Sandra Munoz et al v. United States Department of State et al, No. 2:2017cv00037 - Document 82 (C.D. Cal. 2019)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. The Court finds that Plaintiffs are entitled to limited discovery in support of their claims. (See Order for complete details) (afe)

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Sandra Munoz et al v. United States Department of State et al Doc. 82 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SANDRA MUÑOZ and LUIS ERNESTO ASENCIO-CORDERO, CASE NO. CV 17-0037 AS 12 Plaintiffs, 13 v. MEMORANDUM OPINION AND ORDER 14 15 UNITED STATES DEPARTMENT OF STATE, et al., Defendants. 16 17 18 INTRODUCTION 19 20 On January 3, 2017, Sandra Muñoz and Luis Ernesto Asencio- 21 Cordero filed a Complaint for Declaratory Relief against the U.S. 22 Department of State (“DOS”); Mike Pompeo, the U.S. Secretary of 23 State; 24 Salvador, El Salvador,1 challenging the denial of Asencio’s visa 25 26 27 28 and Brendan O’Brien, the U.S. Consul General in San 1 The Complaint originally named John F. Kerry as U.S. Secretary of State and Mark Leoni as U.S. Consul General. Mike Pompeo, the current U.S. Secretary of State, and Brendan O’Brien, Consul General at the U.S. Embassy in Sal Salvador, are substituted for their predecessors. Fed. R. Civ. P. 25(d). 1 application. 2 action: (1) the visa denial was not facially legitimate and bona 3 fide (Count One); (2) the visa denial violates the Equal Protection 4 Clause of the Fifth Amendment (Count Two); (3) the visa denial 5 violates the separation of powers (Count Three); (4) the visa 6 denial was made in bad faith (Count Four); (5) the visa denial 7 without judicial review violates the Administrative Procedures Act 8 (Count 9 unconstitutionally (Dkt. No. 1). Five); and (6) The Complaint raises six causes of 8 vague U.S.C. (Count § Six). 1182(a)(3)(A)(ii) (Compl. ¶¶ is 34-51). 10 Plaintiffs seek a declaration that the DOS’s reason for denying 11 Asencio’s 12 § 1182(a)(3)(A)(ii) is unconstitutionally vague. (Id. at 12). The 13 parties have consented to the jurisdiction of the undersigned 14 United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 15 (Dkt. Nos. 25, 27, 29). visa application was not bona fide and 8 U.S.C. 16 17 On September 11, 2018, after the Court had denied Defendants’ 18 Motion to Dismiss (Dkt. Nos. 37, 47) and Plaintiffs’ Motion for 19 Judgment on the Pleadings (Dkt. Nos. 52, 49), the parties filed a 20 Joint Rule 26(f) Report and Case Management Conference Statement 21 (Dkt. No. 65). 22 whether Plaintiffs are entitled to take any discovery. 23 contend that because “Defendants have now provided Plaintiffs with 24 a bona fide factual reason for denying Mr. Asencio-Cordero’s visa,” 25 “discovery is [not] warranted or necessary to resolve the issues 26 in this case.” 27 the 28 Plaintiff parties, is In the Rule 26(f) Report, the parties disagree (Dkt. No. 65 at 9). the Court entitled ordered to 2 After hearing arguments from further conduct Defendants briefing discovery on relating “whether to the 1 following issues: the facts in the record on which the Consular 2 Officer based the decision to deny Mr. Asencio-Cordero’s immigrant 3 visa application; and whether the denial of Mr. Asencio-Cordero’s 4 immigrant visa application was in bad faith.” 5 November 9, 2018, Defendants filed their Supplemental Brief. (Dkt. 6 No. 76). 7 No. 77). (Dkt. No. 66). Plaintiffs filed a Response on November 30, 2018. On (Dkt. 8 9 The Court finds this issue appropriate for resolution without 10 an additional hearing. 11 below, the Court grants Plaintiffs the authority to conduct limited 12 discovery. L.R. 7-15. For the reasons discussed 13 14 BACKGROUND 15 16 Asencio is a native and citizen of El Salvador, who arrived (Compl. ¶ 15).2 17 in the United States in March 2005. 18 he married Muñoz, who is a U.S. citizen by birth. 19 April 20 immigration visa with the DOS, based on the approved immigrant 21 relative petition that Muñoz filed. 22 Asencio had an initial interview with the U.S. Consulate in El 23 Salvador. 24 being associated with a criminal gang. 25 evidence from Humberto Guizar, an expert witness, finding that 2015, Asencio (¶ 19). departed the United States (¶¶ 3, 18). In July 2010, (¶ 16). to pursue In an In May 2015, Asencio has multiple tattoos but denied ever (¶¶ 20-21). He submitted 26 2 27 28 Unless otherwise noted, all citations to Plaintiffs’ factual allegations are to the relevant paragraph numbers in the Complaint. (Dkt. No. 1). 3 1 Asencio was “not a gang member nor does he have any tattoos that 2 are representative of any known criminal street gang.” 3 Guizar, an attorney and a court-approved gang expert, declared 4 after reviewing photographs of all Asencio’s tattoos that “Asencio 5 does not have any tattoos that are representative of the Mara 6 Salvatruchas gang [(MS-13)] or any other known criminal street 7 gang” in either El Salvador or the United States. 8 Ex. M (Guizar Decl.) at ¶¶ 1, 7-9). 9 is not a gang member, nor is there anything that I am aware of that (¶ 21). (Dkt. No. 77-1, Guizar concluded that “Asencio 10 can reasonably link him to any known criminal organization.” 11 ¶ 10). (Id. 12 13 On or about December 28, 2015, the Consular Section denied 14 Asencio’s visa application. (Compl. ¶ 20). 15 lawful permanent residence status on the grounds that he was 16 inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(A)(ii), which states 17 that “[a]ny alien who a consular officer or the Attorney General 18 knows, or has reasonable ground to believe, seeks to enter the 19 United 20 in . . . any other unlawful activity” is ineligible to receive a 21 visa and is ineligible to be admitted to the United States. (¶ 22). States to engage solely, Asencio was denied principally, or incidentally 22 23 Muñoz contacted Congresswoman Judy Chu, who sent a letter on 24 Muñoz’s behalf to the DOS on January 20, 2016. 25 Landon R. Taylor responded to Chu’s letter on January 21, 2016, 26 citing § 1182(a)(3)(A)(ii), but provided no specific facts for 27 finding Asencio inadmissible. (¶ 24). In April 2016, the Consulate 28 forwarded the case to the immigration visa unit for review. (¶ 26). 4 (¶ 23). Consul 1 On April 13, 2016, Taylor reported to Plaintiffs: “the finding of 2 ineligibility 3 concurred with the consular officer’s decision. 4 our Immigration Visa Unit took another look at this case, but did 5 not change the decision.” 6 Office of Inspector General, requesting that a reason be given for 7 the inadmissibility decision. 8 Parker, the DOS’s Chief of the Outreach and Inquiries Division of 9 Visa Services, responded merely that the DOS “concurred in the 10 for [Asencio] was reviewed (¶ 28). finding of ineligibility.” by the [DOS], which Per your request, Plaintiffs wrote to the DOS’s (¶ 30). On May 18, 2016, Christine (¶ 33). 11 12 In the parties’ Rule 26(f) Report, Defendants assert – for 13 the first time – that “the consular officer who denied Mr. Asencio- 14 Cordero’s 15 Asencio-Cordero was a member of known criminal organization.” 16 (Dkt. No. 65 at 4). 17 a declaration by Matt McNeil, an attorney advisor at DOS, who 18 reviewed DOS’s electronic database concerning the immigrant visa 19 application filed by Muñoz on behalf of Asencio. 20 (McNeil Decl.) at ¶¶ 1-2). The database indicates that the consular 21 officer denied Asencio’s immigrant visa application “based on the 22 in-person interview, a criminal review of Mr. Asencio-Cordero, and 23 a review of the [sic] Mr. Asencio-Cordero’s tattoos.” 24 The consular officer “determined that Mr. Asencio-Cordero was a visa application did so after determining that Mr. In their Supplemental Brief, Defendants filed 25 26 27 28 5 (Dkt. No. 76-1 (Id. ¶ 3). 1 member of a known criminal organization identified in 9 FAM 302-5- 2 4(b)(2), specifically MS-13.”3 (Id.). 3 4 STANDARD OF REVIEW 5 6 Under amended Rule 26(b), the scope of permissible discovery 7 is subject to a proportionality requirement. 8 obtain 9 relevant to any party’s claim or defense and proportional to the 10 needs of the case, considering the importance of the issues at 11 stake in the action, the amount in controversy, the parties’ 12 relative access to relevant information, the parties’ resources, 13 the importance of the discovery in resolving the issues, and 14 whether the burden or expense of the proposed discovery outweighs 15 its 16 proportionality requirement “is designed to avoid . . . sweeping 17 discovery 18 litigation .” 19 No. CV 16-8962, 2017 WL 5641120, at *5 (C.D. Cal. Sept. 21, 2017). 20 Nevertheless, relevant information “need not be admissible in 21 evidence to be discoverable.” 22 “[r]elevance for purposes of discovery is defined very broadly.” 23 Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998). discovery likely regarding benefit.” that is any Fed. untethered R. to Thus, “[p]arties may nonprivileged Civ. the P. claims matter that 26(b)(1). and is This defenses in Mfg. Automation & Software Sys., Inc. v. Hughes, Fed. R. Civ. P. 26(b)(1). In fact, The 24 25 26 27 28 3 The Foreign Affairs Manual (FAM) “is published by the Department of State and . . . contains the functional statements, organizational responsibilities, and authorities of each of the major components of the U.S. Department of State, including Consular Officers.” Sheikh v. U.S. Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009). 6 1 party opposing discovery is “required to carry a heavy burden of 2 showing why discovery [should be] denied.” 3 Corp., 519 F.2d 418, 429 (9th Cir. 1975); accord Hsingching Hsu v. 4 Puma Biotechnology, Inc., No. 15 CV 0865, 2018 WL 4951918, at *4 5 (C.D. Cal. June 27, 2018). 6 discretion” to determine relevancy for discovery purposes. 7 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citation and 8 alteration omitted). Blankenship v. Hearst Further, district courts have “broad See 9 10 DISCUSSION 11 12 “Although the Constitution contains no direct mandate relating 13 to immigration matters, the Supreme Court has long recognized that 14 the political branches of the federal government have plenary 15 authority to establish and implement substantive and procedural 16 rules governing the admission of aliens to this country.” 17 Nelson, 727 F.2d 957, 964 (11th Cir. 1984), aff’d, 472 U.S. 846 18 (1985). 19 sovereignty. 20 power but is inherent in the executive power to control the foreign 21 affairs of the nation.” 22 U.S. 537, 542 (1950). 23 character of the [Immigration and Nationality Act (INA)] vastly 24 restricts the area of potential executive freedom of action, and 25 the courts have repeatedly emphasized that the responsibility for 26 regulating the admission of aliens resides in the first instance 27 with Congress.” 28 existence of inherent executive power over immigration and the “The exclusion of aliens is a fundamental Jean v. act of The right to do so stems not alone from legislative U.S. ex rel. Knauff v. Shaughnessy, 338 “In practice, however, the comprehensive Jean, 727 F.2d at 965. 7 “Thus, as a result of the 1 broad 2 separation-of-powers doctrine places few restrictions on executive 3 officials in dealing with aliens who come to this country in search 4 of admission or asylum.” 5 has 6 admission 7 characteristics which Congress has forbidden.” 8 Mandel, 9 Congress delegations sustained of 408 of discretionary Id. at 967. Congress’ aliens U.S. plenary and 753, delegates authority to 766 this exclude plenary the INA, the “The Court without exception power (1972) in to make those who (citation power to rules for possess the those Kleindienst v. omitted). the “When Executive, the shielded from 10 Executive’s 11 administrative or judicial review.” 12 F.3d 13 (“Whatever the procedure authorized by Congress is, it is due 14 process as far as an alien denied entry is concerned.”). 829, decisions 834 (9th are Cir. likewise 2016); generally Andrade–Garcia v. Lynch, 828 see Knauff, 338 U.S. at 544 15 16 Nevertheless, the Government’s plenary power “does not mean 17 that it is wholly immune from judicial review.” 18 975; see Hazama v. Tillerson, 851 F.3d 706, 708 (7th Cir. 2017) 19 (“the Court has never entirely slammed the door shut on review of 20 consular 21 decisions of executive officials in the immigration area are . . . 22 subject to judicial review, . . . the scope of that review is 23 extremely limited.” 24 793 n.5 (1977) (“Our cases reflect acceptance of a limited judicial 25 responsibility under the Constitution . . . with respect to the 26 power of Congress to regulate the admission and exclusion of 27 aliens . . . .”); Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 28 (1976) (“the power over aliens is of a political character and decisions on visas”). While Jean, 727 F.2d at “[t]he discretionary Id. at 976; see Fiallo v. Bell, 430 U.S. 787, 8 1 therefore subject only to narrow judicial review”). 2 context of denying a visa application, a court must “limit[ ] its 3 inquiry to the question whether the Government had provided a 4 ‘facially legitimate and bona fide’ reason for its action.” 5 v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring); 6 see Mandel, 408 U.S. at 770 (“We hold that when the Executive 7 exercises 8 legitimate and bona fide reason, the courts will neither look 9 behind the exercise of that discretion, nor test it by balancing 10 its justification against the First Amendment interests of those 11 who 12 generally Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 13 2006) (“The [Government] abused its discretion in denying parole 14 [to any asylum applicant] because the reasons it provided were not 15 facially legitimate and bona fide.”); see also Cardenas v. United 16 States, 826 F.3d 1164, 1171-72 (9th Cir. 2016) (determining that 17 the Kennedy concurrence in Din “represents the holding of the 18 Court”). seek this power personal negatively communication on the with basis the Thus, in the of a Kerry facially applicant.”); see 19 20 Din laid out a two-part test for determining whether the 21 denial of a visa provides the “facially legitimate and bona fide 22 reason” required by Mandel. 23 the visa under a valid statute of inadmissibility.” 24 F.3d 25 admissibility statute that ‘specifies discrete factual predicates 26 the consular officer must find to exist before denying a visa,’ or 27 there must be a fact in the record that ‘provides at least a facial 28 connection to’ the statutory ground of inadmissibility.” at 1172. “Second, “First, the consular officer must deny the consular 9 officer Cardenas, 826 must cite an Id. 1 (quoting Din, 135 S. Ct. at 2141). 2 officer’s 3 demonstrate that the visa denial relied on a valid statute of 4 inadmissibility, 5 § 1182(a)(3)(A)(ii) 6 predicates” necessary to deny a visa because the statute merely 7 precludes admission, without further edification, to an alien who 8 a consular officer “knows, or has reasonable ground to believe, 9 seeks to enter the United States to engage . . . in . . . any other citation 10 unlawful activity.” 11 59 at 11-12).4 to the Here, while the consular § 1182(a)(3)(A)(ii) Court does not previously provide the was sufficient determined “discrete to that factual 8 U.S.C. § 1182(a)(3)(A)(ii); (see Dkt. No. 12 13 Defendants contend that there are now facts in the record that 14 provide a facial connection to the inadmissibility determination 15 under § 1182(a)(3)(A)(ii). 16 consular officer’s mere conclusion that Asencio is a member of MS- (Dkt. No. 76 at 8-10). However, the 17 18 19 20 21 22 23 24 25 26 27 28 4 In its Supplemental Brief, Defendants contend that the Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), makes clear that a citation to a valid statute of inadmissibility alone satisfies Din’s “facially legitimate and bona fide” standard. (Dkt. No. 76 at 6-8). The Court finds Defendants’ arguments unavailing. In dicta, the Hawaii Court provided a limited summary of the Supreme Court’s ruling in Din, stating that “the Government need provide only a statutory citation to explain a visa denial.” 138 S. Ct. at 2419. However, the Hawaii Court cited the very page in Din where the Supreme Court explicitly noted that the consular officer must either cite an inadmissibility statute that specifies discrete factual predicates or there must be a fact in the record that provides at least a facial connection to the statutory ground of inadmissibility. Id. (citing Din, 135 S. Ct. at 2141). Further, there is no indication in Hawaii that the Supreme Court intended to overrule Din. Indeed, no court has concluded that Hawaii overruled either Din or the Ninth Circuit’s opinion in Cardenas, which carefully summarized the Din decision. 10 1 13 is unsupported by any evidence or discrete fact in the record 2 that provides at least a facial connection to the ground of 3 inadmissibility. 4 “based 5 Asencio-Cordero, and a review of Mr. Asencio-Cordero’s tattoos,” 6 do not, by themselves, provide any facts in the record to provide 7 a facial connection to the consular officer’s “reason to believe” 8 that Asencio seeks to enter the United States to engage in unlawful 9 activity. To the contrary, Asencio does not have a criminal record. on the That the consular officer’s determination was in-person interview, a criminal review of Mr. 10 (Dkt. No. 77 at 6 & Ex. B; see Guizar Decl. ¶ 8). 11 existence of random tattoos does not provide a facial connection 12 to MS-13 or other gang membership. 13 courts have found that the Government’s denial of an immigrant visa 14 was bona fide, the record has included discrete facts supporting 15 the denial – not mere conclusions. 16 Nielsen, 877 F.3d 289, 295-96 (7th Cir. 2017), reh’g denied (Jan. 17 26, 18 precludes admissibility for an alien who fraudulently or willfully 19 misrepresents a material fact, and the plaintiff acknowledged in 20 her consular interview that she omitted material information); 21 Morfin v. Tillerson, 851 F.3d 710, 711 714 (7th Cir. 2017), cert. 22 denied, No. 17-98, 2017 WL 3136962 (U.S. Oct. 30, 2017) (alien 23 previously 24 distribute); 25 decision to deny alien’s visa application on ground that alien 26 previously engaged in terrorist acts was facially legitimate and 27 bona fide, as the record contained undisputed facts that when alien 28 was 13 years old he threw rocks at armed Israeli soldiers); Allen 2018) (consular indicted Hazama, officer for 851 In multiple other cases where cited possessing F.3d at 11 And the mere See, e.g., Matushkina v. § 1182(a)(6)(C)(i), cocaine, 709-10 with (consular which intent to officer’s 1 v. Milas, No. 15 CV 0705, 2016 WL 704353, at *3 (E.D. Cal. Feb. 2 23, 2016), aff’d 896 F.3d 1094 (9th Cir. 2018) (“[T]he consular 3 office determined that she was ineligible for a visa . . . because 4 she was convicted in a German court of theft . . . [and] for illicit 5 acquisition of narcotics.”); Santos v. Lynch, No. 15 CV 0979, 2016 6 WL 7 officer . . . 8 visas . . . because they lived unlawfully in the United States for 9 a period exceeding 1 year”); Sidney v. Howerton, 777 F.2d 1490, 3549366, at *4 (E.D. determined Cal. that June 29, [aliens] 2016) were (“consular ineligible for 10 1491–92 11 contention that one of its reasons for denying Sidney’s release 12 request was that Sidney’s track record indicated a likelihood that 13 he would abscond”); see also Yafai v. Pompeo, 912 F.3d 1018, 1027- 14 28 (7th Cir. 2019) (summarizing cases and noting that “[i]n each 15 case, . . . we also went past the statutory citations and took 16 notice 17 inadmissibility”) (Ripple, J., dissenting); Amanullah v. Nelson, 18 811 F.2d 1, 11 (1st Cir. 1987) (“We thus scrutinize the record to 19 ascertain whether Cobb advanced a facially legitimate and bona fide 20 reason for withholding parole from these appellants.”). (11th of Cir. the 1985) evidence (“the Record supporting supports the stated the INS’[s] ground for 21 22 The State Department’s policies and procedures suggest that 23 the consular official should have provided Asencio with a more 24 thorough explanation for the visa denial. 25 the 26 believe” that Asencio was seeking to enter the United States to 27 engage in “unlawful activity,” apparently because he was suspected 28 of being a member of the MS-13 criminal gang. consular official’s decision 12 was The stated reason for that he had “reason to “The term ‘reason 1 to believe’ . . . shall be considered to require a determination 2 based upon facts or circumstances which would lead a reasonable 3 person to conclude that the applicant is ineligible to receive a 4 visa as provided in the INA and as implemented by the regulations.” 5 22 C.F.R. § 40.6; see generally Roman v. United States Dep’t of 6 State, No. 15 CV 0887, 2017 WL 1380039, at *1 (W.D. Mich. Mar. 27, 7 2017), report and recommendation adopted, No. 15 CV 0887, 2017 WL 8 1366504 (W.D. Mich. Apr. 14, 2017) (consular official noting that 9 “the ‘reason to believe’ standard refers to more than just mere 10 suspicion; it is a probability, supported by the facts, that the 11 alien is a member of an organized criminal entity”). Moreover, 12 all the 13 applicant “shall be considered by the [consular] officer.” 14 42.65(a). 15 not required to provide an explanation of an alien’s visa denial 16 if it is premised on the alien’s inadmissibility on criminal or 17 security-related grounds,” 8 U.S.C. § 1182(b)(3), DOS’s Foreign 18 Affairs Manual 19 factual basis 20 consular official “not to provide notice” or the consular official 21 “receive[s] permission from the [DOS] not to provide notice.” 22 FAM 23 includes 24 identifies a “fact that the applicant is a member of a known 25 criminal organization,” such as “the Mara Salvatrucha 13 (MS 13).” 26 9 FAM 302.5-4(B)(2)(a). 27 “must . . . submit a request for an advisory opinion.” documentation and other evidence submitted by visa Id. § While the statute states that “a consular officer is requires for the consular refusal” 504.11-3(A)(1)(b)-(c). specific The requirements officials unless the Foreign when to provide DOS Affairs the “[t]he instructs Manual consular the 9 also official In these circumstances, the official 28 13 Id. 1 Further, the consular officer’s conclusion was disputed by 2 the gang expert’s sworn declaration. 3 of alleged facts may not satisfy the “facially legitimate and bona 4 fide” standard where the visa applicant credibly disputes the 5 allegations. 6 that “the refusal to issue Ulloa a visa could be said to lack a 7 ‘facially legitimate and bona fide reason’ (in Mandel’s words) if 8 the consular official had concluded that the indictment’s charges 9 were false, or if [the applicant] had presented strong evidence of Sometimes even the existence For example, in Morfin, the Seventh Circuit observed 10 innocence that the consular officer refused to consider.” 11 at 713-14. 12 undisputed record includes facts that would support that ground, 13 our task is over.” 14 Matushkina, 877 F.3d at 294; Khachatryan v. United States, No. CV 15 17 7503, 2018 WL 4629622, at *4 (D.N.J. Sept. 27, 2018); cf. Din, 16 135 S. Ct. at 2141 (it was undisputed that the applicant worked 17 for the Taliban); Bertrand v. Sava, 684 F.2d 204, 213 (2d Cir. 18 1982) (uncontroverted evidence indicates that the INS district 19 director 20 unadmitted aliens); Al Khader v. Pompeo, No. 18 CV 1355, 2019 WL 21 423141, at *5 (N.D. Ill. Feb. 4, 2019) (“the undisputed record 22 includes facts that support the consular officer’s determination”) 23 (emphasis added). 24 gang expert in state court and federal immigration court and is 25 “intimately familiar with tattoos that are commonly known as gang 26 tattoos,” opined that “none of the tattoos . . . on [Asencio’s] 27 body [are] of any currently known gang or criminal organization 28 known to exist in El Salvador or in the United States.” 851 F.3d Similarly, in Hazama, the court noted that “if the properly 851 F.3d at 709 (emphasis added); accord exercised discretion in denying parole to Here, Guizar, an attorney who has appeared as a 14 (Guizar 1 Decl. ¶¶ 7-9). 2 member, nor is there anything that I am aware of that can reasonably 3 link him to any known criminal organization.” 4 a credible dispute exists as to whether Asencio is or ever has been 5 a member of MS-13. 6 refused to consider Asencio’s strong evidence that he was not. 7 Morfin, 851 F.3d at 713-14 (“the refusal to issue [the applicant] 8 a visa could be said to lack a ‘facially legitimate and bona fide 9 reason’ . . . if [the applicant] had presented strong evidence of 10 innocence that the consular officer refused to consider”); see also 11 Yafai, 912 F.3d at 1028 (Ripple, J., dissenting) (“the evidence 12 submitted by Mr. Yafai raises the distinct possibility that the 13 consular officer . . . never considered the evidence submitted”). Indeed, Guizar asserted that “Asencio is not a gang (Id. ¶ 10). Thus, Indeed, it appears that the consular officer See 14 15 Accordingly, limited discovery is warranted to test whether 16 there is a fact in the record that provides a facial connection to 17 the statute at issue and, thus, whether the consular officer’s 18 stated “reason to believe” is facially legitimate and bona fide. 19 20 CONCLUSION 21 22 For the reasons discussed above, the Court finds that 23 Plaintiffs are entitled to limited discovery in support of their 24 claims. 25 by 26 official who refused the visa application of Asencio on or about 27 December 28, 2015, regarding the discrete facts in the record that 28 provide Plaintiffs may seek a deposition - or a Rule 31 deposition written a questions, facial if Defendants connection to 15 prefer - Asencio’s of the consular purported MS-13 1 affiliation and the consular officer’s consideration of the gang 2 expert’s declaration.5 3 4 DATED: April 2, 2019 5 /S/ __________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The parties may advise the Court of the necessity for a hearing and/or telephonic conference to resolve any remaining issues relating to discovery production by contacting the Courtroom Deputy via telephone or email only after they have engaged in at least two attempts to resolve the dispute without court involvement. See 16
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