Chheng v. U.S. Dept. of Homeland Security

• Court: District Court, N.D. California
• Decided: November 10, 2021
• Docket: 3:21-cv-03223
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 NIMUL CHHENG, et al., Case No. 21-cv-03223-JSC

9 Plaintiffs, ORDER RE: DEFENDANT’S MOTION 10 v. TO DISMISS

11 U.S. DEPT. OF HOMELAND SECURITY, Re: Dkt. No. 20 Defendant. 12

13 14 Nhep Chheng, a naturalized U.S. citizen, and his son Nimul Chheng, a Cambodian citizen, 15 who are proceeding without counsel, bring this action under the Administrative Procedures Act, 5 16 U.S.C. § 702 et. seq. challenging the Department of Homeland Security Administrative Appeals 17 Office’s denial of Nimul Chheng’s visa.1 A Department of State consular officer in Cambodia 18 twice denied Nimul’s visa application and the Department of Homeland Security Administrative 19 Appeals Office’s subsequently denied Nimul’s Form I-601 Application of Waiver for Grounds of 20 Inadmissibility. Defendant now moves to dismiss Plaintiffs’ action based on the doctrine of 21 consular nonreviewability and for failure to state a claim. (Dkt. No. 20.2) Having considered the 22 parties’ briefs and the relevant legal authority, the Court GRANTS the motion to dismiss. 23 BACKGROUND 24 A. Complaint Allegations 25 Nhep has been attempting to bring his son Nimul to the United States from Cambodia 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 5, 11, 16.) 1 since 2008. (Dkt. No. 1 at 3.) Nhep is elderly and has numerous medical conditions for which he 2 requires his son’s assistance. (Id.) Nimul was denied a visa “because the USCIS accused him of 3 committing Fraud because he presented a false passport to the U.S. Embassy Office in Cambodia. 4 (Id. at 4.) 5 Plaintiffs’ Complaint attaches a December 21, 2020 decision from the Administrative 6 Appeals Office (AAO) denying Nimul’s motion to reopen the denial of his I-601 waiver of 7 inadmissibility.3 (Dkt. No. 1-1 at 5-7.) The AAO concluded that Nimul had not presented any 8 new facts that would warrant reopening. (Id. at 6.) According to the decision, a consular officer 9 previously found that Nimul was inadmissible (1) under 8 U.S.C. § 1182(a)(6)(C)(i) for fraud or 10 misrepresentation because he presented a false passport at the consular interview, and (2) under 8 11 U.S.C. § 1182(a)(6)(E)(i) for alien smuggling because he previously assisted his sister in 12 attempting to enter the United States unlawfully. (Id.) The AAO noted that Nimul alleged that he 13 was the victim of a scam with respect to the passport and that he had new facts concerning the 14 finding of inadmissibility based on alien smuggling, but that it could not consider those because 15 the Department of State “makes a final determination concerning his eligibility for a visa and any 16 applicable inadmissibility grounds.” (Id.) Finally, the AAO found that while inadmissibility for 17 fraud or misrepresentation could be waived as a matter of discretion upon a showing of extreme 18 hardship to a United States citizen spouse or parent, Nimul was statutorily ineligible for such a 19 waiver because it was only for those whose violation of section 1182(a)(6)(E)(i) was for 20 smuggling a parent, spouse, or child—not a sibling as in Nimul’s case. (Id.) 21 B. Procedural Background 22 On January 20, 2021, Nhep and Nimul, representing themselves, filed a petition for review 23 with the Ninth Circuit Court of Appeals the denial of Nimul’a motion to reopen. (Dkt. No. 1-1 at 24 3.) The Ninth Circuit subsequently granted Plaintiffs’ request to transfer the action to this Court 25 where it was docketed as a writ of mandamus under General Order 61. (Dkt. No. 1 at 1.) In their 26 mandamus, Plaintiffs allege that the Department of Homeland Security violated the APA by 27 1 denying their right to a visa without a proper investigation. (Id. at 5.) Plaintiffs contend that the 2 AAO’s decision was arbitrary, capricious, and an abuse of discretion. (Id.) The Court granted 3 their application to proceed in forma pauperis. (Dkt. No. 8.) Defendant now moves to dismiss 4 under the doctrine of consular non-reviewability and for failure to state a claim. (Dkt. No. 20.) 5 The motion is fully briefed and came before the Court for a hearing on November 4, 2021, but 6 Plaintiffs did not appear at the hearing and the Court took the matter under submission. 7 DISCUSSION 8 A. The Doctrine of Consular Non-reviewability 9 Courts have “have long recognized that ‘ordinarily, a consular official’s decision to deny a 10 visa to a foreigner is not subject to judicial review’ ... based on ‘the recognition that the power to 11 exclude or expel aliens, as a matter affecting international relations and national security, is vested 12 in the Executive and Legislative branches of government.’” Allen v. Milas, 896 F.3d 1094, 1104 13 (9th Cir. 2018) (internal citations omitted). In Kleindienst v. Mandel, 408 U.S. 753 (1972), the 14 Supreme Court “recognized a narrow exception for review of constitutional claims,” but “[t]he 15 exception itself is quite narrow, requiring deference to the consular officer’s decision so long as 16 ‘that reason was facially legitimate and bona fide.’” Allen, 896 F.3d at 1105 (quoting Mandel, 408 17 U.S. at 769). In particular, once a consular officer presents a facially legitimate and bona fide 18 reason for the denial, “courts will neither look behind the exercise of that discretion, nor test it by 19 balancing its justification against” the constitutional interests at issue. Mandel, 408 U.S. at 770. 20 However, to trigger this deferential standard of review, “the denial of a visa [must] implicate[ ] the 21 constitutional rights of American citizens.” See Cardenas v. United States, 826 F.3d 1164, 1169 22 (9th Cir. 2016) (citation and internal quotation marks omitted); see also Kerry v. Din, 576 U.S. 86, 23 103–04 (2015) (Kennedy, J., concurring in the judgment) (applying the doctrine).4 24 In Cardenas, the Ninth Circuit held that “the facially legitimate and bona fide reason test 25

26 4 While there was no majority opinion in Din, Justice Kennedy’s concurrence is viewed as controlling. See Allen, 896 F.3d at 1108 (“But Justice Kennedy, joined by Justice Alito, concurred 27 in the judgment alone, in the narrowest and thus controlling opinion in that case.”). All further 1 has two components.” Cardenas, 826 F.3d at 1172. “First, the consular officer must deny the visa 2 under a valid statute of inadmissibility.” Id. (citing Din, 576 U.S. at 104 (consular officer’s 3 citation to § 1182(a)(3)(B) “suffices to show that the denial rested on a determination that Din’s 4 husband did not satisfy the statute’s requirements,” and “the Government’s decision to exclude an 5 alien it determines does not satisfy one or more of [the statutory conditions for entry] is facially 6 legitimate under Mandel”)). “Second, the consular officer must cite an admissibility statute that 7 ‘specifies discrete factual predicates the consular officer must find to exist before denying a visa,’ 8 or there must be a fact in the record that ‘provides at least a facial connection to’ the statutory 9 ground of inadmissibility.” Cardenas, 826 F.3d at 1172 (quoting Din, 576 U.S. at 105). 10 B. The APA Claim Fails 11 The government insists that Plaintiffs’ challenge to the denial of Nimul’s visa application 12 is nonjusticiable for two reasons. 13 First, Plaintiffs bring their APA claim against the Department of Homeland Security rather 14 than the Department of State. As a visa applicant residing in Cambodia, only a Department of 15 State consular officer can make a final decision regarding Nimul’s eligibility for a visa and any 16 grounds of inadmissibility. See 8 U.S.C. § 1202(b) (“All immigrant visa applications shall be 17 reviewed and adjudicated by a consular officer.”). Thus, to the extent that Plaintiffs challenge the 18 consular officer’s visa denial(s), the proper defendant is the Secretary of State. Given that the 19 Court liberally construes pleadings by unrepresented parties, the Court construes Plaintiffs’ claim 20 as it if were brought against the Department of State. See Erickson v. Pardus, 551 U.S. 89, 94 21 (2007). 22 Second, the government insists that even if pled against the Department of State, Plaintiffs’ 23 claim fails under the doctrine of consular non-reviewability. In Allen, the Ninth Circuit concluded 24 that under the doctrine of consular non-reviewability, “the APA provides no avenue for review of 25 a consular officer’s adjudication of a visa on the merits.” 896 F.3d at 1108. While Mandel 26 provides an exception for limited review of constitutional claims, such a claim does not arise 27 under the APA. See Allen, 896 F.3d at 1108–09. 1 claim is dismissed without leave to amend. 2 C. Leave to Amend 3 While the Court has dismissed Plaintiffs’ APA claim without leave to amend, given that 4 Plaintiffs are unrepresented and their complaint alleges a constitutional violation—which could be 5 viable outside the context of the APA claim—the Court must consider whether to grant leave to 6 amend to allow Plaintiffs to plead such a claim. Generally, if a court grants a Rule 12(b)(6) 7 motion, it “should grant leave to amend even if no request to amend the pleading was made, unless 8 it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez 9 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations 10 omitted). 11 Leave to amend would be futile here. First, the son, Nimul Chheng, a Cambodian citizen, 12 “has ‘no constitutional right to entry,’ and so he personally has no ability to bring a cause of action 13 challenging his denial of admission.” Khachatryan, 4 F.4th at 849–50 (quoting Trump v. Hawaii, 14 138 S. Ct. 2392, 2419 (2018)); see also Mandel, 408 U.S. at 762, 92 S.Ct. 2576 (“It is clear that 15 Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to 16 this country as a nonimmigrant or otherwise.”). 17 Second, Nhep Chheng, a U.S. citizen, could bring a claim notwithstanding the doctrine of 18 consular nonreviewability, only to the extent his claims are based on a “cognizable violation of his 19 own constitutional rights.” Khachatryan v. Blinken, 4 F.4th 841, 850 (9th Cir. 2021). However, 20 the Ninth Circuit recently held that “an adult citizen lacks a constitutionally protected liberty 21 interest, protected by the Fifth Amendment’s Due Process Clause, in the Government’s decision 22 whether to admit the citizen’s unadmitted nonresident alien parent into the United States.” Id. at 23 862. While Khachatryan involved the opposite scenario—a United States citizen son seeking to 24 bring his foreign national father into the United States—there is no legitimate distinction that the 25 Court can draw here. Indeed, the Khachatryan court’s reasoning suggests that the rationale 26 applies equally to both scenarios as it relied on the fact that the Supreme “Court has never 27 suggested that whatever protection applies to extended-family relationships entails a 1 children into the United States.” Id. at 862 (emphasis added). 2 Accordingly, as neither father nor son have a constitutional right at stake, the doctrine of 3 consular nonreviewability applies without exception and leave to amend would thus be futile. 4 Third, even if the limited exception could apply, the Court’s review is limited to whether 5 the consular officer provided a “facially legitimate and bona fide” reason for the denial. Mandel, 6 408 U.S. at 769. Under Din, “the Government satisfie[s] any obligation it might have...to provide 7 [a citizen relative of a foreign visa applicant] with a facially legitimate and bona fide reason for its 8 action when it provide[s] notice that [the applicant] was denied admission to the country under [a 9 particular statutory provision].” Din, 576 U.S. at 106; see also Trump v. Hawaii, 138 S. Ct. 2392, 10 2419 (2018) (describing Justice Kennedy’s opinion in Din as holding “that the Government need 11 provide only a statutory citation to explain a visa denial”). The consular officer here denied 12 Nimul’s application because he was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) and 8 U.S.C. 13 § 1182(a)(6)(E)(i). These reasons are facially legitimate as both are statutory grounds for 14 inadmissibility. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008). Further, while 15 Nimul alleges that he was the victim of fraud because he believed he was purchasing a valid 16 passport, he does not allege bad faith on the part of the consular officer. Id. (declining to remand 17 for further factual development of the statutory basis of inadmissibility “because the complaint 18 fails to make an allegation of bad faith sufficient to withstand dismissal.”). Nor does Nimul 19 challenge the finding of inadmissibility under section 1182(a)(6)(E)(i) for alien smuggling, which 20 was an independent basis for the visa denial. (Dkt. No. 1-1 at 6.) To the extent that Nimul 21 contends that new facts exist in support of his visa application, the government maintains that he 22 can reapply to the Department of State for a visa. (Dkt. No. 27 at 6.) 23 CONCLUSION 24 For the reasons stated above, the motion to dismiss is GRANTED without leave to amend. 25 26 // 27 // 1 The Court will enter judgment by separate order. 2 This Order disposes of Docket No. 20. 3 IT IS SO ORDERED. 4 Dated: November 10, 2021 5 ’ ne 6 ACQUELINE SCOTT CORLEY 7 United States Magistrate Judge 8 9 10 11

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