Allen v. Milas, No. 16-15728 (9th Cir. 2018)
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The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiff under the Administrative Procedure Act (APA), challenging the U.S. Consulate's denial of his visa application filed on behalf of his wife, who is a native and citizen of Germany. Determining that the district court had subject matter jurisdiction under 28 U.S.C. 1331 and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction, the panel held that the APA provides no avenue for review of a consular officer's adjudication of a visa on the
merits. The panel explained that, rather, the only standard by which it could review the merits of a consular officer's denial of a visa was for constitutional error, where the visa application was denied without a facially legitimate and bona fide reason. In this case, the consular officer's citations to the Immigration and Nationality Act and identification of the wife's criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application. Accordingly, the panel affirmed the district court's denial of the petition for writ of mandamus.
Court Description: APA/Consular Visa Processing. The panel affirmed the district court’s dismissal of Jerrid Allen’s action brought under the Administrative Procedure Act challenging the U.S. Consulate’s denial of Allen’s visa application filed on behalf of his wife Dorothea Allen, a native and citizen of Germany. The panel held that the district court had subject matter jurisdiction in this case under 28 U.S.C. § 1331, and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction. The panel explained that the consular nonreviewability doctrine addresses the scope of review, rather than the federal courts’ power to hear a case. The panel held that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits. The panel explained that the only standard by which it could review the merits of a consular officer’s denial of a ALLEN V. MILAS 3 visa is for constitutional error, where the visa application is denied without a “facially legitimate and bona fide reason.” The panel concluded that the consular officer’s citations to the INA and identification of Mrs. Allen’s criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application.
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