Lucene Bechirian v. Antony Blinken

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2022
• Docket: 20-55913
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 27 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCENE BECHIRIAN; RAFFI No. 20-55913 ATASHIAN, D.C. No. Plaintiffs-Appellants, 2:20-cv-01718-PSG-JEM

v. MEMORANDUM* ANTONY BLINKEN, as Secretary of State; UR M. JADDOU, Director of U.S. Citizenship and Immigration Services; MERRICK B. GARLAND, Attorney General; ALEJANDRO MAYORKAS, as Secretary of Department of Homeland Security; UNITED STATES DEPARTMENT OF STATE; UNITED STATES DEPARTMENT OF JUSTICE; U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; JANE DOE, Consular Officer of United States Embassy, Lebanon; UNITED STATES EMBASSY, LEBANON,

Defendants-Appellees.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted January 13, 2022 Pasadena, California

Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF,** District Judge.

Lucene Bechirian (Bechirian) appeals the district court’s dismissal of her

complaint alleging that a consular officer of the United States Department of State

improperly denied the visa application of her noncitizen fiancé, Raffi Atashian

(Atashian). Bechirian specifically contends that the district court erred in holding

that her claims were barred under the doctrine of consular nonreviewability.

Bechirian further asserts that, because U.S. Citizenship and Immigration Services

(USCIS) terminated her petition after four months, she was deprived of a property

interest in approval of her petition and her fundamental right to marry in violation

of her due process rights.

The district court properly dismissed Bechirian’s due process claims under

the doctrine of consular nonreviewability.1 The doctrine of consular

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 Bechirian limits her appeal to the district court’s dismissal of her due process claims, and does not challenge the district court’s dismissal of her other claims. 2 nonreviewability bars review of the denial of a noncitizen’s visa application when

“the consular officer cited an admissibility statute that specifies discrete factual

predicates the consular officer must find to exist before denying a visa or . . .

alternatively, there is a fact in the record that provides at least a facial connection

to the statutory ground of inadmissibility.” Khachatryan v. Blinken, 4 F.4th 841,

851 (9th Cir. 2021) (citation, alteration, and internal quotation marks omitted).

In denying Atashian’s visa application, the consular officer cited to 8 U.S.C.

§ 1201(g),2 which “specifies discrete factual predicates the consular officer must

find to exist before denying a visa.” Khachatryan, 4 F.4th at 851 (citation

omitted); see also 8 U.S.C. § 1201(g); Allen v. Milas, 896 F.3d 1094, 1107 (9th

Cir. 2018) (recognizing that 8 U.S.C. § 1201(g) “instructs” a consular officer “not

to issue a visa if the officer knows or has reason to believe that such [noncitizen] is

ineligible to receive a visa under any provision of law”) (citation, footnote

reference, and internal quotation marks omitted). Even if citation to § 1201(g)

standing alone was insufficient, the consular officer also determined that Atashian

“failed to provide proof of a credible relationship” with Bechirian. Based on the

consular officer’s reliance on facially valid statutory and factual bases for denying

2 8 U.S.C. § 1201(g) is § 221(g) of the Immigration and Nationality Act cited by the consular officer. See Ibrahim v. U.S. Dept. of Homeland Sec., 912 F.3d 1147, 1160 (9th Cir. 2019) (en banc). 3 Atashian’s visa application, dismissal of Bechirian’s due process claims was

warranted. See Khachatryan, 4 F.4th at 851.

Bechirian is unable to avoid application of the doctrine of consular

nonreviewability based on her assertion of independent due process violations

relating to USCIS’ termination of her petition. Bechirian does not establish that

she has a property interest in USCIS’ approval of her petition, particularly as the

Department of State, not USCIS, is responsible for approving a noncitizen’s visa

application. See 8 U.S.C. § 1202(h)(1) (providing that “the Secretary of State shall

require every [noncitizen] applying for a nonimmigrant visa – (1) who is at least 14

years of age and not more than 79 years of age to submit to an in person interview

with a consular officer”) (emphasis added).

Approval of an I-129 fiancé petition is “valid for a period of four months.”

8 C.F.R. § 214.2(k)(5). Bechirian does not demonstrate that her due process rights

were violated due to this regulatory limitation, or that she otherwise had a

fundamental right to marry a noncitizen in the United States.3 As a result, the

3 Contrary to Bechirian’s argument, our decision in Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013) does not support the due process interest that she asserts. In Ching, we did not recognize a fundamental right to marry a noncitizen in the United States. Instead, we acknowledged that the plaintiff “face[d] imminent removal from the United States, thus undoubtedly causing immense hardship to herself and her husband.” Id. at 1157 (emphasis added). 4 doctrine of consular nonreviewability entirely bars Bechirian’s challenge to the

consular officer’s decision, and any amendment of her complaint “would have

been futile.” Doe v. Garland, 17 F.4th 941, 950 (9th Cir. 2021).

AFFIRMED.