USCA11 Case: 21-10189 Date Filed: 05/25/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10189
____________________
CAYETANO RODRIGUEZ DURAN,
Plaintiff-Appellant,
versus
SECRETARY OF STATE, UNITED STATES DEPARTMENT
OF STATE,
CHRISTOPHER LANDAU,
Ambassador, United States Embassy, Mexico City, Mexico,
Defendants-Appellees.
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2 Opinion of the Court 21-10189
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00995-SDM-SPF
____________________
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Cayetano Rodriguez Duran appeals the district court’s
dismissal for failure to state a claim of his petition for a writ of
mandamus. After careful review of the record and the parties’
briefs, and with the benefit of oral argument, we affirm.
I. BACKGROUND
Duran, a lawful permanent resident of the United States, is
married to Liliana Varela Rodriguez, a citizen of Mexico. Before
their marriage, in 2007, Rodriguez entered the country without
inspection. Shortly after her entrance, Customs and Border Pro-
tection processed Rodriguez for the initiation of removal proceed-
ings but released her from custody on her own recognizance.
After the couple married, Duran submitted a Form I-130,
(Petition for Alien Relative) to the United States Citizenship and
Immigration Services, seeking to have his wife’s status adjusted to
that of lawful permanent resident. Since Rodriguez had initially
entered the country without inspection, however, she was ineli-
gible to apply for adjustment of status in the United States. In-
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21-10189 Opinion of the Court 3
stead, Rodriguez was required to apply for an immigrant visa
through the United States Consular Office in Ciudad Juarez, Mex-
ico. Moreover, since Rodriguez entered the United States without
inspection, she had assumed a period of unlawful presence, mean-
ing that her departure to Mexico to pursue her visa would pre-
clude her from returning to the United States. See 8 U.S.C.
§1182(a)(9)(B)(i)(II) (deeming inadmissible any noncitizen who
“has been unlawfully present in the United States for one year or
more, and who again seeks admission within 10 years of the date
of [her] departure or removal from the United States”).
Rodriguez sought and received a provisional waiver of her
inadmissibility so that she could attend her consular interview in
Mexico. Following the interview, the consular officer rejected
Rodriguez’s visa application. The officer cited three reasons for
the rejection. First, Rodriguez had made a false representation
that she was a citizen of the United States, in violation of 8 U.S.C.
§1182(a)(6)(C)(ii). Rodriguez “was apprehended while attempting
to enter the United States by falsely declaring to be a U.S. citizen
at [a] checkpoint in the state of Texas, in July 2007.” Doc. 1-5 at 3. 1
Second, Rodriguez had knowingly encouraged, induced, assisted,
abetted, or aided any other noncitizen to enter or to try to enter
the United States, in violation of 8 U.S.C. §1182(a)(6)(E)(i). “Ac-
cording to [her] statements under oath, she assisted the illegal en-
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 21-10189
try of her Mexican born child to the United States by hiring a
smuggler to bring the child into the [country] in 2011.” Id. Third,
Rodriguez had accrued one year or more of unlawful presence in
the United States prior to her departure to Mexico, in violation of
8 U.S.C. §1182(a)(9)(B)(i)(II). Rodriguez “stated under oath to en-
tering without inspection to the United States in July 2007,
rem[ai]ning illegally in the country until July 2019.” Id.
As a result of these findings by the consular officer, Rodri-
guez’s waiver of inadmissibility was revoked, and she was de-
clared permanently ineligible for an immigrant visa.
Duran sought a writ of mandamus from the United States
district court for the Middle District of Florida that would compel
the Secretary of State “to adjudicate [Rodriguez’s] application for
an immigrant visa.” Doc. 1 at 1. Duran explained that he was not
asking the district court to review the decision of the consular of-
ficer but was instead requesting “review of the [consular office’s]
failure to abide by its own regulations.” Id. at 10. He alleged that
the rejection of his wife’s application was due to misapplication of
the law and procedural error. He also requested that the district
court (1) require the Secretary of State to disclose the evidence
that led to the consular officer’s decision to reject the visa applica-
tion and (2) conduct an in camera review of the evidence.
The Secretary of State moved to dismiss the petition. The
Secretary argued that although Duran claimed he was not chal-
lenging the consular officer’s decision and seeking review of it, in
effect he was pursuing this end. The Secretary further argued that
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21-10189 Opinion of the Court 5
the doctrine of consular non-reviewability barred the district
court’s consideration of Duran’s petition. According to the Secre-
tary, the doctrine applied because the consular officer provided
“facially legitimate and bona fide” reasons for the decision to deny
Rodriguez’s visa application by citing three statutory grounds for
inadmissibility. Thus, the Secretary asserted, the district court
lacked subject matter jurisdiction over Duran’s petition or, alter-
natively, the petition should be dismissed for failure to state a
claim. Finally, the Secretary argued that the doctrine of consular
non-reviewability prohibited the district court from ordering dis-
closure of evidence underlying the rejection of Rodriguez’s visa
application.
The district court dismissed Duran’s petition. The court de-
termined, based on the doctrine of consular non-reviewability,
that Duran failed to state a claim upon which relief could be
granted. See Fed. R. Civ. P. 12(b)(6).
This is Duran’s appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to dismiss a
claim under Federal Rule of Civil Procedure 12(b)(6). R&R Int’l
Consulting LLC v. Banco do Brasil, S.A., 981 F.3d 1239, 1243 (11th
Cir. 2020).
III. DISCUSSION
Duran advances three arguments on appeal. First, he ar-
gues that the consular officer failed to provide a facially legitimate
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6 Opinion of the Court 21-10189
and bona fide reason for the denial of his wife’s immigrant visa
application. Second, he argues that the doctrine of consular non-
reviewability does not apply because the denial of his wife’s visa
application was the result of procedural error. Third, Duran ar-
gues that the district court erred in declining to conduct an in
camera review of the State Department’s evidence of statutory
inadmissibility.
After this case was fully briefed, we decided an appeal in a
similar case, addressing most of the challenges Duran makes in his
appeal. See Del Valle v. Sec’y of State, 16 F.4th 832 (11th Cir.
2021). We first explain what happened in Del Valle; then, we ad-
dress Duran’s arguments.
A. Del Valle
Del Valle, a United States citizen, filed a Form I-130 for her
husband, a Mexican citizen. Del Valle, 16 F.4th at 836. After Del
Valle’s husband undertook the same series of steps Rodriguez
took here—obtaining a provisional unlawful presence waiver and
applying for an immigrant visa in Mexico—the consular officer
rejected his visa application, citing three subsections of 8 U.S.C.
§ 1182. Id. First, citing § 1182(a)(6)(C)(i), the consular officer de-
termined that “Mr. Del Valle had sought to obtain an immigra-
tion benefit by fraudulently or falsely misrepresenting a material
fact to a consular or immigration official.” Id. Second, citing
§ 1182(a)(6)(C)(ii), the officer ruled that “[Mr. Del Valle] had false-
ly represented himself to be a United States citizen.” Id. And third,
citing § 1182(a)(9)(B)(i)(II), the consular officer determined that
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“[Mr. Del Valle] had unlawfully resided in the United States for
over a year.” Id. Aside from the citation to these subsections, the
officer’s decision contained no additional evidence or facts that
supported the findings of inadmissibility. Id.
Del Valle, like Duran, filed in the district court a petition
for a writ of mandamus against the State Department, challenging
the consular officer’s failure to cite any facts or evidence in sup-
port of the decision to reject her husband’s visa application. Id.
Specifically, Del Valle argued that the consular officer mistook her
husband for someone else who had made a false statement. Id.
Del Valle also requested that the district court conduct an in cam-
era review of the evidence supporting the consular officer’s deci-
sion. Id. Upon the government’s motion, the district court dis-
missed the complaint, citing the doctrine of consular non-
reviewability. Id. at 837.
We affirmed. Id. at 844. We explained that “[t]he doctrine
of consular non-reviewability . . . bars judicial review of a consu-
lar official’s decision regarding a visa application if the reason giv-
en is ‘facially legitimate and bona fide.’” Id. at 835 (citing
Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 576
U.S. 86 (2015) (Kennedy, J., concurring in the judgment)).
“[R]easons [for a consular officer’s visa rejection] are (1) facially
legitimate when they cite valid statutory provisions of inadmissi-
bility and (2) bona fide when they identify the factual predicates
that exist for a visa denial.” Id. at 841.
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We rejected Del Valle’s argument “that because the consu-
lar official did not identify the real-world facts (the who, what,
when, where, why, and how) that served as the basis for the visa
denial, the government did not satisfy the bona-fide-reason
prong.” Id. We reasoned that “citation to a statutory inadmissibil-
ity provision meets both prongs of the standard where the provi-
sion specifies discrete factual predicates the consular officer must
find to exist before denying a visa.” Id. (internal quotation marks
omitted). That is because “[w]here a statute provides specific fac-
tual predicates that the consular official must find for a determina-
tion of inadmissibility, a citation to the statute indicates that the
government relied upon a bona fide factual basis for denying a vi-
sa.” Id. (internal quotation marks omitted and alterations adopt-
ed). Because “each of the inadmissibility provisions cited in the
notice of denial provided to Mr. Del Valle specifie[d] discrete fac-
tual predicates that the consular official must have found to exist
to deny his visa application,” the government relied upon a bona
fide factual basis, and Del Valle’s petition failed to state a claim.
Id. at 842.
We also rejected Del Valle’s argument that the consular
non-reviewability doctrine did not forbid in camera review of the
evidence on which the consular officer relied. Id. We noted that
Del Valle attempted to frame the request as “not asking for sub-
stantive review of the consular official’s decision” but rather to
see if there was in fact a factual predicate for the decision. Id.
“[U]npersuaded,” we explained that Del Valle was “asking for a
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merits examination of the consular official’s determination—
precisely the type of review that the consular non-reviewability
doctrine forecloses.” Id. “[A]bsent a plausible allegation of bad
faith,” which Del Valle did not make, “we cannot consider
whether the consular official erred, because the [statutory] rea-
sons provided in the notice of denial are facially legitimate and
bona fide.” Id. at 843.
With this background, we address the merits of Duran’s
arguments.
B. Duran’s Arguments
To review, Duran argues that the district court erred in re-
jecting his petition for three reasons: (1) the consular officer failed
to provide a facially legitimate and bona fide reason for the visa
application denial; (2) the consular officer committed procedural
error, rendering the doctrine of consular non-reviewability inap-
plicable; and (3) the district court should have reviewed in camera
the evidence upon which the consular officer relied. Our decision
in Del Valle forecloses Duran’s first and third arguments, and it
bears on his second argument, which also lacks merit.
1. Facially Legitimate and Bona Fide Reason
Duran argues that the consular officer, by citing only to
statutory inadmissibility provisions, failed to provide a facially le-
gitimate and bona fide reason for denying his wife’s visa applica-
tion. Not so. “[R]easons [for a consular officer’s visa rejection] are
(1) facially legitimate when they cite valid statutory provisions of
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10 Opinion of the Court 21-10189
inadmissibility and (2) bona fide when they identify the factual
predicates that exist for a visa denial.” Del Valle, 16 F.4th at 841.
Duran concedes that the consular officer cited statutory grounds
for his wife’s inadmissibility and that this satisfies the first of the
requirements Del Valle articulated. See id. And although Duran
argues that the consular officer failed to identify a factual predi-
cate for the visa denial beyond the statutory provision itself, we
rejected this very argument in Del Valle, concluding that “citation
to a statutory inadmissibility provision meets both prongs of the
standard where the provision specifies discrete factual predicates
the consular officer must find to exist before denying a visa.” Id.
(internal quotation marks omitted). Here, as in Del Valle, “each of
the inadmissibility provisions cited in the notice of denial provid-
ed to [the applicant] specifie[d] discrete factual predicates that the
consular official must have found to exist to deny [the] visa appli-
cation.” Id. at 842. For Duran’s wife, these included the false rep-
resentation of citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), the
knowing encouragement of a noncitizen to try to enter the Unit-
ed States, see 8 U.S.C. § 1182(a)(6)(E)(i), and the accrual of a year
of more of unlawful presence within the United States, see 8
U.S.C. § 1182(a)(9)(B)(i)(II). 2 In light of Del Valle, the district
2
Thus, although the Court in Del Valle recognized that there may be some
circumstances in which the citation of a statutory inadmissibility provision is
insufficient to satisfy the bona fide reason requirement—such as in a case
where the provision “lack[s] discrete factual predicates,” Del Valle, 16 F.4th
at 842—this is not such a case.
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21-10189 Opinion of the Court 11
court correctly determined, as a matter of law, that the consular
officer provided a facially legitimate and bona fide reason for the
application’s denial.
2. Procedural Error
Next, Duran argues that the doctrine of consular non-
reviewability does not preclude the district court from deciding
whether the consular officer failed to follow federal regulations
governing the visa application review process. 3 Under 22 C.F.R.
§ 42.81(c), which describes the procedures by which a visa appli-
cation denial should proceed, “[i]f the grounds of ineligibility may
be overcome by the presentation of additional evidence” and the
applicant says she will submit this evidence, “a review of the re-
fusal may be deferred” so that the evidence may be subject to fur-
ther review. If refusal is deferred, “the principal consular officer at
a post” or a designated alternate officer will review the refusal. Id.
And “[i]f the principal consular officer or alternate does not con-
cur in the refusal, that officer shall either (1) refer the case to the
Moreover, in this case the consular officer did state factual support for each
statutory inadmissibility provision, albeit briefly. In crafting his argument,
Duran apparently has ignored or overlooked this fact. As we have explained,
however, no recitation of factual support for the statutory inadmissibility
provisions was necessary in this case. So, we may assume for purposes of this
opinion that Duran correctly characterizes the consular officer’s decision as
having been based solely on the statutory inadmissibility provisions.
3 Duran concedes that he is not raising a due process claim.
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Department for an advisory opinion, or (2) assume responsibility
for final action on the case.” Id.4
Duran argues that Rodriguez submitted additional evi-
dence to establish that at least one of the statutory grounds for
inadmissibility did not apply, but the consular officer nonetheless
failed to review it and failed to defer the denial of the visa applica-
tion and refer the case for an advisory opinion, in violation of
§ 42.81(c). Because of these alleged procedural errors, Duran ar-
gues, the doctrine of consular non-reviewability does not apply.
We disagree. Assuming for the sake of Duran’s argument
that there is an exception to the doctrine of consular nonreviewa-
bility for procedural error, he failed to state a claim, for three rea-
sons. First, even if the determination of inadmissibility may be
overcome by the presentation of additional evidence and the evi-
dence is submitted, § 42.81(c) establishes no duty to consider, or
defer for consideration of, that evidence. Rather, the provision
states only that “a review of the refusal may be deferred.” 22
C.F.R. § 42.81(c) (emphasis added). Second, the regulation impos-
es no duty to refer the case for an advisory opinion unless “the
principal consular officer or alternate does not concur in the re-
fusal,” id., and Duran did not allege that this was the case with the
4 Further, although he maintained at oral argument that the consular officer
also had violated 22 C.F.R. § 42.81(e), he did not allege such a violation in his
petition for a writ of mandamus, so we do not address it here.
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refusal of his wife’s visa application. Third, even if the principal
consular officer or alternate does not concur in the refusal, the re-
viewing consular officer is not required to refer the case for an
advisory opinion. There is a second option that the principle or
designated alternate officer can consider and pursue: “assume re-
sponsibility for final action on the case.” Id. Duran failed to allege
that none of the avenues permitted by the regulation was fol-
lowed. Thus, he has not plausibly alleged a procedural violation.
3. In Camera Review
Lastly, Duran argues the district court erred in failing to
review in camera certain unspecified documents that allegedly
were central to his claim because they contradicted the consular
officer’s cited grounds for his wife’s inadmissibility. Importantly,
Duran does not argue—nor did he allege in the district court—
that the consular officer acted in bad faith. Applying Del Valle, the
district court rightly declined to review the documents in camera.
By requesting review of evidence to negate the existence of a fac-
tual predicate for inadmissibility, Duran “is asking for a merits ex-
amination of the consular official’s determination—precisely the
type of review that the consular non-reviewability doctrine fore-
closes.” Id. at 842. Absent a plausible allegation of bad faith, which
Duran did not make, this Court “cannot consider whether the
consular official erred.” Id. at 843.
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IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.