Ibtesam Baluch v. JOHN J. SULLIVAN, Acting Secretary of State, U.S. Department of State

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IBTESAM BALUCH,
Plaintiff-Appellant,
v.
JOHN J. SULLIVAN, Acting Secretary of
State, U.S. Department of State,
Defendant-Appellee.
No. 17-55006
D.C. No. 16-CV-1094-GHK
MEMORANDUM*
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.
FILED
APR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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 behind” a consular officer’s
visa application denial so long as 1) the consular officer provided “a facially
legitimate and bona fide reason” for the denial, id. at 2140; and 2) the applicant is
unable “to make an affirmative showing of bad faith on the part of the consular
officer who denied [Azam] a visa,” which the applicant must “plausibly allege with
sufficient particularity,” id. at 2141. Plaintiff concedes that the consular officer
provided a facially legitimate and bona fide reason for the denial. Taking the facts
in the Second Amended Complaint as true, Plaintiff’s allegations of “bad faith” are
speculative. Plaintiff’s allegation that the consular officer acted in a rude manner
does not plausibly suggest “bad faith” on the officer’s part. Cardenas v. United
States, 826 F.3d 1164 (9th Cir. 2016). Neither does the timing of the consular
officer’s decision on Azam’s visa suggest an improper reason for the ultimate
decision. The consular officer was also under no obligation to provide more detail
for a visa denial on the basis of 8 U.S.C. § 1182(a)(3)(B). Din, 135 S. Ct. at 2141.
Taken together, Plaintiff’s allegations do not “nudg[e] [her] claims across the line

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from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007).
AFFIRMED.

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