Ibtesam Baluch v. John J. Sullivan

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT IBTESAM BALUCH, No. 17-55006 Plaintiff-Appellant, D.C. No. 16-CV-1094-GHK v. MEMORANDUM* JOHN J. SULLIVAN, Acting Secretary of State, U.S. Department of State, Defendant-Appellee. Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding Submitted April 10, 2017 Pasadena, California Before: BEA, MURGUIA, Circuit Judges; KEELEY, ** District Judge Bilal Moazam Azam (“Azam”), Plaintiff’s husband, first applied for an immigrant visa at the U.S. Consulate in Mumbai, India in June 2012. The Consulate did not act on his application. On February 17, 2016, Plaintiff petitioned for a writ * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Irene M. Keeley, Senior United States District Judge for the Northern District of West Virginia, sitting by designation. 2 of mandamus in the Central District of California to order the consulate to act on Azam’s visa application. According to Plaintiff’s Second Amended Complaint (SAC), three weeks after Plaintiff filed the petition Azam was summoned to the Mumbai consulate. He was handed a piece of paper which stated that his visa application was denied pursuant to 8 U.S.C. § 1182(a)(3)(B), the statute which prohibits the awarding of visas to those with ties to terrorism or terrorist activities. Plaintiff also alleges that when the consular officer handed Azam the piece of paper stating that the visa had been denied, the officer said “Give this to your attorney, it is what he is waiting for.” After the consulate denied Azam’s visa application, Plaintiff amended her mandamus petition into a motion for a declaratory judgment and argued that Defendant violated the Administrative Procedure Act, (APA), 5 U.S.C. § 706 et seq. because the denial of her husband’s visa was made “in bad faith,” and asked the district court to issue a declaratory judgment that Azam is “not inadmissible…under 8 U.S.C. § 1182(a)(3)(B) or any other section of law.” Defendant moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). The district court granted Defendant’s motion without prejudice. Plaintiff amended her complaint a second time to add further allegations relating to the consular officer’s alleged bad faith. Defendant moved to dismiss the SAC under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court granted defendant’s motion and dismissed the SAC with prejudice. This appeal followed. 3 The Court of Appeals reviews de novo the district court’s dismissal for failure to state a claim under Rule 12(b)(6) and may affirm on any ground supported by the record. ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014). The district court’s decision is affirmed. Here, as in Kerry v. Din, 135 S. Ct. 2128 (2015), the government denied Azam’s visa application by citing to 8 U.S.C. § 1182(a)(3). Pursuant to Din, a court will not “look ...

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