Angela Del Valle v. Secretary of State, United States Department of State ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14889
____________________
ANGELA DEL VALLE,
Plaintiff-Appellant,
versus
SECRETARY OF STATE, UNITED STATES DEPARTMENT OF
STATE,
JOHN CREAMER,
Charge d'Affairs, United States Embassy,
Mexico City, Mexico,
Defendants-Appellees.
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2 Opinion of the Court 19-14889
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-00900-WWB-DCI
____________________
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
JORDAN, Circuit Judge:
The doctrine of consular non-reviewability, established by
the Supreme Court, bars judicial review of a consular official’s de-
cision regarding a visa application if the reason given is “facially le-
gitimate and bona fide.” Kleindienst v. Mandel, 408 U.S. 753, 770
(1972). See also Kerry v. Din, 576 U.S. 86, 103–04 (2015) (Kennedy,
J., concurring in the judgment) (applying the doctrine). Although
the doctrine was announced 50 years ago, we have never addressed
its scope in a published opinion.
In this appeal, we address two questions. First, does the doc-
trine operate by stripping federal courts of their subject-matter ju-
risdiction? Second, does the doctrine require consular officials to
identify or summarize the facts underlying a visa denial when the
statutory provision of inadmissibility sets out factual predicates?
We answer both questions in the negative.
I
Through a Form I-130 (Petition for Alien Relative), a United
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States citizen can seek to establish that certain alien relatives, in-
cluding spouses, are “immediate relatives” eligible for an immi-
grant visa. See 8 U.S.C. §§ 1151(b)(2)(A)(i) & 1154(a)(1)(A)(i); 8
C.F.R. § 204.1(a)(1). Approval of a Form I-130 allows immediate
relatives who had been admitted into the United States to apply to
adjust their status to that of lawful permanent resident. See 8 U.S.C.
§ 1255(a). Immediate relatives residing outside the United States
must apply for an immigrant visa at a United States Embassy or
Consulate in their country of residence and attend an interview
with a consular official. See 22 C.F.R §§ 42.61(a) & 42.62.
Angela Del Valle is a United States citizen. She is married to
Carlos Del Valle, who is a Mexican citizen. In December of 2014,
Mrs. Del Valle filed a Form I-130 for her husband with United
States Citizenship and Immigration Services. Mr. Del Valle, though
residing in the United States at the time, was undocumented. He
was therefore ineligible to have his status adjusted to that of lawful
permanent resident. See 8 U.S.C. § 1255(a). And because he had
resided in the United States without status for over a year, upon
returning to Mexico to apply for an immigrant visa he would have
been inadmissible for a period of ten years. See 8 U.S.C.
§ 1182(a)(9)(B)(i)(II). That would have precluded him from obtain-
ing a visa. Mr. Del Valle therefore applied for a provisional unlaw-
ful presence waiver, which would waive that ground of inadmissi-
bility. See 8 C.F.R. § 212.7(e)(12). USCIS approved the waiver, al-
lowing Mr. Del Valle to return to Mexico to obtain an immigrant
visa.
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Following an interview at the United States Consulate in
Ciudad Juarez, Mexico, a consular official denied Mr. Del Valle’s
visa application on the ground that he was inadmissible under three
subsections of 8 U.S.C. § 1182. The written notice of denial stated
that Mr. Del Valle had sought to obtain an immigration benefit by
fraudulently or falsely misrepresenting a material fact to a consular
or immigration official, § 1182(a)(6)(C)(i); that he had falsely repre-
sented himself to be a United States citizen, §1182(a)(6)(C)(ii); and
that he had unlawfully resided in the United States for over a year,
§ 1182(a)(9)(B)(i)(II). The notice did not set out the evidence or
facts supporting the findings that Mr. Del Valle had committed acts
that were encompassed by the relevant inadmissibility provisions.1
Mrs. Del Valle then filed suit against the government in the
district court. Styling her action as one sounding in mandamus, she
alleged that the consular official had mistaken an individual who
had made false representations at ports of entry in 1995 and 2002
for her husband. By providing only citations to statutory inadmis-
sibility provisions, Mrs. Del Valle asserted, the government had vi-
olated her Fifth Amendment due process rights. She claimed that
it had “deprive[d] her of the opportunity to reside in the United
States with her husband without providing any process or proce-
dure aimed at ensuring the correct identification.” D.E. 1 at 10.
1 Though Mr. Del Valle’s unlawful presence waiver had been approved, it was
automatically revoked upon the denial of his immigrant visa application under
8 U.S.C. §§ 1182(a)(6)(C)(i) & (ii). See 8 C.F.R. § 212.7(e)(14)(i). It therefore
never entered into force. See 8 C.F.R. § 212.7(e)(12)(i)(C).
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Consequently, she requested that the court conduct an in camera
review of the evidence underlying the consular official’s visa denial
to determine whether her husband had ever made the alleged
fraudulent misrepresentations.
The government moved to dismiss the complaint under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
It argued that the doctrine of consular non-reviewability either (i)
deprived the court of subject-matter jurisdiction to review the con-
sular official’s denial, or (ii) caused Mrs. Del Valle’s complaint to
fail to state a claim upon which relief could be granted. Either way,
the doctrine barred the district court from reviewing the substance
of the visa denial.
The district court agreed with the government. It deter-
mined that the doctrine of consular non-reviewability precluded it
from reviewing the consular official’s decision because the statu-
tory citations in the notice of denial constituted facially legitimate
and bona fide reasons. The court also concluded that the doctrine
operated by stripping it of jurisdiction. Accordingly, it dismissed
Mrs. Del Valle’s complaint without prejudice for lack of subject-
matter jurisdiction. Mrs. Del Valle now appeals that dismissal.
II
We review de novo a dismissal for lack of subject-matter ju-
risdiction. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891
(11th Cir. 2013). We may affirm a district court’s dismissal on any
ground supported by the record, so long as that ground has been
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6 Opinion of the Court 19-14889
properly asserted. See Wilding v. DNC Servs. Corp., 941 F.3d 1116,
1127 (11th Cir. 2019); Hamilton v. Southland Christian Sch., Inc.,
680 F.3d 1316, 1318–19 (11th Cir. 2012).
III
The government argued below, and the district court
agreed, that when applicable the doctrine of consular non-review-
ability strips federal courts of subject-matter jurisdiction. Now,
aligning itself with Mrs. Del Valle, the government concedes that
the doctrine does not divest federal courts of jurisdiction. We are
not bound by a party’s concession regarding the existence of sub-
ject-matter jurisdiction, see, e.g., Johnson v. Sikes, 730 F.2d 644,
647–48 (11th Cir. 1984), but based on our independent review we
agree with Mrs. Del Valle and the government.
Article III of the Constitution confers subject-matter juris-
diction on federal courts over “all Cases, in Law and Equity, arising
under this Constitution, [and] the Laws of the United States,” sub-
ject to “such Exceptions, and under such Regulations as the Con-
gress shall make.” U.S. Const. art. III, § 2, cls. 1, 2. The lower federal
courts are creatures of statute, and hence “[t]heir powers and duties
depend upon the act calling them into existence, or subsequent acts
extending or limiting their jurisdiction.” Ex parte Robinson, 86 U.S.
505, 511 (1873). In short, “[f]ederal courts are courts of limited ju-
risdiction and possess only that power authorized by Constitution
and statute.” Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000)
(internal quotation marks omitted). See also Bowles v. Russell, 551
U.S. 205, 212 (2007) (“Within constitutional bounds, Congress
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decides what cases the federal courts have jurisdiction to con-
sider.”); Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress
may determine a lower federal court’s subject-matter jurisdic-
tion.”).
As enunciated by the Supreme Court, the doctrine of consu-
lar non-reviewability recognizes that Congress has plenary power
to make policies and rules for the exclusion of immigrants and has
delegated decision-making authority on the issuance of visas to the
Executive. See Mandel, 408 U.S. at 765–67, 769–70; Din, 576 U.S. at
103–04 (Kennedy, J., concurring in the judgment). Stemming from
separation of powers concerns about intrusion on the political
branches’ authority, the doctrine instructs courts to refrain from
reviewing the Executive’s exercise of its delegated power so long
as it is conducted “on the basis of a facially legitimate and bona fide
reason.” Mandel, 408 U.S. at 770. See also Din, 576 U.S. at 103 (Ken-
nedy, J., concurring in the judgment).
The doctrine is, however, judicially created. It is not the con-
sequence of legislation that divests federal courts of jurisdiction. Cf.
Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018) (“The Government
does not argue that the doctrine of consular nonreviewability goes
to the Court’s jurisdiction, . . . nor does it point to any provision of
the INA that expressly strips the Court of jurisdiction over plain-
tiffs’ claims.”). As such, “our deference goes to our willingness, not
our power,” to review a consular official’s decision on a visa appli-
cation. See Allen v. Milas, 896 F.3d 1094, 1101 (9th Cir. 2018). In
other words, the doctrine goes to the merits of a claim. See
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8 Opinion of the Court 19-14889
Matushkina v. Nielsen, 877 F.3d 289, 294 n.2 (7th Cir. 2017) (“We
treat the doctrine of consular nonreviewability as a matter of a
case’s merits rather than the federal courts’ subject matter jurisdic-
tion.”); Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1027 (D.C.
Cir. 2021) (“Dismissal based on consular nonreviewability . . . is a
merits disposition.”).
The district court here ruled that the doctrine was jurisdic-
tional in nature. That conclusion was understandable because, at
the time, we had issued an unpublished opinion holding that the
doctrine was indeed jurisdictional. See De Castro v. Fairman, 164
F. App’x 930, 933–34 (11th Cir. 2006). But we now make clear that,
when the doctrine of consular non-reviewability bars review of a
consular official’s decision, a district court should dismiss a suit
challenging the decision under Rule 12(b)(6).
IV
The parties disagree strongly on what constitutes “facially
legitimate and bona fide” reasons under the doctrine of consular
non-reviewability for the denial of a visa application. Mrs. Del Valle
argues that reasons are (1) facially legitimate if they cite a valid stat-
ute of inadmissibility and (2) bona fide if they identify the discrete
factual predicates that exist to deny a visa. See Appellant’s Br. at 14.
Because the notice of denial in this case only cited statutory inad-
missibility provisions, Mrs. Del Valle contends that the reasons pro-
vided by the consular official fail the second prong of her proposed
standard. The government responds that a mere citation to inad-
missibility provisions is sufficient to constitute facially legitimate
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and bona fide reasons. See Appellee’s Br. at 14–15.
Mrs. Del Valle generally provides the correct standard, but
the government reaches the correct result in this case. To explain
why, we begin with a review of Mandel and Din, which provide
the contemporary understanding of the consular non-reviewability
doctrine.
A
In Mandel, a Belgian professor sought a visa to enter the
United States to participate in various university conferences. See
Mandel, 408 U.S. at 756–57. He had previously been found ineligi-
ble to come to the United States under a provision of the Immigra-
tion and Nationality Act then in force that excluded persons who
advocated communism. See id. at 755. In those instances, however,
Mr. Mandel had been able to enter the United States thanks to a
discretionary waiver of ineligibility by the Attorney General under
another provision of INA. See id. at 757.
Mr. Mandel’s visa application to attend the conferences was
denied, again for advocating communism, and the Attorney Gen-
eral did not grant him a waiver. See id. at 757–59. A letter to Mr.
Mandel explained that the waiver was denied because during one
of his prior trips his activities “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. (internal quotation marks
omitted). In other words, Mr. Mandel had violated the conditions
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of one of the previous waivers. 2
A group of university professors and Mr. Mandel filed suit
against the government, alleging that the relevant provisions of the
INA were unconstitutional facially and as applied. See Mandel v.
Mitchell, 325 F. Supp. 620, 622 (E.D.N.Y. 1971). Specifically, they
argued that the INA provisions imposed a prior restraint on consti-
tutionally protected communication, in violation of the First
Amendment, and failed to provide due process safeguards for de-
termining visa eligibility or standards for the exercise of the Attor-
ney General’s discretion, in violation of the Fifth Amendment. See
id. A three-judge district court held that, though Mr. Mandel had
no right to enter the United States, the university professors had a
First Amendment right to hear him explain his views. See id. at 631.
The court declared the INA provisions unconstitutional and en-
joined their enforcement. See id. at 634.
The government appealed to the Supreme Court. Among
other things, it asserted that because Congress had delegated its
plenary power to the Executive, it was not required to provide any
reason justifying the exercise of its “unfettered discretion.” See
Mandel, 408 U.S. at 769. On the other hand, Mr. Mandel and the
university professors argued that the Court should rule in their fa-
vor on the First Amendment claim because the government had
2 The violations, apparently, were that Mr. Mandel had appeared at more
speaking events than authorized and that he had attended a reception where
political contributions were solicited. See Mandel, 408 U.S. at 759 n.5.
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provided no justification for the Attorney General’s denial of the
waiver. See id.The Supreme Court reversed the district court, but it did not
issue the broad ruling urged by the government. Instead, it con-
cluded that in Mr. Mandel’s case the Attorney General had pro-
vided a “reason [that] was facially legitimate and bona fide” for
denying the waiver request—Mr. Mandel’s violation of the condi-
tions of his prior waiver. See id. The Court held that “when the
Executive exercises [Congress’ delegated plenary power] nega-
tively 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 constitutional rights
of those who challenge the decision. See id. at 770.
Din, a visa denial case, was decided more than 40 years after
Mandel. In Din, one of the spouses, Ms. Din, was an American cit-
izen. See Din, 576 U.S. at 89. Like Mrs. Del Valle, Ms. Din success-
fully petitioned to have her husband, Kanishka Berashk, classified
as an immediate relative. See id. And, as happened to Mr. Del Valle,
a consular official denied Mr. Berashk’s visa application. See id. at
89-90. The consular official informed Mr. Berashk only that his ap-
plication had been denied under 8 U.S.C. § 1182(a)(3)(B), a general
provision of the INA with numerous subsections that render inad-
missible any alien who has participated in terrorist activities as de-
fined by the discrete factual predicates identified in those subsec-
tions. See Din, 576 U.S. at 89-90. Ms. Din sued, alleging that the
government had violated her Fifth Amendment due process rights
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because the denial deprived her of her right to live in the United
States with her spouse without an explanation. See id. at 88.
Justice Scalia, writing for a three-member plurality of the
Court, concluded that Ms. Din did not have a constitutional right
to live with her spouse, and so she was due no process. See id. at
101. Justice Kennedy, joined by Justice Alito, concurred in the judg-
ment. His separate opinion, which applied Mandel, serves as the
holding in Din.3
3 In Marks v. United States, 430 U.S. 188, 193 (1977), the Supreme Court held
that “[w]hen a fragmented Court decides a case and no single rationale ex-
plaining the result enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” We have explained that “the narrowest
ground” means the “less far-reaching” ground. See United States v. Robison,
505 F.3d 1208, 1221 (11th Cir. 2007). For example, in Robison we held that
Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715(2006), constituted the holding of the Supreme Court because its interpreta-
tion of the Clean Water Act was less far-reaching than the plurality’s interpre-
tation. See Robison, 505 F.3d at 1221–22. That was so because Justice Ken-
nedy’s interpretation would more often classify a body of water in a way that
would bring it within the scope of the Act’s provisions. See id. at 1221–22. In
other words, it was less restrictive of the Act’s breadth. See id.Similarly, Justice Kennedy’s concurrence in Din is the less far-reaching ground
in that case. Under the plurality opinion in Din, a U.S. citizen like Ms. Din has
no constitutional right to live with her spouse in the United States. See Din,
576 U.S. at 101 (plurality opinion). Justice Kennedy’s concurrence avoided the
constitutional question, applied the doctrine of consular non-reviewability,
and allowed for judicial review when a denial does not provide facially legiti-
mate and bona fide reasons. See id. at 104–06 (Kennedy, J., concurring in the
judgment).
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Justice Kennedy concluded that, even if Ms. Din had a con-
stitutional right to live with her spouse in the United States, the
doctrine of consular non-reviewability limited review of the visa
denial to whether the government had provided a facially legiti-
mate and bona fide reason. See id. at 103 (Kennedy, J., concurring
in the judgment). He determined that the consular official’s citation
to § 1182(a)(3)(B) was sufficient to make the reason facially legiti-
mate. See id. at 104–05 (“The consular officer’s citation of that pro-
vision suffices to show that the denial rested on a determination
that [Ms.] Din’s husband did not satisfy the statute’s requirements
. . . . [I]t 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.”).
Justice Kennedy also determined that the government had
provided “a bona fide factual basis for denying a visa.” Id. at 105.
Ms. Din had argued that, just as the Attorney General had provided
Mr. Mandel with an explanation of the facts underlying his refusal
to grant a waiver, the consular official who denied her husband’s
application was likewise required to provide the facts underlying
the visa denial. See id. But Justice Kennedy explained that “unlike
the waiver provision at issue in Mandel, which granted the Attor-
ney General nearly unbridled discretion, § 1182(a)(3)(B) specifies
discrete factual predicates the consular official must find to exist
before denying a visa.” Id. And because Ms. Din had not plausibly
alleged bad faith on the part of the consular official, the facially le-
gitimate and bona fide reason provided by the government—the
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citation to § 1182(a)(3)(B)—foreclosed further judicial review of the
consular official’s denial. See id. 4
B
Based on Mandel and Justice Kennedy’s concurrence in Din,
we agree with Mrs. Del Valle’s premise that reasons are (1) facially
legitimate when they cite valid statutory provisions of inadmissi-
bility and (2) bona fide when they identify the factual predicates
that exist for a visa denial. See Yafai v. Pompeo, 912 F.3d 1018, 1021
(7th Cir. 2019) (“For a consular officer’s decision to be facially legit-
imate and bona fide, the consular officer must identify (1) a valid
statute of inadmissibility and (2) the necessary discrete factual pred-
icates under the statute.”) (internal quotation marks omitted); Car-
denas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016) (“[T]he
facially legitimate and bona fide reason test has two components.”).
But we disagree with the conclusion that Mrs. Del Valle draws
4 The INA requires the notice of a visa application denial based on a finding of
inadmissibility to “list[ ] the specific provision or provisions of law under
which the alien is inadmissible.” 8 U.S.C. § 1182(b)(1)(B). In Din, the consular
official cited only to § 1182(a)(3)(B), a general provision that encompasses nu-
merous subsections identifying different, discrete factual predicates that result
in inadmissibility. See id. Justice Kennedy explained that the citation to the
general provision sufficed in Din because Congress had created an exception
to the requirement that the notice cite to specific provisions when the denial
is based on terrorism or national security-related grounds of inadmissibility.
See Din, 576 U.S. at 105–06 (Kennedy, J., concurring in the judgment);
§ 1182(b)(3). Nothing in Din or our opinion today should be read as permitting
a consular official to refer to a general provision where Congress has required
citation to a specific provision.
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from her premise—that because the consular official did not iden-
tify the real-world facts (the who, what, when, where, why, and
how) that served as the basis for the visa denial, the government
did not satisfy the bona-fide-reason prong. See Appellant’s Br. at
15–16.
As far as we can tell, none of our sister circuits have held
after Din that a consular official must always identify the on-the-
ground facts on which a visa denial is based. Instead, a citation to a
statutory inadmissibility provision meets both prongs of the stand-
ard where the provision “specifies discrete factual predicates the
consular officer must find to exist before denying a visa.” Din, 576
U.S. at 105 (Kennedy, J., concurring in the judgment). See also
Yafai, 912 F.3d at 1021 (“When a statute specifies discrete factual
predicates that the consular officer must find to exist before deny-
ing a visa, the citation of the statutory predicates is itself suffi-
cient.”) (internal quotation marks omitted); Cardenas, 826 F.3d at
1172 (explaining that, to meet the second prong, the consular offi-
cial must “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”) (em-
phasis added and internal quotation marks omitted). Where a stat-
ute provides specific factual predicates that the consular official
must find for a determination of inadmissibility, a citation to the
statute “indicates [that the government] relied upon a bona fide fac-
tual basis for denying a visa.” Din, 576 U.S. at 105 (Kennedy, J.,
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16 Opinion of the Court 19-14889
concurring in the judgment).
“When an opinion issues for the [Supreme] Court, it is not
only the result but also those portions of the opinion necessary to
that result by which we are bound.” Seminole Tribe of Fla. v. Flor-
ida, 517 U.S. 44, 67 (1996). Necessary to Justice Kennedy’s concur-
rence in Din was the distinction between statutes that detail dis-
crete factual predicates, like those at issue here, and statutes that
do not, like the one in Mandel. See Din, 576 U.S. at 105 (Kennedy,
J., concurring in the judgment).
The government, angling for a broad ruling, argues that a
mere statutory citation always constitutes a facially legitimate and
bona fide reason. The Fourth and Sixth Circuits have used lan-
guage suggesting agreement with the government’s position. See
Sesay v. United States, 984 F.3d 312, 316 (4th Cir. 2021) (“The Su-
preme Court has unambiguously instructed that absent some clear
directive from Congress or an affirmative showing of bad faith, the
government must simply provide a valid ineligibility provision as
the basis for the visa denial.”); Baaghil v. Miller, 1 F.4th 427, 432
(6th Cir. 2021) (“Even a ‘statutory citation’ to the pertinent re-
striction, without more, suffices.”).
Here, each of the inadmissibility provisions cited in the no-
tice of denial provided to Mr. Del Valle specifies discrete factual
predicates that the consular official must have found to exist to
deny his visa application. See 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien
who, by fraud or willfully misrepresenting a material fact, seeks to
procure (or has sought to procure or has procured) a visa, other
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19-14889 Opinion of the Court 17
documentation, or admission into the United States or other bene-
fit provided under this chapter is inadmissible.”); § 1182(a)(6)(C)(ii)
(“Any alien who falsely represents, or has falsely represented, him-
self or herself to be a citizen of the United States for any purpose or
benefit under this chapter . . . or any other Federal or State law is
inadmissible.”); § 1182(a)(9)(B)(i)(II) (classifying as inadmissible
“[a]ny alien . . . who . . . has been unlawfully present in the United
States for one year or more, and who again seeks admission within
10 years of the date of such alien’s departure or removal from the
United States”). The denial here was not based on a provision lack-
ing discrete factual predicates, like the one in Mandel. Under Man-
del and Din, in this situation a statutory citation constitutes a fa-
cially legitimate and bona fide reason.5
5 In Trump, the Supreme Court summarized Justice Kennedy’s position in Din
as “mean[ing] that the Government need provide only a statutory citation to
explain a visa denial.” Trump, 138 S. Ct. at 2419. But, in reviewing President
Trump’s self-styled “Muslim Ban,” the Court applied rational basis review in-
stead of the consular non-reviewability doctrine. See id. at 2420. Accordingly,
the Court’s discussion of the doctrine is dicta. See United States v. Kaley, 579
F.3d 1246, 1253 n.10 (11th Cir. 2009) (“[D]icta is defined as those portions of
an opinion that are not necessary to deciding the case then before us.”) (inter-
nal quotation marks omitted). We need not decide whether to follow the
Trump dicta about the scope of Din. Justice Kennedy’s concurrence in Din
expressly concludes that a statutory citation to an inadmissibility provision is
sufficient if that provision specifies “discrete factual predicates,” see Din, 576
U.S. at 105 (Kennedy, J., concurring in the judgment), and that is the situation
presented here.
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C
Mrs. Del Valle claims that the consular non-reviewability
doctrine does not preclude the district court from reviewing in
camera the evidence on which the consular official found Mr. Del
Valle inadmissible. We are unpersuaded. In essence, Mrs. Del Valle
is asking for a merits examination of the consular official’s determi-
nation—precisely the type of review that the consular non-review-
ability doctrine forecloses.
To start, Mrs. Del Valle asserts that she is not asking for sub-
stantive review of the consular official’s decision, but instead only
“want[s] the district court to see that there is a factual predicate.”
Oral Arg. Audio at 3:25–4:54. In particular, she wants that court to
confirm the existence of fingerprint, photograph, and documentary
evidence that tie Mr. Del Valle to acts that are encompassed by 8
U.S.C. §§ 1182(a)(6)(C)(i) & (6)(C)(ii). See Oral Arg. Audio at 5:42–
6:16. But considering whether the pieces of evidence are “[Mr. Del
Valle’s] fingerprints, his photo, [and] documents relating to him,”
id. at 6:09–14, is an analysis of whether the consular official’s deci-
sion was right or wrong. That, by definition, is a substantive merits
review.
Mrs. Del Valle says, however, that her case is unique. In her
view, had Mr. Del Valle been inadmissible under the grounds cited
by the consular official (other than his undocumented stay), USCIS
would have denied his provisional waiver request. See id. at 12:49–
14:15, 36:18–52. But USCIS granted Mr. Del Valle a provisional
waiver, so Mrs. Del Valle argues that we can “infer that the factual
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19-14889 Opinion of the Court 19
predicate [for inadmissibility] doesn’t exist.” Id. at 13:01–07. In
other words, rather than a mere lack of evidence, there are indicia
that her husband did not commit fraudulent acts that would render
him inadmissible under §§ 1182(a)(6)(C)(i) & (6)(C)(ii).
It is true that a person is not eligible for a provisional waiver
if he is inadmissible under a provision other than § 1182(a)(9)(B)(i).
See 8 C.F.R. § 212.7(e)(3)(iii) (establishing that a person may be el-
igible for a provisional waiver if “[u]pon departure, [he] would be
inadmissible only under [§ 1182](a)(9)(B)(i) . . . at the time of the
immigrant visa interview”). So, someone—either USCIS, as to the
grant of the provisional waiver, or the consular official, as to the
visa denial—likely made a mistake. But this merely shows that, at
bottom, Mrs. Del Valle’s argument is that the consular official (ra-
ther than USCIS) got it wrong.
Mrs. Del Valle does not allege that the consular official acted
in bad faith. And absent a plausible allegation of bad faith, we can-
not consider whether the consular official erred, because the rea-
sons provided in the notice of denial are facially legitimate and
bona fide. See Din, 576 U.S. at 105 (Kennedy, J., concurring in the
judgment) (“Absent an affirmative showing of bad faith on the part
of the consular officer . . . Mandel instructs us not to look behind
the Government’s exclusion of [the alien] for additional factual de-
tails beyond what its express reliance on [the relevant statute] en-
compassed.”) (internal quotation marks omitted). See also Car-
denas, 826 F.3d at 1172 (“the plaintiff has the burden of proving that
the reason was not bona fide by making an affirmative showing of
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20 Opinion of the Court 19-14889
bad faith on the part of the consular officer who denied [ ] a visa”)
(internal quotation marks omitted). 6
We appreciate the possibility that it was the consular official
who bungled. But we also recognize, as Justice Frankfurter did
many years ago, that though “much could be said for the view,
were we writing on a clean slate, that the Due Process Clause qual-
ifies the scope of political discretion” in regulating immigration,
“the slate is not clean.” Galvan v. Press, 347 U.S. 522, 530-31 (1954).
Congress has the power to require that consular officials specifi-
cally identify the facts underlying visa denials, just as it requires that
they cite to specific statutory provisions of inadmissibility. See 8
U.S.C. § 1182(b)(1)(B). It has not done so, and as a result Mrs. Del
Valle’s claim collapses under the weight of the jurisprudential slate.
In sum, on this record the reasons for the denial of Mr. Del
Valle’s visa application are legitimate and bona fide. We therefore
uphold the district court’s dismissal on the ground that Mrs. Del
6 Because Mrs. Del Valle does not allege bad faith, we have no occasion to
address what sort of a showing is necessary to allow more searching judicial
review of a visa denial under Mandel and Din. Whatever the standard, an al-
legation of bad faith must be “plausibly alleged with sufficient particularity.”
Din, 576 U.S. at 105 (Kennedy, J., concurring in the judgment). See also Car-
denas, 826 F.3d at 1173 (ruling that a consular official’s question about a per-
son’s tattoos was insufficient to allege bad faith because “the remark does not
plausibly establish that the decision to deny . . . a visa was made on a forbidden
racial basis, as opposed to a possibly mistaken basis about what [the] tattoos
signified”); Yafai, 912 F.3d at 1022 (“Making an ‘affirmative showing of bad
faith’ requires a plaintiff to point to something more than an unfavorable de-
cision.”).
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19-14889 Opinion of the Court 21
Valle failed to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6).
V
As Mrs. Del Valle failed to state a claim upon which relief
can be granted, we affirm the district court’s order. On remand the
district court should amend its judgment to indicate that the dis-
missal of Mrs. Del Valle’s complaint is on the merits.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.