Rafiak Algzaly v. Anthony Blinken ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFIAK MOHAMED ALGZALY; et al., No. 21-16375
Plaintiffs-Appellants, D.C. No. 3:20-cv-03322-JCS
v.
MEMORANDUM*
ANTONY J. BLINKEN, as Secretary of
State; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted June 9, 2022
Anchorage, Alaska
Before: HURWITZ, BRESS, and H. THOMAS, Circuit Judges.
Rafiak Mohamed Algzaly, a United States citizen, and his sons, Hani Rafeq
Mohammed Alghazali and Gubran Rafeq Mohammed Alghazali, citizens of Yemen,
challenge the determination that Hani and Gubran are inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i). The district court dismissed their constitutional claims as barred
under the doctrine of consular nonreviewability and denied, on the same grounds,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
leave to raise a claim under the Administrative Procedure Act (“APA”). We have
jurisdiction under 28 U.S.C. § 1291 and review de novo the dismissal of a complaint
under the consular nonreviewability doctrine. See Khachatryan v. Blinken, 4 F.4th
841, 849 (9th Cir. 2021).
1. Hani and Gubran reside in Cairo with their families and are not in
detention. They have “no personal right to entry, nor a right to judicial review absent
a personal detention by the United States.” Allen v. Milas, 896 F.3d 1094, 1098 n.1
(9th Cir. 2018); see also Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)
(“[Appellant], as an unadmitted and nonresident alien, had no constitutional right of
entry to this country as a nonimmigrant or otherwise.”). Hani and Gubran therefore
cannot state a claim for relief.
2. We assume, without deciding, that Rafiak, a citizen, has a constitutional
interest in the admission of his sons to the United States, and therefore do not reach
the government’s request that we extend the holding of Khachatryan, 4 F.4th at 862,
to preclude claims asserted by a citizen parent on behalf of a non-resident non-citizen
child. While “ordinarily, a consular official’s decision to deny a visa to a foreigner
is not subject to judicial review,” if “a U.S. citizen’s constitutional rights are alleged
to have been violated by the denial of a visa to a foreigner,” a court can undertake
“a highly constrained review solely to determine whether the consular official acted
on the basis of a facially legitimate and bona fide reason.” Bustamante v. Mukasey,
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531 F.3d 1059, 1060 (9th Cir. 2008).
a. The inadmissibility determinations for Hani and Gubran were facially
legitimate and bona fide. The visa denials cited “valid statute[s] of
inadmissibility”—8 U.S.C. § 1182(a)(6)(C)(i) and (a)(10)(A)—which specify
“discrete factual predicates the consular officer must find to exist before denying a
visa.” Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016). Moreover,
the complaint alleges facts in the record that provide “at least a facial connection to
the statutory ground of inadmissibility.” Id. (cleaned up).
b. The complaint does not make an “affirmative showing of bad faith,” Kerry
v. Din, 576 U.S. 86, 105 (2015) (Kennedy, J., concurring), because it does not
plausibly allege that “the consular official did not in good faith believe the
information he had,” Bustamante, 531 F.3d at 1062. The complaint alleges that Hani
and Gubran personally submitted materials to the consulate, and the inadmissibility
findings do not state that the false representation came from a document submitted
by a physician. Even if the consular officer relied on a misrepresentation conveyed
by Hani’s and Gubran’s physician, nothing in the record suggests “that the transfer
of information . . . never took place, or that the Consulate acted upon information it
knew to be false.” Id. at 1063.
3. The APA does not provide for review of a United States Citizenship and
Immigration Services (“USCIS”) denial of a waiver of inadmissibility based on a
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consular officer’s denial of a visa when the applicant is not in the United States. See
Allen, 896 F.3d at 1108. Bringing an APA claim against USCIS rather than the State
Department, does not overcome the consular nonreviewability doctrine. See
Mandel, 408 U.S. at 759 (addressing the Immigration and Naturalization Service’s
denial of ineligibility waiver); Bustamante, 531 F.3d at 1062 n.1 (refusing to
“distinguish Mandel on the grounds that the exclusionary decision challenged in that
case was not a consular visa denial, but rather the Attorney General’s refusal to
waive Mandel’s inadmissibility,” because “[t]he holding is plainly stated in terms of
the power delegated by Congress to ‘the Executive’”). The district court’s denial
of leave to amend to assert an APA claim was not an abuse of discretion.
AFFIRMED.
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