Rola Chehade v. Rex Tillerson , 712 F. App'x 598 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROLA CHEHADE; RANA CHEHADE, No. 16-55236
Plaintiffs-Appellants, D.C. No.
2:15-cv-02219-DDP-JEM
v.
REX TILLERSON, United States MEMORANDUM*
Secretary of State; ELIZABETH
RICHARD, Ambassador, U.S. Embassy
Lebanon; US DEPARTMENT OF
STATE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted October 12, 2017
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Rola and Rana Chehade appeal the dismissal of their challenge to the denial
of Rana Chehade’s immigrant visa application, which was denied by a consular
officer pursuant to 8 U.S.C. § 1182(a)(3)(B).
Rana Chehade, an unadmitted and nonresident alien, has no constitutional
right of entry and no cause of action for judicial review of her visa application’s
denial. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); accord Kerry v. Din, 135
S. Ct. 2128, 2131 (2015) (plurality opinion) (“[A]n unadmitted and nonresident
alien . . . has no right of entry into the United States, and no cause of action to
press in furtherance of his claim for admission.” (citing Mandel, 408 U.S. at 762)).
Her daughter Rola Chehade, a United States citizen, alleges that the denial of
her mother’s visa application implicates her own constitutional due process rights.
Assuming without deciding that Rola Chehade has a protected liberty interest in
her relationship with her mother that gives rise to a right to constitutionally
adequate procedures in the adjudication of her mother’s visa application, and
therefore that Rola Chehade may challenge the denial pursuant to the limited
inquiry authorized by Mandel, the government’s notice of her mother’s visa denial
satisfied due process. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir.
2008); see also Din, 135 S. Ct. at 2139 (Kennedy, J., concurring) (finding that
government’s notice satisfied due process without deciding whether United States
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citizen had a protected liberty interest permitting her challenge to the denial of her
spouse’s visa application).
The consular officer provided a facially legitimate reason for denying the
visa application by citing § 1182(a)(3)(B), a valid statute of inadmissibility. Din,
135 S. Ct. at 2140 (consular officer’s citation to § 1182(a)(3)(B) “suffices to show
that the denial rested on a determination that Din’s husband did not satisfy the
statute’s requirements,” and “the Government’s decision to exclude an alien it
determines does not satisfy one or more of those [statutory] conditions is facially
legitimate under Mandel”); Cardenas v. United States, 826 F.3d 1164, 1172 (9th
Cir. 2016) (under two-part Din test, “[f]irst, the consular officer must deny the visa
under a valid statute of inadmissibility” to provide a facially legitimate reason).
The citation of § 1182(a)(3)(B) also provided a bona fide reason. Din, 135 S. Ct. at
2140 (“The Government’s citation of § 1182(a)(3)(B) also indicates it relied upon
a bona fide factual basis for denying a visa . . . .”). Because “§ 1182(a)(3)(B)
specifies discrete factual predicates the consular officer must find to exist before
denying a visa,” id. at 2141, it is not necessary for there to also be a fact in the
record providing a facial connection to the statutory ground of inadmissibility,
Cardenas, 826 F.3d at 1172 (to satisfy the second part of the Din test, “the
consular officer must cite an admissibility statute that ‘specifies discrete factual
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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.” (emphasis added) (quoting Din, 135 S. Ct. at
2141)).
As the government has shown that it provided a facially legitimate and bona
fide reason for the visa application’s denial, “the plaintiff has the burden of
proving that the reason was not bona fide by making an ‘affirmative showing of
bad faith on the part of the consular officer who denied [] a visa.’” Cardenas, 826
F.3d at 1172 (alteration in original) (quoting Din, 135 S. Ct. at 2141); see also
Bustamante, 531 F.3d at 1062–63 (“[T]o make an allegation of bad faith sufficient
to withstand dismissal . . . [the complaint must] allege that the consular official did
not in good faith believe the information he had. It is not enough to allege that the
consular official’s information was incorrect.”). Rola Chehade has not “plausibly
alleged with sufficient particularity,” Din, 135 S. Ct. at 2141, that the consular
officer denied her mother’s visa application in bad faith. The amended complaint’s
allegation that the consular officer’s decision “was issued in bad faith, as part of
the continued unreasonable harassment of the Plaintiffs and their family” by the
Department of Homeland Security and the United States Citizenship and
Immigration Services, is insufficient to merit further judicial review. In the
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absence of sufficient allegations of bad faith on the part of the consular officer, the
government’s notice that Rana Chehade was denied admission under
§ 1182(a)(3)(B) satisfied any obligation it might have had to provide Rola Chehade
with a facially legitimate and bona fide reason for the denial of her mother’s visa
application.
The judgment of the district court is AFFIRMED.
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