In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑3633
ESMERALDA Y. MORFIN and ADRIAN ULLOA,
Plaintiffs-‐‑Appellants,
v.
REX W. TILLERSON, Secretary of State, and JOHN F. KELLY, Sec-‐‑
retary of Homeland Security,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 10198 — John Z. Lee, Judge.
____________________
ARGUED DECEMBER 2, 2016 — DECIDED MARCH 20, 2017
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2009 Adrian Ulloa, a citi-‐‑
zen of Mexico, married Esmeralda Morfin, a citizen of the
United States. She began the process of getting approval for
his permanent residence (and ultimately citizenship). But
because Ulloa was present in the United States without au-‐‑
thority, this process required him to return to Mexico and
2 No. 15-‐‑3633
obtain a visa for a lawful entry. In 2014 he applied at the
consulate in Ciudad Juarez. After twice interviewing Ulloa,
the State Department denied his request for a visa, stating
that it had reason to believe that he is (or was) involved in
drug trafficking. In 2001 Ulloa had been indicted for pos-‐‑
sessing more than 500 grams of cocaine, with intent to dis-‐‑
tribute. See 21 U.S.C. §841(a)(1). The U.S. Attorney dismissed
the indictment a few months later (the record does not show
why), and Ulloa denies the charge, but the absence of a trial
means that he lacks a favorable adjudication.
In this suit under the Administrative Procedure Act, 5
U.S.C. §702, Morfin and Ulloa asked the district court to find
that the decision not to give Ulloa a visa is arbitrary and not
supported by substantial evidence. Defendants (the Secretar-‐‑
ies of State and Homeland Security) replied that decisions to
grant or deny visa applications are committed to agency dis-‐‑
cretion and so are outside the scope of judicial review under
the APA. See 5 U.S.C. §701(a)(2). The district court agreed
and dismissed the suit for lack of subject-‐‑matter jurisdiction.
That was a misstep. As we explain in Builders Bank v. FDIC,
846 F.3d 272 (7th Cir. 2017), §701(a)(2) does not curtail juris-‐‑
diction granted by other laws. Commitment of a topic to
agency discretion is a reason to decide in the agency’s favor
but does not imply that a court lacks adjudicatory compe-‐‑
tence. We concluded in Builders Bank that §701(a)(2) “is no
more a limit on subject-‐‑matter jurisdiction than are doctrines
of absolute and qualified immunity, statutes of limitations,
and many other rules that prevent courts from deciding
whether the defendant acted properly.” 846 F.3d at 275.
But the fact remains that for more than a hundred years
courts have treated visa decisions as discretionary and not
No. 15-‐‑3633 3
subject to judicial review for substantial evidence and relat-‐‑
ed doctrines of administrative law. See Kleindienst v. Mandel,
408 U.S. 753, 765–70 (1972) (collecting cases). Mandel recog-‐‑
nized a potential exception for situations in which denial of a
visa violates the constitutional rights of a U.S. citizen (in
Mandel the right was the First Amendment), and Morfin tries
to take advantage by contending that the rejection of Ulloa’s
application violated her right to due process of law under
the Fifth Amendment. A similar line of argument was ad-‐‑
vanced in Kerry v. Din, 135 S. Ct. 2128 (2015), and did not
prevail. The district judge concluded that Din forecloses
Morfin’s contention.
Before considering Din we must say a few words about
Mandel. The Court concluded that the First Amendment cre-‐‑
ates at least a conditional right of U.S. citizens to receive in-‐‑
formation, in this country, from foreign nationals. But the
Justices did not find this a sufficient reason for the judiciary
to make an independent decision about when a foreign na-‐‑
tional is entitled to a visa. Instead the Court reaffirmed earli-‐‑
er opinions saying that Congress has plenary authority to
exclude particular categories of aliens. The possibility of an
exception for speech arose only because Congress had au-‐‑
thorized the Attorney General to waive some speech-‐‑related
conditions of excludability. The Justices did not decide
whether review of a decision not to waive a condition of in-‐‑
admissibility ever would be proper. They thought the final
decision on that subject unnecessary because the Attorney
General had informed “Mandel’s counsel of the reason for
refusing him a waiver. And that reason was facially legiti-‐‑
mate and bona fide.” 408 U.S. at 769. The Court wrapped up:
We hold that when the Executive exercises this [waiver] power
negatively on the basis of a facially legitimate and bona fide rea-‐‑
4 No. 15-‐‑3633
son, the courts will neither look behind the exercise of that dis-‐‑
cretion, nor test it by balancing its justification against the First
Amendment interests of those who seek personal communica-‐‑
tion with the applicant.
Id. at 770. That holding set the stage for Din, in which the
plaintiffs tried to find a constitutional theory that would not
require the judiciary to look behind the Executive Branch’s
reasons for denying a visa.
Fauzia Din, a citizen of the United States, married Kan-‐‑
ishka Berashk, a citizen of Afghanistan. After the State De-‐‑
partment denied Berashk’s application for a visa to enter this
nation, Din filed suit. She contended that the Department
had violated her right under the Due Process Clause of the
Fifth Amendment to live with her husband, at least without
a formal hearing to determine whether Berashk was exclud-‐‑
able. Recognition of such a right would have avoided any
need for the judiciary to review the substance of the State
Department’s decision. But a majority of the Court ruled
against Din. Three members (the Chief Justice plus Justices
Scalia and Thomas) concluded that the Fifth Amendment
does not apply, because a citizen has neither a liberty nor a
property interest in an alien’s presence in the United States.
135 S. Ct. at 2131–38. Four members (Justices Ginsburg,
Breyer, Sotomayor, and Kagan) disagreed with that reading
of the Fifth Amendment and concluded that a U.S. citizen is
entitled to an administrative procedure at which she can test
the accuracy of allegations or beliefs that lead the State De-‐‑
partment to deny her spouse a visa. 135 S. Ct. at 2141–47.
The Court’s other two members (Justices Kennedy and
Alito) thought that they did not have to decide whether the
U.S. spouse has a liberty or property interest, because the
case could be resolved in the same way as Mandel: with a
No. 15-‐‑3633 5
conclusion that judges will not go behind apparently legiti-‐‑
mate explanations. 135 S. Ct. at 2139–41. The State Depart-‐‑
ment had revealed the basis of its decision—that Berashk
was a terrorist excluded by 8 U.S.C. §1182(a)(3)(B). The De-‐‑
partment had not set out facts supporting this view, but Jus-‐‑
tices Kennedy and Alito thought that unnecessary (135 S. Ct.
at 2140):
The provisions of §1182(a)(3)(B) establish specific criteria for de-‐‑
termining terrorism-‐‑related inadmissibility. The consular of-‐‑
ficer’s citation of that provision suffices to show that the denial
rested on a determination that Din’s husband did not satisfy the
statute’s requirements. Given Congress’ plenary power to
“suppl[y] the conditions of the privilege of entry into the United
States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,
543 (1950), it follows that the Government’s decision to exclude
an alien it determines does not satisfy one or more of those con-‐‑
ditions is facially legitimate under Mandel.
Justices Kennedy and Alito considered the possibility that a
groundless decision might fall outside the set of “facially le-‐‑
gitimate and bona fide” reasons but wrote that the exclusion
of Berashk could not be so classified, for he conceded work-‐‑
ing as an officer of the Taliban government when that group
ruled Afghanistan.
[This] provides at least a facial connection to terrorist activity.
Absent an affirmative showing of bad faith on the part of the
consular officer who denied Berashk a visa—which Din has not
plausibly alleged with sufficient particularity—Mandel instructs
us not to “look behind” the Government’s exclusion of Berashk
for additional factual details beyond what its express reliance on
§1182(a)(3)(B) encompassed.
135 S. Ct. at 2141.
The district court found that Din forecloses Morfin’s
claim, and we agree with that conclusion. Morfin advances
6 No. 15-‐‑3633
the same due process argument as Din. Whether the denial
of Ulloa’s visa application affected any of Morfin’s liberty or
property interests is unresolved after Din, because Justices
Kennedy and Alito did not address that subject. Instead they
left things as Mandel had left them—and the opinion in Man-‐‑
del 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 opinion is not a logical subset of the lead
opinion (or the reverse). See Marks v. United States, 430 U.S.
188 (1977). Mandel tells us not to go behind a facially legiti-‐‑
mate and bona fide explanation.
The consular officer in Ciudad Juarez gave Ulloa a facial-‐‑
ly legitimate and bona fide explanation. The officer relied on
8 U.S.C. §1182(a)(2)(C), which disqualifies “[a]ny alien who
the consular officer or the Attorney General knows or has
reason to believe—(i) is or has been an illicit trafficker in any
controlled substance”. The State Department cited this pro-‐‑
vision when denying Ulloa’s application, just as it had cited
§1182(a)(3)(B) when denying Berashk’s. And just as in Din,
the record forecloses any contention that the State Depart-‐‑
ment was imagining things. Ulloa had been indicted for pos-‐‑
sessing a substantial quantity of cocaine with intent to dis-‐‑
tribute.
All §1182(a)(2)(C) requires is “reason to believe” that the
applicant is or was a drug dealer. An indictment provides a
“reason to believe” that its accusation is true; indeed, it con-‐‑
clusively establishes probable cause to believe that the accu-‐‑
sation is true. That’s why Kaley v. United States, 134 S. Ct.
1090 (2014), holds that a federal court cannot go behind the
face of the indictment to explore a defendant’s contention
that the charge is not based on probable cause. The question
No. 15-‐‑3633 7
in Kaley was whether the defendant could deny the charge of
the indictment and so free up resources for paying counsel,
resources that otherwise would be sequestered as the pro-‐‑
ceeds of crime. The Court said no; the indictment is conclu-‐‑
sive on the question whether there is probable cause to be-‐‑
lieve that the accused committed the charged acts. Likewise
a federal court will not go behind the face of an indictment
when an alien seeks to undermine the State Department’s
reasons for denying a visa.
Perhaps 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 in-‐‑
dictment’s charges were false, or if Ulloa had presented
strong evidence of innocence that the consular officer re-‐‑
fused to consider. But neither his complaint nor his appellate
brief makes such an argument.
Because the consular officer gave a legitimate reason for
denying Ulloa’s application, and the indictment supplies
“reason to believe” that he trafficked in cocaine, Mandel pre-‐‑
vents the judiciary from reweighing the facts and equities.
Whether Congress acted wisely in making “reason to be-‐‑
lieve” some fact sufficient to support (indeed, compel) the
denial of a visa application is not a question open to review
by the judiciary. The district court’s judgment is modified to
reject plaintiffs’ claim on the merits rather than for lack of
jurisdiction and as so modified is
AFFIRMED.