Chen v. Rubio

• Court: Court of Appeals for the Second Circuit
• Decided: October 29, 2025
• Docket: 25-521
• Status: Published

Opinion

25-521 Chen et al. v. Rubio et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2025

(Argued: September 26, 2025 Decided: October 29, 2025)

Docket No. 25-521-cv

XIAO P. CHEN, SHIMING CHEN, YAMIN YAN,

Plaintiffs-Appellants,

— v. —

MARCO RUBIO, in His Official Capacity as United States Secretary of State, DAVID PERDUE, in His Official Capacity as United States Ambassador to China, PAULINE KAO, in Her Official Capacity as United States Consul General, Guangzhou,

Defendants-Appellees.*

B e f o r e:

RAGGI, LYNCH, and PARK, Circuit Judges.

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. __________________

Plaintiffs-Appellants Xiao P. Chen, Shiming Chen, and Yamin Yan are citizens of the United States. Each filed an immigration petition for a family member, which was approved. Each family member then applied for an immigrant visa, which, in each case, was denied shortly after an interview at the United States Consulate General in Guangzhou, China. Plaintiffs sought judicial review of those denials. The United States District Court for the Eastern District of New York (Nicholas G. Garaufis, J.) dismissed their claims because Yamin Yan’s claim was brought in an improper venue, and Xiao P. Chen’s and Shiming Chen’s claims were barred by the doctrine of consular nonreviewability. We AFFIRM. __________________

JEAN WANG, Wang Law Office, Flushing, NY, for Plaintiffs-Appellants.

ELIZABETH GATES, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Joseph Nocella, Jr., United States Attorney, Eastern District of New York, Brooklyn, NY, for Defendants-Appellees.

GERARD E. LYNCH, Circuit Judge:

Plaintiffs are three U.S. citizens whose family members unsuccessfully

applied to this country’s consulate in Guangzhou, China, for visas to enter the

United States. Plaintiffs challenged those visa denials in federal court.

The district court (Nicholas G. Garaufis, J.) dismissed plaintiff Yamin Yan’s

claims without prejudice for improper venue. Plaintiff Yamin Yan did not

challenge that dismissal on appeal, which moots his argument as to the merits.

2 We AFFIRM the district court’s ruling and do not address his case further.1

The district court dismissed plaintiffs Xiao P. Chen’s and Shiming Chen’s

claims with prejudice because the doctrine of consular nonreviewability barred

their claims. We agree with the district court that the visa denials are insulated

from judicial review. We therefore AFFIRM the district court’s judgment

dismissing those plaintiffs’ claims with prejudice.

BACKGROUND

A U.S. citizen can sponsor certain non-citizen relatives, including a spouse,

parent, or sibling for an immigrant visa. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(4),

1154(a)(1)(A). The citizen must first petition U.S. Citizenship and Immigration

Services (“USCIS”) to have the non-citizen classified as a qualifying relative. Id.

§ 1154(a)(1)(A); 8 C.F.R. § 204.1(a)(1). Once USCIS approves, the non-citizen

relative can apply for a visa from a consular officer abroad. 8 U.S.C. §§ 1201(a),

1202(a); 22 C.F.R. § 42.61(a). A consular officer may deny an application because

the non-citizen is inadmissible under 8 U.S.C. § 1182(a), in which case the officer

will provide the non-citizen with a timely written notice that states the denial and

1 Accordingly, further references to “plaintiffs” in this opinion refer solely to the Chen plaintiffs.

3 “the specific provision or provisions of law under which the alien is

inadmissible.” 8 U.S.C. § 1182(b)(1).

Plaintiffs Xiao P. Chen and Shiming Chen are U.S. citizens sponsoring their

sister and mother, respectively. Xiao’s sister and Shiming’s mother applied for

visas from the U.S. consulate in Guangzhou, attended interviews there with

consular officers, and received written denials shortly thereafter. The forms

noting the denials identify “212(a)(6)(C) Fraud or misrepresentation” as the basis

for the denials.2 App’x 79, 83.

Plaintiffs challenged the visa denials in the Eastern District of New York. In

relevant part, their Complaint asserts that the denials were “not facially

legitimate and bona fide” and were “issued in bad faith,” and that the notices of

those denials were untimely. App’x 62–64, 66–67, 71–72. Defendants moved to

dismiss under the doctrine of consular nonreviewability. After the motion was

fully briefed, the Supreme Court decided Department of State v. Muñoz, holding

that a U.S. citizen does not have “a fundamental liberty interest in [the]

2 Section 212(a)(6)(C) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1182(a)(6)(C), renders inadmissible to the United States “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa . . . or other [immigration] benefit . . . .” 8 U.S.C. § 1182(a)(6)(C)(i).

4 noncitizen spouse being admitted to the country.” 602 U.S. 899, 909 (2024). The

parties then filed supplemental briefing addressing that decision.

The district court granted the motion to dismiss. See Chen v. Blinken, No. 23-

CV-2279, 2025 WL 606221, at *9 (E.D.N.Y. Feb. 25, 2025). Following Muñoz, the

district court held that plaintiffs lacked a constitutional right to reunite with their

parent or sibling. Because no constitutional right was burdened, judicial review

was unavailable. Finally, the district court rejected plaintiffs’ alternative

argument for rational basis review of denials regardless of whether they

burdened constitutional rights as inconsistent with Muñoz.

The district court also considered plaintiffs’ allegations that the visa denials

had been issued in bad faith and concluded that plaintiffs’ allegations were

insufficient to make their claim of bad faith plausible. Finally, the district court

rejected plaintiffs’ alternative challenge to the timeliness of the denials,

concluding that that challenge simply repackaged their disagreement with the

merits of the denials.

This appeal followed.

DISCUSSION

Plaintiffs’ claims were correctly dismissed under the doctrine of consular

5 nonreviewability. That doctrine originates in the courts’ recognition of

Congress’s “‘plenary power to make rules’ for the admission” and exclusion of

non-citizens. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), quoting Boutilier v.

Immigr. & Naturalization Serv., 387 U.S. 118, 123 (1967). When Congress delegates

exercises of that power to the Executive, and the Executive, pursuant to that

delegation, denies admission to a non-citizen, that decision “‘is final and

conclusive.’” Muñoz, 602 U.S. at 908, quoting United States ex rel. Knauff v.

Shaughnessy, 338 U. S. 537, 543 (1950).

The Supreme Court has “assumed that a narrow exception . . . exists ‘when

the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.’”

Id., quoting Trump v. Hawaii, 585 U.S. 667, 703 (2018). In Mandel, several citizen

plaintiffs challenged the denial of a Belgian journalist’s visa application, arguing

that the denial burdened their asserted First Amendment right to engage with the

journalist’s ideas. 408 U.S. at 756, 760. The Court declined the government’s

invitation to hold that the Executive has a broad and unreviewable power to

exclude non-citizens from entry for “any reason or no reason” at all. Id. at 769.

Rather, it noted that the government had stated its reason for excluding Mandel.

The Court then examined that reason and deemed it “facially legitimate and bona

6 fide.” Id. The Court concluded that it would “neither look behind the

[Executive’s] exercise of th[e] discretion, nor test it by balancing its justification

against the First Amendment interests.” Id. at 770. The Court thus had no need to

address a situation in which a citizen’s constitutional rights were adversely

affected by the exclusion of a non-citizen for no stated reason at all, or for a stated

reason that was not “facially legitimate and bona fide.” See id.

In light of that decision, in Trump v. Hawaii, the Court was careful to note

that it “has engaged in a circumscribed judicial inquiry when the denial of a visa

allegedly burdens the constitutional rights of a U.S. citizen.” 585 U.S. at 703. Even

in that circumstance, however, the inquiry was strictly limited to “whether the

Executive gave a ‘facially legitimate and bona fide’ reason for its action.” Id.,

quoting Mandel, 408 U.S. at 769. The Court has never suggested that the doctrine

of consular nonreviewability is subject to any exception where the visa denial

does not burden the constitutional rights of a citizen and, even where it does, the

citizen plaintiff cannot prevail if the government has stated a facially legitimate

and good faith reason for the denial.

Plaintiffs appear to concede that they lack a constitutional right to reunite

with their parent or sibling – and wisely so. Muñoz made clear that “a citizen

7 does not have a fundamental liberty interest in her noncitizen spouse being

admitted to the country.” 602 U.S. at 909. Plaintiffs point us to no reason – and

we find none – to treat a citizen sponsoring a parent or sibling differently from

one sponsoring a spouse. See Kane v. U.S. Att’y Gen., No. 23-14192, 2024 WL

3650239, *1, *7–8 (11th Cir. Aug. 5, 2024) (applying Muñoz in declining to review

the denial of a citizen’s petition on behalf of his non-citizen wife and her

children).

Plaintiffs attempt to salvage their claims by arguing that the “facially

legitimate and bona fide” test applies “regardless of whether they can assert a

fundamental right.” Appellants’ Br. 15. That argument finds no basis in the case

law. As the Supreme Court noted in Mandel, it is “clear” that “an unadmitted and

nonresident alien[] ha[s] no constitutional right of entry to this country as a

nonimmigrant or otherwise.” 408 U.S. at 762. The claims considered in that case,

and in subsequent Supreme Court cases, were rooted in the alleged constitutional

rights of citizen plaintiffs. In Muñoz, after reasserting that the action of executive

officers in admitting or excluding non-citizens is, as a general rule, “‘final and

conclusive,’” 602 U.S. at 908, quoting Shaughnessy, 338 U.S. at 543, the Court

synthesized its prior decisions and noted that it had “assumed that a narrow

8 exception to th[e] bar [on judicial review of consular decisions] exists ‘when the

denial of a visa allegedly burdens the constitutional rights of a U.S. citizen,’” in

which case “the Court has considered whether the Executive gave a ‘“facially

legitimate and bona fide reason”’ for denying the visa.” 602 U.S. at 908, quoting

first Trump v. Hawaii, 585 U.S. at 703, then Kerry v. Din, 576 U.S. 86, 103–104 (2015)

(Kennedy, J., concurring in the judgment, in turn quoting Mandel, 408 U.S. at 770).

The Court thus made unmistakably clear that the exception that it assumed exists

permits judicial overruling of a consular decision only when the decision both

burdens the constitutional rights of a citizen and lacks a legitimate and bona fide

reason. Since the first of those conditions does not exist here, we have no

occasion to consider whether the district court correctly concluded that the

second was not present either.3

3 The cases on which plaintiffs rely are not to the contrary. See Kerry, 576 U.S. at 104 (Kennedy, J., concurring in the judgment) (evaluating the government’s reason after “assuming [the citizen’s] rights were burdened directly by the visa denial”); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 556–57 (2d Cir. 1975) (affirming the refusal to review a visa denial because “no constitutional rights of American citizens . . . [we]re ‘implicated.’”). Fiallo v. Bell and Sessions v. Morales- Santana are inapposite, as those cases reviewed refusals to find a qualifying relationship, not a consular officer’s denial of a visa to a qualified relative. See Fiallo v. Bell, 430 U.S. 787, 788, 790 (1977); Sessions v. Morales-Santana, 582 U.S. 47, 51–52 (2017).

9 Finally, we agree with the district court that plaintiffs do not state a claim

for untimeliness. Plaintiffs’ argument has nothing to do with the timing of the

consular officers’ decisions, which were issued promptly. Rather, their argument

reiterates their challenge to the underlying reason for the denials as not facially

legitimate or bona fide. A disagreement on the merits does not make out an

untimeliness claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.