9th Cir finds constitutional juris despite consular nonreviewability, but denies

by Chuck Roth

Bustamante v. Mukasey (9th Cir., July 9, 2008)
SILVERMAN Berzon Benitez (dct)

The 9th cir held that it had jurisdiction - notwithstanding the doctrine of consular nonreviewability - to review a consulate's action for alleged constitutional violations.  Accord, Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir. 1990); Burrafato v. United States Dep’t. of State, 523 F.2d 554, 556-57 (2d Cir. 1975); Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999).

The standard in such review is whether the agency gave a "facially legitimate and bona fide reason."

On the facts of the case - where the consulate said it had info from the DEA that the beneficiary was a drug dealer, and would only admit him if he became an informant for the DEA - the CtApp said that even if he wasn't a drug dealer, the consulate reasonably believed that he was. He would have had to allege that they didn't really believe that, or that the condition urged was illegal, before he could prevail.

Read the opinion here. 

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