Sandra Munoz v. United States Department of State

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 SANDRA MUÑOZ and LUIS ERNESTO CASE NO. CV 17-0037 AS

ASENCIO-CORDERO,

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Plaintiffs,

13 MEMORANDUM OPINION AND ORDER

v.

14 GRANTING DEFENDANTS’ MOTION

UNITED STATES DEPARTMENT OF

15 STATE, et al., FOR SUMMARY JUDGMENT

16 Defendants.

17

18 INTRODUCTION

19

20 On January 3, 2017, Sandra Muñoz and Luis Ernesto Asencio-

21 Cordero filed a Complaint for Declaratory Relief against the U.S.

22 Department of State (“DOS”); Antony Blinken, the U.S. Secretary of

23 State; and Brendan O’Brien, the U.S. Consul General in San

24 Salvador, El Salvador,1 challenging the denial of Asencio-Cordero’s

25

1 The Complaint originally named John F. Kerry as U.S.

26 Secretary of State and Mark Leoni as U.S. Consul General. Antony

Blinken, the current U.S. Secretary of State, and Brendan O’Brien,

27 Consul General at the U.S. Embassy in San Salvador, have been

substituted for their predecessors. Fed. R. Civ. P. 25(d).

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1 visa application. (Dkt. No. 1). The Complaint raises six causes

2 of action: (1) the visa denial was not facially legitimate and bona

3 fide (Count One); (2) the visa denial violates the Equal Protection

4 Clause of the Fifth Amendment (Count Two); (3) the visa denial

5 violates the separation of powers (Count Three); (4) the visa

6 denial was made in bad faith (Count Four); (5) the visa denial

7 without judicial review violates the Administrative Procedures Act

8 (Count Five); and (6) 8 U.S.C. § 1182(a)(3)(A)(ii) is

9 unconstitutionally vague (Count Six). (Compl. ¶¶ 34-51).

10 Plaintiffs seek a declaration that the DOS’s reason for denying

11 Asencio-Cordero’s visa application was not bona fide and 8 U.S.C.

12 § 1182(a)(3)(A)(ii) is unconstitutionally vague. (Id. at 12). The

13 parties have consented to the jurisdiction of the undersigned

14 United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).

15 (Dkt. Nos. 25, 27, 29).

16

17 On September 29, 2017, Defendants filed a Motion to Dismiss,

18 which the Court denied on December 11, 2017. (Dkt. Nos. 37, 47).

19 On December 26, 2017, Defendants answered the Complaint (Dkt. No.

20 48), and on January 2, 2018, they filed an amended answer (Dkt.

21 No. 49). On April 4, 2018, Plaintiffs filed a Motion for Judgment

22 on the Pleadings, which the Court denied on June 8, 2018. (Dkt.

23 No. 52, 59). On April 2, 2019, the Court granted Plaintiffs the

24 authority to conduct limited discovery. (Dkt. No. 82).

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26 Currently pending before the Court are the parties’ cross-

27 motions for summary judgment, which have been fully briefed. (See

28 Dkt. Nos. 101 (“Plaintiffs’ Motion”), 103 (“Defendants’ Motion”),

1 115 (“Defendants’ Opposition”), 116 (“Plaintiffs’ Opposition”) 117

2 (Defendants’ statement of genuine disputes of material facts), and

3 118 (Plaintiffs’ statement of genuine disputes of material

4 facts)).2 On January 6, 2021, the Court held a telephonic hearing

5 on the motions. (Dkt. No. 119).3 For the reasons discussed below,

6 Defendants’ Motion is GRANTED, Plaintiffs’ Motion is DENIED, and

7 the case is DISMISSED.

8

9 STATEMENT OF FACTS4

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11 Plaintiff Asencio-Cordero is a native and citizen of El

12 Salvador who arrived in the United States in March 2005. (Compl.

13 ¶ 15). In July 2010, he married Plaintiff Muñoz, a U.S. citizen

14 by birth. (Compl. ¶ 16). In April 2015, Asencio-Cordero departed

15 the United States to pursue an immigrant visa. (Compl. ¶¶ 3, 18).

16 The following month, after Muñoz’s immigrant relative petition was

17 approved, Asencio-Cordero was interviewed for an immigrant visa at

18 the U.S. Consulate in El Salvador. (Compl. ¶¶ 18, 19).

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20 On or about December 28, 2015, the Consular Section denied

21 Asencio-Cordero’s visa application by citing 8 U.S.C. §

22 2 On January 5, 2021, Defendants filed a notice of supplemental

authority, and Plaintiffs filed a response. (Dkt. Nos. 120-121).

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3 On February 17, 2021, Defendants filed a notice of

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supplemental authority, and Plaintiffs filed a response. (Dkt. Nos.

25 122-123).

26 4 Based on the parties’ respective statements of undisputed

facts, the following facts are undisputed. (See Dkt. Nos. 101-1,

27 103-1, 117, 118). Citations to the Complaint and declarations are

consistent with the parties’ citations.

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1 1182(a)(3)(A)(ii), which states that “[a]ny alien who a consular

2 officer or the Attorney General knows, or has reasonable ground to

3 believe, seeks to enter the United States to engage solely,

4 principally, or incidentally in . . . any other unlawful activity”

5 is ineligible to receive a visa and is ineligible to be admitted

6 to the United States. (Compl. ¶¶ 20, 22).

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8 On January 20, 2016, Congresswoman Judy Chu sent the DOS a

9 letter on Muñoz’s behalf, and Consul Landon R. Taylor responded on

10 January 21, 2016, by citing § 1182(a)(3)(A)(ii), with no further

11 information. (Compl. ¶¶ 23, 24). In April 2016, the Consulate

12 forwarded the case to the immigration visa unit for review. (Compl.

13 ¶ 26). On April 13, 2016, Taylor reported to Plaintiffs: “[T]he

14 finding of ineligibility for [Asencio-Cordero] was reviewed by the

15 [DOS], which concurred with the consular officer’s decision. Per

16 your request, our Immigration Visa Unit took another look at this

17 case, but did not change the decision.” (Compl. ¶ 28).

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19 Plaintiffs wrote to the DOS’s Office of Inspector General,

20 requesting that a reason be given for the inadmissibility decision.

21 (Compl. ¶ 30). Plaintiffs submitted a declaration from Humberto

22 Guizar, an attorney and court-approved gang expert, who reviewed

23 photographs of Asencio-Cordero’s tattoos and opined that “Asencio

24 does not have any tattoos that are representative of the Mara

25 Salvatrucha gang [(MS-13)] or any other known criminal street gang”

26 in either El Salvador or the United States.5 (Dkt. No. 77-1, Exh.

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5 Guizar’s declaration is dated April 27, 2016, and seems to

28 have been submitted around that date, in support of Plaintiffs’

1 M (Guizar Decl.) at ¶¶ 1, 7-9). Guizar concluded that “Asencio is

2 not a gang member, nor is there anything that I am aware of that

3 can reasonably link him to any known criminal organization.” (Id.

4 ¶ 10). At his May 2015 interview with the consular officer,

5 moreover, Asencio-Cordero had denied ever being associated with a

6 criminal gang. (Compl. ¶¶ 20-21). However, on May 18, 2016,

7 Christine Parker, the DOS’s Chief of the Outreach and Inquiries

8 Division of Visa Services, responded merely that the DOS “concurred

9 in the finding of ineligibility.” (Compl. ¶ 33).

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11 On November 8, 2018, during this litigation, DOS attorney

12 advisor Matt McNeil, who reviewed DOS’s electronic database,

13 asserted in a declaration: “[B]ased on the in-person interview, a

14 criminal review of Mr. Asencio-Cordero, and a review of the [sic]

15 Mr. Asencio-Cordero’s tattoos, the consular officer determined that

16 Mr. Asencio-Cordero was a member of a known criminal organization

17 identified in 9 FAM 302-5-4(b)(2), specifically MS-13.”6 (Dkt. No.

18 76-1 (McNeil Decl.) at ¶¶ 1-3).

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20 At the telephonic hearing before the Court on January 6, 2021,

21 counsel for Defendants clarified on the record that Asencio-

22 Cordero’s tattoos were a basis for the consular officer’s decision,

23 request for DOS’s reconsideration of the visa denial. (See Dkt.

No. 77-1, Exh. M).

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25 6 The Foreign Affairs Manual (FAM) “is published by the

Department of State and . . . contains the functional statements,

26 organizational responsibilities, and authorities of each of the

major components of the U.S. Department of State, including

27 Consular Officers.” Sheikh v. U.S. Dep’t of Homeland Sec., 685 F.

Supp. 2d 1076, 1090 (C.D. Cal. 2009).

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1 in addition to information provided by law enforcement which

2 identified Asencio-Cordero as a member of the MS-13 gang.7

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4 SUMMARY OF THE PARTIES’ ARGUMENTS

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6 Plaintiffs argue that they are entitled to summary judgment

7 because the government gave no “bona fide factual reason” for

8 denying Asencio-Cordero’s visa application. (Plaintiffs’ Motion

9 at 4-5; Plaintiffs’ Opposition at 10-13). Plaintiffs also assert

10 that Defendants acted in bad faith, including by failing to respond

11 to Plaintiffs’ evidence rebutting the consular officer’s apparent

12 determination that Asencio-Cordero is a gang member. (Plaintiffs’

13 Motion at 6-8; Plaintiffs’ Opposition at 15-20). Plaintiffs

14 further contend that Defendants’ conduct violates the APA because

15 it is arbitrary and capricious. (Plaintiffs’ Motion at 14-16; see

16 Plaintiffs’ Opposition at 13). In addition, Plaintiffs assert that

17 8 U.S.C. § 1182(a)(3)(A)(ii) is unconstitutionally vague, and they

18 have standing to challenge it. (Plaintiffs’ Motion at 9-14;

19 Plaintiffs’ Opposition at 20-25).

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21 Defendants argue that Plaintiffs’ claims, including the APA

22 claim, are foreclosed by the doctrine of consular nonreviewability.

23 (Defendants’ Motion at 10-22; Defendants’ Opposition at 4-12, 17-

24 19). Defendants contend that the consular officer’s decision

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7 Because counsel made these statements at the January 6

26 hearing, they were not addressed in the parties’ statements of

facts, but the Court considers them as representations made on

27 behalf of the Government on the record in this case, which partially

illuminate the Government’s redacted filings.

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1 satisfied the requisite standard because the officer cited a

2 legitimate statutory admissibility ground, 8 U.S.C. § 1182(a)(3)

3 (A)(ii), which was applicable because the officer assertedly had

4 reason to believe, based on information received from law

5 enforcement, that Asencio-Cordero was associated with the MS-13

6 gang, an organized transnational criminal organization listed in 9

7 FAM 302.5-4(B)(2). (Defendants’ Motion at 13-14; Defendants’

8 Opposition at 1-2, 5-8). Defendants maintain that Plaintiffs were

9 not entitled to any further information for the decision other than

10 the mere citation to § 1182(a)(3)(A)(ii). (Defendants’ Motion at

11 15; Defendants’ Opposition at 4-6). Defendants thus assert that

12 by disclosing any information regarding Asencio-Cordero’s

13 suspected association with MS-13, they have given Plaintiffs “far

14 more” than the law requires. (Defendants’ Motion at 17-18).

15 Defendants further assert that Plaintiffs have not made any

16 affirmative showing of bad faith, and there is no evidence to

17 suggest that the consulate officer’s decision was based on

18 knowingly false or improper grounds. (Defendants’ Motion at 18-

19 21; Defendants’ Opposition at 9-12). Defendants additionally argue

20 that Plaintiffs’ vagueness challenge to § 1182(a)(3)(A)(ii) fails

21 for lack of standing and on the merits. (Defendants’ Motion at

22 22-25; Defendants’ Opposition at 2, 12-16).

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24 STANDARD OF REVIEW

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26 Rule 56(a) of the Federal Rules of Civil Procedure authorizes

27 the granting of summary judgment “if the movant shows that there

28 is no genuine dispute as to any material fact and the movant is

1 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

2 The standard for granting a motion for summary judgment is

3 essentially the same as for granting a directed verdict. Anderson

4 v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Judgment must

5 be entered “if, under the governing law, there can be but one

6 reasonable conclusion as to the verdict.” Id. at 250.

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8 The moving party has the initial burden of identifying

9 relevant portions of the record demonstrating the absence of a fact

10 or facts necessary for one or more essential elements of each cause

11 of action upon which the moving party seeks judgment. Celotex

12 Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Material facts are

13 those which may affect the outcome of the case.” Long v. Cnty. of

14 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); In re Caneva,

15 550 F.3d 755, 760 (9th Cir. 2008). “A dispute as to a material

16 fact is genuine if there is sufficient evidence for a reasonable

17 jury to return a verdict for the non-moving party.” Long, 442 F.3d

18 at 1185; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

19 “When presented with cross-motions for summary judgment, [a court]

20 review[s] each motion for summary judgment separately, giving the

21 nonmoving party for each motion the benefit of all reasonable

22 inferences.” Center for Bio-Ethical Reform, Inc. v. L.A. County

23 Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008).

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25 If the moving party sustains its burden, the burden then

26 shifts to the nonmovant to cite to “particular parts of materials

27 in the record” demonstrating a material fact is “genuinely

28 disputed.” Fed. R. Civ. P. 56(c)(1); Celotex Corp., 477 U.S. at

1 324; Anderson, 477 U.S. at 256. Summary judgment must be granted

2 for the moving party if the nonmoving party “fails to make a showing

3 sufficient to establish the existence of an element essential to

4 that party’s case, and on which that party will bear the burden of

5 proof at trial.” Celotex Corp., 477 U.S. at 322; see also Anderson,

6 477 U.S. at 252 (parties bear the same substantive burden of proof

7 as would apply at a trial on the merits).

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9 “[I]n ruling on a motion for summary judgment, the nonmoving

10 party’s evidence ‘is to be believed, and all justifiable inferences

11 are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526

12 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); Groh v.

13 Ramirez, 540 U.S. 551, 562 (2004). However, summary judgment

14 cannot be avoided by relying solely on “conclusory allegations [in]

15 an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888

16 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

17 475 U.S. 574, 586 (1986) (more than a “metaphysical doubt” is

18 required to establish a genuine dispute of material fact). “The

19 mere existence of a scintilla of evidence in support of the

20 plaintiff’s position” is insufficient to survive summary judgment;

21 “there must be evidence on which the [fact finder] could reasonably

22 find for the plaintiff.” Anderson, 477 U.S. at 252.

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1 DISCUSSION

2

3 A. The Visa Denial Did Not Violate Plaintiffs’ Rights

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5 1. Applicable Law

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7 “Although the Constitution contains no direct mandate relating

8 to immigration matters, the Supreme Court has long recognized that

9 the political branches of the federal government have plenary

10 authority to establish and implement substantive and procedural

11 rules governing the admission of aliens to this country.” Jean v.

12 Nelson, 727 F.2d 957, 964 (11th Cir. 1984), aff’d, 472 U.S. 846

13 (1985). “The exclusion of aliens is a fundamental act of

14 sovereignty. The right to do so stems not alone from legislative

15 power but is inherent in the executive power to control the foreign

16 affairs of the nation.” U.S. ex rel. Knauff v. Shaughnessy, 338

17 U.S. 537, 542 (1950). “In practice, however, the comprehensive

18 character of the [Immigration and Nationality Act (INA)] vastly

19 restricts the area of potential executive freedom of action, and

20 the courts have repeatedly emphasized that the responsibility for

21 regulating the admission of aliens resides in the first instance

22 with Congress.” Jean, 727 F.2d at 965. “Thus, as a result of the

23 existence of inherent executive power over immigration and the

24 broad delegations of discretionary authority in the INA, the

25 separation-of-powers doctrine places few restrictions on executive

26 officials in dealing with aliens who come to this country in search

27 of admission or asylum.” Id. at 967. “The Court without exception

28 has sustained Congress’ plenary power to make rules for the

1 admission of aliens and to exclude those who possess those

2 characteristics which Congress has forbidden.” Kleindienst v.

3 Mandel, 408 U.S. 753, 766 (1972) (citation omitted). “When

4 Congress delegates this plenary power to the Executive, the

5 Executive’s decisions are likewise generally shielded from

6 administrative or judicial review.” Andrade–Garcia v. Lynch, 828

7 F.3d 829, 834 (9th Cir. 2016); see Knauff, 338 U.S. at 544

8 (“Whatever the procedure authorized by Congress is, it is due

9 process as far as an alien denied entry is concerned.”).

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11 Nevertheless, the Government’s plenary power “does not mean

12 that it is wholly immune from judicial review.” Jean, 727 F.2d at

13 975; see Hazama v. Tillerson, 851 F.3d 706, 708 (7th Cir. 2017)

14 (“the Court has never entirely slammed the door shut on review of

15 consular decisions on visas”). Rather, “courts have identified a

16 limited exception to the doctrine of consular nonreviewability

17 where the denial of a visa implicates the constitutional rights of

18 American citizens.” Bustamante v. Mukasey, 531 F.3d 1059, 1061

19 (9th Cir. 2008).

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21 This limited exception to the doctrine of consular

22 nonreviewability traces to the Mandel decision. Dr. Ernest Mandel

23 was a Belgian journalist and a self-described revolutionary

24 Marxist, who had been invited by college professors, all of them

25 U.S. citizens, to speak at a university conference. Mandel, 408

26 U.S. at 756-57. The consulate denied Mandel’s visa application,

27 finding him inadmissible under the immigration laws at that time,

28 which barred non-citizens who advocate world communism, and the

1 Attorney General declined to grant a waiver. Id. at 757; see

2 Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016).

3 Mandel, along with a number of American professors, challenged the

4 denial. Mandel, 408 U.S. at 759-60. While the Supreme Court ruled

5 that “Mandel personally, as an unadmitted and nonresident alien,

6 had no constitutional right of entry,” the Court found that the

7 denial of Mandel’s visa implicated the professors’ First Amendment

8 right to receive ideas. Id. at 762, 765-66. Nevertheless, the

9 Supreme Court “declined to balance the First Amendment interest of

10 the professors against ‘Congress’ plenary power to make rules for

11 the admission of aliens and to exclude those who possess those

12 characteristics which Congress has forbidden.’” Kerry v. Din, 576

13 U.S. 86, 103 (2015) (Kennedy, J., concurring) (quoting Mandel, 408

14 U.S. at 766) (other citation omitted). Instead, the Mandel Court

15 “limited its inquiry to the question whether the Government had

16 provided a ‘facially legitimate and bona fide’ reason for its

17 action.” Id.; see Mandel, 408 U.S. at 770 (“We hold that when the

18 Executive exercises this power negatively on the basis of a

19 facially legitimate and bona fide reason, the courts will neither

20 look behind the exercise of that discretion, nor test it by

21 balancing its justification against the First Amendment interests

22 of those who seek personal communication with the applicant.”).

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24 The Supreme Court recently returned to the nonreviewability

25 issue in Din. Fauzia Din, a U.S. citizen, was married to Kanishka

26 Berashk, an Afghan citizen and former civil servant in the Taliban

27 regime. Din, 576 U.S. at 89. The consulate denied Berashk’s visa

28 application, finding him inadmissible under 8 U.S.C. § 1182(a)(3),

1 a “statutory provision prohibiting the issuance of visas to persons

2 who engage in terrorist activities,” but the consulate gave no

3 further explanation. Id. at 90, 102. When Din challenged the

4 decision in court, the United States District Court for the

5 Northern District of California granted the Government’s motion to

6 dismiss the complaint. The Ninth Circuit then reversed the

7 district court’s decision. The court noted, based on its earlier

8 holding in Bustamante v. Mukasey, 531 F.3d at 1062, that as a U.S.

9 citizen, Din had a protected liberty interest in marriage that

10 entitled her to review of the denial of her spouse’s visa. Din v.

11 Kerry, 718 F.3d 856, 860 (9th Cir. 2013), vacated, 576 U.S. 86

12 (2015). The Court held that the government’s visa denial did not

13 satisfy the standard under Mandel because it did not offer a factual

14 basis or cite to a narrow enough ground to permit the court to

15 determine that the government had properly construed the applicable

16 statute. Id. at 861–62.

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18 The Supreme Court reversed the Ninth Circuit in a plurality

19 opinion. Din, 576 U.S. 86. While a three-justice plurality

20 concluded that a citizen, such as Din, had no due process right

21 with respect to her spouse’s visa denial, that view did not garner

22 a majority of the Court.8 Instead, the two-justice concurrence,

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8 The four-justice dissent concluded that Din had a due process

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liberty interest in the matter, Din, 576 U.S. at 107-10 (Breyer,

25 J., dissenting), and the two-justice concurrence “assumed without

deciding” that she had this right, id. at 103 (Kennedy, J.,

26 concurring). It therefore appears that the Ninth Circuit’s

Bustamante holding remains intact, such that a U.S. citizen has a

27 protected liberty interest with respect to the denial of her

spouse’s visa application. See Bustamante, 531 F.3d at 1062.

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1 which the Ninth Circuit subsequently held to be the controlling

2 Din analysis, assumed without deciding that Din’s constitutional

3 rights were burdened by the visa denial, but held that the reasons

4 given by the Government satisfied Mandel’s “facially legitimate

5 and bona fide” standard. Din, 576 U.S. at 102-06 (Kennedy, J.,

6 concurring);9 see also Cardenas, 826 F.3d at 1171-72 (determining

7 that the Kennedy concurrence in Din “represents the holding of the

8 Court”). Specifically, Justice Kennedy, joined by Justice Alito,

9 concluded that the Government’s citation to § 1182(a)(3)(B) alone

10 sufficed as a “facially legitimate and bona fide reason” because,

11 “unlike the waiver provision at issue in Mandel, which granted the

12 Attorney General nearly unbridled discretion, § 1182(a)(3)(B)

13 specifies discrete factual predicates the consular officer must

14 find to exist before denying a visa.”10 Din, 576 U.S. 105.

15

16 As construed by the Ninth Circuit in Cardenas, the Supreme

17 Court’s controlling Din concurrence laid out a two-part test for

18 determining whether the denial of a visa provides the “facially

19

9 All subsequent citations to Din refer to Justice Kennedy’s

concurrence.

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21 10 Section 1182(a)(3)(B) precludes visas for non-citizens who

have engaged in, incited, or endorsed, or are believed to be likely

22 to engage in, any terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(i).

However, the statute sets forth the specific types of facts needed

23 to constitute “terrorist activity” and to qualify as “engag[ing]

in terrorist activity.” Id. § 1182(a)(3)(B)(iii)-(iv). In

24

contrast, the statute at issue in Mandel generally precluded visas

25 for non-citizens “who advocate[d] the economic, international, and

governmental doctrines of World communism,” 8 U.S.C. §

26 1182(a)(28)(D) (1964 ed.), but it also gave the Attorney General

broad discretion to grant individual exceptions, allowing the alien

27 to obtain a temporary visa, id. § 1182(d)(3); see Din, 576 U.S. at

102-03 (discussing Mandel).

28

1 legitimate and bona fide reason” required by Mandel. “First, the

2 consular officer must deny the visa under a valid statute of

3 inadmissibility.” Cardenas, 826 F.3d at 1172. “Second, the

4 consular officer must cite an admissibility statute that ‘specifies

5 discrete factual predicates the consular officer must find to exist

6 before denying a visa,’ or there must be a fact in the record that

7 ‘provides at least a facial connection to’ the statutory ground of

8 inadmissibility.” Id. (quoting Din, 576 U.S. at 105). “Once the

9 government has made that showing, the plaintiff has the burden of

10 proving that the reason was not bona fide by making an ‘affirmative

11 showing of bad faith on the part of the consular officer who denied

12 [] a visa.’” Id. (quoting Din, 576 U.S. at 105). This test is

13 the only recognized exception to consular nonreviewability; there

14 is no separate right under the APA to review a consular officer’s

15 visa denial. See Allen v. Milas, 896 F.3d 1094, 1108 (9th Cir.

16 2018) (“We join the D.C. Circuit in holding that the APA provides

17 no avenue for review of a consular officer’s adjudication of a visa

18 on the merits.”).

19

20 In Cardenas, the Ninth Circuit concluded that the test, under

21 Mandel and Din, was satisfied because the consular officer (1)

22 cited a valid statute of inadmissibility, § 1182(a)(3)(A)(ii), and

23 (2) “provided a bona fide factual reason that provided a ‘facial

24 connection’ to the statutory ground of inadmissibility: the belief

25 that [the visa applicant] was a ‘gang associate’ with ties to the

26 Sureno gang.” Id. The officer’s gang-association finding was

27 expressly based on facts provided in the record, including the fact

28 that the alien had been identified by police as a Sureno gang

1 associate when arrested in June 2008 as a passenger in a vehicle

2 owned and driven by a known Sureno gang member. Id. at 1167–68.

3 When the alien’s visa application was denied, the consulate

4 informed the alien, in writing, that “the circumstances of [the

5 June 2008] arrest, as well as information gleaned during the

6 consular interview, gave the consular officer sufficient ‘reason

7 to believe’ that [the alien] has ties to an organized street gang.”

8 Id. at 1168.

9

10 2. Analysis

11

12 Plaintiff Muñoz, as a U.S. citizen married to Plaintiff

13 Asencio-Cordero, has a protected liberty interest in the denial of

14 Asencio-Cordero’s visa. See Bustamante, 531 F.3d at 1062.11 The

15 Court therefore applies the two-part test for determining whether

16 a “facially legitimate and bona fide reason” was provided, as

17 required by Mandel. The first part is clearly satisfied here,

18 since it is undisputed that the consular officer’s citation to

19 § 1182(a)(3)(A)(ii) was sufficient to demonstrate that the visa

20 denial relied on a valid statute of inadmissibility. See Din, 576

21 U.S. at 104 (consular officer’s citation to § 1182(a)(3)(B)

22 “suffices to show that the denial rested on a determination that

23 Din’s husband did not satisfy the statute’s requirements”);

24 Cardenas, 826 F.3d at 1172 (“The consular officer gave a facially

25 legitimate reason to deny Mora’s visa because he cited a valid

26

11 As noted above, this holding in Bustamante, which the Ninth

27 Circuit also relied on in Din, 718 F.3d at 860, was not overturned

by a majority of the Supreme Court.

28

1 statute of inadmissibility, § 1182(a)(3)(A)(ii).”). Less clear is

2 whether the Government satisfied the second part of the test, which

3 requires either (a) that the consular officer “cite an

4 admissibility statute that ‘specifies discrete factual predicates

5 the consular officer must find to exist before denying a visa,’”

6 or (b) that there be “a fact in the record that ‘provides at least

7 a facial connection to’ the statutory ground of inadmissibility.”

8 Cardenas, 826 F.3d at 1172 (quoting Din, 576 U.S. at 105).

9

10 Defendants argue that mere citation to the statute sufficed.

11 (Defendants’ Opposition at 4-6). The Court has already rejected

12 that argument. (See Dkt. No. 59 at 11-15). Unlike the provision

13 at issue in Din, § 1182(a)(3)(A)(ii) does not provide the “discrete

14 factual predicates” necessary to deny a visa because the statute

15 merely precludes admission to a non-citizen who a consular officer

16 “knows, or has reasonable ground to believe, seeks to enter the

17 United States to engage . . . in . . . any other unlawful

18 activity.” 8 U.S.C. § 1182(a)(3)(A)(ii); see also Din, 576 U.S.

19 at 105 (“But unlike the waiver provision at issue in Mandel, which

20 granted the Attorney General nearly unbridled discretion,

21 § 1182(a)(3)(B) specifies discrete factual predicates the consular

22 officer must find to exist before denying a visa.”); Cardenas, 826

23 F.3d at 1172 (“[T]here must be a fact in the record that ‘provides

24 at least a facial connection to’ the statutory ground of

25 inadmissibility.”) (quoting Din, 576 U.S. at 105).

26

27 Defendants cite to the Supreme Court’s decision in Trump v.

28 Hawaii, 138 S. Ct. 2392 (2018), as support for their contention

1 that the mere citation to § 1182(a)(3)(A)(ii) sufficed. (See

2 Defendants’ Opposition at 5). In dicta, the Hawaii Court provided

3 a limited summary of the Supreme Court’s ruling in Din, stating

4 that “the Government need provide only a statutory citation to

5 explain a visa denial.” 138 S. Ct. at 2419. However, the Hawaii

6 Court cited the very page in Din where the Supreme Court explicitly

7 noted that the consular officer must either cite an inadmissibility

8 statute that specifies discrete factual predicates or there must

9 be a fact in the record that provides at least a facial connection

10 to the statutory ground of inadmissibility. Id. (citing Din, 135

11 S. Ct. at 2141). Further, there is no indication in Hawaii that

12 the Supreme Court intended to overrule Din. Indeed, no court has

13 concluded that Hawaii overruled either Din or the Ninth Circuit’s

14 opinion in Cardenas, which carefully summarized the Din decision.

15 This Court follows Cardenas and Justice Kennedy’s reasoning in Din

16 to conclude that the mere citation to § 1182(a)(3)(A)(ii) did not

17 suffice.

18

19 However, the Government has offered further explanations for

20 the consulate officer’s decision. First, Defendants have informed

21 Plaintiffs that the visa was denied based on § 1182(a)(3)(A)(ii)

22 because the consulate officer determined that Asencio-Cordero was

23 a member of MS-13, a recognized transnational criminal

24 organization. Defendants submitted a declaration stating that the

25 officer made this determination “based on the in-person interview,

26 a criminal review of Mr. Asencio-Cordero, and a review of the [sic]

27 Mr. Asencio-Cordero’s tattoos.” (Dkt. No. 76-1 (McNeil Decl.) at

28 ¶ 5). Defendants also provided to Plaintiffs’ counsel and the

1 Court several redacted documents from the Consolidated Consular

2 Database regarding the officer’s determinations in Asencio-

3 Cordero’s case, although the redactions encompass essentially all

4 material portions of the documents.12 (See Dkt. No. 112). To the

5 extent these documents and other representations still left unclear

6 whether the consular officer’s investigation yielded any facts that

7 “provide[d] at least a facial connection to” the consular officer’s

8 determination, Defendants’ counsel later clarified, at the hearing

9 on January 6, 2021, that the tattoos specifically contributed to

10 the determination, as did law enforcement information which

11 identified Asencio-Cordero as an MS-13 gang member.

12

13 Plaintiffs maintain that this still does not suffice, and that

14 Defendants have failed to identify any facts supporting the

15 decision. Among other things, Plaintiffs contend that at the

16 January 6 hearing, Defendants “conceded” that law enforcement

17 merely gave the consular officer its conclusion that Asencio-

18 Cordero was an MS-13 gang member, “without providing the consular

19

12 The documents include an October 2015 memorandum from the

20

Fraud Prevention Unit at the U.S. Embassy in El Salvador, as well

21 as an Advisory Opinion request submitted by a consular officer and

the Visa Office’s response to that request. Defendants submitted

22 unredacted copies to the Court for in camera review. (See Dkt.

No. 112). Since Plaintiffs have been unable to view these copies,

23 the Court agrees with Plaintiffs that it cannot consider the

redacted material in ruling on the substantive issues in this case.

24

See Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069-

25 70 (9th Cir. 1995) (noting “the firmly held main rule that a court

may not dispose of the merits of a case on the basis of ex parte,

26 in camera submissions”; further stating that the “use of

undisclosed information in adjudications should be presumptively

27 unconstitutional,” and “[o]nly the most extraordinary

circumstances could support one-sided process”).

28

1 officer with any factual basis that led them to that conclusion.”

2 (Dkt. No. 123 at 5). However, Plaintiffs wrongly assume they have

3 a right to examine or dispute the officer’s assessment of evidence

4 underlying the decision. To the contrary, within the Court’s

5 limited jurisdiction to review consular decisions, it is enough

6 for the Government to have disclosed that the officer relied on

7 these facts – specifically, (1) that the tattoos signaled to the

8 officer that Asencio-Cordero was an MS-13 member, and (2) that law

9 enforcement also identified him as one. Although Defendants have

10 declined to publicly disclose any further information on this issue

11 (on the grounds of consular nonreviewability and law enforcement

12 privilege), the Court finds that these facts in the record satisfy

13 the government’s obligation under Cardenas and Din by “‘provid[ing]

14 at least a facial connection to’ the statutory ground of

15 inadmissibility.”13 Cardenas, 826 F.3d at 1172 (quoting Din, 576

16 U.S. at 105); see also 9 FAM 302.5-4(B)(2) (listing MS-13 as a

17 criminal organization whose members are ineligible for visas under

18 § 1182(a)(3)(A)(ii)); Cardenas, 826 F.3d at 1172 (“[The consular

19 officer] provided a bona fide factual reason that provided a

20 ‘facial connection’ to the statutory ground of inadmissibility

21 [under § 1182(a)(3)(A)(ii)]: the belief that Mora was a ‘gang

22 associate’ with ties to the Sureno gang.”); Burris v. Kerry, 2014

23 13 Defendants’ counsel’s clarifications in the January 6

hearing differed from the government’s prior statements on the

24

record - and to some extent account for why the Court reaches a

25 different conclusion here than in previous orders (see Dkt. Nos.

82, 93) - insofar as the Government’s prior statements, as phrased,

26 expressed only that the officer had reviewed and considered all

the facts in making the determination. In contrast, the Government

27 has now clarified that the tattoos and law enforcement information

actually connected Asencio-Cordero to MS-13.

28

1 WL 1267272, at *5 (E.D. Tex. Mar. 27, 2014) (Government

2 sufficiently identified basis of visa denial under §

3 1182(a)(3)(A)(ii) based on consular officer’s finding that

4 applicant had “numerous tattoos, some of which are consistent with

5 gang membership and a history of drug use”).

6

7 Because Defendants have shown that there were facts that

8 provided at least a facial connection to the statutory ground of

9 inadmissibility, Plaintiffs have “the burden of proving that the

10 reason was not bona fide by making an ‘affirmative showing of bad

11 faith on the part of the consular officer who denied [Asencio-

12 Cordero] a visa.’” Cardenas, 826 F.3d at 1172 (quoting Din, 576

13 U.S. at 105). Subsequent conduct by other actors does not

14 demonstrate bad faith by the officer who made the original

15 decision. See id. (“[A]llegations about the second interview

16 obviously cannot raise a plausible inference that the officer acted

17 in bad faith in making the original decision.”).

18

19 Plaintiffs argue that the Government acted in bad faith here

20 by withholding the factual basis for the visa denial, and thus

21 depriving Plaintiffs of “the opportunity to argue against it.”

22 (Plaintiffs’ Opposition at 10, 17-18). The Court disagrees. The

23 consular officer did not demonstrate bad faith by explaining the

24 decision with nothing more than a citation to § 1182(a)(3)(A)(ii).

25 Consular officers are not required to give applicants any further

26 explanation.

27

28

1 The statute, for example, requires only that consular officers

2 provide denial notices that “list[] the specific provision or

3 provisions of law under which the alien is inadmissible” – and this

4 notice requirement does not even apply to non-citizens, such as

5 Asencio-Cordero, who are found inadmissible under § 1182(a)(2) or

6 § 1182(a)(3). 8 U.S.C. § 1182(b); see Din, 576 U.S. at 105–06

7 (noting that while “Din perhaps more easily could mount a challenge

8 to her husband’s visa denial [(which was based on § 1182(a)(3)(B))]

9 if she knew the specific subsection on which the consular officer

10 relied,” the requirement to provide notice of the specific

11 subsection “does not apply when, as in this case, a visa application

12 is denied due to terrorism or national security concerns”) (citing

13 § 1182(b)(3)). Also, to the extent that DOS’s own Foreign Affairs

14 Manual may direct officers to give more information,14 a failure to

15 adhere to such guidelines does not demonstrate bad faith. See

16 Baluch v. Kerry, 2016 WL 10636362, at *3 (C.D. Cal. Nov. 14, 2016)

17 (“Even if the officer did not abide by the FAM’s suggestions, the

18 departure from them is not plausible evidence of bad faith.”).

19

20 Moreover, the test under Mandel and Din requires only that

21 the officer cite the statute of inadmissibility and, at most, that

22 there be “a fact in the record that ‘provides at least a facial

23 connection to’ the statutory ground of inadmissibility.” Cardenas,

24 826 F.3d at 1172 (quoting Din, 576 U.S. at 105) (emphasis added).

25

14 DOS’s Foreign Affairs Manual requires consular officials to

26 provide “[t]he factual basis for the refusal” unless the DOS

instructs the consular official “not to provide notice” or the

27 consular official “receive[s] permission from the [DOS] not to

provide notice.” 9 FAM 504.11-3(A)(1)(b)-(c).

28

1 There is no indication that the consular officer needs to have

2 given notice of this fact, only that it be “in the record,” for

3 the purpose of review. Although more information was made

4 available to applicants in Cardenas and other cases, those cases

5 do not suggest that such additional information was needed to

6 satisfy due process or that the absence of such information was

7 evidence of bad faith. Plaintiffs here were not given conflicting

8 reasons for the officer’s decision, and there is no evidence

9 showing that the officer had an improper motive or basis for the

10 decision. Moreover, even without further information, Plaintiffs

11 were nonetheless able to submit a gang expert’s assessment

12 disputing the finding that Asencio-Cordero was a gang member,15 and

13 Defendants have asserted that Plaintiffs’ evidence was taken into

14 consideration in the decision. (See Dkt. No. 77-1, Exh. M (Guizar

15 Decl.); Dkt. No. 103-2 at 7).

16

17 Because Plaintiffs’ only arguments for bad faith are based on

18 the lack of information given by the consular officer, or on

19 Defendants’ subsequent withholding of further information, they

20 fail to make the requisite affirmative showing of bad faith. Absent

21 that affirmative showing, Plaintiffs have no right to look behind

22 the officer’s decision or to contest the evidence or inferences on

23 which it was based. See, e.g., Sesay v. United States, 984 F.3d

24 312, 316 (4th Cir. 2021) (“For the doctrine of consular

25

15 The gang expert’s sworn declaration states that none of

26 Asencio-Cordero’s tattoos are associated with known gangs, and

nothing the expert is aware of “can reasonably link [Asencio-

27 Cordero] to any known criminal organization.” (Guizar Decl. ¶¶ 7-

10).

28

1 nonreviewability to have any meaning, we may not peer behind the

2 decisional curtain and assess the wisdom of the consular

3 determination.”); Baluch, 2016 WL 10636362, at *2 (“Baluch

4 essentially asks us to do what Justice Kennedy’s controlling

5 opinion in Din forbids - ‘look behind’ the government’s ‘exclusion

6 of [her husband] for additional factual details[.]’”). Viewing

7 the evidence in the light most favorable to Plaintiffs, the Court

8 concludes that Plaintiffs have failed to create a genuine issue of

9 material fact as to whether the consular officer’s decision

10 violated their rights. Plaintiffs’ claims challenging that

11 decision (Counts 1-5) therefore merit dismissal pursuant to

12 Defendants’ Motion.16

13

14 B. Section 1182(a)(3)(A)(ii) Is Not Unconstitutionally Vague

15

16 1. Applicable Law

17

18 The void-for-vagueness doctrine “guarantees that ordinary

19 people have ‘fair notice’ of the conduct a statute proscribes.”

20 Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). The doctrine

21 “guards against arbitrary or discriminatory law enforcement by

22 insisting that a statute provide standards to govern the actions

23 of police officers, prosecutors, juries, and judges.” Id. “The

24 degree of vagueness that the Constitution tolerates . . . depends

25

16 This includes Plaintiffs’ claim under the APA. As noted

26 above, the APA offers no separate right to challenge consular

officers’ decisions because the test under Din and Cardenas is the

27 only recognized exception to consular nonreviewability. See Allen,

896 F.3d at 1108.

28

1 in part on the nature of the enactment.” Vill. of Hoffman Estates

2 v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982).

3

4 “It is well established that vagueness challenges to statutes

5 which do not involve First Amendment freedoms must be examined in

6 the light of the facts of the case at hand.” United States v.

7 Mazurie, 419 U.S. 544, 550, (1975); accord Ass’n des Eleveurs de

8 Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 946 (9th Cir.

9 2013); United States v. Dang, 488 F.3d 1135, 1141 (9th Cir. 2007)

10 (“[A] party challenging the facial validity of [a regulation] on

11 vagueness grounds outside the domain of the First Amendment must

12 demonstrate that the enactment is impermissibly vague in all of

13 its applications. Of course, under this rubric, if the statute is

14 constitutional as applied to the individual asserting the

15 challenge, the statute is facially valid.”) (internal quotation

16 and citations omitted); see also Moreno v. Attorney Gen. of United

17 States, 887 F.3d 160, 165 (3d Cir. 2018) (“Because vagueness

18 challenges are evaluated on a case by case basis, we must examine

19 8 U.S.C. § 1182(a)(2)(A)(i)(I) to determine whether the statute is

20 vague as applied to Moreno.”) (citations omitted).

21

22 2. Analysis

23

24 As an initial matter, the parties dispute whether Plaintiffs

25 have standing and a legal right to raise a constitutional void-

26 for-vagueness claim against an admissibility statute. (Defendants’

27 Motion at 22-24; Plaintiffs’ Opposition at 20-25). The answer is

28 unclear. It appears, for example, that both Plaintiffs have

1 suffered an actual injury that is fairly traceable to the statute,

2 since the visa denial has deprived Asencio-Cordero of the right to

3 live in the country he considered home for ten years, and it has

4 also deprived Muñoz of her right to live with her husband in their

5 home. See Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868–69

6 (9th Cir. 2002) (standing requires (1) that a plaintiff “suffered

7 an ‘injury in fact’ that is (a) concrete and particularized and

8 (b) actual or imminent, not conjectural or hypothetical”; (2) that

9 “the injury is fairly traceable to the challenged action of the

10 defendant”; and (3) that the injury would likely be “redressed by

11 a favorable decision.”) (quoting Friends of the Earth, Inc. v.

12 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000));

13 see also Trump, 138 S. Ct. at 2416 (“We agree that a person’s

14 interest in being united with his relatives is sufficiently

15 concrete and particularized to form the basis of an Article III

16 injury in fact.”). Both Plaintiffs, moreover, appear to have Fifth

17 Amendment due process rights regarding the visa decision, at least

18 to some extent. Although Defendants contend that Asencio-Cordero

19 lacks such rights because he was outside the border at the time

20 (see Defendants’ Motion at 23; Defendants’ Opposition at 13-14),

21 that fact is not necessarily determinative here. Instead, the

22 Ninth Circuit has held that the proper approach for ascertaining

23 whether non-citizens have constitutional rights outside the United

24 States is the “functional approach” that the Supreme Court applied

25 in Boumediene v. Bush, 553 U.S. 723 (2008), and the “significant

26 voluntary connection” test used in United States v. Verdugo–

27 Urquidez, 494 U.S. 259, 271 (1990). Ibrahim v. Dep’t of Homeland

28 Sec., 669 F.3d 983, 997 (9th Cir. 2012); see Verdugo-Urquidez, 494

1 U.S. at 271 (“[A]liens receive constitutional protections when they

2 have come within the territory of the United States and developed

3 substantial connections with this country.”). In Ibrahim, the

4 Ninth Circuit held that the plaintiff, a Malaysian citizen,

5 “established ‘significant voluntary connection’ with the United

6 States,” such that she could assert First and Fifth Amendment

7 claims regarding her no-fly list designation, because she had been

8 attending a doctoral program at Stanford University for four years,

9 and was denied a visa to return only after traveling to attend a

10 conference in Malaysia.17 Id. at 987, 997. Here, prior to his

11 visa denial, Asencio-Cordero spent ten years in the United States,

12 and he lived with his wife and child, who are U.S. citizens, until

13 he departed in 2015 to pursue an immigrant visa. (See Dkt. No. 59

14 at 4-5). Based on these facts, Asencio-Cordero appears to have

15 established a “significant voluntary connection” with this country,

16 which entitles him to certain Fifth Amendment due process rights,

17 even though he was on a trip to El Salvador when the visa decision

18 occurred. See Ibrahim, 669 F.3d at 997 (noting that the purpose

19 of the plaintiff’s trip abroad “was to further, not to sever, her

20 connection to the United States,” and she “intended her stay abroad

21 to be brief”).18

22

23 17 The claims in Ibrahim concerned only the plaintiff’s

designation on a no-fly list, not specifically the revocation or

24

denial of her visa. Ibrahim, 669 F.3d at 991.

25

18 More recent Supreme Court cases cited by Defendants do not

26 seem to undermine this conclusion, as such cases draw a distinction

between non-citizens seeking initial entry and those in deportation

27 proceedings who have established connections in the United States.

See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1963-

28 64 (2020) (“While aliens who have established connections in this

1 However, the scope of Plaintiffs’ due process rights remains

2 unclear. Specifically, it is unclear whether either Plaintiff’s

3 liberty interest entitles him or her to raise a void-for-vagueness

4 challenge to the admissibility statute. See, e.g., Rojas-Garcia

5 v. Ashcroft, 339 F.3d 814, 823 n.8 (9th Cir. 2003) (“while the

6 Supreme Court has allowed aliens to bring vagueness challenges to

7 deportation statutes, an alien may not have the same right to

8 challenge exclusion provisions”) (citation omitted); Boggala v.

9 Sessions, 866 F.3d 563, 569 n.5 (4th Cir. 2017) (“It is unclear

10 whether an alien is allowed to bring a vagueness challenge to

11 admissibility laws.”); Beslic v. INS, 265 F.3d 568, 571 (7th Cir.

12 2001) (“it is questionable whether [a void-for-vagueness] challenge

13 to an admissibility statute would be cognizable”); see also

14 Boutilier v. INS, 387 U.S. 118 (1967) (non-citizen could not

15 challenge his deportation by asserting vagueness claim against

16 admissibility statute in part because he was “not being deported

17 for conduct engaged in after his entry into the United States, but

18 rather for characteristics he possessed at the time of his

19 entry”).19

20

21

country have due process rights in deportation proceedings, the

22 Court long ago held that Congress is entitled to set the conditions

for an alien’s lawful entry into this country and that, as a result,

23 an alien at the threshold of initial entry cannot claim any greater

rights under the Due Process Clause.”). Asencio-Cordero was not

24

“at the threshold of initial entry” when his visa was denied, since

25 he had already “established connections in this country” while

living here for ten years.

26

19 As Plaintiffs point out, non-citizen plaintiffs have been

27 permitted to raise void-for-vagueness claims against admissibility

statutes in some cases. (See Plaintiffs’ Opposition at 22-24). In

28 such cases, however, the plaintiffs were in the United States

1 Regardless, the Court need not determine whether either

2 Plaintiff has a legal right to bring the vagueness claim because

3 Plaintiffs fail to demonstrate that the challenged statute, 8

4 U.S.C. § 1182(a)(3)(A)(ii), is unconstitutionally vague. They fail

5 to do so particularly because they have not shown that the statute

6 is vague as applied in this case. See Kashem v. Barr, 941 F.3d

7 358, 375 (9th Cir. 2019) (“[V]agueness challenges to statutes that

8 do not involve First Amendment violations must be examined as

9 applied to the defendant. . . . [A]s a general matter, a defendant

10 who cannot sustain an as-applied vagueness challenge to a statute

11 cannot be the one to make a facial vagueness challenge to the

12 statute.”) (internal quotations and citations omitted).

13

14 The challenged statute provides that “[a]ny alien who a

15 consular officer or the Attorney General knows, or has reasonable

16 ground to believe, seeks to enter the United States to engage

17 solely, principally, or incidentally in . . . any other unlawful

18 activity” is ineligible to receive a visa and to be admitted to

19 the United States. Although the language of this provision

20

challenging their removal, and the purported basis for their

21 exclusion concerned criminal acts committed within the United

States. See Martinez-de Ryan v. Whitaker, 909 F.3d 247 (9th Cir.

22 2018); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957). Here,

Plaintiff was denied entry while outside the United States, and

23 that denial was based on his gang membership – which, as opposed

to the discrete, U.S.-based actions underlying the decisions in

24

Martinez-de Ryan and other cases, was a status that presumably

25 continued at the time of the officer’s visa decision. These

differences may indeed be material. See Martinez-de Ryan, 909 F.3d

26 at 251 (distinguishing Boutilier because the petitioner in that

case was being deported for “a status or condition (‘psychopathic

27 personality’)” that he was determined to have possessed at the time

of his entry, rather than for conduct engaged in after his entry).

28

1 certainly could be construed to encompass innumerable grounds for

2 ineligibility, the consular officer here did not apply the statute

3 because Asencio-Cordero might incidentally partake in jaywalking,

4 or any other potentially unreasonable grounds for denial of entry.

5 Instead, the officer found Asencio-Cordero inadmissible under §

6 1182(a)(3)(A)(ii) because the officer determined that Asencio-

7 Cordero was a member of MS-13, a recognized transnational criminal

8 organization known for posing a threat to the safety and security

9 of U.S. citizens. See also 9 FAM 302.5-4(B)(2) (listing MS-13 as

10 a criminal organization whose members are ineligible for visas

11 under § 1182(a)(3)(A)(ii)); U.S. Department of Treasury, Treasury

12 Sanctions Latin American Criminal Organization (Oct. 11, 2012),

13 available at http://www.treasury.gov/press-center/press-releases/

14 pages/tg1733.aspx (press release announcing designation of MS-13

15 as a transnational criminal organization, and characterizing MS-13

16 as “an extremely violent and dangerous gang responsible for a

17 multitude of crimes that directly threaten the welfare and security

18 of U.S. citizens”);20 United States v. Lopez, 957 F.3d 302, 304

19 (1st Cir. 2020) (referencing the “notorious criminal gang,

20 famously known as MS-13”); Solomon-Membreno v. Holder, 578 F. App’x

21 300, 302 n.2 (4th Cir. 2014) (“The plague that is MS–13 . . . has

22 made significant inroads into the United States. A complete list

23

20 The treasury secretary’s designation was made pursuant to

24

Executive Order 13581, which defines a “transnational criminal

25 organization” as one that, among other things, “engages in an

ongoing pattern of serious criminal activity involving the

26 jurisdictions of at least two foreign states” and “threatens the

national security, foreign policy, or economy of the United

27 States.” Exec. Order No. 13581, 76 Fed. Reg. 44,757 (July 24,

2011).

28

1 of federal criminal cases involving MS–13 members would be pro-

2 hibitively long. A cursory sample, however, reveals something of

3 the breadth of the gang’s criminal activity.”) (collecting cases).

4 A person of average intelligence would reasonably understand that

5 membership in such an organization would imply an engagement in

6 unlawful activity, at the very least, and thus render him

7 ineligible for entry under § 1182(a)(3)(A)(ii). See United States

8 v. Williams, 441 F.3d 716, 724 (9th Cir. 2006) (“In examining a

9 statute for vagueness, we must determine whether a person of

10 average intelligence would reasonably understand that the charged

11 conduct is proscribed.”). Moreover, even though the officer’s

12 determination on this point basically requires a prediction of

13 future unlawful conduct, and does not depend on whether the

14 applicant has a criminal record, that does not render the statute

15 unconstitutionally vague. See Kashem, 941 F.3d at 364 (noting

16 challenged provisions are “not impermissibly vague merely because

17 they require a prediction of future criminal conduct”) (citations

18 omitted); see also Schall v. Martin, 467 U.S. 253, 279 (1984) (“[A]

19 prediction of future criminal conduct is ‘an experienced prediction

20 based on a host of variables’ which cannot be readily codified.”)

21 (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 16 (1979)).

22

23 Because Plaintiffs have not demonstrated that the statute is

24 vague as applied, their vagueness claim merits dismissal. See

25 Kashem, 941 F.3d at 364 (“Because we conclude the [challenged

26 provisions] are not vague as applied, we decline to reach the

27 plaintiffs’ facial vagueness challenges.”) (citing Hoffman

28 Estates, 455 U.S. at 495).

1 CONCLUSION

2

3 For the reasons stated above, the Court GRANTS Defendants’

4 Motion for Summary Judgment and DENIES Plaintiffs’ Motion.

5 Judgment shall be entered against Plaintiffs on all claims.

6

7 LET THE JUDGMENT BE ENTERED ACCORDINGLY

8

9 DATED: March 18, 2021

10

/s/ __________

11 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

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