## Facts

- Alma Lupe Bustamante, a U.S. citizen residing in Arizona, married Jose Jesus Bustamante, a Mexican citizen residing in Sonora, Mexico.
- Jose long commuted into the United States using a border-crossing card.
- Alma filed an immediate-relative petition, and Jose applied for an immigrant visa at the U.S. consulate in Ciudad Juarez.
- A consular officer refused Jose’s visa under 8 U.S.C. § 1182(a)(2)(C), stating there was “reason to believe” Jose was an illicit drug trafficker, and declined to disclose the underlying information.
- DEA officials allegedly asked Jose to become an informant and suggested his immigration problems would be resolved if he cooperated; Jose refused.
- The visa was denied and Jose’s border-crossing privileges were revoked; a later letter reiterated the § 1182(a)(2)(C) “reason to believe” basis.
- The Bustamantes sued federal officials and agencies, alleging the denial was unlawful and violated Alma’s due process rights by preventing them from living together in the United States.

## Issues

1. Whether a U.S. citizen spouse has a constitutionally protected liberty interest implicated by the denial of her spouse’s visa sufficient to permit limited judicial review despite consular nonreviewability.
2. Whether the government identified a facially legitimate and bona fide reason for the denial, insulating the decision from further judicial inquiry.

## Decision

- The Ninth Circuit affirmed dismissal in favor of the government.
- The court held that a citizen spouse’s liberty interest in marriage is implicated by a spouse’s visa denial, permitting only highly constrained review.
- The court concluded the consular officer provided a facially legitimate and bona fide reason by citing § 1182(a)(2)(C) and stating he had “reason to believe” Jose was a drug trafficker.
- Because the complaint did not plausibly allege bad faith by the consular officer in relying on the information supporting inadmissibility, the court refused to look behind the stated reason or require disclosure of underlying evidence.

## Legal Principles

- Consular officers’ visa denials are ordinarily not subject to judicial review (consular nonreviewability).
- When a U.S. citizen plausibly alleges infringement of her own constitutional rights, a court may conduct limited review under the Mandel standard.
- Under Mandel, review is confined to whether the government acted on the basis of a facially legitimate and bona fide reason; absent a sufficient allegation of bad faith, courts will not probe the evidentiary basis for the consular determination.
- A consular officer’s citation to a specific statutory ground of inadmissibility, including 8 U.S.C. § 1182(a)(2)(C)’s “reason to believe” drug-trafficking provision, is facially legitimate; the inquiry ends unless bad faith is adequately alleged.

## Conclusion

The Ninth Circuit recognized a citizen spouse’s due process interest in marriage as sufficient to trigger only minimal judicial review of a visa denial, and it upheld the denial because the government invoked a specific inadmissibility statute and the complaint did not allege the consular officer acted in bad faith.


Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008)