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Jerrid Allen v. Kevin M. Milas, et al.

Date: 07-29-2018

Case Number: 16-15728

Judge: Jay S. Bybee

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Eastern District of California (Sacramento County)

Plaintiff's Attorney: Anna Benvenu and Robert Jobe

Defendant's Attorney: Audrey Hemesath and Phillip A. Talbert

Description:

Jerrid Allen petitions under the Administrative Procedure 
Act (APA), 5 U.S.C. § 551 et seq., for review of a decision by 
the U.S. Consulate in Frankfurt, Germany to deny a visa to 
his wife. Allen claims that the consular officer committed 
legal error in denying Mrs. Allen a visa, and that the error 
was “arbitrary, capricious, . . . or otherwise not in accordance 
with law.” Id. § 706(2)(A). We hold that the APA provides 
no avenue for judicial review in this case. Rather, the only 
standard by which we can review the merits of a consular 
4 ALLEN V. MILAS 
officer’s denial of a visa is for constitutional error, where the 
visa application is denied without a “facially legitimate and 
bona fide reason.” Kleindienst v. Mandel, 408 U.S. 753, 769 
(1972). We affirm the district court’s denial of Allen’s 
petition for a writ of mandamus. 
I 
Allen is a U.S. citizen and a Major in the United States 
Army. While stationed in Germany following deployment to 
Iraq, Allen married Dorothea Baer (“Mrs. Allen”), a German 
citizen. They now have three children. In 2013, the Army 
ordered Allen to return from Germany to the United States for 
restationing. Mrs. Allen applied for a visa so she and the 
children could join him. The U.S. Citizenship and 
Immigration Services (“USCIS”) approved Allen’s Petition 
for Alien Relative (“Form I-130”). But after hosting Mrs. 
Allen for an interview, an officer with the U.S. Consulate in 
Frankfurt denied her visa application, stating in relevant part: 
This office regrets to inform you that your 
visa application is refused because you are 
ineligible to receive a visa under section 
212(a)(2)(A)(i)(I) of the Immigration and 
Nationality Act. On July 16, 1998, you were 
convicted in a German court of theft pursuant 
to paragraphs 242 and 248a of the German 
criminal code. This crime constitutes 
behaviour reflecting moral turpitude. The 
maximum punishment is over one year in 
prison. You are eligible to seek a waiver of 
the grounds of ineligibility by filing an I-601 
with USCIS in the United States. 
ALLEN V. MILAS 5 
. . . . 
Additionally your visa application is refused 
because you are ineligible to receive a visa 
under section 212(a)(2)(A)(i)(II) of the 
Immigration and Nationality Act. On March 
20, 1997 you were convicted in a German 
court for illicit acquisition of narcotics 
pursuant to paragraphs 29, 25, 1 and 3 of the 
German criminal code. There is no waiver for 
this ineligibility. 
The letter is signed “Consular Officer.” The consular 
officer’s decision rested on two statutory grounds of 
inadmissibility in the Immigration and Nationality Act 
(“INA”): 
[A]ny alien convicted of, or who admits 
having committed, or who admits committing 
acts which constitute the essential elements 
of— 
(I) a crime involving moral turpitude (other 
than a purely political offense) or an attempt 
or conspiracy to commit such a crime, or 
(II) a violation of (or a conspiracy or attempt 
to violate) any law or regulation of a State, the 
United States, or a foreign country relating to 
a controlled substance (as defined in section 
802 of Title 21), 
is inadmissible. 
6 ALLEN V. MILAS 
8 U.S.C. § 1182(a)(2)(A)(i). 
Allen brought this action in the Eastern District of 
California against the Consul General of the U.S. Consulate 
in Frankfurt, the Consular Section Chief of the same, the 
United States Secretary of Homeland Security, the Director 
of the United States Citizenship and Immigration Services, 
and the United States Secretary of State. Allen’s one and 
only cause of action was under the APA: Allen argues that 
the consular decision was legal error, that he had a right to 
judicial review under the cause of action codified at 5 U.S.C. 
§ 702, and that the district court should set aside the decision 
as “arbitrary, capricious, an abuse of discretion, or otherwise 
not in accordance with law,” id. § 706(2)(A). Allen argues 
that the consular officer committed legal error when he 
identified Mrs. Allen’s 1998 theft conviction as a “crime 
involving moral turpitude,” because the German theft statute 
does not categorically require an intent to deprive a person of 
property permanently—which he alleges is an element of the 
generic offense under federal law in the United States. See 
Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61 (9th Cir. 
2009). Similarly, Allen claims that the consular officer 
committed legal error when he identified Mrs. Allen’s 1997 
conviction for illegal acquisition of narcotics under the 
German Criminal Code as her disqualifying “violation of . . . 
any law . . . relating to a controlled substance,” allegedly 
because those proceedings did not result in a “conviction,” as 
the German court applied only the ameliorative, 
rehabilitative, diversionary provisions of German juvenile 
law in consideration of Mrs. Allen’s youth. See Lujan- 
Armendariz v. INS, 222 F.3d 728, 742–43 (9th Cir. 2000). 
The Government moved to dismiss for lack of subject 
matter jurisdiction under Federal Rule of Civil Procedure 
ALLEN V. MILAS 7 
12(b)(1), which the district court construed as a motion to 
dismiss for failure to state a claim under Rule 12(b)(6), and 
granted. The district court assumed without deciding that 
Allen’s constitutional rights were implicated, Bustamante v. 
Mukaskey, 531 F.3d 1059, 1061 (9th Cir. 2008), and 
conducted a narrow inquiry to ensure the denial was based on 
“facially legitimate and bona fide” reasons. Kerry v. Din, 
135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) 
(quoting Mandel, 408 U.S. at 770). The court characterized 
the consular officer’s statutory citations and references to the 
convictions triggering Mrs. Allen’s exclusion as precisely 
such legitimate and bona fide reasons, and dismissed Allen’s 
petition for failure to state a claim on which relief can be 
granted. 
Allen appeals. We have appellate jurisdiction under 
28 U.S.C. § 1291 and we review this question of law de novo. 
II 
Section 1201(g)(3) of Title 8 provides that no visa shall 
be issued if “the consular officer knows or has reason to 
believe that such alien is ineligible to receive a visa or such 
other documentation under section 1182 of this title, or any 
other provision of law.” In accord with this provision, the 
consular officer here advised Mrs. Allen of the two grounds 
on which he believed she was not eligible for a visa under 
§ 1182. First, because she had been convicted of a theft 
offense, the consular officer determined that she was 
ineligible for a visa because theft is a crime involving moral 
turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). Second, the officer 
determined that because Mrs. Allen had been convicted of 
“illicit acquisition of narcotics” under German law, she was 
ineligible for a visa because she had been convicted of “a 
8 ALLEN V. MILAS 
violation of . . . any law or regulation of . . . a foreign country 
relating to a controlled substance.” Id. § 1182(a)(2)(A)(i)(II). 
Allen, on his own behalf as Mrs. Allen’s husband,1 seeks 
review of the consular officer’s decision under the APA. The 
government contends that we lack subject matter jurisdiction 
to review the consular officer’s decision. We will turn first 
to the government’s claim. Finding that we have subject 
matter jurisdiction, we then turn to Allen’s claim. 
A 
The government argues that the doctrine of consular 
nonreviewability means that “federal courts lack subject 
matter jurisdiction to review a consular officer’s issuance or 
refusal of a visa.” In the same breath, the government tells us 
that the doctrine “precludes the Court from reviewing the 
findings of a consular officer under the guise of the APA.” 
The government’s argument has conflated our power to hear 
“Cases” and “Controversies,” U.S. Const. art. III, § 2, cl. 1, 
with the scope of our review over a case in which we are 
properly vested with jurisdiction. 
In his petition, Allen asserted subject matter jurisdiction 
under the federal question statute, 28 U.S.C. § 1331, under 
the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, and 
under the APA, 5 U.S.C. § 702. The Declaratory Judgment 
Act does not confer subject matter jurisdiction. Medtronic, 
1 As an excluded noncitizen, Mrs. Allen has no personal right to entry, 
nor a right to judicial review absent a personal detention by the United 
States. In that case she could challenge her detention by writ of habeas 
corpus. See 28 U.S.C. § 2241; INS v. St. Cyr, 533 U.S. 289, 301–04 
(2001). 
ALLEN V. MILAS 9 
Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848 
(2014); see also Aetna Life Ins. Co. v. Haworth, 300 U.S. 
227, 240 (1937). Nor does the APA. The APA provides that 
“[a]gency action made reviewable by statute and final agency 
action for which there is no other adequate remedy in a court 
are subject to judicial review.” 5 U.S.C. § 704. Any person 
“suffering legal wrong” or “adversely affected or aggrieved 
by agency action” may bring an action in federal court for 
“relief other than money damages,” id. § 702. These 
provisions of the APA waive the sovereign immunity of the 
United States, but such a waiver is on its terms neither 
coextensive with subject matter jurisdiction nor a guarantee 
of a federal forum. See United States v. Park Place Assoc., 
Ltd., 563 F.3d 907, 923–24 (9th Cir. 2009). “It is beyond 
question . . . that the APA does not provide an independent 
basis for subject matter jurisdiction in the district courts.” 
Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 
645 (9th Cir. 1998); see Califano v. Sanders, 430 U.S. 99, 
107 (1977) (“[T]he APA does not afford an implied grant of 
subject-matter jurisdiction permitting federal judicial review 
of agency action.”). Although the Declaratory Judgment Act 
and the APA do not provide for subject matter jurisdiction in 
this case, unless some other provision deprives the district 
court of jurisdiction, § 1331 supplies ample basis for its 
subject matter jurisdiction. 
The government cites no provision from Title 28, the 
INA, or the APA that would divest the district court of 
subject matter jurisdiction in this case. Instead, it cites 
four of our cases for the proposition that the doctrine of 
consular nonreviewability deprives courts of subject matter 
jurisdiction. Rivas v. Napolitano, 714 F.3d 1108, 1111 (9th 
Cir. 2013); Li Hing of Hong Kong., Inc. v. Levin, 800 F.2d 
970, 971 (9th Cir. 1986); Ventura-Escamilla v. INS, 647 F.2d 
10 ALLEN V. MILAS 
28, 30 (9th Cir. 1981); Loza-Bedoya v. INS, 410 F.2d 343, 
347 (9th Cir. 1969). We admit that some statements in these 
cases might be read to suggest the district courts lack subject 
matter jurisdiction over cases in which a plaintiff requests the 
court order a consular officer to issue a visa, but the cases 
cannot bear the weight the government places on them. 
In the earliest of these cases, Loza-Bedoya, we stated that 
a consular officer’s “determination is not subject to either 
administrative or judicial review.” Id. Loza-Bedoya had 
been excluded because of a conviction of assisting unlawful 
entry into the United States, but Loza-Bedoya claimed this 
was error. We stated that “a correction of the record would 
not in any manner affect the deportation [Loza] seeks to 
avoid.” Id. We then stated, infelicitously, that “[t]hough 
erroneous this Court is without jurisdiction to order an 
American consular official to issue a visa to any alien 
whether excludable or not.” Id. (emphasis added). By 
“jurisdiction” we could not have meant subject matter 
jurisdiction because, in the end, we found there was “no 
abuse [of discretion] and affirm[ed] the final order of 
deportation.” Id. Had we been convinced that we lacked 
subject matter jurisdiction, we could not have reviewed the 
officer’s exercise of discretion, and we would have dismissed 
the action rather than affirm the judgment. 
In Ventura-Escamilla, we stated that “review of the 
Consul’s decision denying [an] application for a visa” was 
“beyond the jurisdiction of the Immigration Judge, the BIA, 
and this court.” 647 F.2d at 30. However, we were not 
discussing subject matter jurisdiction, but rather the origins 
and context of the doctrine of consular nonreviewability. 
Affirming the decision of the BIA, we concluded we were 
“without power to substitute [our] judgment for that a Consul 
ALLEN V. MILAS 11 
. . . on the issue of whether a visa should be granted or 
denied.” Id. at 32. Our passing reference to “jurisdiction” 
went to our remedial power—our power to “substitute [our] 
judgment”—not our adjudicatory power. Id. at 33. 
In Li Hing, the U.S. Consulate in Hong Kong denied a 
visa to a noncitizen employee who was to be transferred by 
his U.S. employer from Hong Kong to California. We 
affirmed dismissal of the suit because “[e]xercising 
jurisdiction over this case would . . . violate the longrecognized 
judicial nonreviewability of a consul’s decision to 
grant or deny a visa.” 800 F.2d at 971. Our choice of 
language was unfortunate, because elsewhere in the opinion 
we stated the rule of consular nonreviewability thusly: “the 
consular official’s decision to issue or withhold a visa is not 
subject either to administrative or judicial review.” Id. 
(citing, inter alia, Mandel). Thus, we were “without power 
to substitute [our] judgment for that of a Consul.” Id. 
(citation omitted). That was not to say that the district court 
lacked subject matter jurisdiction over the case. Rather, by 
“jurisdiction” we meant that the district courts lack the power 
to grant the relief requested—“substitut[ing] [our] judgment 
for that of a Consul”—and thus evaluation of the merits of Li 
Hing’s case was foreclosed by “judicial nonreviewability.” 
Id. (quoting Ventura-Escamilla, 647 F.2d at 32). 
Most recently, in Rivas, we reviewed two claims brought 
by Mr. Rivas and his daughter, noncitizens, arising out of the 
consulate’s denial of their visas. 714 F.3d at 1110. The 
district court found that “the doctrine of consular 
nonreviewability deprived the court of subject matter 
jurisdiction to review the consular official’s discretionary 
decisions.” Id. at 1110. Citing Li Hing, we observed that 
“[f]ederal courts are generally without power to review the 
12 ALLEN V. MILAS 
actions of consular officials.” We noted two exceptions to 
this “without power” rule: First, where the official has failed 
to act at all. Id. (citing Patel v. Reno, 134 F.3d 929, 931–32 
(9th Cir. 1997)). Second, where “‘a U.S. citizen’s 
constitutional rights are alleged to have been violated by the 
denial of a visa to a foreigner’ without a ‘facially legitimate 
and bona fide reason’ for the denial.” Id. (quoting 
Bustamante, 531 F.3d at 1060). Finding that “neither of the 
exceptions to the doctrine of consular nonreviewability 
apply,” we simply “affirm[ed] the district court’s denial of 
Riva’s claims . . . for lack of subject matter jurisdiction.” Id. 
at 1110, 1111. The two brief references to subject matter 
jurisdiction—one a description of what the district court did, 
and the second our affirming what the district court did—are 
the beginning and the end of our analysis of subject matter 
jurisdiction. As with Li Hing, Ventura-Escamilla, and Loza- 
Bedoya, we should not read too much into such passing 
references. We were undoubtedly correct when we wrote that 
we are generally “without power” to review a consular 
official’s decision, but we may lack the power to do many 
things in cases in which we are fully vested with subject 
matter jurisdiction. That we considered in Rivas several 
“exceptions” to the “doctrine of consular nonreviewability” 
shows that we could not have been referring to district court’s 
power to hear the case in the first place. 
That power—the federal courts’ subject matter 
jurisdiction, including our appellate jurisdiction—is conferred 
by Article III of the Constitution, subject to “such Exceptions, 
and under such Regulations as the Congress shall make.” 
U.S. Const. art. II, § 2, cls. 1, 2. See Bowles v. Russell, 
551 U.S. 205, 212 (2007) (“Within constitutional bounds, 
Congress decides what cases the federal courts have 
jurisdiction to consider.”). No statute purports to strip us of 
ALLEN V. MILAS 13 
jurisdiction over consular decisions; nor does any statute 
purport to confer subject matter jurisdiction over the two 
exceptions we described in Rivas. See Trump v. Hawaii, No. 
17-965, 2018 WL 3116337, at *8, slip op. at 9 (U.S. June 26, 
2018) (“The Government does not argue that the doctrine of 
consular nonreviewability goes to the Court’s jurisdiction, nor 
does it point to any provision of the INA that expressly strips 
the Court of jurisdiction over plaintiffs’ claims.”) (citations 
omitted). The doctrine of consular nonreviewability, which 
is judicial in origin, is surely informed by our respect for the 
separation of powers, but it is not, for that reason, a constraint 
on subject matter jurisdiction; our deference goes to our 
willingness, not our power, to hear these cases. 
Understandably, we have sometimes treated the doctrine of 
consular nonreviewability as though it were a constraint on 
our subject matter jurisdiction because it appears to function 
in the same way as such constraints. But a rule of decision is 
different from a constraint on subject matter jurisdiction, even 
if the result is roughly the same for the parties. See Steel Co. 
v. Citizens for Better Environment, 523 U.S. 83, 89 (1998) 
(“[T]he absence of a valid . . . cause of action does not 
implicate subject-matter jurisdiction, i.e., the courts’ statutory 
or constitutional power to adjudicate the case.”) (emphasis in 
original). 
We are not the only court to have had such looseness in 
our language. “Courts—including this Court—have 
sometimes mischaracterized claim-processing rules or 
elements of a cause of action as jurisdictional limitations, 
particularly when that characterization was not central to the 
case, and thus did not require close analysis.” Reed Elsevier, 
Inc. v. Muchnick, 559 U.S. 154, 161 (2010). The Court has 
thus admonished that “the word ‘jurisdiction’ has been used 
by courts . . . to convey ‘many, too many, meanings,’” and 
14 ALLEN V. MILAS 
has cautioned “against profligate use of the term.” Union 
Pac. R.R. Co. v. Bhd. of Teamsters Eng’rs & Trainmen Gen. 
Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009) 
(quoting Steel Co., 523 U.S. at 90). The Court later explained 
that because “‘[j]urisdiction’ refers to ‘a court’s adjudicatory 
authority,” the term “properly applies only to ‘prescriptions 
delineating the classes of cases (subject-matter jurisdiction) 
and the persons (personal jurisdiction)’ implicating [the 
court’s adjudicatory] authority.” Reed Elsevier, 559 U.S. at 
160–61 (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). 
Over time, we have all “miss[ed] the ‘critical difference[s]’ 
between true jurisdictional conditions and nonjurisdictional 
limitations on causes of action.” Id. at 161 (quoting Kontrick, 
540 U.S. at 456). 
We conclude that the district court had subject matter 
jurisdiction in this case under 28 U.S.C. § 1331 and the 
doctrine of consular nonreviewability did not strip the district 
court of that jurisdiction. Subject matter jurisdiction over this 
class of claims, otherwise amply provided here by the federal 
question statute, is constrained only if we identify and apply 
some “prescripti[ve] delineati[on]” on our “adjudicatory 
authority.” Id. at 160–61 (quoting Kontrick, 540 U.S. at 455); 
see Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 
(2013) (requiring a “clear statement” from Congress that “the 
rule is jurisdictional”). We know of no such “prescriptive 
delineation,” and the government has not pointed to any. The 
rule at issue here, that is, the rule of consular 
nonreviewability, supplies a rule of decision, not a constraint 
on the subject matter jurisdiction of the federal courts. See 
Fiallo v. Bell, 430 U.S. 787, 795–96 n.6 (1977) (denying that 
“the Government’s power in this area [of immigration] is 
never subject to judicial review,” but “only to limited judicial 
review”); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976) (“The 
ALLEN V. MILAS 15 
reasons that preclude judicial review of political questions 
also dictate a narrow standard of review of decisions made by 
the Congress or the President in the area of immigration and 
naturalization.”); Matushkina v. Nielsen, 877 F.3d 289, 294 
n.2 (7th Cir. 2017) (“We treat the doctrine of consular 
nonreviewability as a matter of a case’s merits rather than the 
federal courts’ subject matter jurisdiction.”). We discuss 
consular nonreviewability and Mandel in greater detail below, 
but it suffices at present to observe that the Court’s “facially 
legitimate and bona fide” standard is not the language of 
subject matter jurisdiction, but the language of the discretion 
courts afford consular officers. It is a scope of review, the 
contours of which we turn to now. The district court was 
correct to treat the government’s Rule 12(b)(1) motion as a 
motion under Rule 12(b)(6). 
B 
The core of Allen’s petition is that he was entitled to 
judicial review of the non-issuance of his wife’s visa under 
the “scope of review” provisions of the APA found in § 706. 
More particularly, Allen contends that the consular officer 
failed to apply the appropriate legal standards to Mrs. Allen’s 
German convictions, and that this legal error renders the 
consular officer’s decision “arbitrary, capricious, and 
otherwise not in accordance with law.” 
We start with some first principles. The APA provides 
the fundamental framework for how executive agencies are 
expected to conduct business. It prescribes the rules by 
which agencies may promulgate regulations, 5 U.S.C. § 553, 
and conduct adjudications, id. §§ 554–58. The APA provides 
for judicial review of agency decisionmaking, id. §§ 701–06. 
“Agency” is defined by the statute as “each authority of the 
16 ALLEN V. MILAS 
Government of the United States, whether or not it is within 
or subject to review by another agency.” Id. § 701(b). 
Congress may exempt an agency altogether from the APA, id. 
§ 551(1), or from its judicial review provisions, id. 
§ 701(b)(1). Congress may also preempt application of some 
or all of the APA, such as by expressly providing for an 
otherwise inconsistent procedure or standard for judicial 
review. See id. §§ 701(a)(1)–(2), 702(1)–(2); Marcello v. 
Bonds, 349 U.S. 302, 305–10 (1955). It is undisputed here 
that the Department of State is an agency for purposes of the 
APA. See ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th 
Cir. 2015). 
The immigration laws provide a good example of these 
principles. Shortly after the APA was adopted in 1946, the 
Supreme Court held that the APA’s provisions relating to 
adjudicatory hearings governed deportation hearings. Wong 
Yang Sung. v. McGrath, 339 U.S. 33, 48–51 (1950). Just 
months later, Congress exempted such hearings from the 
APA. Supplemental Appropriation Act, Pub. L. 81-843, 64 
Stat. 1044, 1048 (1951) (“Proceedings under law relating to 
the exclusion or expulsion of aliens shall hereafter be without 
regard to the provisions of sections 5, 7, and 8 of the 
Administrative Procedure Act.”). Following Congress’s 
adoption of comprehensive immigration reform, see 
Immigration and Nationality Act of 1952, Pub. L. 82-414, 
66 Stat. 163 (1952) (INA), the Court held in Marcello that the 
Congress had not reinstated the APA as the framework for 
immigration hearings. 349 U.S. at 305–10. The Court 
observed that in the INA “Congress was setting up a 
specialized administrative procedure . . . , drawing liberally 
on the analogous provisions of the Administrative Procedure 
Act and adapting them to the particular needs of the 
deportation process.” Id. at 308. But where Congress 
ALLEN V. MILAS 17 
“depart[ed] from the Administrative Procedure Act . . . it was 
the intention of the Congress to have the deviation apply and 
not the general model.” Id. at 309. Congress confirmed this 
when it provided that “[t]he procedure (herein prescribed) 
shall be the sole and exclusive procedure for determining the 
deportability of an alien under this section.” Id. (quoting 
8 U.S.C. § 1252(b) (1952)). The INA thus gave a “clear and 
categorical direction . . . meant to exclude the application of 
the Administrative Procedure Act.” Id.; see also Ardestani v. 
INS, 502 U.S. 129 (1991) (applying Marcello, and noting that 
the attorneys fees provisions of the Equal Access to Justice 
Act, 5 U.S.C. § 504, do not apply to removal proceedings); 
Heikkila v. Barber, 345 U.S. 229, 235–36 (1953) (finding the 
APA inapplicable in light of the finality provisions of the 
predecessor statute to the INA). 
We recognize that the APA’s judicial review provisions 
supply a “strong presumption that Congress intends judicial 
review of administrative action.” Bowen v. Mich. Acad. of 
Family Physicians, 476 U.S. 667, 670 (1986). Sections 
701–06 of the APA supply a “default rule . . . that agency 
actions are reviewable under federal question jurisdiction . . . 
even if no statute specifically authorizes judicial review.” 
ANA Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004). 
The presumption of judicial reviewability is so strong that 
“only upon a showing of ‘clear and convincing evidence’ of 
a contrary legislative intent should the courts restrict access 
to judicial review.” Abbott Labs. v. Gardner, 387 U.S. 136, 
140–41 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 379–80 
(1962)); see also Dickinson v. Zurko, 527 U.S. 150, 154, 155 
(1999) (because of “the importance of maintaining a uniform 
approach to judicial review of administrative action,” any 
“departure from the norm must be clear”). Even in the 
immigration context, that is, the context of adjudicating 
18 ALLEN V. MILAS 
matters affecting claims brought by those wishing to acquire 
constitutional rights, we have never abrogated our “[j]udicial 
supremacy” to order relief if, in any individual case, 
“fundamentals were violated”: 
Judicial supremacy has been maintained upon 
the ground that our government is founded 
upon law. It is incumbent upon the executive, 
whether elective or by divine right as a Stuart 
king, to act according to rules of law. There 
is no doctrine of omnipotence of Parliament 
here as there is in England. Therefore, even 
final action of an administrative agency, 
although declared unappealable by legislation, 
has always been subject to attack in court if 
fundamentals were violated. 
Bustos-Ovalle v. Landon, 225 F.2d 878, 880 (9th Cir. 1955). 
Nevertheless, the APA itself anticipates that, on occasion, 
Congress might itself abrogate the presumption of judicial 
review. First, the APA recognizes that a statute may preclude 
judicial review. 5 U.S.C. § 701(a)(1). Second, the APA 
provides that its judicial review provisions do not apply 
where “agency action is committed to agency discretion by 
law,” id. § 701(a)(2), a “rare instance[] where statutes are 
drawn in such broad terms that in a given case there is no law 
to apply.” Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting 
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 
402, 410 (1971)); see also, e.g., Ekimian v. INS, 303 F.3d 
1153, 1157–58 (9th Cir. 2002) (finding no judicially 
reviewable standard to examine BIA decision’s not to reopen 
a case). The government does not contend that either of these 
exceptions to judicial review applies. 
ALLEN V. MILAS 19 
The APA recognizes two other instances in which at least 
some provisions of §§ 701–06 might not apply. Section 702 
confers the broad right to judicial review and sets out the 
cause of action, but then concludes in limiting fashion: 
Nothing herein (1) affects other limitations on 
judicial review or the power or duty of the 
court to dismiss any action or deny relief on 
any other appropriate legal or equitable 
ground; or (2) confers authority to grant relief 
if any other statute that grants consent to suit 
expressly or impliedly forbids the relief which 
is sought. 
This narrows our focus: Is the doctrine of consular 
nonreviewability either (1) a “limitation[] on judicial review” 
or (2) based on statutes that “impliedly forbid[] the relief 
which is sought”? In other words, is Allen entitled to APA 
review of the consular official’s decision not to issue his wife 
a visa, or is the standard set forth in Mandel his only avenue 
for judicial relief? The D.C. Circuit has addressed this 
precise question, and it concluded that Mandel supplies the 
only standard by which the federal courts can review a 
consular officer’s decision on the merits. Saavedra Bruno v. 
Albright, 197 F.3d 1153, 1162–63 (D.C. Cir. 1999). We start 
with Mandel and the rule of consular nonreviewability, and 
we then turn to Saavedra Bruno. 
We have long recognized that “ordinarily, a consular 
official’s decision to deny a visa to a foreigner is not subject 
to judicial review.” Bustamante, 531 F.3d at 1060; see also 
Li Hing, 800 F.2d at 970–71; Ventura-Escamilla, 647 F.2d at 
30–31. The rule is based on “the recognition that the power 
to exclude or expel aliens, as a matter affecting international 
20 ALLEN V. MILAS 
relations and national security, is vested in the Executive and 
Legislative branches of government.” Ventura-Escamilla, 
647 F.3d at 30; see also Shaughnessy v. United States ex rel. 
Mezei, 345 U.S. 206, 210 (1953); United States ex rel. Knauff 
v. Shaughnessy, 338 U.S. 537, 542–43 (1950); Kaoru 
Yamataya v. Fisher, 189 U.S. 86, 97–98 (1903). Unless we 
are otherwise “authorized by treaty or by statute,” or where 
we are “required by the paramount law of the constitution[] 
to intervene,” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 
n.21 (1976) (quoting Fong Yue Ting v. United States, 
149 U.S. 698, 712 (1893)), Congress may “prescribe the 
terms and conditions upon which [noncitizens] may come to 
this country, and to have its declared policy in that regard 
enforced exclusively through executive officers, without 
judicial intervention.” Lem Moon Sing v. United States, 
158 U.S. 538, 547 (1895); see also Fok Yung Yo v. United 
States, 185 U.S. 296, 305 (1902) (“Congressional action has 
placed the final determination of the right of admission in 
executive officers, without judicial intervention, and this has 
been for many years the recognized and declared policy of the 
country.”). If our review is not required by some other 
provision of law, such as the Constitution, the APA, or the 
INA, the long-standing rule foreclosing review of the merits 
of consular visa decisions is precisely the kind of 
“limitation[] on judicial review” or “implied” prohibition on 
relief that forms an exception to the APA’s cause of action 
and review provisions. 5 U.S.C. § 702(1), (2). 
In Mandel, the Court reaffirmed that where Congress 
entrusts discretionary visa-processing and ineligibility-waiver 
authority in a consular officer or the Attorney General, the 
courts cannot substitute their judgments for those of the 
Executive. 408 U.S. at 769–70. But the Court also 
recognized a narrow exception for review of constitutional 
ALLEN V. MILAS 21 
claims. Belgian Marxist Ernest Mandel was denied a visa to 
visit the United States for academic activities. Id. at 756–57. 
He and six American professors brought suit challenging the 
Attorney General’s failure to waive Mandel’s ineligibility, 
claiming injury to the professor plaintiffs’ First Amendment 
rights. Id. at 760. A divided three-judge district court held 
that the professor-plaintiffs had a First Amendment right to 
hear Mandel’s views, and that plaintiffs’ were entitled to an 
order enjoining the Attorney General from denying Mandel 
admission to the United States. Mandel v. Mitchell, 325 F. 
Supp. 620, 632–33 (E.D.N.Y. 1971). Reversing, the Supreme 
Court began with the proposition that Mandel had no right of 
entry and thus no personal right to judicial review. 408 U.S. 
at 762. The Court assumed the professor plaintiffs had First 
Amendment rights to hear Mandel speak, and sought a means 
to balance their rights against Congress’s grant of 
discretionary waiver authority to the Attorney General. It did 
so against the presumption of consular nonreviewability that 
had embedded itself as a rule of decision, the provenance of 
which the Court was “not inclined in the present context to 
reconsider.” Id. at 767. Rejecting Mandel’s request for an 
“arbitrary and capricious” standard of review, id. at 760, the 
Court recognized an exception to the rule of consular 
nonreviewability for review of constitutional claims. The 
exception itself is quite narrow, requiring deference to the 
consular officer’s decision so long as “that reason was 
facially legitimate and bona fide.” Id. at 769. The Court 
concluded: 
We hold that when the Executive exercises 
this power [of exclusion] negatively on the 
basis of a facially legitimate and bona fide 
reason, the courts will neither look behind the 
exercise of that discretion, not test it by 
22 ALLEN V. MILAS 
balancing its justification against the First 
Amendment interests of those who seek 
personal communication with the applicant. 
Id. at 770. 
The Court returned to Mandel in Fiallo v. Bell, 430 U.S. 
787 (1977). There, three sets of fathers and sons challenged 
immigration laws giving preference to natural mothers of 
“illegitimate” children, thereby alleging constitutional injury 
through “‘double-barreled’ discrimination based on sex and 
illegitimacy.” Id. at 788, 794. The government argued that 
these claims were not subject to judicial review at all, a claim 
the Court rejected. But the Court also rejected any review 
beyond that set out in Mandel: “We can see no reason to 
review the broad congressional policy choice at issue here 
under a more exacting standard than was applied in 
Kleindienst v. Mandel.” Id. at 795. 
The Mandel rule was again upheld in Din. 135 S. Ct. at 
2141. Din, a U.S. citizen, challenged a consular officer’s 
decision to deny an entry visa to her husband, and sought a 
writ of mandamus and a declaratory judgment to remedy her 
alleged constitutional injury arising out of the visa denial. Id. 
at 2131–32 (plurality opinion of Scalia, J.). Justice Scalia, 
joined by Chief Justice Roberts and Justice Thomas, found in 
a plurality opinion that Din had no such constitutional right 
and so received the process due. Id. at 2138–40. But Justice 
Kennedy, joined by Justice Alito, concurred in the judgment 
alone, in the narrowest and thus controlling opinion in that 
case. See Cardenas v. United States, 826 F.3d 1164, 1171 
(9th Cir. 2016). Justice Kennedy found it unnecessary to 
answer whether Din had a protected constitutional interest, 
because even assuming she did “[t]he reasoning and the 
ALLEN V. MILAS 23 
holding in Mandel control here.” Din, 135 S. Ct. at 2139, 
2140 (Kennedy, J., concurring in the judgment). Moreover, 
Mandel “extends to determinations of how much information 
the Government is obliged to disclose about a consular 
officer’s denial of a visa to an alien abroad.” Id. at 2141. In 
Din, the consular officer offered no explanation other than a 
citation to 8 U.S.C. § 1182(a)(3)(B), prohibiting visas to 
persons engaged in or otherwise related to statutorily defined 
“terrorist activity.” See 8 U.S.C. § 1182(a)(3)(B)(iii). For 
Justice Kennedy, “the Government satisfied any obligation it 
might have had to provide Din with a facially legitimate and 
bona fide reason for its action.” Din, 135 S. Ct. at 2141 
(Kennedy, J., concurring in the judgment). 
Mandel, Fiallo, and Din all involved constitutional 
claims. We have applied the Mandel rule in a variety of 
circumstances involving visa denials and claimed violations 
of constitutional rights. E.g., Cardenas, 826 F.3d at 1171; 
Bustamante, 531 F.3d at 1061 (describing Mandel as “a 
limited exception to the doctrine [of consular 
nonreviewability] where the denial of a visa implicates the 
constitutional rights of American citizens”). Most recently, 
in Trump v. Hawaii, the Court observed that its “opinions 
have reaffirmed and applied [Mandel’s] deferential standard 
of review across different contexts and constitutional claims.” 
2018 WL 3116337, at *20, slip op. at 31. Allen concedes 
Mandel’s limited scope of review as to constitutional 
challenges to visa denials. He argues nonetheless that he is 
entitled to APA review of his claims, which he characterizes 
24 ALLEN V. MILAS 
as a nonconstitutional statutory challenge to the consular 
officer’s allegedly nondiscretionary duty.2 
The D.C. Circuit rejected this argument in Saavedra 
Bruno. When a consular officer in Bolivia refused to issue a 
visa to Saavedra Bruno, he brought suit under the APA, 
arguing that he was entitled to review for the purpose of 
challenging factual errors on which the official ostensibly 
made his decision. 197 F.3d at 1155–56. After a careful 
review of the historical origins of the consular 
nonreviewability rule, the court wrote: 
[W]e may infer that the immigration laws 
preclude judicial review of consular visa 
decisions. There was no reason for Congress 
to say as much expressly. Given the historical 
background against which it has legislated 
over the years, . . . Congress could safely 
assume that aliens residing abroad were 
barred from challenging consular visa 
decisions in federal court unless legislation 
specifically permitted such actions. The 
2 In addressing a series of challenges to an executive order affecting 
the issuing of entry visas to foreign nationals from eight countries, the 
Court stated that “[a] conventional application of Mandel, asking only 
whether the policy is facially legitimate and bona fide, would put an end 
to our review.” 2018 WL 3116337, at *21, slip op. at 32. The Court, 
however, did not end its analysis with Mandel, but “assume[d]” “[f]or our 
purposes today” that it could look behind the executive order and apply 
rational basis review. Id. 
In this case, we do not have broad constitutional challenges to an 
executive policy. Indeed, Allen does not raise a constitutional challenge 
at all, only a statutory challenge. We will confine our focus to the only 
relief Allen seeks—review under the APA. 
ALLEN V. MILAS 25 
presumption, in other words, is the opposite of 
what the APA normally supposes. 
Id. at 1162. From this the court deduced that “[i]n terms of 
APA § 702(1), the doctrine of consular nonreviewability—the 
origin of which predates passage of the APA,” constitutes 
precisely such a “limitation[] on judicial review” unaffected 
by § 702’s otherwise glad-handing statutory cause of action 
and right of review to those suffering “‘legal wrong’ from 
agency action.” Id. at 1160 (quoting 5 U.S.C. § 702). In 
sum, “the immigration laws preclude judicial review of 
consular visa decisions.” Id. at 1162; see also Morfin v. 
Tillerson , 851 F.3d 710, 714 (7th Cir. 2017) (rejecting a 
claim brought under the APA that a consular decision was 
arbitrary and capricious and not supported by substantial 
evidence, and concluding that “the denial of a visa application 
is not a question open to review by the judiciary”). 
We agree with the D.C. Circuit’s analysis and conclusion 
in Saavedra Bruno. If Allen were correct, then constitutional 
claims would be reviewable under the limited Mandel 
standard, and nonconstitutional claims would be reviewable 
under the APA; in other words, all claims would be 
reviewable under some standard. Allen’s theory converts 
consular nonreviewability into consular reviewability. The 
conclusion flies in the face of more than a century of 
decisions limiting our review of consular visa decisions. 
Allen attempts to narrow our focus to legal error, which he 
argues is within the province of the judiciary. We reject his 
argument for several reasons. First, the burden the INA 
places on consular officers—who may or may not have any 
formal legal training—is not to make legal determinations in 
a way that an administrative agency (such as the BIA) or a 
court might do. Rather the officer is charged with 
26 ALLEN V. MILAS 
adjudicating visas under rules prescribed by law, and the 
officer is instructed not to issue a visa if the officer “knows or 
has reason to believe that such alien is ineligible to receive a 
visa” under any provision of law. 8 U.S.C. § 1201(g)(3).3 
Second, the distinction Allen presses for would eclipse 
the Mandel exception itself. The claims in Mandel, Fiallo, 
and Din were all legal claims. To be sure, they were legal 
claims based on the law of the Constitution, as opposed to 
statutory law, but we fail to see why legal claims based on 
statute should receive greater protection than legal claims 
based on the Constitution. Indeed, we think the Court has 
already rejected such an argument in Webster, 486 U.S. at 
594. There the Court addressed whether a statute giving the 
Director of the CIA blanket authority to terminate any officer 
or employee when deemed “necessary or advisable in the 
interests of the United States,” rendered the Director’s 
decisions unreviewable under § 701(a)(2). Id. at 594, 601 
(quoting 50 U.S.C. § 403(c)). Although the Court found that 
Doe’s claims could not be reviewed under the APA, it did 
find that Doe could nonetheless otherwise raise constitutional 
claims arising out of his termination, namely that his 
termination deprived him of liberty and property interests, 
denied him equal protection under the law, and impaired his 
right to privacy. Webster, 486 U.S. at 601–05. After 
Webster, we have assumed that the courts will be open to 
3 During oral argument, Allen’s counsel acknowledged that the phrase 
“knows or has reason to believe,” when used elsewhere in the INA, see, 
e.g., 8 U.S.C. § 1182(a)(2)(C), does confer discretion to deny visa 
applications. We do not see how Allen can reconcile that position with his 
insistence that a consular officer makes a purely legal decision when, 
acting under 8 U.S.C. § 1201(g)(3), the officer denies a visa on the basis 
of the officer’s “reason to believe” that the applicant has been convicted 
of an offense rendering the applicant inadmissible. 
ALLEN V. MILAS 27 
review of constitutional claims, even if they are closed to 
other claims. See, e.g., Am. Fed’n of Gov’t Employees Local 
1 v. Stone, 502 F.3d 1027, 1034–39 (9th Cir. 2007). Allen’s 
argument would flip Webster on its head: Statutory arguments 
would be subject to full APA review even if constitutional 
arguments, per Mandel, are not. We find no support for 
Allen’s position. 
Allen also argues that we have previously applied APA 
review to consular decisions. The cases cited by Allen do not 
help him. We subjected a State Department decision to APA 
review in ASSE Int’l Inc., 803 F.3d at 1064–68. But it was 
not a consular visa decision that we reviewed, but rather a 
State Department decision to disqualify a U.S.-based thirdparty 
sponsor participating in the Exchange Visitor Program. 
Id. Similarly, Singh v. Clinton, 618 F.3d 1085 (9th Cir. 
2010), also did not concern a challenge to a consular officer’s 
adjudication of the noncitizen’s visa application, but rather 
was a suit against the State Department for failure to follow 
the INA and its own regulations. Singh does not guide us 
here. Patel v. Reno, 134 F.3d 929 (9th Cir. 1997), likewise 
does not aid Allen’s argument. Patel did involve the nonissuance 
of a visa. But what we faced was the State 
Department’s failure to issue any decision on a visa 
application at all, a clear violation of a nondiscretionary duty, 
as “[a] consular office is required by law to act on visa 
applications,” because “[i]ssuance or refusal [is] mandatory.” 
Id. at 932 (quoting 22 C.F.R. § 42.81). In other words, a visa 
application must be adjudicated one way or the other. We 
acknowledged the consular nonreviewability principle, but 
distinguished the case as one that “challenges the authority of 
the consul to take or fail to take an action as opposed to a 
decision taken within the consul’s discretion.” Id. at 931–32. 
28 ALLEN V. MILAS 
We remanded with instructions “to order the consulate to 
either grant or deny the visa applications.” Id. at 933.4 
We join the D.C. Circuit in holding that the APA provides 
no avenue for review of a consular officer’s adjudication of 
a visa on the merits. Whether considered under § 702(1) or 
(2), the doctrine of consular nonreviewability is a limitation 
on the scope of our judicial review and thus precludes our 
review under § 706. Allen raises no claim to review under 
Mandel, and regardless, we agree with the district court that 
the consular officer’s citations to the INA and identification 
of Mrs. Allen’s criminal history constituted facially 
legitimate and bona fide reasons for rejecting her visa 
application. 
III 
We are sympathetic to Major Allen’s efforts to unite his 
family in the United States during his next miliary 
assignment. Section 706 of the APA, however, provides no 
avenue for our review of the consular officer’s decision. 
4 We are not persuaded by Allen’s references to Wong v. Department 
of State, 789 F.2d 1380 (9th Cir. 1986), or Braude v. Wirtz, 350 F.2d 702 
(9th Cir. 1965). In Wong, the State Department revoked the nonimmigrant 
visas of Mr. Wong’s wife and children after the family had arrived in the 
United States from Hong Kong. Id. at 1381–82. We held that the 
consular officer’s grounds for such revocation—that Mrs. Wong and the 
children had failed to attend the visa interview in Pago Pago—fell outside 
the limited “authorized grounds for visa revocation.” Id. at 1386. As 
such, like Patel, Wong found that “[t]he consular officer had no authority” 
to conduct the act complained of. Id. In Braude, California growers 
sought review under what is now § 706 of visa denials to Mexican 
laborers. We never reached the § 706 question because we held the 
growers lacked standing. 350 F.2d at 708. 
ALLEN V. MILAS 29

Outcome:

The judgment of the district court is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:

About This Case

What was the outcome of Jerrid Allen v. Kevin M. Milas, et al.?

The outcome was: The judgment of the district court is AFFIRMED.

Which court heard Jerrid Allen v. Kevin M. Milas, et al.?

This case was heard in United States Court of Appeals for the Ninth Circuit on appeal from the Eastern District of California (Sacramento County), CA. The presiding judge was Jay S. Bybee.

Who were the attorneys in Jerrid Allen v. Kevin M. Milas, et al.?

Plaintiff's attorney: Anna Benvenu and Robert Jobe. Defendant's attorney: Audrey Hemesath and Phillip A. Talbert.

When was Jerrid Allen v. Kevin M. Milas, et al. decided?

This case was decided on July 29, 2018.