Samira Hazama v. Rex W. Tillerson

851 F.3d 706, 2017 WL 1046109, 2017 U.S. App. LEXIS 4877
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 20, 2017
Docket15-2982
StatusPublished
Cited by26 cases

This text of 851 F.3d 706 (Samira Hazama v. Rex W. Tillerson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samira Hazama v. Rex W. Tillerson, 851 F.3d 706, 2017 WL 1046109, 2017 U.S. App. LEXIS 4877 (7th Cir. 2017).

Opinion

WOOD, Chief Judge.

In an effort to seek judicial review of a consular official’s unfavorable decision on a visa application, Samira' Hazama and Ahmed Abdel Hafiz Ghneim filed a petition for a writ of mandamus in- the district court for the Northern District of Illinois, where Hazama resides. The district court concluded that it lacked subject-matter jurisdiction over the petition, because it thought that review was precluded under the Supreme Court’s decisions in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), and Kerry v. Din, — U.S. -, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015). The district court was correct that this case cannot go forward, but mistaken to think that the problem was jurisdictional. In Morfin v. Tillerson, No. 15-3633, 851 F.3d 710, 2017 WL 1046112 (7th Cir. 2017), decided today, we concluded that plaintiff loses on the merits. The same result is proper here, both for the reasons stated in Morfin and because the criteria for mandamus relief have not been met. See United States v. Vinyard, 539 F.3d 589, 591 (7th Cir. 2008) (mandamus proper only if the order would inflict irreparable harm, is not effectively reviewable at the end of the case, and so far exceeds the bounds of judicial discretion that it is usurpative, in violation of a clear and indisputable legal right, or patently erroneous).

Hazama is a U.S. citizen; she is married to Ghneim, who is a citizen of the Palestinian Authority and currently resides there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed an 1-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Service of the Department of Homeland Security (US-CIS). Her petition was approved by US-CIS on August 25, 2011, but that alone did not assure Ghneim’s right to immigrate to the United States. First, he had to wait *708 until a visa number became available, then (while still outside the country) he had to appear for an interview with a consular officer, and ultimately he had to file form 1-485, the Application to Register Permanent Residence or Adjust Status.

Ghneim never made it to the end of the line. He showed up for his interview at the U.S. Consulate in Jerusalem on January 24, 2013. The consular officer denied the application for three reasons: the commission of a crime of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); previous removal from the United States, id. § 1182 (a)(9) (A) (ii); and unlawful presence in the United States, id. § 1182(a)(9)(B)(i)(II). Ghneim tried to address these grounds, but his petition for a waiver of the “previously removed” and “unlawful presence” grounds was ultimately denied. In the meantime, on January 22, 2015, a consular officer again denied Ghneim’s application, this time for having personally engaged in terrorist activities. See 8 U.S.C. § 1182(a)(3)(B)(i).

Hazama and Ghneim filed the present Complaint for Writ of Mandamus on May 5, 2015. In it, they attack only the terrorism ground for denying the visa. The omission of the other three grounds is perplexing, because it would do little good to set aside one ground if there are three alternate grounds for upholding the agency’s decision. Their choice may reflect the assumption that the three omitted grounds may be waivable. We do not know, and in light of our disposition of the appeal, we need not inquire further. For present purposes we confine ourselves to the applicability of the terrorism ground to Ghneim.

The Complaint also seeks declaratory and injunctive relief under the Administrative Procedure Act, based on the government’s alleged failure to adjudicate Ghneim’s application. Finally, it asserts that the refusal was not facially legitimate and bona fide. The government moved to dismiss, both for lack of subject-matter jurisdiction and for failure to state a claim. The district court held a hearing on the government’s motion on August 26, 2015, but despite her awareness that the court had scheduled this hearing — reflected in her effort on August 20 to seek a postponement — counsel for Hazama and Ghneim did not attend. In the end, however, counsel’s inability to attend made little difference. The district court, noting that the petitioners had relied heavily on the Ninth Circuit’s decision in Din and that the Supreme Court had vacated that ruling, found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. Hazama and Ghneim have appealed from that decision.

The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the United States. See Mandel, 408 U.S. at 762, 92 S.Ct. 2576. Nothing in Din, which admittedly failed to produce an authoritative opinion of the Court, casts any doubt on that proposition. Congress has delegated broad power to the Executive Branch to decide who will have the privilege of entering. Id. at 770, 92 S.Ct. 2576. In general, courts have no authority to second-guess the Executive’s decisions — rulings that are typically made by consular officers of the Department of State. See Samirah v. Holder, 627 F.3d 652, 662 (7th Cir. 2010).

That said, the Court has never entirely slammed the door shut on review of consular decisions on visas. The language in Mandel suggests at least two possible exceptions to the general norm of nonreview-ability: “We hold that when the Executive exercises [the power to admit] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of *709 those who seek personal communication with the applicant.” 408 U.S. at 770, 92 S.Ct. 2576 (emphasis added). In addition, as the final allusion to the First Amendment implies, some courts have held that if a visa denial affects the constitutional rights of American citizens, then it may be reviewable. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016); see also Din, 135 S.Ct. at 2141-42 (dissenting opinion of Breyer, J., joined by Ginsburg, Soto-mayor, and Kagan, JJ., recognizing this right); Id. at 2139 (concurrence in judgment of Kennedy, J., joined by Alito, J., assuming arguendo that such a right exists).

Like the concurring Justices in Din, we can assume for the sake of argument that Hazama has enough of an interest in the grant of a visa to her husband that this case can go forward.

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Bluebook (online)
851 F.3d 706, 2017 WL 1046109, 2017 U.S. App. LEXIS 4877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samira-hazama-v-rex-w-tillerson-ca7-2017.