### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1205

M OHSIN Y AFAI and Z AHOOR A HMED

, Plaintiffs

‐ Appellants

,

v.

M IKE P OMPEO

, Secretary of State, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16

‐ cv

‐ 09728

— Sara L. Ellis

, Judge

.

____________________

On Petition for Rehearing En Banc.

____________________

M AY 23, 2019

____________________

Before W OOD

, Chief Judge

, and F LAUM

, E ASTERBROOK

,

K ANNE

, R OVNER

, S YKES

, H AMILTON

, B ARRETT

, B RENNAN

,

S CUDDER

, and S T

. E VE

, Circuit Judges

.

P ER C URIAM

. On February 15, 2019, plaintiffs

‐ appellants

filed a petition for rehearing and rehearing en banc. The panel

voted to deny rehearing, and a majority of the judges in active

service voted to deny rehearing en banc. Chief Judge Wood2 No. 18

‐ 1205

and Judges Rovner and Hamilton voted to grant rehearing en

banc. It is therefore ordered that the petition for rehearing and

for rehearing en banc is DENIED.No. 18

‐ 1205 3

B ARRETT

, Circuit Judge

, joined by F LAUM

, Circuit Judge

, respecting the denial of rehearing en banc. In the ordinary

course, it is unnecessary to say anything more about a case

once it becomes the law of the circuit. But three of our

colleagues, dissenting from the denial of rehearing en banc,

have published an opinion that does more than just repeat the

arguments already made by the panel dissent. These new

points merit a response, lest it appear that the court did not

consider them in deliberating whether to rehear the case. It is

also important to clearly reject any implication that the

panel’s opinion in Yafai v. Pompeo endorses a system in which

the executive branch is free to deny visa applications on the

basis of bias or whim.

Yafai is about the amount of explanation that a consular

official must provide when he denies a visa application that

affects the constitutional right of an American citizen. The

Supreme Court has held that, absent a showing of bad faith, a

consular officer need only cite to a statute under which the

application is denied. See Kerry v. Din

, 135 S. Ct. 2128 (2015)

(Kennedy, J., concurring); Trump v. Hawaii

, 138 S. Ct. 2392,

2419 (2018). The officer in Yafai did that, but our dissenting

colleagues would require more. They are not alone in

pressing that argument: Supreme Court justices have made

the same point in dissents from the controlling cases. The

Court has repeatedly rejected it, however, so we are required

to reject it too.

* * *

The panel opinion provides a more thorough discussion

of the facts, see Yafai v. Pompeo

, 912 F.3d 1018 (7th Cir. 2019),

but we provide an abbreviated version here. Mohsin Yafai

and Zahoor Ahmed were born, raised, and married in Yemen.4 No. 18

‐ 1205

Yafai became a naturalized United States citizen in 2001.

Several years later when Ahmed applied to become a citizen,

a consular officer denied her visa application. The officer

based the denial on attempted smuggling under 8 U.S.C.

§ 1182(a)(6)(E), which provides that “[a]ny alien who at any

time knowingly has encouraged, induced, assisted, abetted,

or aided any other alien to enter or to try to enter the United

States in violation of law is inadmissible.” The consular officer

both cited to the statute and provided the factual basis for the

decision: “You attempted to smuggle two children into the

United States using the identities Yaqub Mohsin Yafai and

Khaled Mohsin Yafai.”

Yafai and Ahmed requested that the consular officer

reconsider his decision. They said that Yaqub and Khaled

were their children but that both had tragically drowned. The

consular officer agreed to reconsider the application and

requested that Ahmed provide additional documents about

the children. While the decision was still pending, the officer

wrote in an email to Yafai and Ahmed’s attorney that “your

clients do not testify credibly, testify contradictorily, deny the

existence of evidence, and otherwise cast doubt on the

accuracy of their responses.” The officer later reaffirmed the

visa denial for attempted smuggling under § 1182(a)(6)(E).

Yafai and Ahmed subsequently filed suit challenging the

denial under the Declaratory Judgment Act and the

Administrative Procedure Act. They did not contend that the

officer’s decision resulted from racial, religious, political, or

any other kind of bias. Instead, their claim sounds in

procedural due process: they maintained that the officer

could not deprive Yafai of his liberty interest in bringing hisNo. 18

‐ 1205 5

wife to America absent a more detailed explanation for why

she is inadmissible.

Everyone agrees that due process is satisfied if the

consular officer provides a “facially legitimate and bona fide”

reason for his decision. See Kleindienst v. Mandel

, 408 U.S. 753,

770 (1972). The dispute is about what it takes to satisfy this

standard. Our dissenting colleagues maintain that a consular

officer must provide more than a citation to a statutory basis

for the denial; in their view, the officer must also be able to

point to some factual support for his decision. Unfortunately,

that argument is foreclosed by Supreme Court precedent.

Mandel provides the foundational rule: it holds that when

the executive offers a “facially legitimate and bona fide

reason” for denying a visa, courts will not “look behind the

exercise of that discretion.” Id. The Court reached this result

over the dissent’s protest that “[t]here is no basis in the

present record for concluding that Mandel’s behavior”

violated the statutory provision that the Attorney General

cited as the basis for Mandel’s exclusion. Id. at 778 (Marshall,

J., dissenting); see also id. (“[W]ithout even remanding for a

factual hearing to determine whether there is any support for

the Attorney General’s determination, the majority declares

that his reason is sufficient to override the appellees’

[constitutional] interests.”). This is the very same argument

that our dissenting colleagues make here: they argue that the

consular officer’s decision lacks any basis in the record and

that he must be able to identify evidentiary support for it.

Dissenting Op. at 21–22. Whatever the virtues of that position,

we are not at liberty to embrace it. We are bound by the

Court’s opinion in Mandel

, which held that the Attorney6 No. 18

‐ 1205

General was not required to identify the factual support for

his decision that Mandel was ineligible for admission.

If Mandel were not clear enough, Din dispels any doubt

about the applicable standard. In Din

, the petitioner

contended that the State Department violated her due process

right by denying her spouse’s visa application with no more

explanation than a citation to a statute prohibiting the

issuance of visas to those who have engaged in terrorist

activities. See Din

, 135 S. Ct. at 2139 (Kennedy, J., concurring).

Justice Kennedy’s concurrence explains:

Here, the consular officer’s determination that

Din’s husband [Berashk] was ineligible for a

visa was controlled by specific statutory factors.

The provisions of § 1182(a)(3)(B) establish

specific criteria for determining terrorism

‐

related inadmissibility. The consular officer’s

citation of that provision suffices to show that

the denial rested on a determination that Din’s

husband did not satisfy the statute’s

requirements. Given Congress’ plenary power

to “suppl[y] the conditions of the privilege of

entry into the United States,” United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), it

follows that the Government’s decision to

exclude an alien it determines does not satisfy

one or more of those conditions is facially

legitimate under Mandel

.

The Government’s citation of § 1182(a)(3)(B)

also indicates it relied upon a bona fide factual

basis for denying a visa to Berashk.No. 18

‐ 1205 7

Id. at 2140–41. This statement thus rejects the precise

argument that the dissenters advance here: that a consular

officer must do more than simply cite to a statute whose

provisions refer to discrete factual predicates. Justice

Kennedy could not be clearer that the statutory citation alone

suffices to show that the consular officer’s decision was both

facially legitimate and bona fide.

Just last year, the Supreme Court described Justice

Kennedy’s interpretation of Mandel as the one to which it has

long subscribed:

[O]ur opinions have reaffirmed and applied

[ Mandel ’s] deferential standard of review across

different contexts and constitutional claims. In

Din, Justice Kennedy reiterated that “respect for

the political branches’ broad power over the

creation and administration of the immigration

system” meant that the Government need

provide only a statutory citation to explain a

visa denial.

Trump v. Hawaii

, 138 S. Ct. at 2419 (citation omitted). The

dissenters dismiss this passage, arguing that it

misunderstands what Justice Kennedy said. But we are not

free to treat the Court’s understanding of either Mandel or

Justice Kennedy’s opinion so lightly. And in any event, the

Court’s explanation of Justice Kennedy’s approach is

accurate.

In arguing that the Court misunderstood Justice

Kennedy’s concurrence, the dissenters reason that while

Justice Kennedy may have said that a statutory citation is

sufficient, the circumstances of Din show otherwise. They rely8 No. 18

‐ 1205

on Justice Kennedy’s observation that Din admitted in her

complaint that Berashk worked for the Taliban government.

See Din, 135 S. Ct. at 2141 (Kennedy, J., concurring) (“Din,

moreover, admits in her Complaint that Berashk worked for

the Taliban, which even if itself insufficient to support

exclusion, provides at least a facial connection to terrorist

activity.”). The dissenters take from this statement that Justice

Kennedy treated the statutory citation as sufficient only

because “[t]here can be no doubt that the government’s

reliance on the statutory terrorism bar encompassed Din’s

admission that Berashk worked for the Taliban.” Dissenting

Op. at 25

.

There are a number of problems with the dissenters’ effort

to graft Din’s admission onto the test that Justice Kennedy

applied. Most significantly, Justice Kennedy himself didn’t

make it part of the test. He said that citing a statute alone was

enough. And neither the Din dissenters nor the Court in

Trump v. Hawaii understood his concurrence to require

anything more than that. See id. at 2145 (Breyer, J., dissenting)

(describing Justice Kennedy’s position); Trump v. Hawaii

, 138

S. Ct. at 2419 (same). That is reason enough to reject the

dissenters’ position.

But even putting that aside, there was doubt about

whether Berashk’s low

‐ level administrative work for the

Taliban government was the basis for the visa denial. See Din

,

135 S. Ct. at 2145 (Breyer, J., dissenting) (“Perhaps the

Department denied the visa because Ms. Din’s husband at one

point was a payroll clerk for the Afghan Government when

that government was controlled by the Taliban. But there is no

way to know if that is so .” (emphasis added) (citation omitted)).

His government work would not have been enough toNo. 18

‐ 1205 9

disqualify him under the statute, so it was unclear whether

the officer judged Berashk’s work to be something more than

he said that it was or whether the officer thought that Berashk

had been involved in terrorist activity unrelated to his job.

And because the government’s explanation for denying

Berashk’s visa consisted of a citation to an umbrella statutory

provision—and not to a specific subsection within the

statute—Din had no idea what the government thought that

Berashk had done.

The Din dissenters protested that the government owed

Din more. The umbrella statutory citation “[did] not permit

Ms. Din to assess the correctness of the State Department’s

conclusion; it [did] not permit her to determine what kinds of

facts she might provide in response; and it [did] not permit

her to learn whether, or what kind of, defenses might be

available.” Id. at 2146. That argument did not move the

concurring justices, however, who maintained that “the

Government satisfied any obligation it might have had to

provide Din with a facially legitimate and bona fide reason

for its action when it provided notice that her husband was

denied admission to the country under § 1182(a)(3)(B).” Id. at

2141 (Kennedy, J., concurring). 1

1 We are unsure why our dissenting colleagues say that “[w]e know

from the two concurring Justices and the four dissenting Justices that the

Din Court had before it basic information about the factual predicates

underlying the consular officer’s decision.” Dissenting Op. at 25. Din

disclosed the fact of Berashk’s government job in the complaint that she

filed in the district court, and the United States offered no information

about the role that the job played—if any—in its decision. And even if it

were permissible for us to piece together a test by counting heads in the

Din concurrences and dissents, the concurring and dissenting justices had

no common ground on this point. The dissenters thought that the process10 No. 18

‐ 1205

Here, our dissenting colleagues repeat the arguments that

Justice Kennedy’s concurrence rejected. It is worth noting,

moreover, that the standard they seek is even higher than the

one that the Din dissenters would have imposed. The Din

dissenters maintained that the government could satisfy due

process by providing “ either the factual basis for the

Government’s decision or a sufficiently specific statutory

subsection that conveys effectively the same information.” Id.

at 2145 (Breyer, J., dissenting) (emphasis added). Our

dissenting colleagues want more: they argue that the consular

officer must “point to, or at least describe, some evidence

supporting the key conclusions she drew and link that

evidence to the admissibility determination.” Dissenting Op.

at 26–27 (emphasis added). In other words, the dissenters here

claim that a visa denial is not bona fide unless the consular

officer not only provides a statutory citation and the

underlying facts but also explains his reasoning.

That standard may be desirable but imposing it would be

inconsistent with Supreme Court precedent. It is squarely

foreclosed by Mandel

, and, contrary to the dissent’s

suggestion, Trump v. Hawaii does not endorse a court’s ability

“to look behind the surface of the executive action” in the

ordinary course. Dissenting Op. at 30. The passage that the

was constitutionally inadequate because “the State Department’s reason

did not set forth any factual basis for the Government’s decision.” 135 S.

Ct. at 2146 (Breyer, J., dissenting). The concurrence thought that a factual

basis was unnecessary. Id. at 2141 (Kennedy, J., concurring) (“ Mandel

instructs us not to ‘look behind’ the Government’s exclusion of Berashk

for additional factual details beyond what its express reliance on

§ 1182(a)(3)(B) encompassed.”).No. 18

‐ 1205 11

dissent invokes as support for that proposition undermines

rather than supports it. The Court explained:

A conventional application of Mandel, asking

only whether the policy is facially legitimate

and bona fide, would put an end to our review.

But the Government has suggested that it may

be appropriate here for the inquiry to extend

beyond the facial neutrality of the order. For our

purposes today, we assume that we may look

behind the face of the Proclamation to the extent

of applying rational basis review.

Trump v. Hawaii

, 138 S. Ct. at 2420. In other words, the rule of

Mandel

, also reflected in Justice Kennedy’s concurrence in

Din

, is that a reviewing court looks to the face of the order

only. In Trump v. Hawaii

, at the request of the government, the

Court assumed that it could look behind the face of the order

given the circumstances of that case. That assumption, which

the Court carefully confined as one “for our purposes today,”

does not purport to alter Mandel

, which we remain bound to

follow.

It is telling that the dissenters draw on prison

‐ discipline

cases, rather than consular

‐ review cases, as support for the

due process standard that they propose. Dissenting Op. at 22–

23, 26. The dissenters argue that just as we do in prison

‐ discipline cases, we should ask “only that the officer be able

to point to ‘some evidence’ that supports the critical finding.”

Dissenting Op. at 22 (quoting Superintendent, Mass. Corr. Inst.,

Walpole v. Hill

, 472 U.S. 445, 455–56 (1985)). It is true that when

a prison disciplinary proceeding may result in the loss of

good

‐ time credits, prison officials must provide, among other

things, “a written statement by the factfinder of the evidence12 No. 18

‐ 1205

relied on and the reasons for the disciplinary action.” Hill

, 472

U.S. at 454 (citing Wolff v. McDonnell

, 418 U.S. 539, 563–67

(1974)). And that statement must be “supported by some

evidence in the record.” Id. But the process due in the prison

disciplinary context cannot simply be transferred to the

entirely different context of consular review. See Mathews v.

Eldridge

, 424 U.S. 319, 335 (1976) (explaining that due process

is not unrelated to time, place, and circumstance but rather

calls for procedural protection as a situation demands). In the

latter context, as we have already explained, the executive has

only a limited obligation to disclose the basis of his decision.

See, e.g.

, Trump v. Hawaii

, 138 S. Ct. at 2419 (“[A]lthough

foreign nationals seeking admission have no constitutional

right to entry, this Court has engaged in a circumscribed

judicial inquiry when the denial of a visa allegedly burdens

the constitutional rights of a U.S. citizen.” (emphasis added));

Mandel

, 408 U.S. at 766 (“The power of congress to exclude

aliens from the United States, or to prescribe the terms and

conditions upon which they may come to this country, and to

have its declared policy in that regard enforced exclusively

through executive officers, without judicial intervention, is settled

by our previous adjudications.” (emphasis added) (quoting

Lem Moon Sing v. United States

, 158 U.S. 538, 547 (1895))).

There is no getting around the fact that the Court’s

approach narrows the scope of a court’s authority to review

the reasons for a visa denial. That said, the Din concurrence

does suggest one circumstance in which a court can peek

behind what otherwise appears to be a bona fide and

legitimate reason for the denial: when the petitioner makes an

“affirmative showing” that the consular officer acted in bad

faith. Din

, 135 S. Ct. at 2140 (Kennedy, J., concurring). That is

a claim that the petitioner must “plausibly allege[] withNo. 18

‐ 1205 13

sufficient particularity.” Id. Because Yafai has not plausibly

alleged bad faith here, we do not discuss it further.

* * *

The Supreme Court has repeatedly held that a citation to

a statutory provision suffices to show a legitimate and bona

fide reason for denying a visa application. It is free to revisit

that precedent, but we are not. To be clear, however, our

circumscribed role in this context does not invite the executive

to reject a visa application with no rational basis or because of

religious, racial, or any other kind of bias. Justice Kennedy put

it well:

There are numerous instances in which the

statements and actions of Government officials

are not subject to judicial scrutiny or

intervention. That does not mean those officials

are free to disregard the Constitution and the

rights it proclaims and protects. The oath that

all officials take to adhere to the Constitution is

not confined to those spheres in which the

Judiciary can correct or even comment upon

what those officials say or do. Indeed, the very

fact that an official may have broad discretion,

discretion free from judicial scrutiny, makes it

all the more imperative for him or her to adhere

to the Constitution and to its meaning and its

promise.

Trump v. Hawaii

, 138 S. Ct. at 2424 (Kennedy, J., concurring).14 No. 18

‐ 1205

W OOD

, Chief Judge

, with whom R OVNER and H AMILTON

,

Circuit Judges

, join, dissenting from the denial of rehearing en

banc

. This case requires our court to answer a question of fun

‐

damental importance to our immigration system and the rule

of law. Is it true that a consular o ffi cer has unfe tt ered author

‐ ity to reject a visa application, no ma tt er what the reason—

bias against a religious group, a bad headache, a unilateral

decision that people from the country where the o ffi cer is sta

‐

tioned are undesirables, or (at best) a solid factual basis for the

decision—without any check from the courts? The panel ma

‐ jority in this case (despite its protestations to the contrary)

says “yes.” Yafai v. Pompeo

, 912 F.3d 1018 (7th Cir. 2019). It as

‐

serts that this holding is compelled by the consular nonre

‐ viewability doctrine.

I regard this as a dangerous abdication of judicial respon

‐ sibility. The Supreme Court has never endorsed such a broad

understanding of the consular nonreviewability rule. To the

contrary, the Court took care to reject such an absolutist ap

‐ proach in Kleindienst v. Mandel

, 408 U.S. 753 (1972). Years later,

a majority of the Justices again declined to wash their hands

of these ma tt ers, in Kerry v. Din

, 135 S. Ct. 2128 (2015). This

court’s opinions in Hazama v. Tillerson

, 851 F.3d 706 (7th Cir.

2017), and Mor fi n v. Tillerson

, 851 F.3d 710 (7th Cir. 2017),

faithfully followed Mandel and Din

, and in so doing illus

‐

trated the line between the necessary and appropriate defer

‐

ence to the consular o ffi cer’s decision, and the judicial review

that is essential to ensure that u tt erly arbitrary decisions, or

decisions fl owing from impermissible bias or other unconsti

‐

tutional bases, do not stand. The la tt er possibilities do not

seem to bother the majority of the full court. Instead, it is con

‐

tent to allow a consular o ffi cer to o ff er a naked citation to a

statute, thereby concealing whatever reasons she may haveNo. 18

‐ 1205 15

for her decision and insulating herself from any shred of ac

‐ countability. Even constitutional violations, such as a decision

based on racial or religious animus, would be, as a practical

ma tt er, immune under the majority’s view. Because I view

this result as a deeply troubling extension of current law, I

dissent from the decision not to rehear this case en banc

.

I begin with a brief word about whose constitutional

rights are violated here. The plainti ff

, U.S. citizen Mohsin

Yafai, is trying to challenge the decision of a consular o ffi cer

to reject the visa application of his Yemeni

‐ citizen wife, Za

‐

hoor Ahmed. The Supreme Court has not yet de fi nitely ruled

on the question whether a U.S. citizen has a cognizable liberty

interest in living with his or her spouse. In Din

, the Justices

split on the question: four Justices would have held that the

plainti ff did have such an interest, three maintained that she

did not, and two assumed for the sake of argument that such

an interest existed but found that she had received all the pro

‐

cess that was due to her for purposes of the terrorism bar

(8 U.S.C. § 1182 (a)(3)(B)). As our court has done in the past,

the panel majority adopted the approach of the concurring

Justices in Din

, assuming without deciding that Yafai has a

liberty interest in living with his wife.

I would go further, as did Judge Ripple in dissent, and

hold that Yafai indeed has such a liberty interest, and that it is

protected by the Fifth Amendment to the Constitution. There

can be no doubt that he has been personally and adversely

a ff ected by the course of events that unfolded. Yafai learned

almost nothing about the reasons for the consular o ffi cer’s re

‐

fusal to issue the visa for Ahmed. When Ahmed fi rst applied,

the consular o ffi cer issued a statement accusing her of “at

‐ tempting to smuggle children into the United States using the16 No. 18

‐ 1205

identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.”

These were two of Yafai and Ahmed’s children; tragically,

they drowned in an accident on July 8, 2012, while the visa

application was still pending. Yafai and Ahmed had no idea

why the consular o ffi cer thought that smuggling had oc

‐

curred.

Yafai and Ahmed speculated that the o ffi cer doubted that

the drowned children were biologically related to them. On

that supposition, they a tt empted to supplement the record

with corroborating evidence (school records, pre

‐ natal rec

‐

ords, immunization records, newspaper articles). But they did

not know if this material was pertinent to the consular of

‐

fi cer’s concerns, nor did they receive any indication that the

o ffi cer so much as glanced at their new evidence. Instead, the

o ffi cer issued a second denial that did no more than cite “sec

‐

tion 6(e),” presumably referring to 8 U.S.C. § 1182(a)(6)(E), the

smuggling ground of inadmissibility. The majority decision

in this court, and now a majority of the full court, fi nd nothing

wrong with this course of events. The panel held that what

‐

ever due process rights Yafai might have were satis fi ed, and

that he was not entitled to any more information than he re

‐

ceived— i.e.

, none—about the factual basis for the consular of

‐

fi cer’s belief that Ahmed has engaged in smuggling.

In dissent, Judge Ripple explained why he thought that

due process demanded more than Yafai received in this case.

He recognized that this conclusion required him to address

the question whether Yafai had a protected liberty interest in

living with his wife in the United States. I have nothing to add

to his analysis in that respect. His dissent compellingly

demonstrates that it would be “far more compatible with the

values of our constitutional tradition” to recognize such aNo. 18

‐ 1205 17

right than to deny its existence. Yafai, 912 F.3d at 1023 (Ripple,

J., dissenting). A long line of cases, from Meyer v. Nebraska

, 262

U.S. 390 (1923), and Pierce v. Society of Sisters

, 268 U.S. 510

(1925), through Moore v. City of East Cleveland

, 431 U.S. 494

(1977), holds that the government cannot break up or intrude

into the family unit without, at a minimum, a ff ording the pro

‐

tections of procedural due process to the family’s U.S. citizen

members. And, as Judge Ripple reminded us, “the Supreme

Court has long recognized the importance of family and the

principle that marriage includes the right of spouses to live

together and raise a family.” Yafai

, 912 F.3d at 1024 (Ripple, J.,

dissenting). See, e.g., Obergefell v. Hodges

, 135 S. Ct. 2584, 2598

(2015); Loving v. Virginia

, 388 U.S. 1, 12–13 (1967).

That right is protected by the Due Process Clause of the

Fifth Amendment. I concur fully with Judge Ripple’s reason

‐ ing on this issue. Like him, I would fi nd that the government

cannot deny a U.S. citizen the possibility of pursuing a life in

the United States with his or her non

‐ citizen spouse without

observing the basic requirements of due process. Anything

less than that would amount to the right to banish any U.S.

citizen with the temerity to marry a non

‐ citizen, without so

much as a reason—hardly an outcome that comports with the

Constitution, as this court observed more than a century ago.

See Moy Suey v. United States

, 147 F. 697, 698–99 (7th Cir. 1906)

(“Nativity gives citizenship, and is a right under the Consti

‐

tution. It is a right that congress would be without constitu

‐

tional power to curtail or give away. It is a right to be adjudi

‐

cated in the courts.

... The citizen deported is banished,

and banishment is a punishment that can follow only a judi

‐

cial determination in due process of law.”)18 No. 18

‐ 1205

That said, I would not be urging our court to rehear this

case en banc only to reach the preliminary question of the right

of the U.S. citizen to object to a consular decision that forced

him to choose between permanent separation from his spouse

or banishment from the United States. If I thought that the

government had satis fi ed the demands of due process in this

case, I would, like the majority, leave for another day a de fi n

‐

itive ruling on the question of a citizen’s liberty interest in his

spouse’s presence in the United States. But by holding that we

are compelled to leave unexamined the government’s no

‐ ad

‐ missibility determination, the panel has wiped out our ability

to vindicate any constitutional claims brought by a U.S. citizen

a ff ected by a visa denial. No ma tt er whether a citizen is at

‐ tempting to unify his family, asserting a First Amendment

right to hear the views of a foreign national (as in Mandel

, 408

U.S. at 762–65), or seeking redress for some other constitu

‐

tional injury, the rights in question are illusory if courts have

no power to protect them from the Executive’s arbitrary and

capricious decision

‐ making. Like Judge Ripple, I fi nd the ma

‐ jority’s approach inconsistent with our “limited, but im

‐

portant, responsibility to ensure that the Executive adminis

‐

ters the immigration process according to the standards en

‐

acted by Congress.” Yafai, 912 F.3d at 1025 (Ripple, J., dissent

‐ ing).

The issue that demands the a tt ention of the en banc court

relates to the adequacy of the process followed by the consu

‐

lar o ffi cial. In order to explain why the government fell short

of the constitutional minimum of due process in this case, I

return brie fl y to the underlying facts. As I noted earlier, Yafai

is a U.S. citizen trying to obtain a visa for his non

‐ citizen wife,

Zahoor Ahmed. He fi led the proper I

‐ 130 petitions on behalf

of Ahmed and the couple’s children, but the consular o ffi cerNo. 18

‐ 1205 19

in Yemen denied the application. The o ffi cer wrote that the

denial was based on 8 U.S.C. § 1182(a)(6)(E), which renders

inadmissible “[a]ny alien who at any time knowingly has en

‐ couraged, induced, assisted, abe tt ed, or aided any other alien

to enter or to try to enter the United States in violation of the

law.” The o ffi cer further asserted that Ahmed “a tt empted to

smuggle two children into the United States using the identi

‐

ties Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” The of

‐

fi cer did not identify any factual basis whatsoever for that

contention, nor can one be found in the record.

The record does indicate, and Yafai freely admi tt ed

, that the

couple had indeed applied for visas on behalf of two children

with those names. Yafai and Ahmed explained that these were

in fact their children, but that the children had drowned while

their applications were pending. Yafai and Ahmed were also

seeking visas for their other children. Despite the consular of

‐

fi cer’s denial of Ahmed ’ s visa on the basis of the alleged at

‐

tempt to smuggle Yaqub and Khaled into the United States,

most of the other children received U.S. visas or passports.

The consular o ffi cer did not explain what it was that justi fi ed

distinguishing among the couple’s children. Nor did the of

‐

fi cer o ff er even a hint about the basis on which she drew the

conclusion that Ahmed’s inclusion of Yaqub and Khaled in

the application amounted to a violation of Sec

‐

tion 1182(a)(6)(E) rather than an honest a tt empt to obtain vi

‐

sas for two of her children who were alive at the time of her

application but who later died. Neither Yafai nor we have any

idea whether the o ffi cer thought that Yafai and Ahmed had

never had two children named Yaqub and Khaled, or if the of

‐

fi cer thought that those two children had existed but were

somehow ineligible for admission, or if the parents were try

‐ ing to smuggle two di ff erent children into the United States,20 No. 18

‐ 1205

or if the o ffi cer had some other concern. That information void

made it e ff ectively impossible for Yafai to present an e ff ective

rebu tt al.

He did try, however. In his petition for rehearing in this

court, Yafai says that “[i]t appears that the consular o ffi cer de

‐

termined with no known basis, that the drowned children

were not biologically related to Ms. Ahmed

... .” Petition for

Rehearing at 7. On the assumption that this was the prob

‐ lem—though again, they were left to guess—Yafai and Ah

‐

med tried to respond by adducing a signi fi cant amount of ev

‐

idence showing that Yaqub and Khaled were their biological

o ff spring. That evidence included pre

‐ natal records, immun

‐

ization records, and school records. An embassy fraud

‐ pre

‐

vention manager acknowledged receipt of the additional evi

‐

dence.

In the end, Yafai’s e ff orts were unavailing. Several months

later the consular o ffi cer rea ffi rmed the initial denial, citing

the same statutory provision, again without any explanation

or even a hint that the records had been reviewed and re

‐ jected, reviewed and found irrelevant, or thrown away. The

consular o ffi cer o ff ered only a mysterious comment on Yafai

and Ahmed’s credibility, but the comment is singularly un

‐ helpful. It has the ring of boilerplate: “your clients do not tes

‐ tify, testify contradictorily, deny the existence of evidence,

and otherwise cast doubt on the accuracy of their responses.”

Which is it: A failure to testify? Testimony that contained con

‐

tradictions? Refusal to accept incontrovertible evidence?

Shiftiness or some other reason to fi nd them not worthy of

belief? Who knows? The only thing that is apparent is that the

o ffi cer’s comment is no more illuminating than silence.No. 18

‐ 1205 21

Yafai challenged the consular o ffi cer’s decision in the dis

‐

trict court, which ruled against him; he then appealed to this

court. The panel majority found that the government had

done enough by citing a particular section of the statute, (sec

‐

tion 1182(a)(6)E)), which for all we can tell was selected ran

‐ domly. The panel held that the consular o ffi cer “need not dis

‐

close the underlying facts that led him to conclude that the

statute [ i.e. the inadmissibility ground] was satis fi ed.” 912

F.3d at 1021. It was enough, the majority thought, for the of

‐

fi cer to provide “a facially legitimate and bona fi de reason for

denying Ahmed’s application,” id.

, and the majority accepted

that the o ffi cer’s stated reason for denial met that standard.

At that point, both the majority’s opinion and its supple

‐

mental statement on the petition for rehearing en banc be

‐

come hard to follow. On the one hand, the majority asserts in

both places that it is forbidden to look behind the stated rea

‐

son. Yet it concedes that a facially legitimate decision might

have been made in bad faith, id. at 1022; rehearing statement

at 10–11, and if it was, that would be a reason to reject it. But

the majority leaves the applicant with no ability to ferret out

bad faith. We know this because the majority fi nds nothing in

the unexplained decision in Yafai’s case that supports even an

inquiry into bad faith. It is impossible to discover bad faith

(which includes a disingenuous explanation designed to

cover up arbitrariness) without some consideration of the un

‐ derlying facts—here, the reason why the o ffi cer thought that

the children were being smuggled. No applicant would ever

be able to make “an a ffi rmative showing of bad faith on the

part of the consular o ffi cer,” Din

, 135 S. Ct. at 2141 (Kennedy,

J., concurring), without a right to a comprehensible descrip

‐

tion of the information on which the o ffi cer relied.22 No. 18

‐ 1205

Unlike the majority, I do not believe that this limited in

‐ quiry would put us on a slippery slope that ends up in ple

‐

nary review of consular decisions. Other areas of the law pro

‐

vide examples of highly deferential review of factual fi ndings.

The majority’s supplemental opinion notes the uncontrover

‐

sial proposition going back at least as far as Mathews v. El

‐ dridge

, 424 U.S. 319 (1975), that due process is context

‐ speci fi c.

I have no quarrel with that. My point is only that when a con

‐ stitutionally protected liberty interest is at stake, as I believe

it is here, some process is due. Nothing in Mathews contradicts

that point.

In the visa

‐ issuance context, I accept that the process due

is at the minimal end of the spectrum. Moreover, this is not

the only area in which substantial deference to executive au

‐

thorities is appropriate. Another such area is the prison

‐ disci

‐ plinary se tt ing. There, we ask only that the o ffi cer be able to

point to “some evidence” that supports the critical fi nding.

See Superintendent, Mass. Corr. Inst., Walpole v. Hill

, 472 U.S.

445, 455–56 (1985). A comparable light touch would be appro

‐ priate here—just enough to ensure that there was a permissi

‐

ble basis for the consular o ffi cer’s action. The Constitution and

laws of this country require no less, as Judge Ripple ex

‐ plained:

We cannot forget, however, that Congress has

given the Judiciary the obligation to curb arbi

‐

trary action. It has made no exception for the ac

‐

tion of consular o ffi cers. Congress did not, and

would not, sanction consular o ffi cers’ making

visa decisions in a purely arbitrary way that af

‐

fects the basic rights of American citizens. We

have the responsibility to ensure that suchNo. 18

‐ 1205 23

decisions, when born of laziness, prejudice or

bureaucratic inertia, do not stand. As long as

Congress keeps in place our statutory responsi

‐ bility, we show no respect for the Constitution

or for Congress by taking cover behind an

overly expansive version of a judge

‐ made doc

‐

trine.

912 F.3d at 1030 (Ripple, J., dissenting).

Just as in Hill, “[a]scertaining whether this standard is sat

‐

is fi ed does not require examination of the entire record, inde

‐ pendent assessment of the credibility of witnesses, or weigh

‐ ing of the evidence. Instead, the relevant question is whether

there is any evidence in the record that could support the con

‐

clusion reached by the [responsible government actor].” 472

U.S. at 455–56. That limited disclosure would be invaluable to

a person seeking to meet his burden of showing bad faith or

mistake. I consider it telling that the Supreme Court has been

careful not to give the executive branch carte blanche to issue

visa denials that provide absolutely no information about the

facts on which the decision was based. To the contrary, the

Court has carefully reserved this issue each time it has en

‐

countered one of these cases. We should respect the Court’s

caution as we now resolve the question.

The majority relies heavily on Justice Kennedy’s position,

but his view is more nuanced than they would have one be

‐

lieve. His concurrence in Din captures the process that I be

‐

lieve should have happened (but did not) in Yafai’s case. I re

‐

fer to the following passage, in which he is discussing

Kleindienst v. Mandel

, 408 U.S. 753 (1972), and its application

to Din’s case:24 No. 18

‐ 1205

The Government’s citation of § 1182(a)(3)(B)

[the terrorism bar] also indicates it relied upon

a bona fi de factual basis for denying a visa to

Berashk [the spouse]. Cf. United States v. Chemi

‐

cal Foundation, Inc., 272 U.S. 1, 14–15, (1926). Din

claims due process requires she be provided

with the facts underlying this determination, ar

‐ guing Mandel required a similar factual basis. It

is true the A tt orney General there disclosed the

facts motivating his decision to deny Dr. Man

‐

del a waiver, and that the Court cited those facts

as demonstrating “the A tt orney General validly

exercised the plenary power that Congress del

‐ egated to the Executive.” 408 U.S., at 769. But

unlike the waiver provision at issue in Man

‐

del, which granted the A tt orney General nearly

unbridled discretion, § 1182(a)(3)(B) speci fi es dis

‐

crete factual predicates the consular o ffi cer must fi nd

to exist before denying a visa. Din, moreover, ad

‐

mits in her Complaint that Berashk worked for

the Taliban government,

... which, even if itself

insu ffi cient to support exclusion, provides at

least a facial connection to terrorist activity

. Absent

an a ffi rmative showing of bad faith on the part of the

consular o ffi cer who denied Berashk a visa—

which Din has not plausibly alleged with su ffi‐

cient particularity— Mandel instructs us not to

“look behind” the Government’s exclusion of

Berashk for additional factual details beyond

what its express reliance on § 1182(a)(3)(B) en

‐ compassed. See 408 U.S., at 770.No. 18

‐ 1205 25

135 S. Ct. at 2140–41 (emphasis added). 1

Justice Kennedy noted that he would not require the gov

‐

ernment to disclose factual details “beyond what its express

reliance on § 1182(a)(3)(B) encompassed .” (emphasis added).

There can be no doubt that the government’s reliance on the

statutory terrorism bar encompassed Din’s admission that Be

‐

rashk worked for the Taliban. We know from the two concur

‐ ring Justices and the four dissenting Justices that the Din

Court had before it basic information about the factual predi

‐

cates underlying the consular o ffi cer’s decision. It thus did not

face the naked assertion that a proper ground for denial ex

‐

isted, which is what we have here.

It is also important to note that in Mandel

, the A tt orney

General had identi fi ed factual material supporting the visa

denial. He pointed to the applicant’s activities during a past

visit to the United States that went beyond the stated pur

‐

poses of his trip. As Justice Kennedy acknowledged in the

passage from Din quoted above, the Mandel Court “cited

those facts as demonstrating ‘the A tt orney General validly ex

‐

ercised the plenary power that Congress delegated to the

1 Before this court, the government points to a passage in Trump v.

Hawaii, 138 S. Ct. 2392 (2018), that summarized this part of Justice Ken

‐ nedy’s Din concurrence as a statement that the Government need provide

only a statutory citation to explain a visa denial. 576 U.S., at ––––, 135 S.Ct.,

at 2141 (opinion concurring in judgment). 138 S. Ct. at 2419. As I explain,

Justice Kennedy did not leave his remarks at that. His comment was par

‐

ticular to the terrorism ground for inadmissibility and it relied on the fact

that the Court was able to identify relevant factual materials in the record

connecting the statutory ground to the decision—for example, the admis

‐

sion that the spouse worked for the Taliban. Here, even if section

1182(a)(6)(E) also identifies potential factual predicates, the record con

‐

tains no information to see if any of those predicates exists.26 No. 18

‐ 1205

Executive.’” 135 S. Ct. at 2140, quoting Mandel

, 408 U.S. at 769.

My colleagues therefore signi fi cantly overstate the case when

they assert that Mandel “held that the A tt orney General was

not required to identify the factual support for his decision to

show that Mandel was ineligible for admission.” Such a state

‐

ment can be found nowhere in the Court’s opinion.

Similarly, the government identi fi ed factual material sup

‐ porting the visa denials in our court’s earlier decisions in

Hazama, 851 F.3d at 709 (undisputed evidence of rock

‐ throw

‐ ing) and Mor fi n, 851 F.3d at 713 (indisputable indictment for

possession of cocaine with intent to distribute). In all of these

cases, while the judiciary deferred to the government’s inter

‐ pretation of the evidence, “the record foreclose[d] any conten

‐

tion that the [government] was imagining things.” Mor fi n, 851

F.3d at 713. The same cannot be said for this case, in which—

for the fi rst time—we endorse a visa denial that for all we

know was based on no real

‐ world facts at all.

My dispute with the majority turns largely on the meaning

and importance of the phrase “facially legitimate and bona

fi de.” Given the facts in Mandel and Din

, along with Justice

Kennedy’s statement in Din that the government had relied

upon a “bona fi de factual basis” for the denial of Berashk’s

visa, 135 S. Ct. at 2140 (emphasis added), I take “bona fi de” to

mean derived from actual facts rather than invented out of

whole cloth. In the absence of such facts, the agency’s mere

citation of a statutory ground usually says nothing about

whether it has done what the statute requires. Just as in Hill

,

this does not mean that the consular o ffi cer must open her en

‐

tire fi le to the disappointed applicant. She must merely point

to, or at least describe, some evidence supporting the key con

‐

clusions she drew and link that evidence to the admissibilityNo. 18

‐ 1205 27

determination. And when undisputed facts in the record al

‐ ready provide “at least a facial connection” to the factual

predicates in the cited statutory ground for inadmissibility—

as in Din —it is possible that no further explanation would be

required.

The scope of the court’s review will be narrow, as it typi

‐ cally is when the law gives an executive or administrative of

‐

fi cer wide discretion. But that discretion is not unlimited; due

process—indeed, our constitutional structure and the rule of

law itself—demands some accountability. Cf. Mach Mining,

LLC v. E.E.O.C.

, 135 S. Ct. 1645, 1651 (2015) (rejecting EEOC’s

argument that its compliance with the conciliation mandate

in the statute was unreviewable and noting that “Congress

rarely intends to prevent courts from enforcing its directives

to federal agencies”). I am not willing to give a blank check to

the executive branch (and I would not support one for the ju

‐ diciary or Congress, either—our system depends on carefully

calibrated checks and balances).

Suppose, for example, that the consular o ffi cer’s decision

to deny a visa was secretly based exclusively on the fact that

the applicant was Muslim (or Hindu, or an atheist). Such a

reason, we would all agree, would not be a valid one. Or sup

‐

pose, unbeknownst to the noncitizen, the consular o ffi cer

simply stamped “no” on all applications received after 2:00

p.m. That would also be arbitrary and capricious, even under

the most generously deferential regime imaginable (perhaps

something like AEDPA’s). But in either circumstance, as long

as the consular simply a ffi xed a one

‐ sentence accusation that

cited “smuggling” as the ground for inadmissibility under the

statute, the noncitizen would have no way of knowing that

the decision had no basis in fact, and thus no way of28 No. 18

‐ 1205

challenging it for arbitrariness, unlawfulness, or bad faith.

This is the result that the panel majority has endorsed and a

majority of the full court is willing to let stand.

Under the panel’s rule, a rogue or burned

‐ out consular of

‐

fi cial could just make up facts. Take this case. The o ffi cer ap

‐ parently accused Ahmed of trying to smuggle two children

into the United States (though even that is unclear). That ac

‐

cusation could be pure fabrication. Who is to say, if the o ffi cer

points to nothing supporting the accusation? Yafai and Ah

‐

med tried to assuage the o ffi cer’s concerns, but for all we

know the o ffi cer never bothered to look at their supplemental

information. The o ffi cer could just as easily have said, with no

basis, that Ahmed was likely to engage in prostitution,

8 U.S.C. § 1182(a)(2)(D). But Yafai and Ahmed would never

know what they needed to do to correct such a scurrilous ac

‐

cusation. This state of a ff airs is not consistent with the consti

‐

tutional standards of due process.

In response to Yafai’s petition for rehearing, the govern

‐

ment suggests that the Supreme Court’s decision in Trump v.

Hawaii

, 138 S. Ct. 2392 (2018), forecloses the approach I urge

here and instead requires us to rubber

‐ stamp visa denials so

long as the government cites any relevant statutory provision.

I do not read Hawaii in such an indiscriminate way. First, its

se tt ing is quite di ff erent from the one before us. The Executive

Order at issue in Hawaii operated at the country level, not the

individual level; it involved a presidential Proclamation plac

‐ ing “entry restrictions on the nationals of eight foreign states

whose systems for managing and sharing information about

their nationals the President deemed inadequate.” 138 S. Ct.

at 2404 (emphasis added). Second, in response to the govern

‐

ment’s invocation of the doctrine of consularNo. 18

‐ 1205 29

nonreviewability, the Court noted fi rst that this doctrine does

not go “to the Court’s jurisdiction,

... nor does it point to any

provision of the INA that expressly strips the Court of juris

‐

diction over plainti ff s’ claims

... .” On that basis, the Court

proceeded to evaluate the plainti ff s’ various challenges to the

Proclamation.

When it reached the claim that the Proclamation was is

‐

sued for the unconstitutional purpose of excluding Muslims,

id. at 2415, the Court addressed Mandel and Din. Id. at 2419–

20. Although it described the topic of the admission and ex

‐

clusion of foreign nationals as largely immune from judicial

control, id. at 2418, it acknowledged that the Court had “en

‐ gaged in a circumscribed judicial inquiry when the denial of

a visa allegedly burdens the constitutional rights of a U.S. cit

‐

izen.” Id. at 2419. As it had done before, it took care to save

the issue now before us for another day. Rather than saying,

as the majority has done, that facts do not ma tt er, the Court

distinguished between second

‐ guessing the Executive’s exer

‐

cise of discretion once the facts are established and the author

‐ ity to look at the underlying justi fi cation:

A conventional application of Mandel

, asking

only whether the policy is facially legitimate

and bona fi de, would put an end to our review.

But the Government has suggested that it may

be appropriate here for the inquiry to extend be

‐ yond the facial neutrality of the order.

... For

our purposes today, we assume that we may

look behind the face of the Proclamation to the

extent of applying rational basis review. That

standard of review considers whether the entry

policy is plausibly related to the Government’s30 No. 18

‐ 1205

stated objective to protect the country and im

‐

prove ve tt ing processes.

... As a result, we may

consider plainti ff s’ extrinsic evidence, but will

uphold the policy so long as it can reasonably

be understood to result from a justi fi cation in

‐ dependent of unconstitutional grounds.

Id. at 2420.

I take several points away from this passage, and from Ha

‐

waii as a whole. First, consular nonreviewability is not a juris

‐

dictional doctrine. Second, the Court adheres to the basic

holdings of Mandel and Din

, insofar as they require a facially

legitimate and bona fi de reason for the visa decision. Third,

the Court has continued to look behind the surface of the ex

‐

ecutive action to see if it results from “a justi fi cation inde

‐ pendent of unconstitutional grounds.” What the Court did not

do in Hawaii

, was to hold (as our panel majority does) that it

was required to stop with the president’s Proclamation and re

‐

fuse to look at the underlying facts, because the judiciary is

categorically barred from doing so. The panel’s opinion in our

case thus breaks new ground.

The right to demonstrate bad faith is empty if an applicant

for the spousal visa has no right to know anything about the

information on which the consular o ffi cer relied. Due process

demands more than this, and the system will not crumble if

we follow our constitutional commands. At its root, due pro

‐

cess requires that the person subject to a governmental action

be given enough information to be able to know what the ac

‐

cusation against her is. A regime in which the consular o ffi cial

can just say “no,” and the U.S.

‐ citizen spouse must guess both

about the accusation that supposedly supported that decision

and—critically—what facts lay behind the “no,” is not worthyNo. 18

‐ 1205 31

of this country. I dissent from our court’s denial of rehearing

en banc.