (2015) (rejecting EEOC’s
argument that its compliance with the conciliation mandate
in the statute was unreviewable and noting that “Congress
rarely intends to prevent courts from enforcing its directives
to federal agencies”). I am not willing to give a blank check to
the executive branch (and I would not support one for the ju‐
diciary or Congress, either—our system depends on carefully
calibrated checks and balances).
Suppose, for example, that the consular officer’s decision
to deny a visa was secretly based exclusively on the fact that
the applicant was Muslim (or Hindu, or an atheist). Such a
reason, we would all agree, would not be a valid one. Or sup‐
pose, unbeknownst to the noncitizen, the consular officer
simply stamped “no” on all applications received after 2:00
p.m. That would also be arbitrary and capricious, even under
the most generously deferential regime imaginable (perhaps
something like AEDPA’s). But in either circumstance, as long
as the consular simply affixed a one‐sentence accusation that
cited “smuggling” as the ground for inadmissibility under the
statute, the noncitizen would have no way of knowing that
the decision had no basis in fact, and thus no way of
28 No. 18‐1205
challenging it for arbitrariness, unlawfulness, or bad faith.
This is the result that the panel majority has endorsed and a
majority of the full court is willing to let stand.
Under the panel’s rule, a rogue or burned‐out consular of‐
ficial could just make up facts. Take this case. The officer ap‐
parently accused Ahmed of trying to smuggle two children
into the United States (though even that is unclear). That ac‐
cusation could be pure fabrication. Who is to say, if the officer
points to nothing supporting the accusation? Yafai and Ah‐
med tried to assuage the officer’s concerns, but for all we
know the officer never bothered to look at their supplemental
information. The officer could just as easily have said, with no
basis, that Ahmed was likely to engage in prostitution,
8 U.S.C. § 1182(a)(2)(D). But Yafai and Ahmed would never
know what they needed to do to correct such a scurrilous ac‐
cusation. This state of affairs is not consistent with the consti‐
tutional standards of due process.
In response to Yafai’s petition for rehearing, the govern‐
ment suggests that the Supreme Court’s decision in Trump v.
Hawaii, 138 S. Ct. 2392 (2018), forecloses the approach I urge
here and instead requires us to rubber‐stamp visa denials so
long as the government cites any relevant statutory provision.
I do not read Hawaii in such an indiscriminate way. First, its
setting is quite different from the one before us. The Executive
Order at issue in Hawaii operated at the country level, not the
individual level; it involved a presidential Proclamation plac‐
ing “entry restrictions on the nationals of eight foreign states
whose systems for managing and sharing information about
their nationals the President deemed inadequate.” 138 S. Ct.
at 2404 (emphasis added). Second, in response to the govern‐
ment’s invocation of the doctrine of consular
No. 18‐1205 29
nonreviewability, the Court noted first that this doctrine does
not go “to the Court’s jurisdiction, … nor does it point to any
provision of the INA that expressly strips the Court of juris‐
diction over plaintiffs’ claims … .” On that basis, the Court
proceeded to evaluate the plaintiffs’ various challenges to the
Proclamation.
When it reached the claim that the Proclamation was is‐
sued for the unconstitutional purpose of excluding Muslims,
id. at 2415, the Court addressed Mandel and Din. Id. at 2419–
20. Although it described the topic of the admission and ex‐
clusion of foreign nationals as largely immune from judicial
control, id. at 2418, it acknowledged that the Court had “en‐
gaged in a circumscribed judicial inquiry when the denial of
a visa allegedly burdens the constitutional rights of a U.S. cit‐
izen.” Id. at 2419. As it had done before, it took care to save
the issue now before us for another day. Rather than saying,
as the majority has done, that facts do not matter, the Court
distinguished between second‐guessing the Executive’s exer‐
cise of discretion once the facts are established and the author‐
ity to look at the underlying justification:
A conventional application of Mandel, asking
only whether the policy is facially legitimate
and bona fide, would put an end to our review.
But the Government has suggested that it may
be appropriate here for the inquiry to extend be‐
yond the facial neutrality of the order. … For
our purposes today, we assume that we may
look behind the face of the Proclamation to the
extent of applying rational basis review. That
standard of review considers whether the entry
policy is plausibly related to the Government’s
30 No. 18‐1205
stated objective to protect the country and im‐
prove vetting processes. … As a result, we may
consider plaintiffs’ extrinsic evidence, but will
uphold the policy so long as it can reasonably
be understood to result from a justification in‐
dependent of unconstitutional grounds.
Id. at 2420.
I take several points away from this passage, and from Ha‐
waii as a whole. First, consular nonreviewability is not a juris‐
dictional doctrine. Second, the Court adheres to the basic
holdings of Mandel and Din, insofar as they require a facially
legitimate and bona fide reason for the visa decision. Third,
the Court has continued to look behind the surface of the ex‐
ecutive action to see if it results from “a justification inde‐
pendent of unconstitutional grounds.” What the Court did not
do in Hawaii, was to hold (as our panel majority does) that it
was required to stop with the president’s Proclamation and re‐
fuse to look at the underlying facts, because the judiciary is
categorically barred from doing so. The panel’s opinion in our
case thus breaks new ground.
The right to demonstrate bad faith is empty if an applicant
for the spousal visa has no right to know anything about the
information on which the consular officer relied. Due process
demands more than this, and the system will not crumble if
we follow our constitutional commands. At its root, due pro‐
cess requires that the person subject to a governmental action
be given enough information to be able to know what the ac‐
cusation against her is. A regime in which the consular official
can just say “no,” and the U.S.‐citizen spouse must guess both
about the accusation that supposedly supported that decision
and—critically—what facts lay behind the “no,” is not worthy
No. 18‐1205 31
of this country. I dissent from our court’s denial of rehearing
en banc.