Nung Tan v. Eric Holder, Jr. , 373 F. App'x 760 ( 2010 )

FILED
NOT FOR PUBLICATION APR 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NUNG FA TAN; RUI YE LI, No. 09-55329
Plaintiffs - Appellants, D.C. No. 2:08-cv-05275-VBF-RC
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
U.S. Attorney General; CONDOLEEZA
RICE, U.S. Secretary of State; ROBERT
GOLDBERG, Consul General, United
States Consulate, Guangzhou China;
JONATHAN SCHARFEN, Acting
Director, U.S.C.I.S.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted April 6, 2010 **
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs Nung Fa Tan and Rui Ye Li appeal the district court’s order
dismissing their complaint for lack of subject matter jurisdiction and failure to state
a claim upon which relief could be granted. We have jurisdiction under 28 U.S.C.
§ 1291 and now affirm.
After the United States Consulate in Guangzhou, China, denied Li’s visa
application, Plaintiffs filed a complaint in federal district court against the Consul
General in Guangzhou, China, the Acting Director of USCIS, and other
government officials. The first through fourth causes of action in the complaint
alleged violations of the Immigration and Nationality Act and accompanying
regulations, the Administrative Procedure Act, and the Freedom of Information
Act. “[I]t has been consistently held that the consular official’s decision to issue or
withhold a visa is not subject either to administrative or judicial review.”
Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008) (quoting Li Hing of
Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986)) (alteration in
original). Because the decisions of consular officers are not subject to judicial
review on non-constitutional claims, see id. (noting “a limited exception to the
doctrine where the denial of a visa implicates the constitutional rights of American
citizens”), the district court properly dismissed the first through fourth causes of
action for lack of subject matter jurisdiction.
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Plaintiffs’ fifth and sixth causes of action alleged that Defendants “are
depriving Plaintiff Li of her right to family unity” and “are depriving Plaintiff Li of
adjustment of status as a permanent resident” without due process of law. The
district court properly dismissed these causes of action because Li is not a U.S.
citizen. See id. at 1062 (“[A] U.S. citizen raising a constitutional challenge to the
denial of a visa is entitled to a limited judicial inquiry regarding the reason for the
decision.”).
After noting the deficiencies in Plaintiffs’ complaint, the district court
dismissed the complaint with leave to amend. Plaintiffs did not file an amended
complaint, so the district court properly dismissed the case.
AFFIRMED.
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