FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JERRID ALLEN, No. 16-15728 Plaintiff-Appellant, D.C. No. v. 1:15-cv-00705- MCE-SAB KEVIN C. MILAS, Consul General, U.S. Consulate, Frankfurt, Germany; CHARLES J. WINTHEISER, Consular OPINION Section Chief, U.S. Consulate, Frankfurt, Germany; KIRSTJEN M. NIELSEN, Secretary, U.S. Department of Homeland Security; L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services; MIKE POMPEO, U.S. Secretary of State, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Argued and Submitted October 12, 2017 San Francisco, California Filed July 24, 2018 2 ALLEN V. MILAS Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman,* District Judge. Opinion by Judge Bybee SUMMARY** APA/Consular Visa Processing The panel affirmed the district court’s dismissal of Jerrid Allen’s action brought under the Administrative Procedure Act challenging the U.S. Consulate’s denial of Allen’s visa application filed on behalf of his wife Dorothea Allen, a native and citizen of Germany. The panel held that the district court had subject matter jurisdiction in this case under 28 U.S.C. § 1331, and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction. The panel explained that the consular nonreviewability doctrine addresses the scope of review, rather than the federal courts’ power to hear a case. The panel held that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits. The panel explained that the only standard by which it could review the merits of a consular officer’s denial of a * The Honorable Matthew Frederick Leitman, United States District Judge for the Eastern District of Michigan, 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. ALLEN V. MILAS 3 visa is for constitutional error, where the visa application is denied without a “facially legitimate and bona fide reason.” The panel concluded that the consular officer’s citations to the INA and identification of Mrs. Allen’s criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application. COUNSEL Anna Benvenue (argued) and Robert Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Plaintiff- Appellant. Audrey Hemesath (argued), Assistant United States Attorney; Phillip A. Talbert, United States Attorney; United States Attorney’s Office, Sacramento, California; for Defendants- Appellees. OPINION BYBEE, Circuit Judge: Jerrid Allen petitions under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., for review of a decision by the U.S. Consulate in Frankfurt, Germany to deny a visa to his wife. Allen claims that the consular officer committed legal error in denying Mrs. Allen a visa, and that the error was “arbitrary, capricious, . . . or otherwise not in accordance with law.” Id. § 706(2)(A). We hold that the APA provides no avenue for judicial review in this case. Rather, the only standard by which we ...
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