NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIGIFREDO QUEZADA IBARRA; JASMIN QUEZADA

- PENA,

Plaintiffs

- Appellants,

v.
UNITED STATES DEPARTMENT OF STATE; et al.,
Defendants

- Appellees. No. 21

- 55271
D.C. No. 2:20

- cv - 01909

- FMO

- DFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding Argued and Submitted January 13, 2022 Pasadena, California Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF, * * District Judge.
Plaintiffs Sigifredo Quezada Ibarra and Jasmin Quezada

- Pena challenge the Department of State’s policy of refusing to apply the so

- called “minor exception”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

FEB 17 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSPage 2 of 4

found at 8 U.S.C. § 1182(a)(9)(B)(iii)(I) to those found inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). The district court held that plaintiffs’ statutory claim was barred by the doctrine of consular nonreviewability, and that their constitutional claim failed because they did not allege bad faith conduct by the
consular official

. We affirm.
1. We need not decide whether plaintiffs’ statutory claim is barred by the
doctrine of consular nonreviewabilit y. See Allen v. Milas , 896 F.3d 1094, 1102 (9th Cir. 2018) (holding that the doctrine is not a jurisdictional limit). Even assuming that plaintiffs’ statutory challenge is reviewable, we conclude that it fails
on the merits.
W e agree with plaintiffs tha t 8 U.S.C. § 1182(a)(9) (C) is ambiguous and that the government’s interpretation of the statute is entitled to deferen ce, if at all, only
under Skidmore v. Swift & Co. , 323 U.S. 134 (1944) . The government’s interpretation is not entitled to deference under Chevron, U.S.A., Inc. v. Nat ural
Res ources Def

ense Council, Inc. , 467 U.S. 837 (1984) , because it appears only in

an interoffice memorandum from United States Citizenship and Immigration
Services

. See Ketchikan Drywall Serv ices , Inc. v. Immigr ation & Customs Enf orcement , 725 F.3d 1103, 1112

– 13 (9th Cir. 2013) (granting Skidmore deference to an INS memorandum after considering factors including the thoroughness and validity of the agency’s reasoning and its overall power toPage 3 of 4

persuade ).
Under Skidmore , we find the government’s interpretation persuasive. Although the definition of “unlawful presence” is the same in subsections (a)(9)( B )
and (a) (9)(C), see Acosta v. Gonzales , 439 F.3d 550, 557 (9th Cir. 2006), overruled on other grounds by Garfias

- Rodriguez v. Holder , 702 F.3d 504 (9th Cir. 2012) ,
t he memorandum notes that t he minor exception in subsection (a)(9)(B) applies by its terms only when “determining the period of unlawful presence in the United States under clause (i).” 8 U.S.C. § 1182(a)(9)(B)(iii)(I). That language appears to
limit the applicability of the minor ex ception to those who are found inadmissible
under subsection (a) (9)(B). In addition , t he memorandum notes that the grounds of inadmissibility listed under subsection (a)(9)(C) rest on the comparatively more serious violation of multiple illegal entries, m aking those violations “more culpable than mere unlawful presence” and supporting the position that Congress intended the two grounds to be treated differently. This conclusion is bolstered by our
decision in Acosta , where we declined to import the waiver provision found in
subsection (a) (9)(B) (v) to subsection (a) (9)(C), relying heavily on the fact that the (a) (9)(B) (v) waiver expressly references “clause (i).” 439 F.3d at 557

– 58. We recognize that the government’s reading of the statute leads to unjust results, with this case being a prime example. Quezada Ibarra has lived continuously in the United States since 2006

. He and h is wife, a U.S. citizen, havePage 4 of 4

two U.S. citizen childre n , and another of his daughter s, who is a lawful permanent
resident , also lives with the family. Yet he is now barred from returning to the
United States for 10 years because of an illegal entry that occurred when he was four years old

. No sound policy j ustification appears to support separating a family in these circumstances. But, as we have explained, Congress drafted
subsections (a)(9)(B) and (a)(9)(C) in a way that contradicts plaintiffs’ interpretation.
2. The district court correctly dismissed plaintiffs’ constitutional claim
because the denial of Quezada Ibarra’s visa was facially legitimate and bona fide. The government cited two valid statute s of inadmissibility with discrete factual predicates justifyi ng the denial , namely 8 U.S.C. § § 1182(a)(9)(B)(i)(II) and 1182(a)(9)(C)(i)(I). See Cardenas v. United States , 826 F.3d 1164, 1172 (9th Cir. 2016). The burden then shifted to plaintiffs to plausibly allege that the consular
official acted in bad faith

. They have not done so despite being afforded an opportunity to amend their complaint.
AFFIRMED.