Rivas v. Napolitano

Under the Mandamus Act and 22 C.F.R. § 42.81(e), a federal court has subject matter jurisdiction to review a consular refusal to reconsider an application for an immigrant visa when the request was properly submitted and included evidence that tended to disprove the grounds for refusal.

Rivas applied for an immigrant visa pursuant to an approved I-130 petition filed by his daughter. The U.S. Consulate in Mexico denied Rivas’s application. Rivas then (1) reapplied using Form I-601 and (2) requested reconsideration of the application denial. The district court dismissed the case on the grounds that it lacked subject matter jurisdiction. With respect to the I-601 Reapplication, the Ninth Circuit noted, “Federal courts are generally without power to review the actions of consular officials” and “neither of exceptions to the doctrine of consular nonreviewability appl[ied] to Rivas’s Form I-601.” The Court also noted that consulate had a “facially legitimate and bona fide reason” to reject the application because Rivas purportedly admitted to violating certain provisions of the Immigration and Nationality Act. With regard to the request for reconsideration, the Court noted that 22 C.F.R. § 42.81(e) “imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility.” The Court reasoned that this created subject matter jurisdiction for federal courts under the Mandamus Act and that the reconsideration may be compelled under the Administrative Procedure Act. Finally, the Court noted that Rivas’s request for reconsideration was accompanied by evidence that he had been arrested for violations of the INA but not convicted. The Ninth Circuit held that district court had subject matter jurisdiction to determine if Rivas’s admission was only to an arrest and, if so, to require the consulate to reconsider its denial of Rivas’s application. AFFIRMED in part, VACATED in part, and REMANDED.