In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1205
MOSHIN YAFAI and ZAHOOR AHMED,
Plaintiffs‐Appellants,
v.
MIKE POMPEO, Secretary of State, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16‐cv‐09728 — Sara L. Ellis, Judge.
____________________
ARGUED SEPTEMBER 7, 2018 — DECIDED JANUARY 4, 2019
____________________
Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. A consular officer twice denied the
visa application of Zahoor Ahmed, a citizen of Yemen, on the
ground that she had sought to smuggle two children into the
United States. Ahmed and her husband Moshin Yafai—a
United States citizen—filed suit challenging the officer’s
decision. But the decision is facially legitimate and bona fide,
so the district court correctly dismissed the plaintiffs’
2 No. 18‐1205
challenge to it under the doctrine of consular
nonreviewability.
I.
Moshin Yafai and Zahoor Ahmed were born, raised, and
married in Yemen. Yafai became a naturalized United States
citizen in 2001. After receiving his citizenship, Yafai filed I‐
130 petitions with the U.S. Citizenship and Immigration
Service of the Department of Homeland Security on behalf of
his wife and several of their children. The I‐130 petitions—
which, if granted, would permit them to apply for immigrant
visas—were approved. Ahmed and her children
subsequently applied for visas.
But the consular officer denied Ahmed’s visa application.1
The officer based the denial on attempted smuggling under 8
U.S.C. § 1182(a)(6)(E), which provides that “[a]ny alien who
at any time knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the
United States in violation of law is inadmissible.” The denial
stated: “You attempted to smuggle two children into the
United States using the identities Yaqub Mohsin Yafai and
Khaled Mohsin Yafai.”
Yafai and Ahmed told the embassy that Yaqub and Khaled
were their children, both of whom had tragically drowned.
Although it is not entirely clear from either the record or the
plaintiffs’ brief, their position seems to have been that Ahmed
could not be guilty of smuggling, because the children whom
she had allegedly smuggled were deceased. In response, the
1 The record does not reveal the name of the consular officer (or officers)
who worked on Ahmed’s case, so we refer to this person (or persons)
throughout as “the consular officer” or “the officer.”
No. 18‐1205 3
consular officer requested additional documents about the
children so that the officer could reconsider Ahmed’s
application. The officer requested (and Ahmed provided)
seven types of documents: (1) vaccination records; (2)
Khaled’s school records; (3) hospital bills; (4) hospital birth
records; (5) the police report from the drowning accident; (6)
Khaled’s passport; and (7) family photos.
After providing the documents, the plaintiffs’ attorney
contacted the consular office to request an update on the
matter. An embassy fraud prevention manager working on
Ahmed’s case responded by email. The email stated:
We acknowledge that there has been some
repetition in examining the circumstances of the
purported deaths of two beneficiaries, but we
note that your clients do not testify credibly,
testify contradictorily, deny the existence of
evidence, and otherwise cast doubt on the
accuracy of their responses. Hence they were
questioned by the interviewing officer who
referred their cases to the Fraud Prevention Unit
whereupon we explored the same issues in
more detail with you[r] clients. Based on their
testimony, we concluded the evidence which
you attached did exist, hence we requested its
production in an effort to corroborate the
testimony of your clients, not impeach it. As of
this writing, a fraud investigator is reviewing
the evidence and we will finalize our fraud
report for the adjudicating officer.
4 No. 18‐1205
Several months after this email was sent, the consular officer
reaffirmed the prior visa denial for attempted smuggling
under § 1182(a)(6)(E).2
Yafai and Ahmed subsequently filed suit challenging the
denial under the Declaratory Judgment Act and the
Administrative Procedure Act. They argued that the consular
officer acted in bad faith by ignoring evidence that Yaqub and
Khaled were their children and that they were deceased. The
district court dismissed the claims under the doctrine of
consular nonreviewability.
II.
Congress has delegated the power to determine who may
enter the country to the Executive Branch, and courts
generally have no authority to second‐guess the Executive’s
decisions. Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972). To
that end, the doctrine of consular nonreviewability “bars
judicial review of visa decisions made by consular officials
2 The record before us does not include additional detail on the rationale
behind the consular officer’s decision. It does not show, for example,
whether the officer concluded that Ahmed and Yafai did not have children
named Yaqub and Khaled; whether the officer thought that Ahmed had
tried to smuggle children into the United States using the names of
children who were hers but who were now deceased; or whether the
officer believed that Ahmed had children named Yaqub and Khaled
whom she had tried to smuggle into the United States while they were still
alive. If Ahmed tried to smuggle her own children into the United States,
she could seek a waiver of the statutory bar. See 8 U.S.C. § 1182(d)(11)
(giving the Attorney General the discretion to waive the bar if “the alien
seeking admission … encouraged, induced, assisted, abetted, or aided
only an individual who at the time of such action was the alien’s spouse,
parent, son, or daughter (and no other individual) to enter the United
States in violation of law”). She has apparently not done so.
No. 18‐1205 5
abroad.” Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir.
2017). The Supreme Court has identified a limited exception
to this doctrine, however, when the visa denial implicates a
constitutional right of an American citizen. Mandel, 408 U.S.
at 769–70; see Morfin v. Tillerson, 851 F.3d 710, 711 (7th Cir.
2017). Yet even in that circumstance, a court may not disturb
the consular officer’s decision if the reason given is “facially
legitimate and bona fide.” Mandel, 408 U.S. at 769.
The plaintiffs invoke this limited exception to the doctrine
of consular nonreviewability on the ground that denying
Ahmed a visa implicates one of Yafai’s constitutional rights:
his right to live in America with his spouse. The status of this
right is uncertain. In Kerry v. Din, a plurality of the Supreme
Court said that no such right exists, 135 S. Ct. 2128, 2131 (2015)
(plurality opinion), and if we were to adopt the plurality’s
reasoning, our analysis would end here. But we have avoided
taking a position on this issue in the past, see, e.g., Hazama v.
Tillerson, 851 F.3d 706, 709 (7th Cir. 2017), and we need not do
so now. Even if the denial of Ahmed’s visa application
implicated a constitutional right of Yafai’s, his claim fails
because the consular officer’s decision was facially legitimate
and bona fide.
For a consular officer’s decision to be facially legitimate
and bona fide, the consular officer must identify (1) a valid
statute of inadmissibility and (2) the necessary “discrete
factual predicates” under the statute. See Din, 135 S. Ct. at
2140–41 (Kennedy, J., concurring). When a statute “specifies
discrete factual predicates that the consular officer must find
to exist before denying a visa,” the citation of the statutory
predicates is itself sufficient. Id. at 2141. In other words, the
consular officer need not disclose the underlying facts that led
6 No. 18‐1205
him to conclude that the statute was satisfied. Id. (“Mandel
instructs us not to ‘look behind’ the Government’s exclusion
of [the alien spouse] for additional factual details beyond
what its express reliance on [the relevant statutory provision]
encompassed.”) (citing Mandel, 408 U.S. at 770)); see also
Morfin, 851 F.3d at 713–14 (explaining that citation to the
statutory requirements supplies a legitimate reason for
denying a visa application).
Here, the officer provided a facially legitimate and bona
fide reason for denying Ahmed’s application. He cited a valid
statutory basis: 8 U.S.C. § 1182(a)(6)(E). And he provided the
factual predicate for his decision: “You attempted to smuggle
two children into the United States using the identities Yaqub
Mohsin Yafai and Khaled Mohsin Yafai.” No more was
required, and under Mandel, we cannot “look behind the
exercise of that discretion.” 408 U.S. at 770.3
3 The dissent acknowledges that precedent requires nothing more than the
consular officer’s assertion of a facially legitimate and bona fide reason.
See Dissenting Op. at 10. Yet the dissent would add another hurdle: proof
that the officer adequately considered the evidence in the visa application.
According to the dissent, “we [] have the obligation to require, at the very
least, that the Government assure us, by affidavit or similar evidence, that
it actually took into consideration the evidence presented by the applicant
and point to some factual support for the consular officer’s decision to
discount that evidence.” Id. at 15–16. That proposition contradicts the
Supreme Court’s holding in Mandel. See 408 U.S. at 770. As we discuss in
the next Part, a court might be able to look behind an apparently legitimate
and bona fide decision when the plaintiff advances affirmative evidence
of bad faith. But that would be a narrow exception—precedent clearly
forecloses the dissent’s position that we are authorized to demand more
from the government as a matter of course.
No. 18‐1205 7
III.
Yafai and Ahmed argue for an exception to Mandel’s
limited exception of consular nonreviewability. They contend
that a court must engage in more searching review of a
facially legitimate and bona fide decision if the plaintiffs make
an affirmative showing that the decision was made in bad
faith. And Yafai and Ahmed claim that they have made such
a showing: they assert that the evidence they produced was
strong, and the officer did not accept it. That, they say,
demonstrates that the officer acted in bad faith.
It is unclear how much latitude—if any—courts have to
look behind a decision that is facially legitimate and bona fide
to determine whether it was actually made in bad faith. In
Mandel, the Court refused to look behind a facially legitimate
and bona fide decision over the dissent’s vigorous objection
that “[e]ven the briefest peek behind [it] … would reveal that
it is a sham.” 408 U.S. at 778 (Marshall, J., dissenting). Yet
Justice Kennedy’s concurrence in Din observes that an
“affirmative showing of bad faith” that is “plausibly alleged
with sufficient particularity” might justify more searching
review, 135 S. Ct. at 2141, and we have, at least in dicta,
allowed for the same possibility, see Morfin, 851 F.3d at 713–
14 (“Perhaps the refusal to issue Ulloa a visa could be said to
lack a ‘facially legitimate and bona fide reason’ … if the
consular official had concluded that the indictment’s charges
were false, or if Ulloa had presented strong evidence of
innocence that the consular officer refused to consider.”).
Yafai and Ahmed might be right, therefore, that evidence of
behind‐the‐scenes bad faith can overcome Mandel’s rule that
courts must stick to the face of the visa denial in evaluating it.
8 No. 18‐1205
That exception would not benefit the plaintiffs here,
however, because they have failed to make “an affirmative
showing” that the officer denied Ahmed’s visa in bad faith.
Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). The plaintiffs
contend that the only conclusion that an honest officer could
draw from reviewing their evidence is that Ahmed qualified
for a visa. But the fact that the officer did not believe Ahmed
and Yafai’s evidence does not mean that the officer was
dishonest or had an illicit motive. See Bad Faith, BLACK’S LAW
DICTIONARY (10th ed. 2014) (defining bad faith as
“[d]ishonesty of belief, purpose, or motive”). The officer
could have honestly concluded that Ahmed and Yafai’s
testimony was not credible and that the documents they
provided did not substantiate it. Cf. Bustamante v. Mukasey,
531 F.3d 1059, 1062–63 (9th Cir. 2008) (stating that to establish
bad faith, a plaintiff must “allege that the consular official did
not in good faith believe the information he had”). Making an
“affirmative showing of bad faith” requires a plaintiff to point
to something more than an unfavorable decision.
While it is not necessary for the Secretary of State to rebut
Yafai and Ahmed’s allegation of bad faith, we note that the
evidence here reflects a good‐faith evaluation of Ahmed’s
application. The officer asked Ahmed to submit additional
documents so that the consulate could reconsider her visa
application. A request for additional documents is
inconsistent with the plaintiffs’ allegation that the officer
ignored evidence in bad faith; on the contrary, the officer’s
willingness to reconsider Ahmed’s application in light of
additional evidence suggests a desire to get it right. And the
embassy officer’s email to the plaintiffs’ lawyer reveals good‐
faith reasons for rejecting the plaintiffs’ response to the
smuggling charge. It details concerns about the plaintiffs’
No. 18‐1205 9
credibility and contradictory testimony—concerns that cut
directly against their argument that the officer acted
insincerely in rejecting Ahmed’s visa application.
* * *
The consular officer’s decision to reject Ahmed’s visa
application was facially legitimate and bona fide, and the
plaintiffs have made no affirmative showing that the officer
acted in bad faith. Thus, the district court correctly dismissed
the plaintiffs’ claims, which were asserted under both the
Administrative Procedure Act and the Declaratory Judgment
Act. See Morfin, 851 F.3d at 714 (dismissing claim under the
APA because doctrine of consular nonreviewability applies);
Matushkina, 877 F.3d at 295 (stating that “[c]ourts have
applied the doctrine of consular nonreviewability even to
suits where a plaintiff seeks to challenge a visa decision
indirectly”). The judgment of the district court is AFFIRMED.
10 No. 18‐1205
RIPPLE, Circuit Judge, dissenting. Mohshin Yafai, a United
States citizen, brought this action in the district court, alleg‐
ing that a consular officer’s decision to deny his wife an im‐
migrant visa violates his right to due process of law. He
submits that the officer, without any evidentiary support
and with substantial evidence to the contrary, invented a
theory that his wife had attempted to smuggle two children
into the United States. My colleagues interpret the judicially
created doctrine of consular non‐reviewability to dictate
dismissal of such a claim. I respectfully dissent because I be‐
lieve that their view of the doctrine sweeps more broadly
than required by the Supreme Court and our own precedent,
and deprives Mr. Yafai of an important constitutional right.
A.
The first issue we must address is whether Mr. Yafai can
maintain an action seeking redress for the denial of his
wife’s visa application. This step requires that we determine
whether Mr. Yafai has any cognizable interest in his wife’s
application. In earlier cases, following Justice Kennedy’s
separate opinion in Kerry v. Din, 135 S. Ct. 2128, 2139 (2015)
(Kennedy, J., concurring in judgment), we have assumed,
without deciding, that a United States citizen has a protected
interest in a spouse’s visa application. See, e.g., Hazama v.
Tillerson, 851 F.3d 706, 709 (7th Cir. 2017). My colleagues
continue to follow this path. Because I would grant relief on
the merits, I cannot simply assume such a liberty interest. I
must decide the issue.
In my view, a citizen does have a cognizable liberty in‐
terest in a spouse’s visa application. The Supreme Court cer‐
tainly implied that a citizen can have a cognizable interest in
an alien’s visa application in Kleindienst v. Mandel, 408 U.S.
No. 18‐1205 11
753, 762–65 (1972) (suggesting American professors who
sought Mandel’s participation in a variety of conferences
had a First Amendment interest in his presence and, there‐
fore, his visa application). In Din, 135 S. Ct. at 2142–43 (Brey‐
er, J., dissenting), the four dissenting justices specifically
agreed that a United States citizen has an interest in an alien
spouse’s visa application. The three justices in the plurality,
however, took the opposite view. Id. at 2131 (Scalia, J.) (plu‐
rality opinion). They noted that a couple is “free to live …
anywhere in the world that both individuals are permitted
to reside” and that Congress has plenary power to regulate
immigration, which it has exercised in its “long practice of
regulating spousal immigration.” Id. at 2135–36, 2138.
Justice Breyer’s perspective is far more compatible with
the values of our constitutional tradition. A citizen’s right to
live in this Country is protected under the Due Process
Clause. See, e.g., Baumgartner v. United States, 322 U.S. 665,
670 (1944); Ng Fung Ho v. White, 259 U.S. 276, 284–85 (1922).
At the same time, our Nation’s constitutional tradition val‐
ues the institution of marriage highly, as it is “fundamental
to our very existence and survival.” Loving v. Virginia, 388
1
U.S. 1, 12 (1967). Consequently, the Supreme Court has long
1 Loving v. Virginia, 388 U.S. 1 (1967), illustrates the issue here. The Lov‐
ings were an interracial couple legally married in the District of Colum‐
bia. Id. at 2. When they moved home to Virginia, they were prosecuted
for violating a state miscegenation law. Id. at 2–3. Instead of sentencing
them to prison, the state judge suspended the sentence on the condition
that they did not return to Virginia for twenty‐five years. Id. at 3. The
Lovings, however, wished to return to Virginia and challenged the law.
Id. The Court’s holding that the statute violated the Lovings’ right to
marriage implies that “the option to live with one’s spouse in a different
(continued … )
12 No. 18‐1205
recognized the importance of family and the principle that
marriage includes the right of spouses to live together and
raise a family. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584,
2590–2601 (2015); Zablocki v. Redhail, 434 U.S. 374, 384–86
(1978); Moore v. City of East Cleveland, 431 U.S. 494, 500–04
(1977) (plurality opinion); Griswold v. Connecticut, 381 U.S.
479, 485–86 (1965); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Indeed, the right to conceive and to raise one’s children has
2
been deemed an “essential, basic civil right[] of man.” Stan‐
ley v. Illinois, 405 U.S. 645, 651 (1972) (citation and internal
quotation marks omitted). The interests of parents in their
children “is perhaps the oldest of the fundamental liberty
interests recognized by this Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000) (O’Connor, J.) (plurality opinion).
( … continued)
state did not cure the state’s infringement on their right to marriage.”
Beth Caldwell, Deported by Marriage: Americans Forced to Choose Between
Love and Country, 82 Brooklyn L. Rev. 1, 21 (2016). Similarly, the option
for a United States citizen to live abroad with his spouse does not cure
the infringement on his right to marriage by an unfair denial of the
noncitizen spouse’s entry into this Country.
2 Although the United States has signed but not ratified the U.N. Con‐
vention on the Rights of the Child, the Convention makes evident the
importance of retaining the family unit, especially considering the im‐
portance of a parent to her children. United Nations Convention on the
Rights of the Child, Sept. 2, 1990, 1577 U.N.T.S. 3. Undoubtedly, the sep‐
aration of family can affect the physical and mental well‐being of the
child, both presently and in his or her future development. See Obergefell
v. Hodges, 135 S. Ct. 2584, 2600 (2015) (noting that marriage “affords the
permanency and stability important to children’s best interests”).
No. 18‐1205 13
It is incongruous to maintain, therefore, that a United
States citizen does not have any interest in a spouse’s pres‐
ence in the Country and that the only recourse open to a citi‐
zen if the government denies a spouse entry is to leave the
United States. Although Congress certainly can regulate
spousal immigration and deny entry for good and sufficient
reason, an American citizen has a liberty interest in living
with his or her spouse. This interest requires that any exclu‐
sion of a citizen’s spouse be imposed fairly and evenhanded‐
3
ly.
Mr. Yafai, a United States citizen, therefore has a consti‐
tutionally protected interest in Ms. Ahmed’s presence in the
United States. This interest is secured by ensuring that our
Government’s consular officials evaluate fairly her visa ap‐
3 In the removal context, we have said that “family members of illegal
aliens have no cognizable interest in preventing an alien’s exclusion and
deportation.” Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003); see also
De Figueroa v. I.N.S., 501 F.2d 191, 195 (7th Cir. 1974). Other circuits have
made similar determinations. See Garcia v. Boldin, 691 F.2d 1172, 1183 (5th
Cir. 1982); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555 (2d Cir. 1975);
Cervantes v. I.N.S., 510 F.2d 89, 91–92 (10th Cir. 1975); Swartz v. Rogers,
254 F.2d 338, 339 (D.C. Cir. 1958). But see Silverman v. Rogers, 437 F.2d
102, 107 (1st Cir. 1970) (acknowledging, albeit obliquely, and pre‐Mandel,
the interest of an American citizen spouse in obtaining a visa upon expi‐
ration of the original visa but holding that the Government can require a
party to a marriage leave the United States). These cases, however, in‐
volved deportation proceedings where the alien family member at‐
tempted to enter or did enter the country illegally, or committed a crime
necessitating their deportation pursuant to the statute. Here, on the other
hand, a spouse of a United States citizen is seeking to enter the country
legally.
14 No. 18‐1205
plication. What constitutes a fair evaluation is the question
to which I now turn.
B.
In delineating the protections afforded citizens who
sponsor an immigrant spouse’s application for entry into the
United States, we must begin, of course, with the unques‐
tioned principle that Congress has plenary responsibility to
regulate immigration into the United States. U.S. Const. art.
I, § 8, cl. 4. In fulfilling that responsibility, Congress has en‐
acted a prolix code that delegates a great deal of authority to
the executive branch. See 8 U.S.C. § 1101 et seq. That delega‐
tion sets forth the distinctions and standards that Congress
has deemed appropriate in administering entry into the
United States. See 8 U.S.C. § 1182. We must not forget, how‐
ever, that Congress also has given the judiciary the limited,
but important, responsibility to ensure that the Executive
administers the immigration process according to the stand‐
ards enacted by Congress. The Immigration and Nationality
Act explicitly sets forth when a court may not review the
discretionary denial of a visa. See, e.g., 8 U.S.C.
§ 1182(a)(10)(C). The Act does not expressly preclude review
of visa denials under the smuggling provision in 8 U.S.C.
§ 1182(a)(6)(E). Cf. 8 U.S.C. § 1252 (providing judicial review
for orders of removal); Dhakal v. Sessions, 895 F.3d 532, 538
(7th Cir. 2018) (noting jurisdiction to review the denial of an
asylum claim without a removal order because, “[a]lthough
the APA is not an independent grant of jurisdiction, where
federal jurisdiction is not precluded by another statute, gen‐
eral federal question jurisdiction exists under 28 U.S.C.
§ 1331” (citations omitted)).
No. 18‐1205 15
In the course of fulfilling its responsibilities, the Judiciary
has fashioned a consular non‐reviewability doctrine. As a
judge‐made doctrine, it must be crafted and implemented in
a manner compatible with the congressional mandate. The
Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S.
753 (1972), is the starting point for understanding this doc‐
trine. There, the Supreme Court held that “when the Execu‐
tive exercises” the delegated and plenary congressional
power to make policies and rules for the exclusions of aliens
“negatively on the basis of a facially legitimate and bona fide
reason, the courts will [not] look behind the exercise of that
discretion … .” Id. at 770 (emphasis added). In that case,
Ernest Mandel, the plaintiff and a Belgian national, was in‐
vited to attend a variety of academic conferences in the
United States and to speak about his communist views. Id. at
756–57. His visa application was denied under a statutory
provision that excluded from admission to the United States
aliens who advocated for communism. Id. at 756. The Gov‐
ernment further stated that Mandel had not received a dis‐
cretionary waiver because he had not followed his itinerary
during a previous visit to the country. Id. at 758–59. The
Court held that, because “the Attorney General [had] in‐
form[ed] Mandel’s counsel of the reason for refusing his cli‐
ent a waiver,” and because “that reason was facially legiti‐
mate and bona fide,” further judicial review was unwarrant‐
ed. Id. at 769. The Court noted that the “plenary congres‐
sional power to make policies and rules for exclusion of al‐
iens has long been firmly established.” Id. at 769–70. There‐
fore, the Court reasoned that “courts will neither look be‐
hind the exercise of that discretion, nor test it by balancing
its justification against the First Amendment interests of
those who seek personal communication with the appli‐
16 No. 18‐1205
cant.” Id. at 770. Notably, in Mandel, there was no contention
that the Government had not considered Mandel’s argu‐
ments. Rather, his sponsors sought judicial review of the
merits of the underlying decision of immigration authorities:
they contended that the official had not weighed properly
First Amendment considerations in denying the waiver.
The Supreme Court addressed the consular
non‐reviewability doctrine again in Kerry v. Din, 135 S. Ct.
2128 (2015). In that case, the Government denied a spouse’s
application for a visa under a statutory provision providing
that an alien would be inadmissible if he participated in any
of eight enumerated types of terrorist activity. See 8 U.S.C.
§ 1182(a)(3)(B). There was no opinion for the Court, but Jus‐
tice Kennedy, in his concurrence, explored Mandel’s re‐
quirement of a facially legitimate and bona fide reason for a
4
visa denial. He concluded “that the Government satisfied
any obligation it might have had to provide Din with a fa‐
cially legitimate and bona fide reason for its action when it
provided notice that her husband was denied admission to
4 Justice Kennedy was joined by Justice Alito. Kerry v. Din, 135 S. Ct.
2128, 2139–41 (2015) (Kennedy, J., concurring in judgment). The plurali‐
ty, authored by Justice Scalia and joined by Chief Justice Roberts and
Justice Thomas, did not reach the question of consular non‐reviewability
because, in their view, Din was not deprived of “life, liberty, or proper‐
ty” when the government denied her husband’s visa. Id. at 2131–38 (Scal‐
ia, J.) (plurality opinion). Justice Breyer’s dissent, joined by Justices Gins‐
burg, Sotomayor, and Kagan, found that Din did have a protected inter‐
est in her husband’s visa and that there must be some factual basis for
the denial of that visa. Id. at 2141–47 (Breyer, J., dissenting).
No. 18‐1205 17
5
the country under § 1182(a)(3)(B).” Din, 135 S. Ct. at 2141
(Kennedy, J., concurring in judgment). In his view, citing the
terrorism provision, 8 U.S.C. § 1182(a)(3)(B), constituted suf‐
ficient explanation of the consular officer’s reason for deny‐
ing Din’s husband a visa. Id. at 2140–41. Justice Kennedy de‐
termined that the Government did not have to point to
which of the eight enumerated types of terrorist activity in
§ 1182(a)(3)(B) applied or to provide facts underlying its de‐
termination, in part because the statute expressly did not re‐
quire the Government to do so. Id. at 2141; see also 8 U.S.C.
§ 1182(b)(3) (exempting individuals denied admission under
the terrorism‐related provisions from the statutory notice
requirement). Under these circumstances, citation to a stat‐
ute that itself “specifies discrete factual predicates” was
enough to provide a facially legitimate and bona fide reason
for the visa denial. Din, 135 S. Ct. at 2141 (Kennedy, J., con‐
curring in judgment). That said, Justice Kennedy went on to
note that Din’s husband worked for the Taliban government,
which “provides at least a facial connection to terrorist activ‐
ity.” Id. Therefore, “[a]bsent an affirmative showing of bad
faith on the part of the consular officer … which Din has not
plausibly alleged with sufficient particularity—Mandel in‐
structs us not to ‘look behind’ the Government’s exclusion of
[Din’s husband] for additional factual details beyond what
its express reliance on § 1182(a)(3)(B) encompassed.” Id.
5 Justice Kennedy assumed, without deciding, that Din, an American
citizen, had a sufficient liberty interest in the visa application of her alien
spouse to receive due process protection. Id. at 2139 (Kennedy, J., concur‐
ring in judgment).
18 No. 18‐1205
In our own cases, we have attempted to apply the teach‐
6
ings of the Supreme Court in Mandel and Din. We have ob‐
served that no opinion in Din garnered a majority, and that
Mandel must control our decision. Morfin v. Tillerson, 851
F.3d 710, 713 (7th Cir. 2017) (“[Din] left things as Mandel had
left them—and the opinion in Mandel spoke for a majority of
the Court, sparing us the need to determine how to identify
the controlling view in Din given that the concurring opin‐
ion is not a logical subset of the lead opinion (or the reverse).
Mandel tells us not to go behind a facially legitimate and bo‐
7
na fide explanation.” (citation omitted)). Accordingly, we
6 See Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017) (considering,
without citing Justice Kennedy’s Din concurrence, the possibility of bad
faith and finding that “there is nothing in this record to suggest that the
consular officers were proceeding in bad faith”).
7 In Marks v. United States, 430 U.S. 188 (1977), the Supreme Court held
that, in the case of a fragmented decision, “the holding of the Court may
be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” Id. at 193 (quoting Gregg v. Geor‐
gia, 428 U.S. 153, 169 n.15 (1976)). We have declined to apply Marks
where a concurrence that provides the fifth vote does not provide a
“common denominator” for the judgment. See, e.g., Schindler v. Clerk of
Circuit Court, 715 F.2d 341, 345 n.5 (7th Cir. 1983). Although Justice Ken‐
nedy may find support for a bad faith exception from the dissenters, this
is not a common denominator for the judgment. Further, although it is
plausible that the plurality would agree that the denial still stands when
the consular officer cites a statute, there is no common denominator be‐
tween the plurality and Justice Kennedy’s concurrence. The plurality
does not reach the question of whether a facially legitimate and bona fide
basis is satisfied by the assertion of a statutory ground; rather, Justice
Scalia finds no process is due because Din does not have a protectable
interest in her husband’s visa. Justice Kennedy, on the other hand, as‐
(continued … )
No. 18‐1205 19
must accept the legitimacy of a “facially legitimate and bona
fide” reason. We cannot “look behind” the stated reason, nor
can we test its validity by second‐guessing the Executive’s
weighing of various factors.
While demonstrating our careful adherence to the teach‐
ing of Mandel, our recent cases also suggest the inherent lim‐
itations of the consular privilege. Properly understood, the
Supreme Court’s cases permit the judiciary to fulfill its con‐
gressionally mandated responsibilities. In each of our recent
cases, we simply have determined that the Government as‐
serted a facially legitimate and bona fide reason for exclu‐
sion by citing the statutory basis for the denial. In Morfin, 851
F.3d at 713, the consular officer cited the statute disqualify‐
ing for admission any alien who the consular officer has rea‐
son to believe is or has been a drug trafficker. Further, in
Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017), we re‐
fused to go beyond the statutory ground cited and “rechar‐
acteriz[e]” a consular officer’s determination that the visa
applicant committed an act of terrorism by throwing rocks at
Israeli soldiers as a thirteen‐year‐old boy. Finally, in Matu‐
shkina v. Nielsen, 877 F.3d 289, 295–96 (7th Cir. 2017), we
found a consular officer’s citation to the fraud and misrepre‐
sentation statute to be a facially legitimate and bona fide rea‐
son for the visa denial.
In each case, however, we also went past the statutory ci‐
tations and took notice of the evidence supporting the stated
ground for inadmissibility. See Morfin, 851 F.3d at 713 (not‐
( … continued)
sumes, without deciding, that Din has a protectable interest, but that
process was satisfied.
20 No. 18‐1205
ing an indictment for drug trafficking supported the statuto‐
ry requirement that the consular officer have “reason to be‐
lieve” the alien is or has been a drug trafficker); Hazama, 851
F.3d at 709 (“The consular officer in Jerusalem knew several
things before making his decision: first, this particular act of
rock‐throwing took place in one of the least settled places in
the world … ; second, rocks are not benign objects … ; third,
Ghneim did not deny that he had thrown the rocks; and
fourth, Ghneim had several other blots on his record.”); Ma‐
tushkina, 877 F.3d at 296 (“Matushkina acknowledged in the
interview that she omitted information about her daughter’s
employment.”). In short, we made certain that the assertion
by the consular officer was not made of whole cloth. As we
put it in Morfin, 851 F.3d at 713, we assured ourselves that
“the State Department was [not] imagining things.” See
Hazama, 851 F.3d at 709 (“All we can do is to look at the face
of the decision, see if the officer cited a proper ground under
the statute, and ensure that no other applicable constitution‐
al limitations are violated. Once that is done, if the undisputed
record includes facts that would support that ground, our task is
over.” (emphasis added)); Morfin, 851 F.3d at 713–14 (“Per‐
haps the refusal to issue Ulloa a visa could be said to lack a
‘facially legitimate and bona fide reason’ (in Mandel’s words)
if the consular official had concluded that the indictment’s
charges were false, or if Ulloa had presented strong evidence of
innocence that the consular officer refused to consider. But neither
his complaint nor his appellate brief makes such an argu‐
ment.” (emphasis added)).
Notably, in each of these cases, while assuring ourselves
that consular officers stayed within the bounds of their au‐
thority, we never attempted to review the substantive merits
of interpretive and discretionary decisions that they made.
No. 18‐1205 21
Indeed, in Hazama, 851 F.3d at 709, we accepted the consular
official’s determination that throwing rocks at Israeli soldiers
as a thirteen‐year‐old boy constituted terrorist acts. We have
made certain that there were bona fide facts present that
provided some basis for the Department’s assertion of the
ground for exclusion. See id.; Morfin, 851 F.3d at 713; Matu‐
shkina, 877 F.3d at 295–96. We did not weigh the facts; we
did not question the consular officer’s characterization of the
facts. We simply noted, to prevent arbitrariness, that the rec‐
ord contained some basis for the officer’s decision. In none
of these cases were we confronted with an allegation that the
consular official had proceeded in bad faith. Nevertheless,
we acknowledged that such an allegation, if plausibly made,
would present a very different situation. We recognized that
our statutory duty would require that we not look the other
way. For instance, in Morfin, we acknowledged that a visa
denial may lack a facially legitimate and bona fide reason if
the applicant “had presented strong evidence of innocence
that the consular officer refused to consider.” 851 F.3d at
713–14. In Hazama, 851 F.3d at 709, we acknowledged specif‐
ically the possibility that a case might raise serious allega‐
tions of bad faith.
C.
Today’s case raises the concern of fundamental fairness
that we previously acknowledged would fall outside the
comparatively straightforward situations in Mandel, Din, and
our earlier cases. Here, the evidence submitted by Mr. Yafai
raises the distinct possibility that the consular officer, contra‐
ry to his representations made to Mr. Yafai’s counsel, never
considered the evidence submitted. Mr. Yafai, a citizen of the
United States, wanted his family to come and live with him
22 No. 18‐1205
in this Country. He was successful in securing passports for
those of his children who were born after he was naturalized
and visas for those who were born earlier. An adult daugh‐
ter, already married, stayed in Yemen. The consular officer
denied a visa for his wife, Ms. Ahmed, under 8 U.S.C.
§ 1182(a)(6)(E) (“Any alien who at any time knowingly has
encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of the law is inadmissible.”). The denial included a single
laconic statement that Ms. Ahmed violated the smuggling
provision in § 1182(a)(6)(E): “You attempted to smuggle two
children into the United States using the identities Yaqub
8
Mohsin Yafai and Khaled Mohsin Yafai.”
According to Mr. Yafai, while the family’s applications
were pending, two of the children had drowned accidental‐
ly. When the consular officials inexplicably denied
Ms. Ahmed’s application apparently on the ground that the
two deceased children were not her own, the family submit‐
ted a substantial amount of evidence to overcome the accu‐
sation of fraud. That evidence included vaccination records
for the deceased children, school records for the older de‐
ceased child, prenatal care and ultrasound records, publica‐
tions concerning the drowning, a passport for the older de‐
ceased child, and complete family photos prior to the chil‐
9
dren’s deaths. The consular office responded with another
denial, which merely cited the immigration smuggling pro‐
8 R.1‐1 at 21.
9 See R.1.
No. 18‐1205 23
10
vision in § 1182(a)(6)(E). To this day, we have no idea what
the basis was, or if there was any basis, for the Government’s
assertion that Ms. Ahmed attempted to smuggle two chil‐
dren into the United States. On this record, we cannot tell
whether the adjudicating officer undertook a careful exami‐
nation or whether, without any examination, he simply is‐
sued a denial based solely on a generalized, stereotypical as‐
sumption of what, in his view, happens in that country.
This case is, therefore, precisely the unusual case that has
made some of the Justices and our own court hesitate to
sanction an ironclad, judge‐made rule admitting of no excep‐
tions. Here, in a case where the Government asserts no na‐
tional security interest and where the important familial
rights of an American citizen are at stake, the Government
asks us to rubber stamp the consular decision on the basis of
a conclusory assertion. Although Congress has tasked us, by
statute, with the responsibility to prevent arbitrary and ca‐
pricious government action, we look the other way despite
the significant record evidence to refute the Government’s
assertion and no suggestion that the consular officer even
11
considered it. Granted, we have no authority to assess the
10 R.1‐1 at 22.
11 In an email on October 16, 2014 to Ms. Ahmed and Mr. Yafai’s attor‐
ney, a Fraud Prevention Manager acknowledged the receipt of evidence
from Mr. Yafai and indicated that some review may have been under‐
taken:
Thank you for the attachments. They will be most useful in
our analysis.
Rest assured that there is no delay in the processing of
this case to conclusion. We acknowledge that there has been
(continued … )
24 No. 18‐1205
evidence, but under the statute, we do have the obligation to
require, at the very least, that the Government assure us, by
( … continued)
some repetition in examining the circumstances of the pur‐
ported deaths of the two beneficiaries, but we note that your
clients do not testify credibly, testify contradictorily, deny
the existence of evidence, and otherwise cast doubt on the
accuracy of their responses. Hence, they were questioned by
the interviewing officer who referred their cases to the Fraud
Prevention Unit whereupon we explored the same issues in
more detail with you[r] clients. Based on their testimony, we
concluded that the evidence which you attached did exist, hence re‐
quested its production in an effort to corroborate the testimony of
your clients, not impeach it.
As of this writing, a fraud investigator is reviewing the evi‐
dence and will finalize our fraud report for the adjudicating officer.
Unfortunately, Embassy Sanaa is currently on ordered de‐
parture and there are no IV adjudicating officers remaining
at post. We are operating at 70% staff reduction occasioned
by civil unrest. Your clients’ case will be placed in the queue for
an officer’s review upon their return to post.
R. 1‐1. at 26–28 (emphases added). This email provides no information
on the later treatment of the evidence by the adjudicating officer. It only
indicates that the Embassy received the evidence that Mr. Yafai submit‐
ted to rebut claims of smuggling and fraud. By its plain terms, a fraud
investigator would review the evidence, finalize a fraud report, and then
the case would be reviewed by an adjudicating officer. There is no record
that the adjudicating officer ever saw or considered the material. Fur‐
thermore, although this communication mentions some inconsistencies
in the testimony of appellants, we do not know whether and how the
adjudicating officer reconsidered these inconsistencies in light of the re‐
butting evidence that Mr. Yafai submitted and whether those inconsist‐
encies were at all germane to the allegation of smuggling or to the validi‐
ty of the evidence proffered by the family.
No. 18‐1205 25
affidavit or similar evidence, that it actually took into con‐
sideration the evidence presented by the applicant and point
to some factual support for the consular officer’s decision to
discount that evidence. In a case such as this one, where the
Government makes no representation that such a demon‐
stration would endanger national security, examination of
the Government’s explanation, in camera if appropriate,
ought to satisfy any other legitimate concerns of the Gov‐
ernment against disclosure in a public record.
The Constitution gives Congress plenary authority over
immigration matters and, as the Government reminds us,
delegated a great deal of that authority to the Executive. The
finely tuned provisions of the Immigration and Nationality
Act delegate a great deal of authority to the Executive in
immigration matters and, properly applied, the consular
privilege ensures that that delegation of authority is not di‐
luted by overly intrusive judicial proceedings. We cannot
forget, however, that Congress has given the Judiciary the
obligation to curb arbitrary action. It has made no exception
for the action of consular officers. Congress did not, and
would not, sanction consular officers’ making visa decisions
in a purely arbitrary way that affects the basic rights of
American citizens. We have the responsibility to ensure that
such decisions, when born of laziness, prejudice or bureau‐
cratic inertia, do not stand. As long as Congress keeps in
place our statutory responsibility, we show no respect for
the Constitution or for Congress by taking cover behind an
overly expansive version of a judge‐made doctrine.
I respectfully dissent.