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Cardenas v. U.S., June 21, 2016 - "A consular officer denied the visa application of Rolando Mora-Huerta, a Mexican national, on the ground that he was a “gang associate” who intended to enter the United States to engage in unlawful conduct. See 8 U.S.C. § 1182(a)(3)(A)(ii). This suit, by Mora’s wife, Madeline Cardenas, a United States citizen, attacks the consular officer’s decision. The district court dismissed Cardenas’ complaint for failure to state a claim.
The critical issue on appeal is the standard of judicial review applicable to the visa denial. In Kleindienst v. Mandel, the Supreme Court explained that judicial review of a denial that implicates a constitutional right is limited to ensuring that the decision was supported by a “facially legitimate and bona fide reason.” 408 U.S. 753, 770 (1972). But, because that standard “is used relatively infrequently,” its precise meaning has long been “elusive.” Marczak v. Greene, 971 F.2d 510, 517 (10th Cir. 1992). The Supreme Court again addressed the issue in Kerry v. Din, 135 S. Ct. 2128 (2015), but was unable to agree on a single rationale for denying relief. We hold today that, under Marks v. United States, 430 U.S. 188, 193 (1977), and our recent en banc decision in United States v. Davis, No. 13-30133 (9th Cir. June 13, 2016), Justice Kennedy’s concurrence in Din is the controlling opinion. Applying that opinion, we affirm the district court’s dismissal of Cardenas’ complaint."