Fauzia Din v. John F. Kerry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FAUZIA DIN , No. 10-16772
Plaintiff-Appellant,
D.C. No.
v. 3:10-cv-00533-
MHP
JOHN F. KERRY ,* Secretary of State;
JANET A. NAPOLITANO , Secretary of
Homeland Security; ERIC H. OPINION
HOLDER , JR., Attorney General,
Attorney General of the United
States; RICHARD OLSON ,
Ambassador of the United States
Embassy, Islamabad, Pakistan;
CHRISTOPHER RICHARD , Consul
General of the Consular Section at
the United States Embassy,
Islamabad, Pakistan; JAMES B.
CUNNINGHAM , Ambassador of the
United States Embassy, Kabul,
Afghanistan,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding

*
John F. Kerry, Richard Olson, and James B. Cunningham are
substituted for their predecessors pursuant to Fed. R. App. P. 43(c)(2).
2 DIN V . KERRY

Argued and Submitted July 18, 2012
San Francisco, California

Filed May 23, 2013

Before: Richard R. Clifton and Mary H. Murguia,
Circuit Judges, and Raner C. Collins, District Judge.**

Opinion by Judge Murguia;
Dissent by Judge Clifton

SUMMARY***

Immigration

The panel reversed the district court’s order granting the
Government’s motion to dismiss, on the basis of consular
nonreviewability, United States citizen Fauzia Din’s claims
for a writ of mandamus directing the Government to
adjudicate the visa application she filed on behalf of her
husband Kanishka Berashk and for a declaratory judgment
under the Administrative Procedure Act.

The panel concluded that the Government’s citation to 8
U.S.C. § 1182(a)(3)(B), in the absence of any allegations of
proscribed conduct, was not a facially legitimate reason to

**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.

***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 DIN V . KERRY 3

deny Berashk’s visa, and held that the Government did not
put forth a facially legitimate reason to deny it. The panel
also concluded that Din had standing to seek a declaratory
judgment that the visa denial notice provision under
§ 1182(b)(3) was unconstitutional as applied to her.

Dissenting, Judge Clifton would find that the Government
is specifically not required to provide information about a
visa denial based on concerns for national security or
terrorism. Judge Clifton wrote that basing the denial of the
application on the statute provided a lawful reason for
denying it.

COUNSEL

Heidi C. Larson Howell (argued) and Geoffrey D. DeBoskey,
Sidley Austin LLP, Los Angeles, California; and Sin Yen
Ling, Asian Law Caucus, San Francisco, California, for
Appellant.

Stacey Ilene Young (argued), Trial Attorney, United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for Appellees.

OPINION

MURGUIA, Circuit Judge:

United States citizen Fauzia Din filed a visa petition on
behalf of her husband Kanishka Berashk, a citizen and
resident of Afghanistan. Nine months later, the visa was
denied. Consular officials informed Din and Berashk only
4 DIN V . KERRY

that the visa had been denied under 8 U.S.C. § 1182(a)(3)(B),
a broad provision that excludes aliens on a variety of
terrorism-related grounds. The district court granted the
Government’s motion to dismiss on the basis of consular
nonreviewability, concluding that the Government put forth
a facially legitimate and bona fide reason for the visa denial,
in accordance with Bustamante v. Mukasey, 531 F.3d 1059
(9th Cir. 2008). We disagree. Because the Government has
not put forth a facially legitimate reason to deny Berashk’s
visa, we reverse and remand for further proceedings.

I. Background

The following facts are taken from Din’s complaint.
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)
(accepting “all factual allegations in the complaint as true”
when reviewing an order granting a motion to dismiss). From
1992 to 2003, Din’s husband, Berashk, worked as a payroll
clerk for the Afghan Ministry of Social Welfare. Since the
Taliban controlled Afghanistan from 1996 to 2001, Berashk’s
employment necessarily included work for the Taliban
government. Since 2003, Berashk has worked as a clerk in
the Afghan Ministry of Education, where he performs low-
level administrative duties, including processing paperwork.

In September 2006, Din and Berashk married. In October
of the same year, Din filed a visa petition on Berashk’s
behalf. On February 12, 2008, United States Citizenship and
Immigration Services (“USCIS”) notified Din that the visa
petition was approved. Several months later, the National
Visa Center informed Din that it completed processing the
visa and scheduled a visa interview for Berashk at the
Embassy in Islamabad, Pakistan. The interview took place as
scheduled on September 9, 2008. Berashk answered all
 DIN V . KERRY 5

questions truthfully, including inquiries about his work for
the Afghan Ministry of Social Welfare during the period of
Taliban control and about the difficulty of life under that
regime. The interviewing consular officer told Berashk he
should expect to receive his visa in two to six weeks. The
officer gave Berashk a form to submit at the Kabul Embassy,
which he submitted with his passport upon returning to
Afghanistan.

Almost nine months later, on June 7, 2009, following
several phone calls to the Embassy from both Din and
Berashk, Berashk received a Form 194 letter informing him
that his visa had been denied under Section 212(a) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a). The letter also stated that there was “no possibility
of a waiver of this ineligibility.” On July 11, 2009, Berashk
sent an email to the Islamabad Embassy requesting
clarification as to the reason his visa had been denied. On
July 13, 2009, the Embassy emailed a response, stating the
visa had been denied under INA § 212(a)(3)(B), 8 U.S.C.
§ 1182(a)(3)(B), a section of the INA that lists a wide variety
of conduct that renders an alien inadmissible due to “terrorist
activities.” The email added that “[i]t is not possible to
provide a detailed explanation of the reasons for the denial,”
citing INA § 212(b)(2), 8 U.S.C. §§ 1182(b)(2)–(3), which
makes inapplicable the requirement that the aliens receive
notice of the reason for denials involving criminal or terrorist
activity.

Din then obtained pro bono counsel and made several
inquiries about the visa denial. Din’s counsel sent a letter to
the Immigrant Visa Unit of the Islamabad Embassy
requesting reconsideration, or, alternatively, a statement of
facts in support of the Government’s position that Berashk
6 DIN V . KERRY

was inadmissible. The Embassy responded with an email
again referring only to INA § 212(a)(3)(B). Counsel
subsequently sent a similar letter to the Office of Visa
Services at the State Department. Following several other
unsuccessful attempts to contact different State Department
officials, counsel received an additional email again stating
that the visa had been denied under Section 212(a)(3) and that
a more detailed explanation for the refusal was not possible.

In late 2009, Din attempted to obtain answers directly by
traveling from the United States to the Kabul Embassy and
then the Islamabad Embassy. Officials at both embassies
declined to provide her with a more specific explanation of
the visa denial.

Din then initiated this action, asserting three claims for
relief: (1) a writ of mandamus directing defendants to
lawfully adjudicate Berashk’s visa application; (2) a
declaratory judgment that 8 U.S.C. § 1182(b)(3), waiving the
visa denial notice provisions for aliens deemed inadmissible
under terrorism grounds, is unconstitutional as applied to Din;
and (3) a declaratory judgment that defendants are in
violation of the Administrative Procedure Act. The district
court granted the Government’s motion to dismiss,
concluding that Din failed to state a claim because the
doctrine of consular nonreviewability barred adjudication of
her first and third claims. The district court also dismissed
Din’s second claim, concluding that Din did not have
standing to challenge the visa denial notice provision.

II. Standard of Review

We review de novo the district court’s order granting a
motion to dismiss. Knievel, 393 F.3d at 1072. When ruling
 DIN V . KERRY 7

on a motion to dismiss, we accept all factual allegations in the
complaint as true and construe the pleadings in the light most
favorable to the nonmoving party. Id. To survive dismissal,
the complaint must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

III. Discussion

A. Consular nonreviewability and the Mandel exception

We begin with the doctrine of consular nonreviewability.
An alien has “no constitutional right of entry” to the United
States. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).
The Supreme Court “without exception has sustained
Congress’ ‘plenary power to make rules for the admission of
aliens and to exclude those who possess those characteristics
which Congress has forbidden.’” Id. at 766 (quoting
Boutilier v. INS, 387 U.S. 118, 123 (1967)). Accordingly,
“[f]ederal courts are generally without power to review the
actions of consular officials.” Rivas v. Napolitano, 677 F.3d
849, 850 (9th Cir. 2012) (citing Li Hing of Hong Kong, Inc.
v. Levin, 800 F.2d 970, 971 (9th Cir. 1986)).

However, we have recognized a limited exception to the
doctrine of consular nonreviewability. When the denial of a
visa implicates the constitutional rights of an American
citizen, we exercise “a highly constrained review solely to
determine whether the consular official acted on the basis of
a facially legitimate and bona fide reason.” Bustamante,
531 F.3d at 1060. This right to review arises from the
Supreme Court’s holding in Mandel, in which U.S. citizen
professors asserted a First Amendment right to “receive
information and ideas” from an alien. 408 U.S. at 770. The
8 DIN V . KERRY

Mandel Court held that when the Government denies
admission “on the basis of a facially legitimate and bona fide
reason, the courts will neither look behind 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 applicant.” 408 U.S. at 762. Since
Mandel, our Court and several of our sister circuits have
exercised jurisdiction over citizens’ challenges to visa denials
that implicate the citizens’ constitutional rights. Bustamante,
531 F.3d at 1059; see also Am. Acad. of Religion v.
Napolitano, 573 F.3d 115, 125 (2d Cir. 2009); Adams v.
Baker, 909 F.2d 643, 647–48 (1st Cir. 1990); Abourezk v.
Reagan, 785 F.2d 1043, 1075 (D.C. Cir. 1986). Courts
review the denials for “a facially legitimate and bona fide
reason.” Bustamante, 531 F.3d at 1062.

In Bustamante, we recognized that a citizen has a
protected liberty interest in marriage that entitles the citizen
to review of the denial of a spouse’s visa. 531 F.3d at 1062.1

1
The Government’s contention that Bustamante is not good law is
meritless. First, the Government argues that the text of the INA, as
supported by its legislative history, precludes judicial review of consular
decisions. This argument is irrelevant to the holding of Bustamante,
which conditions judicial review on the constitutional rights of citizens,
not an interpretation of immigration statutes. See 531 F.3d at 1062
(“Presented with a procedural due process claim by a U.S. citizen, we
therefore consider the Consulate’s explanation for the denial of [the] visa
application pursuant to the limited inquiry authorized by Mandel.”).
Second, according to the Government, Bustamante is predicated on a
liberty interest in the ability to live in the United States with an alien
spouse, and because this right has been elsewhere repudiated, Bustamante
is in conflict with Circuit precedent and should not be followed. The
Government misreads Bustamante; nowhere does the case mention the
right of an alien spouse to live in the U nited States. Rather, it explains
that a citizen spouse’s right to judicial review is based on the more general
 DIN V . KERRY 9

We therefore consider whether the reason provided by the
consular officials for the denial of Berashk’s visa is “facially
legitimate and bona fide.” Id. This inquiry is extremely
narrow. Once the Government offers a facially legitimate and
bona fide reason for the denial, courts “have no authority or
jurisdiction to go behind the facial reason to determine
whether it is accurate.” Chiang v. Skeirik, 582 F.3d 238, 243
(1st Cir. 2009).

There is little guidance on the application of the “facially
legitimate and bona fide” standard. See Marczak v. Greene,
971 F.2d 510, 517 (10th Cir. 1992) (“Because the ‘facially
legitimate and bona fide’ standard is used relatively
infrequently, its meaning is elusive.”) (quoting Azizi v.
Thornburgh, 908 F.2d 1130, 1133 n.2 (2d Cir. 1990)).2 We
agree with the Second Circuit that “the identification of both
a properly construed statute that provides a ground of
exclusion and the consular officer’s assurance that he or she
‘knows or has reason to believe’ that the visa applicant has
done something fitting within the proscribed category
constitutes a facially legitimate reason.” Am. Acad., 573 F.3d
at 126 (quoting 8 U.S.C. § 1201(g)). This is consistent with

right to “[f]reedom of personal choice in matters of marriage and family
life.” Id. W e have neither the power to, nor the interest in questioning
Bustamante’s authority. See Montana v. Johnson, 738 F.2d 1074, 1077
(9th Cir. 1984) (only en banc decisions, Supreme Court decisions, or
subsequent legislation overrule the decisions of prior panels).

2
The dearth of cases explaining the “facially legitimate and bona fide”
requirement explains why we, and the dissent, cannot cite any authority
conclusively resolving whether the Government’s rationale is sufficiently
detailed to constitute a “facially legitimate” basis. See Dissent at 27
(asserting, without citation, that “[t]here is nothing facially illegitimate in
the identification of section 1182(a)(3)(B) as the basis for the denial of
Berashk’s application”).
10 DIN V . KERRY

Bustamante, in which we stated that the visa applicant “was
denied a visa on the grounds that the Consulate ‘had reason
to believe’ that he was a controlled substance trafficker.”
531 F.3d at 1062.

Accordingly, we must determine if the Government’s
citation to a broad section of the INA that contains numerous
categories of proscribed conduct, without any assurance as to
what the consular officer believes the alien has done, is also
a facially legitimate reason. Because we conclude that the
Government’s position would eliminate the limited judicial
review established by the Supreme Court in Mandel and
recognized by this Court in Bustamante, and we find no
authority to support eliminating this review, we conclude that
it is not.

The first problem is that the Government has offered no
reason at all for denying Berashk’s visa; it simply points to a
statute. While the statute might demonstrate that a particular
reason is legitimate, in this case there are no factual
allegations that would allow us to determine if the specific
subsection of § 1182(a)(3)(B) was properly applied. Din
alleges that neither she nor Berashk has any idea what
Berashk could have done to be found inadmissible on
terrorism grounds, and the Government provides no reason
other than its citation to § 1182(a)(3)(B).

In this regard, Din and Berashk’s case is distinguishable
from Bustamante and other visa denial challenges by a
citizen. In Bustamante, the visa applicant was informed that
the consulate had reason to believe he was trafficking illegal
drugs and therefore inadmissible, but that the evidence
supporting this conclusion was secret. 531 F.3d at 1060.
DEA officials later asked the applicant to become an
 DIN V . KERRY 11

informant, stating that if he did, his visa problems “would go
away.” Id. at 1061. The applicant refused and his application
was denied. In response to an inquiry from counsel for the
Bustamantes, the consular official referenced a letter “written
by the ‘Resident Agent-in-Charge of our local Drug
Enforcement Administration Office,’ that contained
‘derogatory information’ to support the finding that there was
reason to believe that Jose was a controlled substance
trafficker.” Id. We upheld the visa denial, noting that “the
Bustamantes’ allegation that Jose was asked to become an
informant in exchange for immigration benefits fails to allege
bad faith; if anything, it reflects the official’s sincere belief
that Jose had access to information that would be valuable in
the government’s effort to combat drug trafficking.” Id. at
1063.

We specifically held, “Jose [Bustamante] was denied a
visa on the grounds that the Consulate ‘had reason to believe’
that he was a controlled substance trafficker. This is plainly
a facially legitimate reason, as it is a statutory basis for
inadmissibility. 8 U.S.C. § 1182(a)(2)(C).” 531 F.3d at 1062.
The reason for exclusion in Bustamante was that “the
Consulate ‘had reason to believe’ that he was a controlled
substance trafficker.” Id. The statute gave the reason
legitimacy, but the statute standing alone was not the reason.

Other circuits reviewing a citizen’s challenge to a visa
denial have also relied on reasons for exclusion that contained
some factual elements. For example, in Adams, the First
Circuit observed that “[t]he evidence of Adams’ involvement
in the violent activities of the [Irish Republican Army], both
as a policy maker and as a field commander, provides a
‘facially legitimate and bona fide reason’ for his exclusion.”
909 F.2d at 649; see also Allende v. Shultz, 845 F.2d 1111,
12 DIN V . KERRY

1120 (1st Cir. 1988) (concluding that the speaking
engagements Allende planned for her time in the United
States were not a basis for exclusion because 8 U.S.C.
§ 1182(a)(27), prior to its repeal, excluded aliens seeking to
engage in activities that would be harmful to the United
States, and required an activity other than speech). The
record here is completely void of any similar allegations in
support of the Government’s denial of Berashk’s visa.

The first problem is compounded by the sweeping nature
of the cited section of the INA. Section 1182(a)(3)(B)
exceeds 1,000 words. It contains ten subsections identifying
different categories of aliens who may be inadmissible
for terrorism reasons.3 The section defines “terrorist
activities” with reference to six different subsections,
containing different kinds of conduct. It defines “engage in
terrorist activity” in seven subsections, some of which are
divided into further subsections. The conduct described in
§ 1182(a)(3)(B) ranges from direct participation in violent
terrorist activities to indirect support of those who participate
in terrorist activities. The citation to § 1182(a)(3)(B)
contrasts with the much narrower ground of inadmissibility
at issue in Bustamante.

3
The subsections cover aliens who: (1) have engaged in terrorist
activities; (2) are now or will be engaged in terrorist activities; (3) have
incited terrorist activities; (4) are representatives of terrorist organizations
or other groups that espouse terrorism; (5) are members of a recognized
terrorist organization; (6) are members of an informal terrorist
organization; (7) endorse or espouse terrorist activity; (8) have received
military-type training from or on behalf of a terrorist organization; (9) are
the spouse or child of a person found inadmissible under the subsection;
or (10) are officers, officials, representatives, or spokespersons of the
Palestinian Liberation Organization. 8 U.S.C. § 1182(a)(3)(B).
 DIN V . KERRY 13

It appears that, at a minimum, the Government must cite
to a ground narrow enough to allow us to determine that it has
been “properly construed.” See Am. Acad., 573 F.3d at 126
(“[T]he identification of both a properly construed statute that
provides a ground of exclusion and the consular officer’s
assurance that he or she ‘knows or has reason to believe’ that
the visa applicant has done something fitting within the
proscribed category constitutes a facially legitimate
reason. . . .”). The Government’s citation here is so broad
that we are unable to determine whether the consular officer
“properly construed” the statute. Unlike the dissent, Dissent
at 29–30, we are unwilling to assume that the statute has been
properly construed without knowing what is being construed,
let alone how it is being construed. By contrast, the Second
Circuit analyzed three distinct issues of statutory construction
in reviewing a challenge to a visa denial based on
§ 1182(a)(3)(B)(i)(I), one of the subsections that could be
relevant here. Am. Acad., 573 F.3d at 125–35. Given the
breadth of the encompassed conduct and the sheer number of
grounds of inadmissibility under § 1182(a)(3)(B) it is
impossible to know if these, or any other, issues of statutory
interpretation are at issue here.

Additionally, some of the subsections in § 1182(a)(3)(B)
confer upon an alien the right to present evidence to rebut the
cited reason for inadmissibility. For activity in support of
organizations that have not been designated by the Secretary
of State as terrorist organizations, an alien may offer
“clear and convincing evidence that the alien did not
know, and should not reasonably have known, that the
organization was a terrorist organization.” See 8 U.S.C.
§§ 1182(a)(3)(B)(i)(VI); 1182(a)(3)(B)(iv)(IV)(cc);
1182(a)(3)(B)(iv)(V)(cc); 1182(a)(3)(B)(iv)(VI)(dd). The
Second Circuit read this language to require a consular officer
14 DIN V . KERRY

to present the alien with the evidence of inadmissibility and
permit him to offer a rebuttal. Am. Acad., 573 F.3d at
131–32. Without knowing the specific subsection applicable
to Berashk, we cannot determine whether the consular officer
was required to give Berashk an opportunity for rebuttal.

To be clear, we do not “‘look behind’ exclusion
decisions,” Am. Acad., 573 F.3d at at 137, but we must at
least look at them, see SEC v. Chenery Corp., 332 U.S. 194,
197 (1947) (“We must know what a decision means before
the duty becomes ours to” review it.). The Second Circuit,
recognizing, as do we, that no evidentiary inquiry is
appropriate, explained that “a reviewing court need only
satisfy itself that the conduct alleged fits within the statutory
provisions relied upon as the reason for the visa denial.” Am.
Acad., at 134 (concluding that visa applicant’s alleged
donations to a group that provided material support to
terrorists fits with the statutory basis for denying the visa).
Absent evidence of bad faith, we accept the Government’s
allegations as facts. Bustamante, 531 F.3d at 1062–63 (“It is
not enough to allege that the consular official’s information
was incorrect.”).

While the Government need not prove that Berashk
performed an activity that renders him inadmissible under the
statute, see Adams, 909 F.2d at 649, it must at least allege
what it believes Berashk did that would render him
inadmissible. We seek only to verify that the facts asserted
by the Government, however bare, constitute a ground for
exclusion under the statute. See Am. Acad., 573 F.3d at
126–39 (reviewing whether facts alleged by the Government
were grounds for exclusion, but declining to conduct any
review of the facts themselves).
 DIN V . KERRY 15

The Government’s citation to § 1182(a)(3)(B), when
combined with its failure to assert any facts, is not a facially
legitimate ground for denying Berashk’s visa. Should we
conclude that citation to § 1182(a)(3)(B) is a facially
legitimate reason for the denial of Berashk’s visa, then
citation to § 1182(a), which lists all grounds of
inadmissibility, would be sufficient. Any judicial review
would be wholly perfunctory requiring only that we ensure
the Government has properly said nothing more than
“8 U.S.C. § 1182(a).” Limited as our review may be, it
cannot be that Din’s constitutional right to review is a right
only to a rubber-stamp on the Government’s vague and
conclusory assertion of inadmissibility. Cf. United States v.
DeGeorge, 380 F.3d 1203, 1215 (9th Cir. 2004) (courts
should “not simply rubber-stamp the government’s request,
but hold the government to its burden”).4

The dissent does not alleviate our concern that the
Government’s approach would essentially eliminate all
judicial review, even when the constitutional right of a U.S.
citizen is implicated. According to the dissent, decisions to
exclude aliens are made “exclusively by executive officers,
without judicial intervention.” Dissent at 30–31 (quoting
Mandel, 408 U.S. at 766). This ignores, of course, that
“courts have identified a limited exception to the doctrine
where the denial of a visa implicates the constitutional rights
of American citizens.” Bustamante, 531 F.3d at 1061. The
dissent’s only attempt to give meaning to the exception
recognized in Mandel and Bustamante is to state, “[t]here is

4
W hile the dissent correctly notes that DeGeorge arose in a different
context, we do not think that any form of judicial review, whether a
product of statute or precedent, should be a rubber-stamp for the
Government.
16 DIN V . KERRY

nothing facially illegitimate in the identification of section
1182(a)(3)(B) as the basis for the denial of Berashk’s
application.” Dissent at 27. We do not think that even the
most limited judicial review is so restrained as to ask only if
the Government has successfully provided a citation to the
U.S. Code.

We are similarly not persuaded by the argument advanced
by the dissent that § 1182(b)(3) supports the Government’s
position. Dissent at 31–35. Section 1182(b) requires that the
consular officer notify aliens if their visa is denied and
provide the “specific provision or provisions of law under
which the alien is inadmissible.” 8 U.S.C. § 1182(b)(1). In
1996, as part of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Congress amended § 1182 and added (b)(3),
which states that the disclosure requirement in § 1182(b)(1)
does not apply if the alien is inadmissable for a reason stated
in § 1182(a)(2) or (a)(3). Pub. L. No. 104–132, § 421, 110
Stat 1214 (1996) (codified at 8 U.S.C. § 1182(b)(3)).5

5
The rationale for this provision was explained by the House Committee
on the Judiciary:

Currently, all foreign nationals who are denied a visa
are entitled to notice of the basis for the denial. This
creates a difficult situation in those instances where an
alien is denied entry on the basis, for example, of being
a drug trafficker or a terrorist. Clearly, the information
that U.S. government officials are aware of such drug
trafficking or terrorist activity would be highly valued
by the alien and may hamper further investigation and
prosecution of the alien and his or her confederates. An
alien has no constitutional right to enter the United
States and no right to be advised of the basis for the
 DIN V . KERRY 17

Despite this provision, State Department regulations
require consular officers to “inform the applicant of the
provision of law or implementing regulation on which the
refusal is based and of any statutory provision of law or
implementing regulation under which administrative relief is
available,” 22 C.F.R. § 42.80(b), and make no exception for
denials based on § 1182(a)(2) or (a)(3). As a result, consular
officers appear to regularly disclose information to aliens,
even if the denial is based on § 1182(a)(2) or (a)(3). See, e.g.,
Complaint at 6 (describing email from Islamabad Embassy
disclosing statutory basis for Berashk’s visa denial);
Bustamante, 531 F.3d at 1061 (describing letter from
Consulate explaining basis for visa denial); Am. Acad.,
573 F.3d at 118 (describing telephone call from Government
to applicant explaining that visa was denied because the
applicant provided material support to a terrorist
organization).6

denial of such a privilege. Thus, there is no
constitutional impediment to the limitation on
disclosure in this section.

H.R. Rep. 104-383, 102–03 (1995).

6
T he U.S. Department of State Foreign Affairs M anual explicitly
recognizes that the statute only establishes the minimum amount of
disclosure and states that “although 212(b) also exempts findings of
ineligibility under INA 212(a)(2) and (3) from the written notice
requirement, we expect that such notices will be provided to the alien in
all 212(a)(2) and (3) cases unless: (1) W e instruct you not to provide
notice; (2) W e instruct you to provide a limited legal citation (i.e.,
restricting the legal grounds of refusal to 212(a)); or (3) You request
permission from us not to provide notice.” 9 Foreign Affairs Manual
42.81 N2.
18 DIN V . KERRY

According to the dissent, § 1182(b)(3) means that “the
Government was not required to provide more specific
information regarding” the denial of Berashk’s visa. Dissent
at 33. This is correct as a matter of statutory interpretation.
Under the statutory scheme, aliens have a statutory right to
certain information if their visa is denied for most reasons;
aliens have no such statutory right if the denial is based on
1182(a)(3) or (a)(2). This lack of an alien’s statutory right to
information is, however, not helpful in resolving the question
we face: whether Berashk’s visa was denied for “a facially
legitimate and bona fide reason.” Bustamante, 531 F.3d at
1060. To make that determination, a court needs some
information.

First, the statute simply creates a statutory right to
information, and limits the scope of that right. The dissent
suggests that because the alien does not have a statutory right
to information, by implication, the Government has an
absolute right to withhold the information from everyone,
including a citizen and this Court. Dissent at 34. The dissent
cites no authority to support its assertion that an alien’s lack
of an affirmative statutory right to information functions as an
implied prohibition on any disclosure to all people, and we
decline to adopt such a position.

While we want to make it emphatically clear that the
Government’s obligation to provide information in this
context is not even remotely close to the Government’s
obligation under Brady v. Maryland, 373 U.S. 83, 91 (1963),
drawing an analogy to Brady exposes the fault in the
Government’s argument. The Jencks Act provides an
affirmative statutory right to information and requires the
Government to produce “any statement (as hereinafter
defined) of the [testifying] witness in the possession of the
 DIN V . KERRY 19

United States.” 18 U.S.C. § 3500. Brady requires, at the
defendant’s request, that the prosecution disclose “[material]
evidence favorable to an accused.” 373 U.S. at 87. Brady is
not limited by the Jencks Act and it “exists as an independent
foundation to preserve evidence.” United States v. Bernard,
623 F.2d 551, 556 (9th Cir. 1979). It would be implausible
to suggest that the Government need not disclose Brady
evidence that is outside the scope of the Jencks At because
the defendant lacks a statutory right to the information. In
fact, it is taken for granted that Brady material can exist
outside the scope of the Jencks Act. See United States v.
Cerna, 633 F. Supp. 2d 1053, 1056 (N.D. Cal. 2009)
(discussing, without controversy, “non-Jencks Brady
information”).

Similarly, the fact that Congress created a limited
disclosure obligation in the context of visa denials does not
mean that Congress otherwise prohibited the disclosure of all
other information. We agree that “[i]t makes no sense to read
the statute to require disclosure for such denials,” dissent at
34 (emphasis added), but we do not read the statute that way.
It would also make no sense to read the statute to prohibit the
release of any information regarding certain visa denials,
because if it did, the executive branch appears to violate the
statute regularly. See, e.g., 22 C.F.R. § 42.80(b); Complaint
at 6; Bustamante, 531 F.3d at 1061; Am. Acad., 573 F.3d at
118. The statute does not compel nor prohibit disclosure in
this case.

Second, the dissent’s reading of the statute is inconsistent
with any concept of judicial review—including the dissent’s
reading of Bustamante. Because of § 1182(b)(3), when a visa
denial is based on (a)(2) or (a)(3), the Government is not
statutorily required to disclosure “the specific provision or
20 DIN V . KERRY

provisions of law under which the alien is inadmissible,”
8 U.S.C. § 1182(b)(1)(B). By implication, the dissent
suggests that “[n]o disclosure of information is required,”
dissent at 33, and therefore no information can ever be
required by a reviewing court. But even the dissent reads
Bustamante to require the Government to provide the exact
information listed in § 1182(b)(1)(B)—the statutory provision
under which the alien is inadmissible—to demonstrate that
the visa denial is “facially legitimate.” Dissent at 27. By the
dissent’s own logic, that reading of Bustamante is “directly
contradict[ed]” by the statute. Dissent at 34. If the statute
allows the Government to decline to provide more
information in this case, then it must allow the Government
to decline to provide any information. This would decisively
eliminate judicial review and this reading of the statute is
therefore precluded by Bustamante, which guarantees some
review, no matter how limited.

The dissent’s concern about “this nation’s desire to keep
persons connected with terrorist activities from entering the
country,” dissent at 34, is, of course, valid, but the
Government never asserted such an argument here. And even
if it had, nothing in our opinion compels dangerous
disclosure. Another imperfect analogy to criminal procedure
exposes the fault in relying on the statute’s purpose to justify
withholding information. For the same reason that Congress
added § 1182(b)(3)—the desire to not jeopardize an ongoing
investigation by announcing its existence—subjects of
criminal investigations are routinely not informed that they
are being investigated. For example, search warrant
proceedings are “necessarily ex parte, since the subject of the
search cannot be tipped off to the application for a warrant
lest he destroy or remove evidence.” Franks v. Delaware,
438 U.S. 154, 169 (1978). The need for secrecy does not,
 DIN V . KERRY 21

however, change the fact that the constitution guarantees a
judicial determination of probable cause prior to the issuance
of a search warrant. United States v. Grubbs, 547 U.S. 90, 99
(2006). It is inconceivable that the Government would argue
that it could not provide the factual basis supporting probable
cause based on the need to keep the investigation a secret—an
ex parte hearing conceals the investigation, while still
allowing judicial review.

In this case, if necessary, the Government could, as it
does in other contexts, disclose the reason for Berashk’s visa
denial in camera. See, e.g., Hunt v. C.I.A., 981 F.2d 1116,
1118 (9th Cir. 1992) (reviewing in camera affidavits
justifying the decision to withhold information from Freedom
of Information Act disclosure on national security grounds);
see also Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070,
1079–90 (9th Cir. 2010) (en banc) (describing the history and
procedure of the state secrets doctrine and dismissing case).
Existing procedures are adequate to address the national
security concerns that we share with the dissent, and make it
unnecessary to eliminate all judicial review and disclosure.

Because the Government has not offered a facially
legitimate reason for the visa denial, the first part of the
Mandel test is not met, and the decision is not subject to the
prohibition on consular review. It is not necessary to address
the second part of the test, whether the citation to
§ 1182(a)(3)(B) is bona fide. It is worth noting, however, that
in Bustamante, we held that to prevail under the bona fide
prong of the Mandel test a plaintiff must “allege that the
consular official did not in good faith believe the information
he had,” 531 F.3d at 1062–63, and the dissent argues that “it
would be impossible for plaintiff to plead [bad faith] because
she did not know the particular basis for the denial of her
22 DIN V . KERRY

husband’s visa application.” Dissent at 26. The “bona fide”
inquiry is therefore eliminated under the dissent’s approach
because the Government can simply cite a statute—and only
a statute—and because the plaintiff is not informed what the
consular official believes, she can never allege that the belief
is held in bad faith. This suggests that the dissent has come
to the incorrect conclusion that a bare citation to a statute is
a facially legitimate ground for exclusion. Because the
Supreme Court articulated that the Government must put
forward a “facially legitimate and bona fide reason,”
Bustamante, 531 F.3d at 1062 (citing Mandel, 408 U.S. at
770) (emphasis added), it is unlikely that the “facially
legitimate” requirement should be interpreted to allow the
Government to withhold information and make an inquiry
into the “bona fide” requirement “impossible.”

B. Din’s standing to challenge § 1182(b)(3)

The district court held that Din lacks standing to seek a
declaratory judgment that 8 U.S.C. § 1182(b)(3) is
unconstitutional as applied to her because the notice
provisions apply to aliens, not to citizens with an interest in
an alien’s visa. As discussed above, we agree with the
conclusion that § 1182(b)(3) does not apply to Din, and, for
that reason, we do not think it supports the Government’s
motion to dismiss on consular nonreviewablity grounds.
When the case is resolved on the merits, it is possible that the
court may conclude that it can avoid reaching Din’s
constitutional challenge to the statute by determining that the
statute, by its own terms, does not apply to her. See Nw.
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205
(2009) (constitutional issues should be avoided if a statutory
issue resolves the case). But in reviewing a motion to
dismiss, we cannot project a specific outcome on the merits
 DIN V . KERRY 23

in order to decide the question of standing. See Maya v.
Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (noting
that standing is distinct from the merits). For the purposes of
evaluating standing, we “must construe the complaint in favor
of the complaining party.” Id. Here, the complaint alleges
that the Government is using the statute to justify an action
that is injuring Din. If the Government is doing so based on
a flawed reading of the statute, that might provide a narrower
ground to decide this case on the merits later, but it does not
deprive Din of standing to challenge the law. See Nw. Austin,
557 U.S. at 205.

To satisfy Article III’s standing requirements, Din must
show “(1) [she] has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. at 180–81. Further,
a “person who has been accorded a procedural right to protect
his concrete interests can assert that right without meeting all
the normal standards for redressability and immediacy.”
Lujan v. Defenders of Wildlife, 504 504 U.S. 555, 573 n.7
(1992).

Din has a constitutionally protected due process right to
limited judicial review of her husband’s visa denial, which
stems from her “[f]reedom of personal choice in matters of
marriage and family life.” Bustamante, 531 F.3d at 1061–62.
To the extent that the Government relies on
8 U.S.C.§ 1182(b)(3) to interfere with this right, Din has
standing to challenge the provision. Din alleges that the
Government has deprived her of due process by refusing to
provide either her or her husband with a facially legitimate
24 DIN V . KERRY

and bona fide reason for denying his visa. In so refusing, the
Government in part relies on 8 U.S.C.§ 1182(b)(3). A court’s
decision that 8 U.S.C.§ 1182(b)(3) cannot defeat Din’s claim
could redress her injury. Therefore, § 1182(b)(3) appears to
injure Din, and she has standing to challenge it.

IV. Conclusion

We decline the Government’s invitation to turn our
limited review into a mere formality. We conclude that the
Government’s citation to § 1182(a)(3)(B), in the absence of
any allegations of proscribed conduct, is not a facially
legitimate reason to deny Berashk’s visa. Because the
Government has not proffered a facially legitimate reason,
Din’s claims for a writ of mandamus directing the
Government to adjudicate Berashk’s visa application and for
a declaratory judgment under the APA survive dismissal.
Accordingly, we also conclude that Din has standing to
challenge 8 U.S.C. § 1182(b)(3) as it has been applied to her.
We remand Din’s claims for further proceedings consistent
with this opinion.

REVERSED AND REMANDED.

CLIFTON, Circuit Judge, dissenting:

The majority opinion acknowledges the doctrine of
consular nonreviewability and the “highly constrained” nature
of our judicial review of the denial of a visa, see Bustamante
v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008), but in
practice it fails to accept that doctrine and act within that
constraint. Instead, assuming that judicial review must be
 DIN V . KERRY 25

more robust, it imposes upon the Government an obligation
to provide information about a visa denial that, by statute, the
government is specifically not required to provide when it
denies a visa based on concerns for national security or
terrorism. I respectfully dissent.

I. The Limited Nature of Judicial Review

The visa application of plaintiff’s husband, Kanishka
Berashk, a citizen and resident of Afghanistan, was denied by
consular officials under 8 U.S.C. § 1182(a)(3)(B). Section
1182(a) identifies “classes of aliens ineligible for visas or
admission” into the United States. The statute lists ten
different categories of ineligible aliens, including one
“miscellaneous” provision, subsection 1182(a)(10), which
encompasses several unrelated grounds. One of the identified
categories within section 1182(a) is subsection 1182(a)(3),
entitled “Security and related grounds,” one part of which,
subsection 1182(a)(3)(B), is captioned “Terrorist activities.”
That provision was identified as the basis for the denial of
Berashk’s visa application.

As the majority opinion notes, at 7, we may review the
denial of a visa only when the constitutional rights of an
American citizen are implicated and then only by way of “a
highly constrained review solely to determine whether the
consular official acted on the basis of a facially legitimate and
bona fide reason.” Bustamante, 531 F.3d at 1060. Those two
elements – facially legitimate and bona fide – were drawn
directly from the Supreme Court’s decision in Kleindienst v.
Mandel, 408 U.S. 753, 770 (1972).

We specifically held in Bustamante that denial of a visa
based upon a statutory basis for inadmissibility is a denial for
26 DIN V . KERRY

“a facially legitimate reason.” 531 F.3d at 1062. We also
made clear that the inquiry into whether the reason for the
visa denial was bona fide is limited to the question of whether
the decision was made in good faith. Whether the decision to
deny the visa was correct is not the issue. Rather, a plaintiff
must “allege that the consular official did not in good faith
believe the information he had. It is not enough to allege that
the consular official’s information was incorrect.” Id. at
1062–63.

The district court dismissed the action based upon its
application of Bustamante. It concluded that reliance upon a
statute, specifically section 1182(a)(3)(B), provided a facially
legitimate reason for denying the visa application. As for the
bona fide element, the district court noted that plaintiff had
not alleged in her complaint that the consular officials acted
in bad faith or without a good faith belief in the information
on which the denial was based. Further, the court held that it
would be impossible for plaintiff to plead to that effect
because she did not know the particular basis for the denial of
her husband’s visa application and thus would necessarily be
unable to satisfy the plausible pleading requirements of Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The district
court was right.

The majority opinion bases its conclusion on what it
describes as the lack of a facially legitimate reason to deny
Berashk’s application and says that it does not reach the
question of whether the reason given was bona fide. Majority
op. at 21. The denial here was based on a statute, however.
That statute provided a lawful reason for denying the
application. The relevant definition of “legitimate” is
“accordant with law.” Webster’s Third New International
 DIN V . KERRY 27

Dictionary 1291 (2002). Because the denial of Berashk’s
application was based on law, the reason was at least “facially
legitimate.”

Although the majority opinion interprets Bustamante
differently, by my reading that decision held that a statutory
basis for inadmissibility is a facially legitimate reason. It
stated:

As set forth in the complaint, Jose was
denied a visa on the grounds that the
Consulate “had reason to believe” that he was
a controlled substance trafficker. This is
plainly a facially legitimate reason, as it is a
statutory basis for inadmissibility. 8 U.S.C.
§ 1182(a)(2)(C).

Bustamante, 531 F.3d at 1062. The majority opinion asserts,
at 11, that citation to the statute was not enough by itself, and
that “[t]he reason for exclusion in Bustamante was that ‘the
Consulate “had reason to believe” that he was a controlled
substance trafficker.’” But that portion of our opinion in
Bustamante simply repeated what the complaint in that case
had alleged was the stated reason, one that the plaintiffs
disputed. There was no finding or determination by the court.
The “facial” legitimacy rested upon the citation to the statute.
This case is no different. There is nothing facially
illegitimate in the identification of section 1182(a)(3)(B) as
the basis for the denial of Berashk’s application.

Nor is there any factual basis for us to conclude or for
plaintiff to allege that the reason for the denial was not bona
fide because the consular official who made the decision
acted in bad faith. Plaintiff alleges in her complaint that
28 DIN V . KERRY

Berashk was not engaged in any terrorist activity and that no
facts exist to support a conclusion that he is inadmissible
under the statute. The Bustamantes similarly alleged that
Jose Bustamante was not a drug trafficker and asked that the
case be remanded for factual development, but we held that
their complaint must be dismissed because they did not allege
that the consular official did not in good faith believe the
information he possessed. Bustamante, 531 F.3d at 1062–63.
The factual basis of the consular’s decision is not within our
highly limited review. As we held in Bustamante, quoted
above, it is simply not enough to allege that the consular
official’s decision was wrong. That is not for us to decide.

The majority opinion holds that the reason given for
excluding Berashk was inadequate in two ways, statutory and
factual. Neither is persuasive.

First, it complains that the Government’s reference to
section 1182(a)(3)(B) is not sufficiently specific. It contends
that the Government must cite to a statutory subsection
narrow enough to permit the court to determine that it has
been properly construed. Majority op. at 13. It observes that
the statutory subsection cited in denying Berashk’s
application, section 1182(a)(3)(B), is longer than the statutory
subsection cited in the denial of the application in
Bustamante, section 1182(a)(2)(C). Majority op. at 12–13.
But the length of a statute does not make it any less of a
statute.1

1
The citation was not as unspecific as the majority opinion suggests.
Section 1182(a)(3)(B) contains several subsections, but all pertain to
“terrorist activities.” The Government did not simply cite to section
1182(a) as a whole. As discussed below, at 31–33, the Government is
generally required to provide some explanation for a visa denial, but the
 DIN V . KERRY 29

Nor does it provide a principled justification for denying
the facial legitimacy of the consular official’s decision. It is
the Government’s application of the statute to Berashk – its
assessment of the facts, not any “construction” of the statute
– that is disputed by plaintiff here. The key allegation of
plaintiff’s complaint is that:

No good faith basis exists that is sufficient
to constitute a facially legitimate and
bona fide reason for the denial of Mr.
Berashk’s visa application under 8 U.S.C.
§ 1182(a)(3)(B). The fact of Mr. Berashk’s
low-level employment in the Afghan Ministry
of Social Welfare before, during, and after
the Taliban occupation of Afghanistan
alone cannot trigger any of the grounds
of inadmissibility listed in 8 U.S.C.
§ 1182(a)(3)(B), and no other facts relevant to
those grounds of inadmissibility exist.

Plaintiff has argued that the cited subsection is an “umbrella”
statute that is not specific enough for Berashk to know what
to try to rebut, but plaintiff has not argued that the State
Department might have misinterpreted this statute committed
to its authority by Congress, and there is nothing in the record
that suggests that it has.

The second reason given by the majority opinion is that
the plaintiff and the court have not been provided by the
Government with enough factual information to “allow us to
determine if the specific subsection of § 1182(a)(3)(B) was

statute explicitly provides that denials under section 1182(a)(3)(B) are
different.
30 DIN V . KERRY

properly applied.” Majority op. at 10. That gets closer to
what I perceive to be the majority opinion’s actual concern.
The majority opinion is premised on the assumption that the
court must be provided with whatever additional information
we deem necessary to permit us to conduct a more thorough
review and on the corollary that we have the power to require
the Government to provide that additional information. Thus,
the majority opinion holds that the Government “must at least
allege what it believes Berashk did that would render him
inadmissible.” Id. at 14. Otherwise, the majority opinion
asserts, our review would be only a “rubber-stamp.”2

We must recognize, however, that “[t]he power of
Congress to exclude aliens altogether from the United States,
or to prescribe the terms and conditions upon which they may
come to this country and to have its declared policy in that
regard enforced exclusively by executive officers, without

2
The majority opinion supports this statement with a citation with a
“cf.” signal to United States v. DeGeorge, 380 F.3d 1203, 1215 (9th Cir.
2004), describing that case as holding that “courts should ‘not simply
rubber-stamp the government’s request, but hold the government to its
burden.’” That citation provides no support for the majority opinion’s
conclusion here. To begin with, that criminal appeal had nothing
whatsoever to do with the issue in this case. It made no mention of the
doctrine of consular nonreviewability nor any reference to the highly
constrained review that we are to apply here. Rather, it addressed a court
order issued at the request of the government to toll the statute of
limitations because evidence was located in a foreign country, based on
a statute that authorized such tolling, 18 U.S.C. § 3292. Moreover, as our
decision noted, the judicial review in that case was expressly required by
that statute. DeGeorge, 380 F.3d at 1213–14 (citing 18 U.S.C.
§ 3292(a)(1)). W hen a statute requires that the district court make a given
finding before issuing an order, it is no surprise that in reviewing the
district court’s order we held that the Government must be held to its
burden. No similar authorization for judicial review exists here.
 DIN V . KERRY 31

judicial intervention, is settled by our previous
adjudications.” Kleindienst v. Mandel, 408 U.S. 753, 766
(1972) (quoting Lem Moon Sing v. United States, 158 U.S.
538, 547 (1895)) (internal quotations omitted). Analysis of
the applicant’s underlying conduct has “been placed in the
hands of the Executive.” Mandel, 408 U.S. at 769. Our
review here is supposed to be highly restrained.

That does not mean that our review is purely a formality
or, as the majority opinion describes it, a rubber stamp. In
many instances there will be more specific information
available about the basis for a visa denial. When there is
more information available, it is appropriate for a court to
examine that information, as our court did in Bustamante,
albeit still in the course of a limited review. But, as discussed
below, Congress has specifically provided that the
Government is not required to provide specific information
about what lies behind a visa denial under subsection
1182(a)(3), the basis for the denial of Berashk’s application.
When the statute says that the Government does not have to
disclose that information, compelling it to disclose the
information anyway in order to allow “limited” and “highly
restrained” judicial review cannot be justified.

II. 8 U.S.C. § 1182(b)

By requiring the Government to disclose more specific
information about the denial of Berashk’s visa application,
the majority opinion effectively disregards the statute that
says that the government is not obligated to disclose that
information.

After the categories of aliens deemed ineligible for visas
are identified in 8 U.S.C. § 1182(a), the next part of the
32 DIN V . KERRY

statute, section 1182(b), provides for the notice to be given
following the denial of a visa application. For denials based
on most of the subsections of section 1182(a), some notice of
the determination and its statutory basis is required.3 But the
statute, in section 1182(b)(3), explicitly carves out denials
based on two subsections: 1182(a)(2) (“Criminal and related
grounds”) and 1182(a)(3) (“Security and related grounds”).

3
8 U.S.C. § 1182(b) provides:

(b) Notices of denials

(1) Subject to paragraphs (2) and (3), if an alien’s
application for a visa, for admission to the United
States, or for adjustment of status is denied by an
immigration or consular officer because the officer
determines the alien to be inadmissible under
subsection (a) of this section, the officer shall provide
the alien with a timely written notice that–

(A) states the determination, and

(B) lists the specific provision or provisions of law
under which the alien is inadmissible or adjustment
of status.

(2) The Secretary of State may waive the requirements
of paragraph (1) with respect to a particular alien or any
class or classes of inadmissible aliens.

(3) Paragraph (1) does not apply to any alien
inadmissible under paragraph (2) or (3) of subsection
(a) of this section.

The United States Code Annotated notes that the language quoted above
from section 1182(b)(1)(B) is presented that way in the statute but that the
word “adjustment” should probably be preceded by “ineligible for.”
 DIN V . KERRY 33

No disclosure of information is required when a visa denial
is based on one of those subsections.

The denial of Berashk’s visa was based on subsection
1182(a)(3). Under section 1182(b)(3), the Government was
not required to provide more specific information regarding
that denial.4 The majority holds otherwise without giving
serious consideration to the impact of section 1182(b)(3).

Plaintiff realizes that this statute poses a serious obstacle
to her claim, and in her complaint, she presents as a separate
claim for relief a challenge to the constitutionality of section
1182(b) as applied to her. The constitutional basis for the
challenge is only vaguely described in the complaint as
“procedural due process under the Fifth Amendment.” The
district court held that the notice provision only applies to the
alien applicant for the visa, in this case Berashk, and not to
his U.S. citizen wife, the plaintiff in this case, so it concluded
that plaintiff lacked standing to challenge the statute. The
majority opinion disagrees and reverses that part of the
district court’s order as well.

The majority opinion does not conclude that the statute is
unconstitutional, however. Plaintiff has not yet presented her
argument to that effect on the merits. The proposition that

4
Contrary to the majority’s assumption, at 18, the lack of an affirmative
right to compel disclosure does not “function[] as an implied prohibition”
against disclosure. Rather, courts are prohibited from demanding
disclosure, in this context, and our cases say it explicitly. See Bustamante,
531 F.3d at 1062 (rejecting Bustamante’s argument for remand in order
to require the government “to present specific evidence to substantiate the
assert[ed]” basis for the visa denial). Accordingly, the majority’s
inapposite discussion of Brady obligations, an area of law requiring robust
judicial review of due process, lends no support to its holding.
34 DIN V . KERRY

this nation’s desire to keep persons connected with terrorist
activities from entering the country must be subordinated to
plaintiff’s desire for the information based on “procedural
due process” strikes me as highly unlikely, particularly when
there is no allegation that the Government failed to provide
plaintiff or her husband the process that is required by the
applicable statute.

What matters for now, though, is that the majority opinion
effectively nullifies the statute simply by asserting that it
“does not apply to Din.” Majority op. at 22.5 That misses the
point. Even if the limitation on disclosure does not apply to
Din, nothing else gives her the right to demand that the
Government provide the information to her. More broadly,
Congress has required disclosure to applicants of information
regarding visa denials, except for denials based on criminal
or security grounds. It makes no sense to read the statute to
require disclosure for such denials simply because there
might be a U.S. citizen interested in the application.

That statute should not be ignored. It directly contradicts
the majority opinion’s holding that the Government must
provide more information about the denial of Berashk’s visa.
The statute says otherwise.

5
The majority opinion describes this as a concession by the
Government. Actually, it is the reason why the Government has argued,
as the district court concluded, that Din does not have standing to
challenge the exclusions under the statute. The majority opinion
concludes that Din does have standing, but its broader conclusion that the
statute can be disregarded because it does not apply to Din means that
Din’s procedural due process challenge is irrelevant – in which case she
actually would lack standing.
 DIN V . KERRY 35

In my view, the majority opinion has gone astray in two
different ways. It fails to honor the highly constrained nature
of judicial review of a decision to deny a visa application.
And, in the process, it orders the government to disclose
information that the relevant statute says that the government
does not have to provide. I respectfully dissent.