Defendant's Attorney: Craig Arthur Oswald and Adrienne Marie Zack
Description: Plaintiffs Elena Matushkina and
her daughter Svetlana Son filed this suit against federal officials
after a U.S. Consulate denied Matushkina’s immigrant
visa application in 2015. The well-established doctrine of consular
nonreviewability makes it impossible, or nearly so, for
plaintiffs to challenge the visa denial. Plaintiffs insist that
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their suit does not challenge the visa denial. Instead, they seek
relief under the Administrative Procedure Act (“APA”) from
the government’s determination that Matushkina was inadmissible
when she tried to enter the country back in 2009. The
district court dismissed for lack of standing.
This is one of those cases where the line between standing
and the merits is rather fine but makes little practical difference.
We affirm the dismissal but we do so on the merits rather
than for lack of standing. The case is in essence a challenge
to the visa denial, and that decision is not subject to judicial
I. Factual and Procedural Background
A. The 2015 Visa Denial
Elena Matushkina is a Russian citizen who applied for an
immigrant visa to the United States. Svetlana Son is Matushkina’s
daughter and is a U.S. citizen. Sometime after Son became
a citizen in 2013, she filed an I-130 visa petition on Matushkina’s
behalf. The government approved that petition,
which allowed Matushkina to apply for the immigrant visa.
When Matushkina applied, however, a U.S. Consulate denied
her application in 2015 because U.S. Customs and Border Protection
(“CBP”) had determined at the border back in 2009
that she is inadmissible.
B. The 2009 Inadmissibility Determination
Matushkina and Son insist that their suit does not challenge
the 2015 visa denial but instead challenges the earlier
2009 determination by CBP. In 2009, Matushkina tried to visit
the United States on a visitor’s (nonimmigrant) visa. When
she arrived at O’Hare International Airport in Chicago,
No. 17-1336 3
though, a CBP officer interviewed her and learned that Matushkina
had not disclosed to the U.S. Embassy that her daughter
was working in the United States in violation of her student
visa. Matushkina had been afraid to disclose that fact because
she feared she would not receive a visa. The officer determined
that Matushkina’s failure to disclose her daughter’s
violation of her student visa status was a willful misrepresentation
of a material fact, and that made Matushkina herself
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
Aliens who are deemed inadmissible under section
1182(a)(6)(C)(i) are subject to expedited removal under 8
U.S.C. § 1225(b)(1)(A)(i). However, CBP officers have the option
of allowing an inadmissible alien to withdraw her application
for admission, leave the country, and avoid removal
proceedings. See U.S. Dep’t of Justice, CBP Inspector’s Field
Manual 17.2(a) (2006). On the spot, Matushkina withdrew her
application for admission and acknowledged that her nonimmigrant
visa would be cancelled. The CBP officer entered the
inadmissibility finding in the State Department’s electronic
lookout system. Matushkina’s nonimmigrant visa was cancelled,
and she promptly left the United States.
C. This Lawsuit
Almost seven years after CBP’s 2009 determination at
O’Hare Airport, Matushkina and Son filed this suit against
the Secretary of Homeland Security and the Chicago Area
Port Director of the CBP under the APA. Their complaint alleged
that the 2009 inadmissibility determination violated the
APA and that the CBP officer violated provisions of the CBP
Inspector’s Field Manual and “due process and notions of
fundamental fairness.” They asked the district court to set
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aside the inadmissibility determination and to declare that
Matushkina did not make a material misrepresentation.
The district court dismissed the case for lack of standing.
Matushkina v. Davies, No. 16 CV 7360, 2017 WL 5894994 (N.D.
Ill. Feb. 2, 2017). The court reasoned that as an unadmitted
alien, Matushkina had no legally protected right to enter the
United States. The court also found that Son had no standing
because she was not yet a citizen at the time of the challenged
inadmissibility determination. Matushkina and Son both appeal.
The district court found a lack of standing on the pleadings.
It did not make any factual findings or rely on any of the
documents the government attached to its combined motion
to dismiss for lack of standing under Rule 12(b)(1) and for failure
to state a claim under Rule 12(b)(6). Our review is therefore
1 The district court did not reach the government’s arguments that the
suit should fail under the APA for lack of final agency action, see 5 U.S.C.
§ 704, and as barred by the statute of limitations in 28 U.S.C. § 2401(a). We
do not think either argument affects subject matter jurisdiction. The Supreme
Court recently held that the other subsection of section 2401 is not
jurisdictional. United States v. Kwai Fun Wong, 575 U.S. —, —, 135 S. Ct.
1625, 1638 (2015) (time limits in 28 U.S.C. § 2401(b) are not jurisdictional).
And we recently indicated that section 704 is not jurisdictional either. See
Builders Bank v. FDIC, 846 F.3d 272, 274, 275 (7th Cir. 2017) (collecting cases
distinguishing between “truly jurisdictional rules” and “case-processing
doctrines,” and noting that “possibility of pre-enforcement review …
shows that a litigant-specific final decision is not a jurisdictional requirement”
where agency “has acquiesced in immediate review”); see also Sundeep
Iyer, Comment, Jurisdictional Rules and Final Agency Action, 125 Yale
L.J. 785 (2016) (discussing “erroneous jurisdictional treatment”).
No. 17-1336 5
The line between a lack of standing and a failure to state a
claim for relief on the merits can be a fine one, as this case
shows. The basic problem is that the lead plaintiff does not
have a legal right enforceable in a federal court, but it is not
always obvious in such cases whether the problem is a lack of
standing or lack of a viable claim on the merits. We explain
first why Matushkina meets the requirements for standing before
explaining why she lacks a legally enforceable right. Because
Matushkina has standing, we need not address whether
her daughter does. E.g., Ezell v. City of Chicago, 651 F.3d 684,
696 n.7 (7th Cir. 2011) (“Where at least one plaintiff has standing,
jurisdiction is secure and the court will adjudicate the
case whether the additional plaintiffs have standing or not.”).
Standing has three elements: “The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,
578 U.S. —, —, 136 S. Ct. 1540, 1547 (2016), citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). We address
these elements in turn.
1. Injury in Fact
An injury in fact requires “‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’” Spokeo, 578
U.S. at —, 136 S. Ct. at 1548, quoting Lujan, 504 U.S. at 560. The
interest at issue need not rise to the level of a right, let alone a
constitutional right. See Lujan, 504 U.S. at 562–63 (“Of course,
the desire to use or observe an animal species, even for purely
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esthetic purposes, is undeniably a cognizable interest for purpose
Matushkina had an interest in her admissibility to the
United States, and the injury to that interest is apparent on the
face of the complaint. The CBP officer entered the inadmissibility
finding in the lookout system, Matushkina’s nonimmigrant
visa was cancelled, and a U.S. Consulate later denied
Matushkina’s request for an immigrant visa because of the
earlier inadmissibility determination. Matushkina also satisfies
the other components of an injury in fact. Her injury is
concrete because it “actually exist[s],” Spokeo, 578 U.S. at —,
136 S. Ct. at 1548, and it is particularized because it “affect[s
her] in a personal and individual way,” id., quoting Lujan, 504
U.S. at 560 n.1. Her injury is not hypothetical or conjectural.
The district court reasoned that Matushkina lacked standing
because she is an alien who “has no right of entry into the
United States, and no cause of action to press in furtherance
of [her] claim for admission.” A right of entry, however, is not
a prerequisite to standing in the case of someone seeking entry
to the United States. See Stenographic Machs., Inc. v. Reg’l
Adm’r for Emp’t & Training, 577 F.2d 521, 528 (7th Cir. 1978)
(alien employee who, presumably, was already present in
country had constitutional standing because denial of employment
certificate caused economic injury); see also American
Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 47, 60
(D.D.C. 1998) (individual visa holders had standing despite
having no constitutional right to admission), aff’d as modified,
199 F.3d 1352 (D.C. Cir. 2000). We recently found in Musunuru
v. Lynch, 831 F.3d 880 (7th Cir. 2016), that an employee beneficiary
of an employer’s I-140 petition had constitutional standNo.
ing to challenge the revocation of a previously approved petition.
Id. at 882 n.1, citing Kurapati v. U.S. Bureau of Citizenship
& Immigration Servs., 775 F.3d 1255, 1259–61 (11th Cir. 2014)
(viewing “deprivation of an opportunity to apply for adjustment
of status” as injury), and Patel v. U.S. Citizenship & Immigration
Servs., 732 F.3d 633, 637–38 (6th Cir. 2013) (viewing
“the loss of an opportunity to become a permanent resident”
as injury). We reached this conclusion in Musunuru even
though the employee had no protected liberty or property interest
in the petition’s validity for a Fifth Amendment claim.
831 F.3d at 891. We recently reached a similar result in an asylum
case. See Garcia v. Sessions, 873 F.3d 553, 556 (7th Cir. 2017)
(viewing “denial of a statutory right to apply for asylum” as
injury “even though there is no due process right to asylum”).
Causation is straightforward here. The plaintiff’s alleged
injury must be causally connected to a defendant’s conduct
rather than to a third party’s conduct. Lujan, 504 U.S. at 560.
Defendants Nielsen and Davies oversee the department and
the port, respectively, in which the CBP officer concluded that
Matushkina made a fraudulent misrepresentation. The CBP
officer’s conclusion triggered the inadmissibility determination,
which resulted in the loss of Matushkina’s visa in 2009
and the denial of a new one in 2015.
The alleged injury could be redressed by a court if Matushkina
could prevail on the merits. See Lujan, 504 U.S. at 561.
At least in theory, a court order setting aside the determination
that she made a misrepresentation could remove the obstacle
to her visa application. The fact that the Consulate
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could still deny Matushkina’s visa application on some other
ground does not defeat standing. See Kurapati, 775 F.3d at
1259–60 (favorable decision would redress injury “even
though USCIS might not ultimately approve the immigrant’s
adjustment of status application”). Matushkina thus has
standing, so we move on to the merits.
B. Consular Nonreviewability
By seeking to set aside the inadmissibility determination,
Matushkina attacks the basis for the denial of her visa application.
“Consular nonreviewability” is the general rule that
decisions “to issue or withhold a visa” are not reviewable in
court “unless Congress says otherwise.” Saavedra Bruno v. Albright,
197 F.3d 1153, 1159 (D.C. Cir. 1999). In its purest form,
consular nonreviewability creates a “general norm of nonreviewability.”
Hazama v. Tillerson, 851 F.3d 706, 708 (7th Cir.
2017). The doctrine bars judicial review of visa decisions
made by consular officials abroad. See Saavedra Bruno, 197
F.3d at 1159. The bar is not absolute, though. We have recognized
that language in Kleindienst v. Mandel, 408 U.S. 753, 770
(1972), “suggests at least two possible exceptions to the general
norm of nonreviewability.” Hazama, 851 F.3d at 708.
First, we may conduct a limited review to determine
whether a visa was denied for a bona fide and facially legitimate
reason. Id., again citing Mandel, 408 U.S. at 770; accord,
Morfin v. Tillerson, 851 F.3d 710, 713–14 (7th Cir. 2017). Under
this analysis, we do not look to see whether a consular official
properly construed and applied relevant provisions of law.
Hazama, 851 F.3d at 709 (rejecting suggestion of amicus curiae
to “adopt a rule under which we would examine whether the
officer ‘properly construed and applied’ the relevant provisions
of law”). Instead, we “look at the face of the decision,
No. 17-1336 9
see if the officer cited a proper ground under the statute, and
ensure that no other applicable constitutional limitations are
violated. Once that is done, if the undisputed record includes
facts that would support that ground, our task is over.” Id.
Second, review may also be permitted where a denial of an
alien’s application affects a U.S. citizen’s constitutional rights.
Id., citing Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir.
2016); see Morfin, 851 F.3d at 711–13.2
In an effort to avoid the doctrine of consular nonreviewability,
Matushkina has not sued the State Department or U.S.
consular officials in Russia. Instead she has sued CBP, which
made the 2009 determination that became the basis for the
2015 visa denial. She challenges the inadmissibility determination
that is the basis for the unfavorable visa decision
(which in turn provides standing). We conclude that this indirect
attack on the visa denial cannot succeed. Courts have
applied the doctrine of consular nonreviewability even to
suits where a plaintiff seeks to challenge a visa decision indirectly.
See, e.g., Malyutin v. Rice, 677 F. Supp. 2d 43, 46 (D.D.C.
2009) (applying doctrine to theory that visa denial obstructed
plaintiff’s access to state court because “the doctrine also applies
where a plaintiff attempts to circumvent the doctrine by
2 We treat the doctrine of consular nonreviewability as a matter of a
case’s merits rather than the federal courts’ subject matter jurisdiction. See
Morfin, 851 F.3d at 711, 714; Hazama, 851 F.3d at 707, 710. To the extent that
Saavedra Bruno has been read to apply the doctrine using the language of
subject matter jurisdiction, we note that the opinion was written in 1999,
before the Supreme Court’s series of more recent decisions clarifying and
narrowing the scope of subject matter jurisdictional doctrines, as distinct
from a host of other case-processing rules. See, e.g., Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154 (2010).
10 No. 17-1336
claiming [that] he is not seeking a review of the consular officer’s
decision, but is challenging some other, related aspect
of the decision”), aff’d, No. 10-5015, 2010 WL 2710451 (D.C.
Cir. July 6, 2010); Al Makaaseb Gen. Trading Co. v. Christopher,
No. 94 CIV. 1179 (CSH), 1995 WL 110117, at *3 (S.D.N.Y. Mar.
13, 1995) (rejecting challenge to inclusion of visa applicant on
lookout list because “such a challenge cannot be divorced
from an attack of the decision itself”); Garcia v. Baker, 765 F.
Supp. 426, 428 (N.D. Ill. 1990) (collecting cases and rejecting
challenge of visa denial characterized as challenge to State Department’s
legal opinion allegedly rendered contrary to law
because courts “cannot review a consular officer’s decision
even upon allegations that the consular officer acted on erroneous
information, that the INA did not authorize the officer’s
decisions, that the officer erroneously interpreted and applied
the INA, or that the State Department failed to follow its own
regulations” (citations omitted)). Courts are not required to
take a plaintiff’s word that she is not challenging the visa denial.
E.g., Luo v. Coultice, 178 F. Supp. 2d 1135, 1139 (C.D. Cal.
2001) (“Although Plaintiffs have brought suit against the INS,
through the Director of a local service center, their real quarrel
is with the consular officials in China who denied their applications.”).
The timing of Matushkina’s suit is telling. Instead of filing
suit after her nonimmigrant visa was cancelled and CBP entered
the inadmissibility determination in the lookout system
in 2009, she filed suit in 2016 after the Consulate denied her
immigrant visa application. And the relief Matushkina seeks
is equally telling. She wanted the district court to declare invalid
CBP’s determination that she misrepresented something
on her earlier visa application and to declare that she did not
make a material misrepresentation. The end result of either
No. 17-1336 11
relief explains why consular nonreviewability bars Matushkina’s
claim: each would remove an obstacle for her visa application,
which is why she has standing to assert her claim.
Turning back to doctrinal substance, neither of the doctrine’s
suggested exceptions can save Matushkina’s claims.
We have not applied these exceptions to antecedent determinations
underlying a visa denial. Even if the exceptions applied,
Matushkina’s claims would still fail. The record makes
clear that the CBP officer’s determination of fraud was facially
legitimate and bona fide. The issue is not whether the officer
properly construed and applied 8 U.S.C. § 1182(a)(6)(C)(i).
Examining whether an official properly construed and applied
the law would expand the facial-legitimacy and bonafide-
reason inquiry into full-blown merits review. See Hazama
v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017).
In addition, the stated basis for the finding (as well as the
visa denial) was bona fide and facially legitimate. The officer
cited the fraud and misrepresentation statute as the basis for
inadmissibility, and the transcript supports that citation. Matushkina
acknowledged in the interview that she omitted information
about her daughter’s employment. Her recent efforts
to recant that acknowledgment do not undermine the
original decision. The affidavit in which she disputes the accuracy
of the transcript and the copy of her nonimmigrant
visa application (which the complaint alleges does not require
disclosure of her daughter’s employment) were not before the
district court. We cannot consider those documents on appeal
because they were put before us—improperly—for the first
time as an appendix to Matushkina’s reply brief. Consideration
of them would take us far beyond facial legitimacy and
into consideration of the merits.
12 No. 17-1336
Even if the exception for an effect on a citizen’s constitutional
rights could apply, Son was not a citizen when Matushkina
was deemed inadmissible. That makes her unlike the
citizen-plaintiffs in Morfin, Hazama, and Din. Moreover, Son—
like the sponsor-plaintiffs in Saavedra Bruno—does not assert
any freestanding constitutional claim of her own. See Saavedra
Bruno v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999).
In an attempt to avoid the consular nonreviewability doctrine,
Matushkina cites three cases, but they do not persuade
us to allow her suit to proceed. The first is Legal Assistance for
Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C.
Cir. 1995), where plaintiffs alleged that the State Department
violated the Administrative Procedure Act, the Immigration
and Nationality Act, and the Constitution by discriminatorily
halting visa processing based on national origin. Matushkina’s
citation omits critical subsequent history. The Supreme
Court vacated the judgment and remanded the case to
the D.C. Circuit after Congress passed the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. U.S. Dep’t
of State v. Legal Assistance for Vietnamese Asylum Seekers, Inc.,
519 U.S. 1 (1996) (per curiam). On remand, the D.C. Circuit
held that the Immigration and Nationality Act and APA
claims were unreviewable and that the equal protection claim
failed on the merits. Legal Assistance for Vietnamese Asylum
Seekers v. Dep’t of State, 104 F.3d 1349, 1352–54 (D.C. Cir. 1997).
Second, Matushkina cites Patel v. Reno, 134 F.3d 929 (9th
Cir. 1997), where the Ninth Circuit issued a writ of mandamus
ordering the consulate to act, one way or another, on a visa
application that had been pending for eight years. Whether
that decision was correct or not, the court did not suggest that
No. 17-1336 13
it would review the merits of any eventual denial in any depth
beyond the facial legitimacy review discussed in Mandel.
Third, Matushkina tries to counter the force of Saavedra
Bruno by citing Maramjaya v. U.S. Citizenship & Immigration
Servs., No. 06–2158 (RCL), 2008 WL 9398947 (D.D.C. Mar. 26,
2008), which held that the plaintiff had standing because he
did not challenge the visa decision of a consular official but
instead contended that U.S. Citizenship and Immigration Services
violated the Act by denying his employer’s I-140 petition
filed on his behalf. We have already held that Matushkina has
standing. Moreover, Maramjaya simply did not involve a visa
denial. There was not even the possibility of using the procedural
attack on the denial of the I-140 as a back door to challenge
a visa denial.
Finally, we explain briefly why we have jurisdiction on appeal,
in the absence of a cross-appeal, to convert the dismissal
for lack of standing to a dismissal on the merits. As a general
rule, where a defendant has won dismissal for lack of standing
or some other jurisdictional ground, modifying the judgment
to dismissal on the merits would expand the defendant’s
rights or limit the plaintiff’s rights under the judgment (by
foreclosing another lawsuit). This ordinarily requires a crossappeal.
See, e.g., Remijas v. Neiman Marcus Grp., LLC, 794 F.3d
688, 697 (7th Cir. 2015), citing Jennings v. Stephens, 574 U.S. —,
—, 135 S. Ct. 793, 798 (2015) (without cross-appeal, appellee
may not urge theory that would enlarge its rights or lessen
The general rule does not apply, however, where a jurisdictional
dismissal effectively bars relief on the merits in any
judicial forum. In such cases, modifying the dismissal from
jurisdiction to merits makes no practical difference. It does
14 No. 17-1336
not expand the defendant’s rights and does not require a
cross-appeal. We took that approach in Hazama v. Tillerson, 851
F.3d 706, 710 (7th Cir. 2017) (modifying judgment and dismissing
petition for mandamus and claims under the APA on
merits), and in Morfin v. Tillerson, 851 F.3d 710, 714 (7th Cir.
2017) (modifying judgment and dismissing claims under the
APA on merits). Modifying the judgment in this case is consistent
with our approach in Hazama and Morfin and with the
practical effects of Jennings and United States v. American Ry.
Express Co., 265 U.S. 425, 435 (1924), which prohibited attempts
to “supplement the decree with respect to a matter not
dealt with” but allowed raising “any matter appearing in the
record, although [the] argument may involve an attack upon
the reasoning of the lower court or an insistence upon matter
overlooked or ignored by it.”
The case should not have been dismissed for lack of standing
but it must be dismissed on the merits. We modify the
judgment to a dismissal on the merits for failure to state a
claim upon which relief can be granted, and as modified, the