Cardenas v. Lynch, No. 13-35957 (9th Cir. 2016)
Annotate this CaseRolando Mora-Huerta, a Mexican national, was denied a visa application by a consular officer on the ground that he was a “gang associate” who intended to enter the United States to engage in unlawful conduct. Plaintiff, Mora's wife and a United States citizen, filed suit challenging the consular officer's decision. The court held that, under Marks v. United States, and the court's recent en banc decision in United States v. Davis, Justice Kennedy's concurrence in Kerry v. Din is the controlling opinion. Under the Din concurrence, the facially legitimate and bona fide reason test has two components. First, the consular officer must deny the visa under a valid statute of inadmissibility. Second, the consular officer must cite an admissibility statute that “specifies discrete factual 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. Applying that opinion to this case, the court concluded that the consular officer gave a facially legitimate reason to denying Mora's visa because he cited a valid statute of inadmissibility and a bona fide factual reason that provided a facial connection to the statutory ground of inadmissibility: the belief that Mora was a gang associate. Accordingly, the court affirmed the district court's dismissal of the complaint.
Court Description: Immigration. The panel affirmed the district court’s dismissal for failure to state a claim of United States citizen Madeline Cardenas’ complaint challenging the denial by the U.S. consulate in Ciudad Juárez, Mexico, of her husband’s visa application. The panel held that Justice Kennedy’s concurrence in Kerry v. Din, 135 S. Ct. 2128 (2015), is the controlling opinion regarding the standard of judicial review applicable to a visa denial. The panel held that the consular officer in this case satisfied the “facially legitimate and bona fide reason” test, because he cited a valid statute of inadmissibility and gave a bona fide factual reason that provided a “facial connection” to the ground of inadmissibility: the belief that Cardenas’ husband was a gang associate with ties to the Sureno gang. CARDENAS V. UNITED STATES 3
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