Del Valle v. Sec'y of State

16 F.4th 832

Angela DEL VALLE, Plaintiff-Appellant,

v.SECRETARY OF STATE, UNITED STATES DEPARTMENT OF STATE, John Creamer, Charge d'Affairs, United States Embassy, Mexico City, Mexico, Defendants-Appellees.

No. 19-14889

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 26, 2021

David H. Stoller, Law Offices of David Stoller, PA, Orlando, FL, for Plaintiff-Appellant.

Jennifer Waugh Corinis, Greenberg Traurig, PA, Linda Julin McNamara, Sean Siekkinen, Assistant U.S. Attorney, Michelle Thresher Taylor, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Defendant-Appellee Secretary of State, United States Department of State.

Michelle Thresher Taylor, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Defendant-Appellee John Creamer.

Before Jordan, Jill Pryor, and Tjoflat, Circuit Judges.

Jordan, Circuit Judge:

The doctrine of consular non-reviewability, established by the Supreme Court, bars judicial review of a consular official's decision regarding a visa application if the reason given is "facially legitimate and bona fide." Kleindienst v. Mandel , 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). See also Kerry v. Din , 576 U.S. 86, 103–04, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) (Kennedy, J., concurring in the judgment) (applying the doctrine). Although the doctrine was announced 50 years ago, we have never addressed its scope in a published opinion.

In this appeal, we address two questions. First, does the doctrine operate by stripping federal courts of their subject-matter jurisdiction? Second, does the doctrine require consular officials to identify or summarize the facts underlying a visa denial when the statutory provision of inadmissibility sets out factual predicates? We answer both questions in the negative.

I

Through a Form I-130 (Petition for Alien Relative), a United States citizen can seek to establish that certain alien relatives, including spouses, are "immediate relatives" eligible for an immigrant visa. See 8 U.S.C. §§ 1151(b)(2)(A)(i) & 1154(a)(1)(A)(i) ; 8 C.F.R. § 204.1(a)(1). Approval of a Form I-130 allows immediate relatives who had been admitted into the United States to apply to adjust their status to that of lawful permanent resident. See 8 U.S.C. § 1255(a). Immediate relatives residing outside the United States must apply for an immigrant visa at a United States Embassy or Consulate in their country of residence and attend an interview with a consular official. See 22 C.F.R §§ 42.61(a) & 42.62.

Angela Del Valle is a United States citizen. She is married to Carlos Del Valle, who is a Mexican citizen. In December of 2014, Mrs. Del Valle filed a Form I-130 for her husband with United States Citizenship and Immigration Services. Mr. Del Valle, though residing in the United States at the time, was undocumented. He was therefore ineligible to have his status adjusted to that of lawful permanent resident. See 8 U.S.C. § 1255(a). And because he had resided in the United States without status for over a year, upon returning to Mexico to apply for an immigrant visa he would have been inadmissible for a period of ten years. See 8 U.S.C. § 1182(a)(9)(B)(i)(II). That would have precluded him from obtaining a visa. Mr. Del Valle therefore applied for a provisional unlawful presence waiver, which would waive that ground of inadmissibility. See 8 C.F.R. § 212.7(e)(12). USCIS approved the waiver, allowing Mr. Del Valle to return to Mexico to obtain an immigrant visa.

Following an interview at the United States Consulate in Ciudad Juarez, Mexico, a consular official denied Mr. Del Valle's visa application on the ground that he was inadmissible under three subsections of 8 U.S.C. § 1182. The written notice of denial stated that Mr. Del Valle had sought to obtain an immigration benefit by fraudulently or falsely misrepresenting a material fact to a consular or immigration official, § 1182(a)(6)(C)(i) ; that he had falsely represented himself to be a United States citizen, § 1182(a)(6)(C)(ii) ; and that he had unlawfully resided in the United States for over a year, § 1182(a)(9)(B)(i)(II). The notice did not set out the evidence or facts supporting the findings that Mr. Del Valle had committed acts that were encompassed by the relevant inadmissibility provisions.¹

Mrs. Del Valle then filed suit against the government in the district court. Styling her action as one sounding in mandamus, she alleged that the consular official had mistaken an individual who had made false representations at ports of entry in 1995 and 2002 for her husband. By providing only citations to statutory inadmissibility provisions, Mrs. Del Valle asserted, the government had violated her Fifth Amendment due process rights. She claimed that it had "deprive[d] her of the opportunity to reside in the United States with her husband without providing any process or procedure aimed at ensuring the correct identification." D.E. 1 at 10. Consequently, she requested that the court conduct an in camera review of the evidence underlying the consular official's visa denial to determine whether her husband had ever made the alleged fraudulent misrepresentations.

The government moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. It argued that the doctrine of consular non-reviewability either (i) deprived the court of subject-matter jurisdiction to review the consular official's denial, or (ii) caused Mrs. Del Valle's complaint to fail to state a claim upon which relief could be granted. Either way, the doctrine barred the district court from reviewing the substance of the visa denial.

The district court agreed with the government. It determined that the doctrine of consular non-reviewability precluded it from reviewing the consular official's decision because the statutory citations in the notice of denial constituted facially legitimate and bona fide reasons. The court also concluded that the doctrine operated by stripping it of jurisdiction. Accordingly, it dismissed Mrs. Del Valle's complaint without prejudice for lack of subject-matter jurisdiction. Mrs. Del Valle now appeals that dismissal.

II

We review de novo a dismissal for lack of subject-matter jurisdiction. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891 (11th Cir. 2013). We may affirm a district court's dismissal on any ground supported by the record, so long as that ground has been properly asserted. See Wilding v. DNC Servs. Corp. , 941 F.3d 1116, 1127 (11th Cir. 2019) ; Hamilton v. Southland Christian Sch., Inc. , 680 F.3d 1316, 1318–19 (11th Cir. 2012).

III

The government argued below, and the district court agreed, that when applicable the doctrine of consular non-reviewability strips federal courts of subject-matter jurisdiction. Now, aligning itself with Mrs. Del Valle, the government concedes that the doctrine does not divest federal courts of jurisdiction. We are not bound by a party's concession regarding the existence of subject-matter jurisdiction, see, e.g. , Johnson v. Sikes , 730 F.2d 644, 647–48 (11th Cir. 1984), but based on our independent review we agree with Mrs. Del Valle and the government.

Article III of the Constitution confers subject-matter jurisdiction on federal courts over "all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States," subject to "such Exceptions, and under such Regulations as the Congress shall make." U.S. Const. art. III, § 2, cls. 1, 2. The lower federal courts are creatures of statute, and hence "[t]heir powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction." Ex parte Robinson , 86 U.S. 19 Wall. 505, 511, 22 L.Ed. 205 (1873). In short, "[f]ederal courts are courts of limited jurisdiction and possess only that power authorized by Constitution and statute." Bishop v. Reno , 210 F.3d 1295, 1298 (11th Cir. 2000) (internal quotation marks omitted). See also Bowles v. Russell , 551 U.S. 205, 212, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ("Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider."); Kontrick v. Ryan , 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction.").

As enunciated by the Supreme Court, the doctrine of consular non-reviewability recognizes that Congress has plenary power to make policies and rules for the exclusion of immigrants and has delegated decision-making authority on the issuance of visas to the Executive. See Mandel , 408 U.S. at 765–67, 769–70, 92 S.Ct. 2576 ; Din , 576 U.S. at 103–04, 135 S.Ct. 2128 (Kennedy, J., concurring in the judgment). Stemming from separation of powers concerns about intrusion on the political branches’ authority, the doctrine instructs courts to refrain from reviewing the Executive's exercise of its delegated power so long as it is conducted "on the basis of a facially legitimate and bona fide reason."

Mandel , 408 U.S. at 770, 92 S.Ct. 2576. See also Din , 576 U.S. at 103, 135 S.Ct. 2128 (Kennedy, J., concurring in the judgment).

The doctrine is, however, judicially created. It is not the consequence of legislation that divests federal courts of jurisdiction. Cf. Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2407, 201 L.Ed.2d 775 (2018) ("The Government does not argue that the doctrine of consular nonreviewability goes to the Court's jurisdiction, ... nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims."). As such, "our deference goes to our willingness , not our power ," to review a consular official's decision on a visa application. See Allen v. Milas , 896 F.3d 1094, 1101 (9th Cir. 2018). In other words, the doctrine goes to the merits of a claim. See Matushkina v. Nielsen , 877 F.3d 289, 294 n.2 (7th...