Sandra Munoz et al v. United States Department of State et al
Filing
82
MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. The Court finds that Plaintiffs are entitled to limited discovery in support of their claims. (See Order for complete details) (afe)
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
SANDRA MUÑOZ and LUIS ERNESTO
ASENCIO-CORDERO,
CASE NO. CV 17-0037 AS
12
Plaintiffs,
13
v.
MEMORANDUM OPINION AND ORDER
14
15
UNITED STATES DEPARTMENT OF
STATE, et al.,
Defendants.
16
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”); Mike Pompeo, the U.S. Secretary of
23
State;
24
Salvador, El Salvador,1 challenging the denial of Asencio’s visa
25
26
27
28
1
and
Brendan
O’Brien,
the
U.S.
Consul
General
in
San
The Complaint originally named John F. Kerry as U.S.
Secretary of State and Mark Leoni as U.S. Consul General. Mike
Pompeo, the current U.S. Secretary of State, and Brendan O’Brien,
Consul General at the U.S. Embassy in Sal Salvador, are substituted
for their predecessors. Fed. R. Civ. P. 25(d).
1
application.
2
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
9
unconstitutionally
(Dkt. No. 1).
Five);
and
(6)
The Complaint raises six causes of
8
vague
U.S.C.
(Count
§
Six).
1182(a)(3)(A)(ii)
(Compl.
¶¶
is
34-51).
10
Plaintiffs seek a declaration that the DOS’s reason for denying
11
Asencio’s
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).
visa
application
was
not
bona
fide
and
8
U.S.C.
16
17
On September 11, 2018, after the Court had denied Defendants’
18
Motion to Dismiss (Dkt. Nos. 37, 47) and Plaintiffs’ Motion for
19
Judgment on the Pleadings (Dkt. Nos. 52, 49), the parties filed a
20
Joint Rule 26(f) Report and Case Management Conference Statement
21
(Dkt. No. 65).
22
whether Plaintiffs are entitled to take any discovery.
23
contend that because “Defendants have now provided Plaintiffs with
24
a bona fide factual reason for denying Mr. Asencio-Cordero’s visa,”
25
“discovery is [not] warranted or necessary to resolve the issues
26
in this case.”
27
the
28
Plaintiff
parties,
is
In the Rule 26(f) Report, the parties disagree
(Dkt. No. 65 at 9).
the
Court
entitled
ordered
to
2
After hearing arguments from
further
conduct
Defendants
briefing
discovery
on
relating
“whether
to
the
1
following issues: the facts in the record on which the Consular
2
Officer based the decision to deny Mr. Asencio-Cordero’s immigrant
3
visa application; and whether the denial of Mr. Asencio-Cordero’s
4
immigrant visa application was in bad faith.”
5
November 9, 2018, Defendants filed their Supplemental Brief. (Dkt.
6
No. 76).
7
No. 77).
(Dkt. No. 66).
Plaintiffs filed a Response on November 30, 2018.
On
(Dkt.
8
9
The Court finds this issue appropriate for resolution without
10
an additional hearing.
11
below, the Court grants Plaintiffs the authority to conduct limited
12
discovery.
L.R. 7-15.
For the reasons discussed
13
14
BACKGROUND
15
16
Asencio is a native and citizen of El Salvador, who arrived
(Compl. ¶ 15).2
17
in the United States in March 2005.
18
he married Muñoz, who is a U.S. citizen by birth.
19
April
20
immigration visa with the DOS, based on the approved immigrant
21
relative petition that Muñoz filed.
22
Asencio had an initial interview with the U.S. Consulate in El
23
Salvador.
24
being associated with a criminal gang.
25
evidence from Humberto Guizar, an expert witness, finding that
2015,
Asencio
(¶ 19).
departed
the
United
States
(¶¶ 3, 18).
In July 2010,
(¶ 16).
to
pursue
In
an
In May 2015,
Asencio has multiple tattoos but denied ever
(¶¶ 20-21).
He submitted
26
2
27
28
Unless otherwise noted, all citations to Plaintiffs’
factual allegations are to the relevant paragraph numbers in the
Complaint. (Dkt. No. 1).
3
1
Asencio was “not a gang member nor does he have any tattoos that
2
are representative of any known criminal street gang.”
3
Guizar, an attorney and a court-approved gang expert, declared
4
after reviewing photographs of all Asencio’s tattoos that “Asencio
5
does not have any tattoos that are representative of the Mara
6
Salvatruchas gang [(MS-13)] or any other known criminal street
7
gang” in either El Salvador or the United States.
8
Ex. M (Guizar Decl.) at ¶¶ 1, 7-9).
9
is not a gang member, nor is there anything that I am aware of that
(¶ 21).
(Dkt. No. 77-1,
Guizar concluded that “Asencio
10
can reasonably link him to any known criminal organization.”
11
¶ 10).
(Id.
12
13
On or about December 28, 2015, the Consular Section denied
14
Asencio’s visa application. (Compl. ¶ 20).
15
lawful permanent residence status on the grounds that he was
16
inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(A)(ii), which states
17
that “[a]ny alien who a consular officer or the Attorney General
18
knows, or has reasonable ground to believe, seeks to enter the
19
United
20
in . . . any other unlawful activity” is ineligible to receive a
21
visa and is ineligible to be admitted to the United States. (¶ 22).
States
to
engage
solely,
Asencio was denied
principally,
or
incidentally
22
23
Muñoz contacted Congresswoman Judy Chu, who sent a letter on
24
Muñoz’s behalf to the DOS on January 20, 2016.
25
Landon R. Taylor responded to Chu’s letter on January 21, 2016,
26
citing § 1182(a)(3)(A)(ii), but provided no specific facts for
27
finding Asencio inadmissible. (¶ 24). In April 2016, the Consulate
28
forwarded the case to the immigration visa unit for review. (¶ 26).
4
(¶ 23).
Consul
1
On April 13, 2016, Taylor reported to Plaintiffs: “the finding of
2
ineligibility
3
concurred with the consular officer’s decision.
4
our Immigration Visa Unit took another look at this case, but did
5
not change the decision.”
6
Office of Inspector General, requesting that a reason be given for
7
the inadmissibility decision.
8
Parker, the DOS’s Chief of the Outreach and Inquiries Division of
9
Visa Services, responded merely that the DOS “concurred in the
10
for
[Asencio]
was
reviewed
(¶ 28).
finding of ineligibility.”
by
the
[DOS],
which
Per your request,
Plaintiffs wrote to the DOS’s
(¶ 30).
On May 18, 2016, Christine
(¶ 33).
11
12
In the parties’ Rule 26(f) Report, Defendants assert – for
13
the first time – that “the consular officer who denied Mr. Asencio-
14
Cordero’s
15
Asencio-Cordero was a member of known criminal organization.”
16
(Dkt. No. 65 at 4).
17
a declaration by Matt McNeil, an attorney advisor at DOS, who
18
reviewed DOS’s electronic database concerning the immigrant visa
19
application filed by Muñoz on behalf of Asencio.
20
(McNeil Decl.) at ¶¶ 1-2). The database indicates that the consular
21
officer denied Asencio’s immigrant visa application “based on the
22
in-person interview, a criminal review of Mr. Asencio-Cordero, and
23
a review of the [sic] Mr. Asencio-Cordero’s tattoos.”
24
The consular officer “determined that Mr. Asencio-Cordero was a
visa
application
did
so
after
determining
that
Mr.
In their Supplemental Brief, Defendants filed
25
26
27
28
5
(Dkt. No. 76-1
(Id. ¶ 3).
1
member of a known criminal organization identified in 9 FAM 302-5-
2
4(b)(2), specifically MS-13.”3
(Id.).
3
4
STANDARD OF REVIEW
5
6
Under amended Rule 26(b), the scope of permissible discovery
7
is subject to a proportionality requirement.
8
obtain
9
relevant to any party’s claim or defense and proportional to the
10
needs of the case, considering the importance of the issues at
11
stake in the action, the amount in controversy, the parties’
12
relative access to relevant information, the parties’ resources,
13
the importance of the discovery in resolving the issues, and
14
whether the burden or expense of the proposed discovery outweighs
15
its
16
proportionality requirement “is designed to avoid . . . sweeping
17
discovery
18
litigation .”
19
No. CV 16-8962, 2017 WL 5641120, at *5 (C.D. Cal. Sept. 21, 2017).
20
Nevertheless, relevant information “need not be admissible in
21
evidence to be discoverable.”
22
“[r]elevance for purposes of discovery is defined very broadly.”
23
Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998).
discovery
likely
regarding
benefit.”
that
is
any
Fed.
untethered
R.
to
Thus, “[p]arties may
nonprivileged
Civ.
the
P.
claims
matter
that
26(b)(1).
and
is
This
defenses
in
Mfg. Automation & Software Sys., Inc. v. Hughes,
Fed. R. Civ. P. 26(b)(1).
In fact,
The
24
25
26
27
28
3
The Foreign Affairs Manual (FAM) “is published by the
Department of State and . . . contains the functional statements,
organizational responsibilities, and authorities of each of the
major components of the U.S. Department of State, including
Consular Officers.” Sheikh v. U.S. Dep’t of Homeland Sec., 685 F.
Supp. 2d 1076, 1090 (C.D. Cal. 2009).
6
1
party opposing discovery is “required to carry a heavy burden of
2
showing why discovery [should be] denied.”
3
Corp., 519 F.2d 418, 429 (9th Cir. 1975); accord Hsingching Hsu v.
4
Puma Biotechnology, Inc., No. 15 CV 0865, 2018 WL 4951918, at *4
5
(C.D. Cal. June 27, 2018).
6
discretion” to determine relevancy for discovery purposes.
7
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citation and
8
alteration omitted).
Blankenship v. Hearst
Further, district courts have “broad
See
9
10
DISCUSSION
11
12
“Although the Constitution contains no direct mandate relating
13
to immigration matters, the Supreme Court has long recognized that
14
the political branches of the federal government have plenary
15
authority to establish and implement substantive and procedural
16
rules governing the admission of aliens to this country.”
17
Nelson, 727 F.2d 957, 964 (11th Cir. 1984), aff’d, 472 U.S. 846
18
(1985).
19
sovereignty.
20
power but is inherent in the executive power to control the foreign
21
affairs of the nation.”
22
U.S. 537, 542 (1950).
23
character of the [Immigration and Nationality Act (INA)] vastly
24
restricts the area of potential executive freedom of action, and
25
the courts have repeatedly emphasized that the responsibility for
26
regulating the admission of aliens resides in the first instance
27
with Congress.”
28
existence of inherent executive power over immigration and the
“The
exclusion
of
aliens
is
a
fundamental
Jean v.
act
of
The right to do so stems not alone from legislative
U.S. ex rel. Knauff v. Shaughnessy, 338
“In practice, however, the comprehensive
Jean, 727 F.2d at 965.
7
“Thus, as a result of the
1
broad
2
separation-of-powers doctrine places few restrictions on executive
3
officials in dealing with aliens who come to this country in search
4
of admission or asylum.”
5
has
6
admission
7
characteristics which Congress has forbidden.”
8
Mandel,
9
Congress
delegations
sustained
of
408
of
discretionary
Id. at 967.
Congress’
aliens
U.S.
plenary
and
753,
delegates
authority
to
766
this
exclude
plenary
the
INA,
the
“The Court without exception
power
(1972)
in
to
make
those
who
(citation
power
to
rules
for
possess
the
those
Kleindienst v.
omitted).
the
“When
Executive,
the
shielded
from
10
Executive’s
11
administrative or judicial review.”
12
F.3d
13
(“Whatever the procedure authorized by Congress is, it is due
14
process as far as an alien denied entry is concerned.”).
829,
decisions
834
(9th
are
Cir.
likewise
2016);
generally
Andrade–Garcia v. Lynch, 828
see
Knauff,
338
U.S.
at
544
15
16
Nevertheless, the Government’s plenary power “does not mean
17
that it is wholly immune from judicial review.”
18
975; see Hazama v. Tillerson, 851 F.3d 706, 708 (7th Cir. 2017)
19
(“the Court has never entirely slammed the door shut on review of
20
consular
21
decisions of executive officials in the immigration area are . . .
22
subject to judicial review, . . . the scope of that review is
23
extremely limited.”
24
793 n.5 (1977) (“Our cases reflect acceptance of a limited judicial
25
responsibility under the Constitution . . . with respect to the
26
power of Congress to regulate the admission and exclusion of
27
aliens . . . .”); Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21
28
(1976) (“the power over aliens is of a political character and
decisions
on
visas”).
While
Jean, 727 F.2d at
“[t]he
discretionary
Id. at 976; see Fiallo v. Bell, 430 U.S. 787,
8
1
therefore subject only to narrow judicial review”).
2
context of denying a visa application, a court must “limit[ ] its
3
inquiry to the question whether the Government had provided a
4
‘facially legitimate and bona fide’ reason for its action.”
5
v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring);
6
see Mandel, 408 U.S. at 770 (“We hold that when the Executive
7
exercises
8
legitimate and bona fide reason, the courts will neither look
9
behind the exercise of that discretion, nor test it by balancing
10
its justification against the First Amendment interests of those
11
who
12
generally Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir.
13
2006) (“The [Government] abused its discretion in denying parole
14
[to any asylum applicant] because the reasons it provided were not
15
facially legitimate and bona fide.”); see also Cardenas v. United
16
States, 826 F.3d 1164, 1171-72 (9th Cir. 2016) (determining that
17
the Kennedy concurrence in Din “represents the holding of the
18
Court”).
seek
this
power
personal
negatively
communication
on
the
with
basis
the
Thus, in the
of
a
Kerry
facially
applicant.”);
see
19
20
Din laid out a two-part test for determining whether the
21
denial of a visa provides the “facially legitimate and bona fide
22
reason” required by Mandel.
23
the visa under a valid statute of inadmissibility.”
24
F.3d
25
admissibility statute that ‘specifies discrete factual predicates
26
the consular officer must find to exist before denying a visa,’ or
27
there must be a fact in the record that ‘provides at least a facial
28
connection to’ the statutory ground of inadmissibility.”
at
1172.
“Second,
“First, the consular officer must deny
the
consular
9
officer
Cardenas, 826
must
cite
an
Id.
1
(quoting Din, 135 S. Ct. at 2141).
2
officer’s
3
demonstrate that the visa denial relied on a valid statute of
4
inadmissibility,
5
§ 1182(a)(3)(A)(ii)
6
predicates” necessary to deny a visa because the statute merely
7
precludes admission, without further edification, to an alien who
8
a consular officer “knows, or has reasonable ground to believe,
9
seeks to enter the United States to engage . . . in . . . any other
citation
10
unlawful activity.”
11
to
the
Here, while the consular
§ 1182(a)(3)(A)(ii)
Court
does
not
previously
provide
the
was
sufficient
determined
“discrete
to
that
factual
59 at 11-12).4
8 U.S.C. § 1182(a)(3)(A)(ii); (see Dkt. No.
12
13
Defendants contend that there are now facts in the record that
14
provide a facial connection to the inadmissibility determination
15
under § 1182(a)(3)(A)(ii).
16
consular officer’s mere conclusion that Asencio is a member of MS-
(Dkt. No. 76 at 8-10).
However, the
17
18
19
20
21
22
23
24
25
26
27
28
4
In its Supplemental Brief, Defendants contend that the
Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392
(2018), makes clear that a citation to a valid statute of
inadmissibility alone satisfies Din’s “facially legitimate and bona
fide” standard. (Dkt. No. 76 at 6-8). The Court finds Defendants’
arguments unavailing.
In dicta, the Hawaii Court provided a
limited summary of the Supreme Court’s ruling in Din, stating that
“the Government need provide only a statutory citation to explain
a visa denial.” 138 S. Ct. at 2419. However, the Hawaii Court
cited the very page in Din where the Supreme Court explicitly noted
that the consular officer must either cite an inadmissibility
statute that specifies discrete factual predicates or there must
be a fact in the record that provides at least a facial connection
to the statutory ground of inadmissibility. Id. (citing Din, 135
S. Ct. at 2141). Further, there is no indication in Hawaii that
the Supreme Court intended to overrule Din. Indeed, no court has
concluded that Hawaii overruled either Din or the Ninth Circuit’s
opinion in Cardenas, which carefully summarized the Din decision.
10
1
13 is unsupported by any evidence or discrete fact in the record
2
that provides at least a facial connection to the ground of
3
inadmissibility.
4
“based
5
Asencio-Cordero, and a review of Mr. Asencio-Cordero’s tattoos,”
6
do not, by themselves, provide any facts in the record to provide
7
a facial connection to the consular officer’s “reason to believe”
8
that Asencio seeks to enter the United States to engage in unlawful
9
activity. To the contrary, Asencio does not have a criminal record.
on
the
That the consular officer’s determination was
in-person
interview,
a
criminal
review
of
Mr.
10
(Dkt. No. 77 at 6 & Ex. B; see Guizar Decl. ¶ 8).
11
existence of random tattoos does not provide a facial connection
12
to MS-13 or other gang membership.
13
courts have found that the Government’s denial of an immigrant visa
14
was bona fide, the record has included discrete facts supporting
15
the denial – not mere conclusions.
16
Nielsen, 877 F.3d 289, 295-96 (7th Cir. 2017), reh’g denied (Jan.
17
26,
18
precludes admissibility for an alien who fraudulently or willfully
19
misrepresents a material fact, and the plaintiff acknowledged in
20
her consular interview that she omitted material information);
21
Morfin v. Tillerson, 851 F.3d 710, 711 714 (7th Cir. 2017), cert.
22
denied, No. 17-98, 2017 WL 3136962 (U.S. Oct. 30, 2017) (alien
23
previously
24
distribute);
25
decision to deny alien’s visa application on ground that alien
26
previously engaged in terrorist acts was facially legitimate and
27
bona fide, as the record contained undisputed facts that when alien
28
was 13 years old he threw rocks at armed Israeli soldiers); Allen
2018)
(consular
indicted
Hazama,
officer
for
851
In multiple other cases where
cited
possessing
F.3d
at
11
And the mere
See, e.g., Matushkina v.
§
1182(a)(6)(C)(i),
cocaine,
709-10
with
(consular
which
intent
to
officer’s
1
v. Milas, No. 15 CV 0705, 2016 WL 704353, at *3 (E.D. Cal. Feb.
2
23, 2016), aff’d 896 F.3d 1094 (9th Cir. 2018) (“[T]he consular
3
office determined that she was ineligible for a visa . . . because
4
she was convicted in a German court of theft . . . [and] for illicit
5
acquisition of narcotics.”); Santos v. Lynch, No. 15 CV 0979, 2016
6
WL
7
officer . . .
8
visas . . . because they lived unlawfully in the United States for
9
a period exceeding 1 year”); Sidney v. Howerton, 777 F.2d 1490,
3549366,
at
*4
(E.D.
determined
Cal.
that
June
29,
[aliens]
2016)
were
(“consular
ineligible
for
10
1491–92
11
contention that one of its reasons for denying Sidney’s release
12
request was that Sidney’s track record indicated a likelihood that
13
he would abscond”); see also Yafai v. Pompeo, 912 F.3d 1018, 1027-
14
28 (7th Cir. 2019) (summarizing cases and noting that “[i]n each
15
case, . . . we also went past the statutory citations and took
16
notice
17
inadmissibility”) (Ripple, J., dissenting); Amanullah v. Nelson,
18
811 F.2d 1, 11 (1st Cir. 1987) (“We thus scrutinize the record to
19
ascertain whether Cobb advanced a facially legitimate and bona fide
20
reason for withholding parole from these appellants.”).
(11th
of
Cir.
the
1985)
evidence
(“the
Record
supporting
supports
the
stated
the
INS’[s]
ground
for
21
22
The State Department’s policies and procedures suggest that
23
the consular official should have provided Asencio with a more
24
thorough explanation for the visa denial.
25
the
26
believe” that Asencio was seeking to enter the United States to
27
engage in “unlawful activity,” apparently because he was suspected
28
of being a member of the MS-13 criminal gang.
consular
official’s
decision
12
was
The stated reason for
that
he
had
“reason
to
“The term ‘reason
1
to believe’ . . . shall be considered to require a determination
2
based upon facts or circumstances which would lead a reasonable
3
person to conclude that the applicant is ineligible to receive a
4
visa as provided in the INA and as implemented by the regulations.”
5
22 C.F.R. § 40.6; see generally Roman v. United States Dep’t of
6
State, No. 15 CV 0887, 2017 WL 1380039, at *1 (W.D. Mich. Mar. 27,
7
2017), report and recommendation adopted, No. 15 CV 0887, 2017 WL
8
1366504 (W.D. Mich. Apr. 14, 2017) (consular official noting that
9
“the ‘reason to believe’ standard refers to more than just mere
10
suspicion; it is a probability, supported by the facts, that the
11
alien is a member of an organized criminal entity”).
Moreover,
12
all
the
13
applicant “shall be considered by the [consular] officer.”
14
42.65(a).
15
not required to provide an explanation of an alien’s visa denial
16
if it is premised on the alien’s inadmissibility on criminal or
17
security-related grounds,” 8 U.S.C. § 1182(b)(3), DOS’s Foreign
18
Affairs
Manual
19
factual
basis
20
consular official “not to provide notice” or the consular official
21
“receive[s] permission from the [DOS] not to provide notice.”
22
FAM
23
includes
24
identifies a “fact that the applicant is a member of a known
25
criminal organization,” such as “the Mara Salvatrucha 13 (MS 13).”
26
9 FAM 302.5-4(B)(2)(a).
27
“must . . . submit a request for an advisory opinion.”
documentation
and
other
evidence
submitted
by
visa
Id. §
While the statute states that “a consular officer is
requires
for
the
consular
refusal”
504.11-3(A)(1)(b)-(c).
specific
The
requirements
officials
unless
the
Foreign
when
to
provide
DOS
Affairs
the
“[t]he
instructs
Manual
consular
the
9
also
official
In these circumstances, the official
28
13
Id.
1
Further, the consular officer’s conclusion was disputed by
2
the gang expert’s sworn declaration.
3
of alleged facts may not satisfy the “facially legitimate and bona
4
fide” standard where the visa applicant credibly disputes the
5
allegations.
6
that “the refusal to issue Ulloa a visa could be said to lack a
7
‘facially legitimate and bona fide reason’ (in Mandel’s words) if
8
the consular official had concluded that the indictment’s charges
9
were false, or if [the applicant] had presented strong evidence of
Sometimes even the existence
For example, in Morfin, the Seventh Circuit observed
10
innocence that the consular officer refused to consider.”
11
at 713-14.
12
undisputed record includes facts that would support that ground,
13
our task is over.”
14
Matushkina, 877 F.3d at 294; Khachatryan v. United States, No. CV
15
17 7503, 2018 WL 4629622, at *4 (D.N.J. Sept. 27, 2018); cf. Din,
16
135 S. Ct. at 2141 (it was undisputed that the applicant worked
17
for the Taliban); Bertrand v. Sava, 684 F.2d 204, 213 (2d Cir.
18
1982) (uncontroverted evidence indicates that the INS district
19
director
20
unadmitted aliens); Al Khader v. Pompeo, No. 18 CV 1355, 2019 WL
21
423141, at *5 (N.D. Ill. Feb. 4, 2019) (“the undisputed record
22
includes facts that support the consular officer’s determination”)
23
(emphasis added).
24
gang expert in state court and federal immigration court and is
25
“intimately familiar with tattoos that are commonly known as gang
26
tattoos,” opined that “none of the tattoos . . . on [Asencio’s]
27
body [are] of any currently known gang or criminal organization
28
known to exist in El Salvador or in the United States.”
851 F.3d
Similarly, in Hazama, the court noted that “if the
properly
851 F.3d at 709 (emphasis added); accord
exercised
discretion
in
denying
parole
to
Here, Guizar, an attorney who has appeared as a
14
(Guizar
1
Decl. ¶¶ 7-9).
2
member, nor is there anything that I am aware of that can reasonably
3
link him to any known criminal organization.”
4
a credible dispute exists as to whether Asencio is or ever has been
5
a member of MS-13.
6
refused to consider Asencio’s strong evidence that he was not.
7
Morfin, 851 F.3d at 713-14 (“the refusal to issue [the applicant]
8
a visa could be said to lack a ‘facially legitimate and bona fide
9
reason’ . . . if [the applicant] had presented strong evidence of
10
innocence that the consular officer refused to consider”); see also
11
Yafai, 912 F.3d at 1028 (Ripple, J., dissenting) (“the evidence
12
submitted by Mr. Yafai raises the distinct possibility that the
13
consular officer . . . never considered the evidence submitted”).
Indeed, Guizar asserted that “Asencio is not a gang
(Id. ¶ 10).
Thus,
Indeed, it appears that the consular officer
See
14
15
Accordingly, limited discovery is warranted to test whether
16
there is a fact in the record that provides a facial connection to
17
the statute at issue and, thus, whether the consular officer’s
18
stated “reason to believe” is facially legitimate and bona fide.
19
20
CONCLUSION
21
22
For
the
reasons
discussed
above,
the
Court
finds
that
23
Plaintiffs are entitled to limited discovery in support of their
24
claims.
25
by
26
official who refused the visa application of Asencio on or about
27
December 28, 2015, regarding the discrete facts in the record that
28
provide
Plaintiffs may seek a deposition - or a Rule 31 deposition
written
a
questions,
facial
if
Defendants
connection
to
15
prefer -
Asencio’s
of
the
consular
purported
MS-13
1
affiliation and the consular officer’s consideration of the gang
2
expert’s declaration.5
3
4
DATED: April 2, 2019
5
/S/
__________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
The parties may advise the Court of the necessity for a
hearing and/or telephonic conference to resolve any remaining
issues relating to discovery production by contacting the Courtroom
Deputy via telephone or email only after they have engaged in at
least two attempts to resolve the dispute without court
involvement.
See http://www.cacd.uscourts.gov/judges-schedulesprocedures.
16
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