Albana Avullija v. Secretary of State, United States Department of State, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-10048
________________________
D.C. Docket No. 6:18-c v-01046-GKS-KRS

ALBANA AVULLIJA,

Plaintiff–Appellant,

versus

SECRETARY OF STATE,
U.S. DEPARTMENT OF STATE, ET AL.,

Defendants–Appellee s.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_______________________
(November 30, 2020)

Before MARTIN, ROSENBAUM, and TALLMAN,
*
Circuit Judges.

* Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit Court
of Appeals, sitting by designation.
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MARTIN, Circuit Judge:
Albana Avullija is a U.S. citizen who sought a spousal visa for her
noncitizen husband, Leonard Avullija. Although Ms. Avullija’s petition conferring
eligibility for a visa was initially approved, Leonard’s visa application was
ultimately denied. Ms. Avullija filed suit in federal court, seeking a writ of
mandamus to compel consular authorities to issue Leonard a visa. The District
Court dismissed the case for lack of subject matter jurisdiction based on the
doctrine of consular nonreviewability. Ms. Avullija appeals, claiming the doctrine
does not bar judicial review of her complaint. After oral argument and careful
consideration, we conclude the District Court did not lack subject matter
jurisdiction, but we nevertheless affirm the dismissal of the complaint for failure to
state a claim.
I.
Ms. Avullija and Leonard were married at some point, but divorced in 2001.
Leonard then married another U.S. citizen named Alice Marie Spivey (“Alice”). In
2006, Alice filed a Form I-130 Petition for Alien Relative (“I-130”)
1
seeking a
spousal visa for Leonard. Following the approval of the I-130 petition by the U.S.

1
“[A]n I-130 beneficiary-petition allows a U.S. citizen to have a qualifying [noncitizen]
relative classified as an ‘immediate relative’ under the INA so that the [noncitizen] relative may
then file an application to adjust their immigration status.” Williams v. Sec’y, U.S. Dep’t of
Homeland Sec., 741 F.3d 1228, 1230 (11th Cir. 2014) (citing 8 U.S.C. § 1154(a)(1)(A)(i);
8 C.F.R. § 204.1(a)(1)).
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Citizenship and Immigration Services (“USCIS”), Leonard applied for an
immigrant visa. As part of the application process, he attended an interview with
authorities at the U.S. Consular Office in Tirana, Albania. The consular officer
denied Leonard’s 2006 visa application, saying there was “no evidence of a marital
relationship” with Alice, whose marriage he found “was arranged for visa purposes
only.” Following denial of the visa, USCIS revoked Alice’s I-130. Alice appealed
the I-130 revocation to the Board of Immigration Appeals (“BIA”), which
affirmed. Leonard and Alice then divorced.
On an unknown date after his divorce from Alice, Leonard remarried Ms.
Avullija. Ms. Avullija filed a new I- 130 petition for Leonard, which USCIS then
approved. Leonard was again called to attend an interview with consular
authorities in Tirana to obtain the immigrant visa.
The consular officer denied Leonard’s second visa application, for two
stated reasons. First, the consular officer cited 8 U.S.C. § 1182(a)(6)(C)(i), which
renders inadmissible any noncitizen “who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has procured) a visa,
other documentation, or admission into the United States.” Second, the consular
officer cited 8 U.S.C. § 1182(a)(4), which renders inadmissible any noncitizen
“who, in the opinion of the consular officer at the time of application for a
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visa . . . , is likely at any time to become a public charge.”
2
In order to overcome
this bar, the noncitizen must include an affidavit of support from the sponsoring
spouse showing the sponsor’s domicile in the United States. See 8 C.F.R. §
213a.2(b), (c)(1)(i)(B). Although Ms. Avullija filed an affidavit of support for
Leonard’s visa application, “she proffered no evidence to show that she was
domiciled in the United States, and the consular officer determined that she was
not so domiciled.”
Upon denial of the visa, Ms. Avullija filed a complaint in the Middle District
of Florida. She sought (1) a declaration that the denial of Leonard’s visa was
arbitrary and capricious and (2) an injunction and a writ of mandamus compelling
the Secretary of State and the U.S. Ambassador to Albania (the “Defendants”) to
make a determination on Leonard’s request for an immigrant visa. The District
Court granted Defendants’ motion to dismiss, holding that it lacked subject matter
jurisdiction under the doctrine of consular nonreviewability to review USCIS’s
refusal to issue Leonard a visa.

2
The consular officer initially cited 8 U.S.C. § 1182(a)(5)(A), but amended the refusal
worksheet to cite to 8 U.S.C. § 1182(a)(4).

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II.
The existence of subject matter jurisdiction as well as the question of
whether a complaint states a claim on which relief can be granted are both legal
questions the Court reviews de novo. See Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1260, 1269 n.19 (11th Cir. 2009), abrogated on other grounds by Mohamad
v. Palestinian Auth., 566 U.S. 449, 132 S. Ct. 1702 (2012); Mesa Valderrama v.
United States, 417 F.3d 1189, 1194 (11th Cir. 2005). The Court likewise reviews
de novo a district court’s determination of whether a defect in the pleadings
deprives the court of subject matter jurisdiction or, rather, whether it is an aspect of
the case’s merits. See Sinaltrainal, 578 F.3d at 1269. When it comes to a motion
to dismiss, “this Court may affirm on any basis in the record.” Henley v. Payne,
945 F.3d 1320, 1333 (11th Cir. 2019).
A. Subject Matter Jurisdiction
Article III of the Constitution confers subject matter jurisdiction to federal
courts over “all Cases, in Law and Equity, arising under this Constitution, [and] the
Laws of the United States.” U.S. Const. Art. III, § 2, cl. 1. This general grant of
authority is subject to “such Exceptions, and under such Regulations as the
Congress shall make.” Id. cl. 2. See Bowles v. Russell, 551 U.S. 205, 212, 127 S.
Ct. 2360, 2365 (2007) (“Within constitutional bounds, Congress decides what
cases the federal courts have jurisdiction to consider.”).
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In an unpublished (and therefore nonbinding) decision, this Circuit
previously held that federal courts lack subject matter jurisdiction to review a
consular officer’s decision to issue or withhold a visa under the doctrine of
consular nonreviewability. De Castro v. Fairman, 164 F. App’x 930, 933–34 (11th
Cir. 2006) (per curiam) (unpublished). Now with the benefit of additional review,
we conclude De Castro wrongly decided the jurisdictional issue. Our holding here
is that the doctrine of consular nonreviewability is an aspect of the merits, not
jurisdiction.
We begin with the text of the relevant immigration statutes. The Supreme
Court has had occasion to observe that nothing in the Immigration and Nationality
Act (“INA”) explicitly divests the courts of jurisdiction. In Trump v. Hawaii, 585
U.S. ___, 138 S. Ct. 2392 (2018), the government raised the doctrine of consular
nonreviewability as an affirmative defense. Id. at 2407. Noting that, in a prior
case, the Court proceeded to the merits on a statutory claim without addressing the
government’s argument that no judicial review was available, id. (citing Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 113 S. Ct. 2549 (1993)), the Hawaii
Court did the same. It “assume[d] without deciding that plaintiffs’ statutory claims
are reviewable.” Id. In so doing, the Supreme Court emphasized that 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
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strips the Court of jurisdiction over plaintiffs’ claims.” Id. (citations omitted).
Although the Supreme Court did not expressly state that the doctrine of consular
nonreviewability is not an aspect of subject matter jurisdiction, its merits analysis
is strong support for the conclusion that the doctrine poses no jurisdictional bar.
Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012
(1998) (stating the general rule that “[w]ithout jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the
fact and dismissing the cause.” (quoting Ex parte McCardle, 74 U.S. 506, 514, 7
Wall. 506, 514 (1868)) (quotation marks omitted)).
Our sister courts have also offered reasons for why the doctrine of consular
nonreviewability is non-jurisdictional. First, the doctrine of consular
nonreviewability was judicially created and not imposed by Congress. See Allen
v. Milas, 896 F.3d 1094, 1101 (9th Cir. 2018). Without a “statute [that] purports to
strip us of jurisdiction over consular decisions,” Article III continues to confer
subject matter jurisdiction over these cases. Id. Federal courts have found it
appropriate to decline to review consular decisions out of “respect for the
separation of powers,” but this “deference goes to our willingness, not our power,
to hear these cases.” Id. In other words, “a rule of decision is different from a
constraint on subject matter jurisdiction, even if the result is roughly the same for
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the parties.” Id. Instead, the doctrine of consular nonreviewability speaks in
“language of the discretion courts afford consular officers.” Id. at 1102; see also
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S. Ct. 1237, 1243–44
(2010) (noting that courts “have sometimes mischaracterized claim-processing
rules or elements of a cause of action as jurisdictional limitations, particularly
when that characterization was not central to the case, and thus did not require
close analysis”).
The Seventh Circuit has likewise explained that the consular
nonreviewability goes to the merits and not jurisdiction. See Morfin v. Tillerson,
851 F.3d 710, 711 (7th Cir. 2017); see also Matushkina v. Nielsen, 877 F.3d 289,
294 n.2 (7th Cir. 2017) (citing Morfin and stating that the Seventh Circuit treats the
doctrine “as a matter of a case’s merits”). “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 competence.” Morfin, 851 F.3d at 711.
Finally, in the case before us, the government concedes that the District
Court erred in treating the doctrine as jurisdictional. Of course, a party’s
concession is not a substitute for the Court’s proper interpretation of the scope of
federal jurisdiction, see Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d 537,
547 n.6 (11th Cir. 2019), but we adopt the position because it is correct.
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Therefore we hold, contrary to this Court’s prior unpublished decision in De
Castro, 164 F. App’x at 933–34, and the District Court’s conclusion in this case,
that the doctrine of consular nonreviewability goes towards the merits of a case,
and does not divest the court of subject matter jurisdiction.
B. Doctrine of Consular Nonreviewability
Having resolved the threshold issue of subject matter jurisdiction, we
proceed to the central merits question. That is, whether the doctrine of consular
nonreviewability requires dismissal of Ms. Avullija’s action for failure to state a
claim. Ms. Avullija argues the doctrine does not apply because, she submits,
Leonard’s visa was not denied for a facially legitimate or bona fide reason. She
argues that the consular officer’s denial on the basis of Leonard’s prior marriage
was legally inconsistent with USCIS’s approval of Ms. Avullija’s I-130. She also
argues the consular officer’s conclusion that she “failed to establish the requisite
‘domicile’ in the United States is . . . unsupported by the record.”
Both arguments fail. Ms. Avullija has not shown that the denial of
Leonard’s visa application was not facially legitimate and bona fide because she
has not demonstrated that the stated reasons of the consular officer were
unsupported by the record. We explain first what the “facially legitimate and bona
fide” standard requires, and then address why Ms. Avullija has failed to show the
consular officer did not meet it here. We then consider Ms. Avullija’s contention
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that the consular officer’s conclusion that she failed to establish the requisite
domicile in the United States is unsupported by the record.
1. Facially Legitimate and Bona Fide
In Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576 (1972), the Supreme
Court addressed a First Amendment challenge brought by a noncitizen scholar who
sought to attend academic meetings in the United States, but was deemed ineligible
for an immigrant visa and denied a discretionary waiver of that ineligibility. Id. at
754, 92 S. Ct. at 2577. The Court evaluated the government’s justification for
refusing Mr. Mandel a waiver for whether the stated reason was “facially
legitimate and bona fide.” Id. at 769, 92 S. Ct. at 2585. However, the Mandel
Court did not explain what the “facially legitimate and bona fide” standard
required. It observed only that on the record before it, the government’s reason
passed muster. Id.
The modern understanding of the facially legitimate and bona fide standard
is now informed by Justice Anthony Kennedy’s concurrence in the judgment in
Kerry v. Din, 576 U.S. 86, 135 S. Ct. 2128 (2015). In Din, a U.S. citizen wife of
an Afghan national brought suit challenging the denial of her spouse’s immigrant
visa application. Id. at 88, 135 S. Ct. at 2131. Writing for a plurality, Justice
Antonin Scalia concluded that Ms. Din lacked a protected due process interest
under which to bring suit. Id. at 101, 135 S. Ct. at 2138. In his concurrence in the
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judgment, Justice Kennedy (who supplied the fifth vote supporting the judgment)
observed there was no need to decide the constitutional question, because even
assuming Ms. Din had a protected liberty interest in the visa application of her
noncitizen spouse, the process she received was all she was due. Id. at 102, 135 S.
Ct. at 2139 (Kennedy, J., concurring in the judgment). Explaining the Supreme
Court’s prior approach in Mandel, Justice Kennedy noted the Court there did not
address the First Amendment challenge to the visa denial. Id. at 103, 135 S. Ct. at
2139–40 (Kennedy, J., concurring in the judgment). Instead, the Mandel Court
resolved the appeal by asking only whether the government had provided a
“facially legitimate and bona fide” explanation for the action. Id. at 103, 135 S. Ct.
at 2140 (Kennedy, J., concurring in the judgment). The “reasoning and the holding
in Mandel control.” Id. (Kennedy, J., concurring in the judgment).
And so we follow that reasoning here. In assessing whether the stated
reason for visa denial was facially legitimate and bona fide, the reviewing court
must first ask whether the consular officer cited to a particular statute in support of
the denial. See id. at 104–05, 135 S. Ct. at 2140 (Kennedy, J., concurring in the
judgment). A statutory citation “suffices to show that the denial rested on a
determination that [the visa applicant] did not satisfy” the requirements of that
provision. Id. at 104, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment).
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After confirming that a statutory citation was provided, a court must ask if
there is “at least a facial connection” between the “discrete factual predicates the
consular officer must find to exist before denying a visa” mentioned in the
statutory ground for inadmissibility and the “factual details” of the visa applicant.
Id. at 105, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment); see also
Mandel, 408 U.S. at 769, 92 S. Ct. at 2585 (declining to adopt the government’s
position that the government could have provided “no reason” for the denial of the
visa waiver, and concluding on the basis of “[t]his record” that the “reason [given]
was facially legitimate and bona fide”). “[I]f the undisputed record includes facts
that would support [the cited] ground, our task is over,” and the court may not
inquire further into the decision. Matushkina, 877 F.3d at 294 (quotation marks
omitted). This task may be satisfied by confirming that the provided reason
squares, even if only plausibly and minimally—that is, “facially”—with the
record.
3

3
Contrary to my concurring colleague’s position, I do not read Din as prohibiting a court
from checking the reason provided against the factual record absent a showing of bad faith.
After all, there is a difference between engaging with the existing factual record and seeking to
unearth facts not already known to the visa applicant. That was the precise issue Justice
Kennedy responded to when explaining that all was required in the review was to confirm a
“facial connection” to the factual record. Din argued that “due process requires she be provided
with the facts underlying [the] determination,” and Justice Kennedy rejected this argument
because Din “admits in her Complaint that [the noncitizen] worked for the Taliban government,
which, even if itself insufficient to support exclusion, provides at least a facial connection to
terrorist activity.” Din, 576 U.S. at 105, 135 S. Ct. at 2141 (Kennedy, J., concurring in the
judgment). In disposing of this argument, Justice Kennedy confirmed that the appropriate
inquiry is on the given factual record and that the facially legitimate and bona fide standard asks
only whether there is “at least a facial connection” between the reason provided and the facts at
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Having set out the standard for determining whether a visa was denied for a
facially legitimate and bona fide reason, we turn to the two grounds the consular
officer gave to explain the denial of the visa here.
2. Prior Visa Fraud, 8 U.S.C. § 1182(a)(6)(C)(i)
The consular officer first cited 8 U.S.C. § 1182(a)(6)(C)(i), which is the
ground for inadmissibility that applies to any noncitizen “who, by fraud or
willfully misrepresenting a material fact, seeks to procure (or has sought to procure
or has procured) a visa . . . or admission into the United States.” Ms. Avullija
argues the consular officer did not have a facially legitimate or bona fide reason for
denying Leonard’s visa under this provision. We believe he did.
Leonard’s previous visa application when married to Alice was denied
because consular officers concluded he entered a fraudulent marriage “for visa

hand. Therefore, I read Justice Kennedy’s “facial connection” language as further explanation of
the holding in Din, which on the one hand rejects a requirement of affirmative governmental
justification beyond the statutory citation provided, but on the other checks that the citation
squares with the factual context.

Similarly, in Trump v. Hawaii, 585 U.S., 138 S. Ct., the Supreme Court assumed without
deciding that it “may look behind” the governmental reason provided to decide whether the
challenged proclamation passed rational basis review. Id. at 2420 (“We need not define the
precise contours of that inquiry [of whether a facially legitimate and bona fide reason exists] in
this case . . . For our purposes today, we assume that we may look behind the face of the
Proclamation to the extent of applying rational basis review.”). Certainly, the standard does not
require courts to “look behind” reasons provided by a consular officer as a matter of course—
that exercise was justified by the unusual circumstances of Hawaii. But in light of this
precedent, I believe it to be a bridge too far to say that the inquiry set out by the Court today is
prohibited under Supreme Court authority, when the Supreme Court has itself conducted at least
this limited review in Mandel, Din, and Hawaii. A simple citation to a statute that is completely
untethered to the record cannot properly be all the process that is due.
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purposes only.” Ms. Avullija acknowledges that the consular officer’s conclusion
that § 1182(a)(6)(C)(i) applies to Leonard’s previous attempt to “procure . . . a
visa.” Cf. Zyapkov v. Lynch, 817 F.3d 556, 560 (7th Cir. 2016) (stating that
§ 1182(a)(6)(C)(i) renders inadmissible a noncitizen who has made
“misrepresentations about his marriage”). Ms. Avullija argues, however, that the
visa denial was legally inconsistent with the approval of the I-130 petition she later
filed on behalf of Leonard. This argument is without merit.
Ms. Avullija relies on 8 U.S.C. § 1154(c)(1), which instructs that “no [I-130]
petition shall be approved” if the noncitizen spouse previously attempted to secure
a visa “by reason of a marriage determined by the Attorney General to have been
entered into for the purpose of evading the immigration laws.” Because the I-130
screening process also includes a review for fraudulent marriages, Ms. Avullija
reasons that the fact that the I- 130 petition was approved means the government is
somehow estopped from concluding in its visa review that Leonard had entered
into a marriage to circumvent immigration laws.
Not so. Section 1154(c)(1) prohibits the agency from approving a I-130
petition only if it already knows the beneficiary engaged in covered behavior. The
provision does not, however, prevent the consular officer from conducting further
factfinding. Neither does it prevent the officer from denying a visa application
upon discovery of disqualifying information. Indeed, the INA entrusts consular
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officers reviewing visa applications with factfinding duties, and places the burden
on the noncitizen applicant to prove that a ground for inadmissibility does not
apply following the approval of an I- 130 petition. See 8 U.S.C. § 1201(g)(1)
(prohibiting grant of visa if “it appears to the consular officer, from statements in
the application, or in the papers submitted therewith, that such alien is ineligible to
receive a visa or such other documentation under section 1182 of this title, or any
other provision of law”); id. § 1361 (placing the burden of proof on the noncitizen
applicant); see also id. § 1202(d) (“All nonimmigrant visa applications shall be
reviewed and adjudicated by a consular officer.”). By contrast, the agency’s
adjudication of an I-130 does not involve any factfinding. Therefore, the approval
of the I- 130 did not preclude USCIS from later denying Leonard’s visa on the
ground that he was previously denied admission for marriage fraud. The consular
officer’s denial of Leonard’s visa under 8 U.S.C. § 1182(a)(6)(C)(i) was facially
legitimate and bona fide.
3. Public Charge, 8 U.S.C. § 1182(a)(4)
Ms. Avullija also says the finding that she failed to establish her domicile in
the United States is unsupported by the record, and thus not a proper
inadmissibility ground. 8 U.S.C. § 1182(a)(4)(A) bars any noncitizen “who, in the
opinion of the consular officer at the time of application for a visa, . . . is likely at
any time to become a public charge.” When analyzing this inadmissibility ground,
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the consular officer may “consider any affidavit of support under section 1183a of
this title for purposes of exclusion under this paragraph.” Id. § 1182(a)(4)(B)(ii).
DHS regulations establish that the affidavit of support must be sponsored by a U.S.
citizen or lawful permanent resident who is “[d]omiciled in the United States.” 8
C.F.R. § 213a.2(c)(1)(i)(B).
True, Ms. Avullija filed an affidavit in support of Leonard’s visa application.
But she does not say this affidavit established her domicile in the United States.
Even if Ms. Avullija could show the visa denial was not facially legitimate and
bona fide merely because she plausibly alleged she was domiciled in the United
States, she has failed to do so. Her complaint contains a conclusory statement that
“she met the definition of ‘domicile’” without specifying how that is the case. She
has not shown the consular officer’s denial of Leonard’s visa on this basis was
without record support. Without a plausible allegation that the consular officer
ignored or misread a statement of domicile in Ms. Avullija’s affidavit, she fails to
establish that the denial on this ground was not facially legitimate and bona fide.
* * *
Therefore, we conclude that the District Court erred in holding that it lacked
subject matter jurisdiction. Nevertheless, the dismissal of the complaint was
proper because Ms. Avullija failed to state a claim.
AFFIRMED.
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TALLMAN, Circuit Judge, concurring in part and concurring in the judgment:
I agree with the majority’s conclusion in part II.A that the doctrine of
consular nonreviewability presents an issue going to the merits of a case rather
than the court’s jurisdiction to hear the case. I write separately to articulate my
concern that the majority’s formulation of the “facially legitimate and bona fide”
test in part II.B exceeds the scope of the limited inquiry established by the
Supreme Court in Kerry v. Din and may create confusion for district courts going
forward as to how far into the underlying facts they may go in assessing the
application of the doctrine.
I do not read Din to support dividing the “facially legitimate and bona fide”
test into a two-part inquiry that considers a facial connection to the factual record.
Rather, Justice Kennedy’s Din concurrence, which is the controlling opinion for
the plurality decision, see Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990,
993 (1977), instructs that the “facially legitimate and bona fide” standard itself is
quite limited. Kerry v. Din, 576 U.S. 86, 104, 135 S. Ct. 2128, 2140 (2015). In his
concurrence, Justice Kennedy observed that the consular officer’s denial in that
case explicitly cited a statutory bar for terrorism related activities, which “specifies
discrete factual predicates the consular officer must find to exist before denying a
visa.” Id. at 105, 135 S. Ct. at 2141. By citing to the specific statutory basis for
17
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the visa denial, Justice Kennedy reasoned, “it follows that the Government’s
decision to exclude an alien it determines does not satisfy one or more of those
conditions is facially legitimate under Mandel.” Id., 135 S. Ct. at 2140. He
continued, “[t]he Government’s citation of § 1182(a)(3)(B) also indicates it relied
upon a bona fide factual basis for denying a visa to [the noncitizen].” Id.
(emphasis added).
Justice Kennedy’s discussion of a “facial connection” to the factual record is
a specific response to Din’s argument that “due process requires she be provided
with the facts underlying this determination, arguing Mandel required a similar
factual basis.” Id., 135 S. Ct. at 2141. In dismissing this particular due process
argument, he noted that the statutory terrorism bar for visa approval required
certain factual findings and that the allegations in Din’s own complaint “provide[]
at least a facial connection to terrorist activity.” Id. Ultimately, Justice Kennedy
concluded that “[a]bsent an affirmative showing of bad faith on the part of the
consular officer who denied [the noncitizen] a visa . . . Mandel instructs us not to
‘look behind’ the Government’s exclusion of [the noncitizen] for additional factual
details beyond what its express reliance on § 1182(a)(3)(B) encompassed.” Id.
The majority’s articulation of a two-part “facially legitimate and bona fide
with a facial connection to the record” test impermissibly expands this narrow
reading of Din. Instead, I read Justice Kennedy’s concurrence to hold that a
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consular officer’s citation to a specific statutory provision as the basis for
ineligibility is itself a facially legitimate and bona fide reason for a visa denial, and
it is only when a plaintiff makes an affirmative showing of bad faith by the
consular officer that the court should engage with the underlying factual record.
Din, 576 U.S. at 104–05, 135 S. Ct. at 2140. This formulation of the test is
consistent with the language of Din and with the overarching premise that consular
nonreviewability is a doctrine that discourages the courts from reviewing an
exercise of “substantial” executive discretion except in rare circumstances. Id. at
104, 135 S. Ct. at 2140. It might be a high bar for a plaintiff to allege bad faith
underlying a consular decision, but this is by design of the doctrine.
It is important to remember we are addressing issuance of a visa to an alien
outside the United States not seeking asylum or who is already here with ties to
this country. Ms. Avullija did not dispute that Leonard had previously sought an
entry visa through a fraudulent marriage.
I am also concerned that the majority’s two-part “facially legitimate and
bona fide with a facial connection to the record” test will be problematic for
district courts to apply. Requiring courts to consider a “facial connection” to the
factual record before determining whether they should apply a doctrine that bars
them from “looking behind” the factual record will only cause confusion.
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This case illustrates the point. The consular officer cited two separate
statutory provisions to justify denial of Leonard’s visa application, both of which
provided facially legitimate and bona fide reasons for the denial. Ms. Avullija
otherwise makes no allegation of the consular officer’s bad faith, so the doctrine of
consular nonreviewability applies and our inquiry ends. Ms. Avullija’s argument
that the consular officer’s findings were estopped by initial approval of the Form I-
130 by USCIS, which triggered the overseas State Department interview here
challenged, and her argument that the consular officer’s findings were unsupported
by the record, are the type of inquiry we cannot make under controlling Supreme
Court authority.
The District Court erred in holding that it lacked subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1), but the dismissal of the complaint was still proper
because Ms. Avullija failed to state a claim under Fed. R. Civ. P. 12(b)(6).
Accordingly, I concur in the judgment.
USCA11 Case: 19-10048 Date Filed: 11/30/2020 Page: 20 of 20