Chheng v. U.S. Dept. of Homeland Security

Background

Nhep Chheng, a naturalized U.S. citizen, and his son Nimul Chheng, a Cambodian citizen, proceeded without counsel. They challenged the Department of Homeland Security Administrative Appeals Office’s denial of Nimul’s Form I-601 application for a waiver of inadmissibility under the Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq.

A Department of State consular officer in Cambodia had twice denied Nimul’s visa application. The Administrative Appeals Office later denied his motion to reopen the waiver denial, finding that he had not presented new facts warranting reopening. The decision stated that Nimul had been found inadmissible for fraud or misrepresentation after presenting a false passport and for alien smuggling based on helping his sister attempt to enter the United States unlawfully.

Nhep and Nimul alleged that the government denied their right to a visa without a proper investigation and that the Administrative Appeals Office’s decision was arbitrary, capricious, and an abuse of discretion. The government moved to dismiss based on consular nonreviewability and failure to state a claim.

Consular nonreviewability

Consular nonreviewability is the general rule that courts do not review a consular officer’s decision to deny a foreign applicant a visa. The court explained that a narrow exception can permit review of a constitutional claim affecting an American citizen, but only when the consular officer has not provided a facially legitimate and bona fide reason for the denial.

The court also explained that the exception requires the denial to rest on a valid statutory ground of inadmissibility and on a statute specifying factual conditions for denial, or on a fact in the record that is facially connected to that statutory ground.

APA claim

The court noted that Nimul was residing in Cambodia and that Department of State consular officers, rather than the Department of Homeland Security, make the final decisions on visa eligibility and inadmissibility. Because the plaintiffs were unrepresented, the court construed their claim as if it had been brought against the Department of State.

Even with that construction, the court held that the APA did not provide a way to review a consular officer’s decision on the merits of a visa application. The court stated that the constitutional exception to consular nonreviewability does not arise under the APA. It therefore dismissed the APA claim without leave to amend.

Leave to amend and constitutional claims

The court separately considered whether the plaintiffs should be allowed to amend the complaint to assert a constitutional claim outside the APA. It concluded that amendment would be futile.

First, the court held that Nimul, as a Cambodian citizen who had not been admitted to the United States, had no constitutional right to enter the country and therefore could not bring a claim challenging the denial of admission. Second, the court held that Nhep could proceed only if the visa denial violated his own constitutional rights. Relying on Ninth Circuit precedent, the court concluded that an adult U.S. citizen does not have a constitutionally protected liberty interest under the Fifth Amendment’s Due Process Clause in the government’s decision whether to admit a nonresident alien family member. The court found no legitimate distinction between that precedent and the father-and-son circumstances presented here.

The court also concluded that, even if the constitutional exception could apply, the consular officer gave facially legitimate and bona fide reasons for denying Nimul’s visa by citing two statutory grounds of inadmissibility. The court noted that Nimul alleged he was the victim of fraud regarding the passport, but did not allege bad faith by the consular officer. It also noted that the alien-smuggling ground was an independent basis for the denial and was not challenged.

Disposition

The court granted the motion to dismiss without leave to amend. It stated that judgment would be entered by separate order and that the order disposed of Docket No. 20.