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

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

The judgment of the district court is AFFIRMED.