Nimul Chheng v. Usdhs

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2023
• Docket: 21-17040
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NIMUL CHHENG; NHEP CHHENG, No. 21-17040

Plaintiffs-Appellants, D.C. No. 3:21-cv-03223-JSC

v. MEMORANDUM* U.S. DEPARTMENT OF HOMELAND SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted August 14, 2023 San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,** District Judge.

Plaintiffs-Appellants Nhep Chheng (“Nhep,” a naturalized citizen) and his

adult son Nimul Chheng (“Nimul,” a native and citizen of Cambodia) appeal the

district court’s grant without leave to amend of Defendant-Appellee U.S.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.

- Department of Homeland Security’s motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s dismissal for failure to state a claim and may affirm on any

basis supported by the record. ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d

999, 1004 (9th Cir. 2014). We review a district court’s denial of leave to amend

for an abuse of discretion. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

2000) (en banc). We affirm.

1. The Chhengs challenge the denial of Nimul’s visa application, which

Nhep sponsored. We have held that pursuant to the doctrine of consular

nonreviewability, “ordinarily, a consular official’s decision to deny a visa to a

foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104

(9th Cir. 2018) (quoting Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.

2008)). But, a “circumscribed judicial inquiry” may be made where a consular

decision involves a violation of a U.S. citizen’s constitutional rights. Khachatryan

v. Blinken, 4 F.4th 841, 849 (9th Cir. 2021) (quoting Trump v. Hawaii, 138 S. Ct.

2392, 2419 (2018)).

As a foreign national, Nimul does not have a constitutional right of entry and

therefore cannot challenge the visa denial. See Kleindienst v. Mandel, 408 U.S.

753, 762 (1972). Additionally, Nhep fails to show a constitutionally protected

liberty interest in his non-citizen adult child’s visa application sufficient to state a

2 due process claim that would fall within the exception to the doctrine of consular

nonreviewability. In Khachatryan, we considered the inverse relationship and

found no constitutionally protected liberty interest in the visa denial of an adult

U.S. citizen’s non-citizen parent. 4 F.4th at 862 (“[T]he [Supreme] Court has

never suggested that whatever protection applies to extended-family relationships

entails a constitutionally rooted expectation that one will be allowed to bring one’s

parents or adult children into the United States.”). Given the reciprocal nature of

the parent-child interest in familial association, we conclude that the holding of

Khachatryan controls here. See Smith v. City of Fontana, 818 F.2d 1411, 1418

(9th Cir. 1987) (recognizing reciprocal rights between the interests of parents and

children), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d

1037, 1040 n.1 (9th Cir. 1999) (en banc); Wheeler v. City of Santa Clara, 894 F.3d

1046, 1058 (9th Cir. 2018) (noting that children’s “rights to companionship with

their parents have been interpreted as reciprocal to their parents’ rights”).

Therefore, Nhep has not shown he has a constitutionally protected liberty interest

in the denial of his non-citizen adult child’s visa, and his claims were properly

dismissed.

2. The Chhengs argue the district court abused its discretion in

dismissing their suit without leave to amend. However, dismissal without leave to

amend is proper if “the pleading could not possibly be cured by the allegation of

3 other facts.” Lopez, 203 F.3d at 1127 (quoting Doe v. United States, 58 F.3d 494,

497 (9th Cir. 1995)). Because the Chhengs cannot cure the lack of a

constitutionally protected interest, dismissal without leave to amend was proper.

The decision of the district court is AFFIRMED.1

1 The Chhengs’ motion to expedite is denied as moot. Dkt. No. 29.