Samira Hazama v. Rex W. Tillerson , 851 F.3d 706 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2982
SAMIRA HAZAMA and AHMED ABDEL HAFIZ GHNEIM,
Plaintiffs-Appellants,
v.
REX W. TILLERSON, Secretary of State, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 4002 — Milton I. Shadur, Judge.
____________________
ARGUED DECEMBER 2, 2016 — DECIDED MARCH 20, 2017
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
WOOD, Chief Judge. In an effort to seek judicial review of a
consular official’s unfavorable decision on a visa application,
Samira Hazama and Ahmed Abdel Hafiz Ghneim filed a pe-
tition for a writ of mandamus in the district court for the
Northern District of Illinois, where Hazama resides. The dis-
trict court concluded that it lacked subject-matter jurisdiction
2 No. 15-2982
over the petition, because it thought that review was pre-
cluded under the Supreme Court’s decisions in Kleindienst v.
Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128
(2015). The district court was correct that this case cannot go
forward, but mistaken to think that the problem was jurisdic-
tional. In Morfin v. Tillerson, No. 15-3633, decided today, we
concluded that plaintiff loses on the merits. The same result is
proper here, both for the reasons stated in Morfin and because
the criteria for mandamus relief have not been met. See United
States v. Vinyard, 529 F.3d 589, 591 (7th Cir. 2008) (mandamus
proper only if the order would inflict irreparable harm, is not
effectively reviewable at the end of the case, and so far ex-
ceeds the bounds of judicial discretion that it is usurpative, in
violation of a clear and indisputable legal right, or patently
erroneous).
Hazama is a U.S. citizen; she is married to Ghneim, who is
a citizen of the Palestinian Authority and currently resides
there. Hoping to obtain a permanent resident visa for
Ghneim, Hazama filed an I-130 Petition for Alien Relative
with the U.S. Citizenship and Immigration Service of the De-
partment of Homeland Security (USCIS). Her petition was ap-
proved by USCIS on August 25, 2011, but that alone did not
assure Ghneim’s right to immigrate to the United States. First,
he had to wait until a visa number became available, then
(while still outside the country) he had to appear for an inter-
view with a consular officer, and ultimately he had to file form
I-485, the Application to Register Permanent Residence or Ad-
just Status.
Ghneim never made it to the end of the line. He showed
up for his interview at the U.S. Consulate in Jerusalem on Jan-
uary 24, 2013. The consular officer denied the application for
No. 15-2982 3
three reasons: the commission of a crime of moral turpitude,
8 U.S.C. § 1182(a)(2)(A)(i)(I); previous removal from the
United States, id. § 1182(a)(9)(A)(ii); and unlawful presence in
the United States, id. § 1182(a)(9)(B)(i)(II). Ghneim tried to ad-
dress these grounds, but his petition for a waiver of the “pre-
viously removed” and “unlawful presence” grounds was ul-
timately denied. In the meantime, on January 22, 2015, a con-
sular officer again denied Ghneim’s application, this time for
having personally engaged in terrorist activities. See 8 U.S.C.
§ 1182(a)(3)(B)(i).
Hazama and Ghneim filed the present Complaint for Writ
of Mandamus on May 5, 2015. In it, they attack only the ter-
rorism ground for denying the visa. The omission of the other
three grounds is perplexing, because it would do little good
to set aside one ground if there are three alternate grounds for
upholding the agency’s decision. Their choice may reflect the
assumption that the three omitted grounds may be waivable.
We do not know, and in light of our disposition of the appeal,
we need not inquire further. For present purposes we confine
ourselves to the applicability of the terrorism ground to
Ghneim.
The Complaint also seeks declaratory and injunctive relief
under the Administrative Procedure Act, based on the gov-
ernment’s alleged failure to adjudicate Ghneim’s application.
Finally, it asserts that the refusal was not facially legitimate
and bona fide. The government moved to dismiss, both for
lack of subject-matter jurisdiction and for failure to state a
claim. The district court held a hearing on the government’s
motion on August 26, 2015, but despite her awareness that the
court had scheduled this hearing—reflected in her effort on
August 20 to seek a postponement—counsel for Hazama and
4 No. 15-2982
Ghneim did not attend. In the end, however, counsel’s inabil-
ity to attend made little difference. The district court, noting
that the petitioners had relied heavily on the Ninth Circuit’s
decision in Din and that the Supreme Court had vacated that
ruling, found that the consular official’s reliance on the terror-
ism provision satisfied all relevant legal standards. Hazama
and Ghneim have appealed from that decision.
The Supreme Court has consistently recognized that un-
admitted, nonresident aliens have no free-standing constitu-
tional right to enter the United States. See Mandel, 408 U.S. at
762. Nothing in Din, which admittedly failed to produce an
authoritative opinion of the Court, casts any doubt on that
proposition. Congress has delegated broad power to the Ex-
ecutive Branch to decide who will have the privilege of enter-
ing. Id. at 770. In general, courts have no authority to second-
guess the Executive’s decisions—rulings that are typically
made by consular officers of the Department of State. See
Samirah v. Holder, 627 F.3d 652, 662 (7th Cir. 2010).
That said, the Court has never entirely slammed the door
shut on review of consular decisions on visas. The language
in Mandel suggests at least two possible exceptions to the gen-
eral norm of nonreviewability: “We hold that when the Exec-
utive exercises [the power to admit] 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 bal-
ancing its justification against the First Amendment interests
of those who seek personal communication with the appli-
cant.” 408 U.S. at 770 (emphasis added). In addition, as the
final allusion to the First Amendment implies, some courts
have held that if a visa denial affects the constitutional rights
of American citizens, then it may be reviewable. Cardenas v.
No. 15-2982 5
United States, 826 F.3d 1164, 1169 (9th Cir. 2016); see also Din,
135 S. Ct. at 2141–42 (dissenting opinion of Breyer, J., joined
by Ginsburg, Sotomayor, and Kagan, JJ., recognizing this
right); Id. at 2139 (concurrence in judgment of Kennedy, J.,
joined by Alito, J., assuming arguendo that such a right ex-
ists).
Like the concurring Justices in Din, we can assume for the
sake of argument that Hazama has enough of an interest in
the grant of a visa to her husband that this case can go for-
ward. Yet that assumption does nothing to meet her greater
challenge, which is to show that the consular decision was not
facially legitimate and bona fide. The act that prompted the
consular officer to find that Ghneim had engaged in “terror-
ism” was admittedly minor, when compared with the worst
terrorist acts one can imagine. As a 13-year-old boy in Pales-
tine, Ghneim threw rocks at Israeli soldiers; the latter were
armed with automatic rifles. Citing several other cases that
involved rock-throwing, Hazama urges us to find that his ac-
tions were so inconsequential that they cannot suffice as a fa-
cially legitimate and bona fide reason for the visa denial. On
one point we agree with her: this was a discretionary call, and
it would not have been outside the consular officer’s discre-
tion to consider this as an act of juvenile rebellion rather than
an act of terrorism.
The Supreme Court has made it clear, however, that what-
ever residual authority the courts have to review these deci-
sions cannot be triggered by every possible recharacterization
of an act. Mandel, Din, and all of the earlier cases are premised
on the non-reviewability of these decisions, and a recharacter-
ization exception would open the door to plenary reviewabil-
ity—most things, after all, are open to interpretation. The
6 No. 15-2982
same problems would arise if we were to accept the sugges-
tion of amicus curiae and adopt a rule under which we would
examine whether the officer “properly construed and ap-
plied” the relevant provisions of law. All we can do is to look
at the face of the decision, see if the officer cited a proper
ground under the statute, and ensure that no other applicable
constitutional limitations are violated. Once that is done, if the
undisputed record includes facts that would support that
ground, our task is over.
We found that additional support in Morfin, and we find it
here as well. The consular officer in Jerusalem knew several
things before making his decision: first, this particular act of
rock-throwing took place in one of the least settled places in
the world—a place where peace efforts have failed for 70
years; second, rocks are not benign objects—to the contrary,
they can be lethal, as the barbaric practice of stoning illus-
trates; third, Ghneim did not deny that he had thrown the
rocks; and fourth, Ghneim had several other blots on his rec-
ord. Nothing here suggests that his visa was denied for a con-
stitutionally troublesome reason such as religious discrimina-
tion, and so we have no need to consider how such a case
should be approached. In addition, there is nothing in this rec-
ord to suggest that the consular officers involved were pro-
ceeding in bad faith. At oral argument, Hazama’s lawyer as-
serted that the U.S. consulate in Jerusalem regularly prolongs
its consideration of visa applications and denies those coming
from citizens of the Palestinian Authority, but we have not
taken this allegation into account in resolving this appeal, be-
cause it was not presented to the district court and (probably
for that reason) there is no support in this record for a finding
of the alleged systematic bias.
No. 15-2982 7
Finally, even if we were to find that Hazama was entitled
to a reasoned explanation of the denial, she would still be out
of luck. Ghneim, and so we assume Hazama, received a full
explanation in a signed letter of a page and a half. The letter
laid out all the grounds for refusal, explained why they ap-
plied, cited relevant precedent, and explained the agency re-
view process. That was more than enough.
Hazama has raised several other points, but they all rep-
resent an effort to dilute or eliminate the consular nonreview-
ability doctrine, or they are procedural points that lay within
the district court’s discretion. The fact that she cannot succeed
under ordinary standards of appellate review demonstrates
that her petition for mandamus must also fail. We therefore
AFFIRM the judgment of the district court, with instructions
that the judgment be modified to reflect that it rejects an ad-
judication on the merits, not for lack of subject-matter juris-
diction.