Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

In Gun CHOE, Dong Soon Choe, Plaintiffs/Appellants,v.Richard C. SMITH, District Director, U.S. Immigration andNaturalization Service, U.S. Immigration andNaturalization Service, Defendants/Appellees.

No. 90-35339.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1991.Decided June 17, 1991.



In Gun Choe and Dong Soon Choe appeal the district court's interlocutory order granting summary judgment in favor of the INS on the Choes' Privacy Act claim. We affirm.

The Choes contend that the district court erred in denying them leave to amend their complaint. Under Federal Rule of Civil Procedure 15(a), leave to amend need not be granted where the amendment would be futile. See Poling v. Morgan, 829 F.2d 882, 886 (9th Cir. 1987). The district court did not abuse its discretion in denying leave to amend. Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988).

The Choes' attempt to add the American Consul in Korea as a defendant was futile. Even were we to assume the district court had jurisdiction to review the Consul's action, the Consul's decision to suspend action on Mrs. Choe's visa application based on a belief that Rev. Choe committed fraud in obtaining an adjustment of his immigration status was facially legitimate and bona fide. Kleindienst v. Mandel, 408 U.S. 753, 769 (1972).

The Choes' attempt to amend their complaint to challenge the constitutionality of Department of State regulation 22 C.F.R. Sec. 42.43 was also futile. The Choes do not have a constitutional right to have the visa granted or denied within a certain period of time. See Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (whatever procedure is authorized by Congress constitutes due process for the purposes of excluding an alien). The Choes' conclusory allegation that 22 C.F.R. Sec. 42.43 is not authorized by statute is without merit.

The Choes allege that disclosures made by the INS violated subsection (b) of the Privacy Act. 5 U.S.C. § 552a(b). The district court did not err in finding that the challenged disclosures did not violate the Act. Even if the INS wrongfully disclosed information, the Choes have, nevertheless, failed to make the required showing of scienter. 5 U.S.C. § 552a(g) (4).



This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3