                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT               FILED
                        ________________________    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                         January 31, 2006
                              No.  05-12829               THOMAS K. KAHN
                          Non-Argument Calendar              CLERK
                        ________________________

                     D. C. Docket No.  04-23026-CV-PCH


HERNANDO JOSE DE CASTRO POLO,


                                                         Plaintiff-Appellant,

                                   versus

DEBORAH FAIRMAN,
Consul, U.S. Embassy, Bogota, Columbia,
RAYMOND MCGRATH,
General Consul, U.S. Embassy, Bogota, Columbia,
LORI GIL,
Vice Consul, U.S. Embassy, Bogota, Columbia,
JOSEPH RUNYON,
Vice Consul, U.S. Embassy, Bogota, Columbia,
LYNN LEWIS,
Vice Consul, U.S. Embassy, Bogota, Columbia,
WILLIAM B. WOOD,
U.S. Ambassador to Columbia,


                                                    Defendants-Appellees. 
                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                  (January 31, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges. 

PER CURIAM:

      Hernando Jose De Castro Polo (“De Castro”) appeals the district court’s

dismissal for lack of subject-matter jurisdiction of his petition for a writ of

mandamus, filed pursuant to 28 U.S.C. § 1361, by which he seeks to compel

Deborah Fairman, Consul; Raymond McGrath, General Consul; Lori Gil, Vice

Consul; Joseph Runyon, Vice Consul; Lynn Lewis, Vice Consul; and William B.

Wood, Ambassador (collectively referred to as “Defendants”), all of the United

States Embassy in Bogota, Colombia, to process his wife’s visa application and

issue her a visa.  We affirm the decision of the district court. 

      In April of 2002, De Castro, who is apparently a naturalized citizen living in

Miami, Florida, filed an immigrant visa petition to have his wife, who lives in

Barranquilla, Colombia, classified as an immediate relative.  The Immigration and

Naturalization Service (“INS”) approved De Castro’s petition in August of 2002. 

De Castro’s wife then applied, through him, for an immigrant visa, at the United

                                            2
States Embassy in Bogota, Colombia.  Approximately two months later, a consular

officer notified De Castro’s wife in writing that her application was rejected

pursuant to Immigration and Nationality Act (“INA”) § 212(a)(2)(C), 8 U.S.C.

§ 1182(a)(2)(C).  Under that provision, an alien who a consular officer (or the

Attorney General) “knows or has reason to believe . . .  is or has been an illicit

trafficker in any controlled substance or in any listed chemical . . .  or is or has been

a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit

trafficking in any such controlled or listed substance or chemical, or endeavored to

do so . . .  is inadmissible.”  8 U.S.C. § 1182(a)(2)(C).  Claiming that there was no

evidence for the decision, and that his wife was not involved in drug trafficking,

De Castro filed the mandamus petition at issue.  He contends that his rights under 8

U.S.C. §§ 1154(a) and 1255(a) have been violated and seeks an order compelling

the processing and issuance of an immigrant visa for his wife. 

      The district court dismissed De Castro’s petition based on the doctrine of

consular nonreviewability, rejecting his claim that review was available under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.  De Castro contends

that this decision constituted legal error.  According to De Castro, his mandamus

petition alleges a constitutional violation of his due process rights (and a violation

of his rights under the INA) that renders the doctrine of consular nonreviewability



                                            3
inapplicable.  De Castro further argues that jurisdiction exists because he is merely

seeking to ensure that consular officials process his wife’s visa application in a

lawful and proper manner, not that they exercise their discretion to reach a

particular result. 

       “Whether a district court has subject-matter jurisdiction over an action is a

question of law that we review de novo.”  Kent v. Secretary of Labor, 148 F.3d

1264, 1265 (11th Cir.  1998) (per curiam). “ The doctrine [of consular

nonreviewability] holds that a consular official’s decision to issue or withhold a

visa is not subject to judicial review, at least unless Congress says otherwise.” 

Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir.  1999).  Although our

research discloses no published opinion in which we have directly addressed this

doctrine, it has been recognized in binding precedent and applied by numerous

sister circuits.  See, e.g., Te Kuei Liu v. Immigration and Naturalization Serv.,  645

F.2d 279, 285 (5th Cir.  Unit A May 1981) (explaining that actions of American

consul in Winnipeg, Canada, where alien’s relative visa petition had been

forwarded, were not “within the ambit of our review”) 1; Centeno v. Shultz, 817

F.2d 1212, 1214 (5th Cir.  1987) (per curiam) (citing Te Kuei Liu for proposition



       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.  1981) (en banc), we
adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981. 

                                                4
that “decisions of United States consuls on visa matters are nonreviewable by the

courts”); Saavedra, 197 F.3d at 1159 (defining doctrine of consular

nonreviewability); Doan v. Immigration and Naturalization Serv.,  160 F.3d 508,

509 (8th Cir.  1998) (holding that decision of INS district director, who was

functional equivalent of a consular official, in denying visa-related waiver was not

subject to judicial review because there was no clear statutory grant of authority);

Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.  1986) (“[I]t has

been consistently held that the consular official’s decision to issue or withhold a

visa is not subject either to administrative or judicial review.”);  Burrafato v. United

States Dep’t of State, 523 F.2d 554, 556 n.2 (2d Cir.  1975) (recognizing that court

would lack jurisdiction to review denial of visa application by consul in Palermo,

Italy). 

          De Castro does not deny the viability of the consular nonreviewability

doctrine, but contends that it does not apply to his mandamus petition because he

alleges a constitutional due process violation.  He notes that the Saavedra court

acknowledged that jurisdiction would exist where “United States sponsors of a

foreign individual claim that the State Department’s denial of a visa to an alien

violated their constitutional rights.”  Saavedra, 197 F.3d at 1163 (citing Abourezk

v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir.  1986), aff’d by an equally divided



                                             5
court, 484 U.S. 1, 108 S. Ct.  252, 98 L. Ed.  2d 1 (1987)).  We find this argument

unpersuasive for several reasons.  First of all, De Castro’s claimed due process

violation appears in his initial brief on appeal, not his mandamus petition.  The

petition appears to allege no more than a violation of De Castro’s “rights” under

§§ 1154(a) and 1255(a). “ With respect to purely statutory claims, courts have

made no distinctions between aliens seeking review of adverse consular decisions

and the United States citizens sponsoring their admission; neither is entitled to

judicial review.”  Saavedra, 197 F.3d at 1164.  Second, the citizen-plaintiffs in

Abourezk alleged that their First Amendment rights were violated by the denial of

visas to foreigners whom they had invited to speak at various gatherings in the

United States.  See Abourezk, 785 F.2d at 1048-50.  De Castro, by contrast, does

not explain the nature of the due process right of which he was allegedly deprived

by the denial of his wife’s visa application.2 He does not claim that consular

officials failed to follow any particular statutory or regulatory provision governing

the issuance or denial of visas.  Moreover, the Burrafato court indicated that

generalized due process claims like De Castro’s would likely fall within the scope

of the consular nonreviewability doctrine.  See 523 F.2d at 556 n.2. 



       2
         We note that De Castro’s wife, as an unadmitted and nonresident alien, “had no
constitutional right of entry to this country as a nonimmigrant or otherwise.”  Kleindienst v.
Mandel, 408 U.S. 753, 762, 92 S. Ct.  2576, 2581, 33 L. Ed.  2d 863 (1972). 

                                                 6
       De Castro also argues that the doctrine of consular nonreviewability is

inapplicable because he is simply challenging the handling of his wife’s visa

application, and not seeking to force a consular official to make a particular

decision.  The language of De Castro’s mandamus petition, which clearly seeks a

judgment ordering Defendants to process and issue an immigrant visa to his wife,

belies this argument.  Furthermore, notwithstanding De Castro’s claim that

Defendants’ decision (in denying the visa) was not based on any evidence, he

offers no explanation as to how Defendants failed to comply with any applicable

statutory or regulatory provisions.  Indeed, it is uncontroverted that De Castro’s

wife received a written statement of the reason for the rejection of her visa

application, even though it appears that Defendants were not statutorily obligated

to issue one.  See 8 U.S.C. § 1182(b); 22 C.F.R. § 41.121.3

       Finally, we reject De Castro’s argument that the APA, in conjunction with

28 U.S.C. § 1331, provides for review of his claims.  We have previously noted

“Congress’s intent to preclude judicial review of administrative determinations

concerning aliens who have never presented themselves at the borders of the

country,” and concluded that “[r]eview under the APA would be inconsistent with


       3
          De Castro also claims that if evidence existed supporting Defendants’ belief that his
wife fell within the scope of § 1182(a)(2)(C), it should have been disclosed.  However, the State
Department’s records pertaining to the issuance or refusal of visas or permits to enter the United
States are confidential.  See 8 U.S.C. § 1202(f). 

                                                 7
that intent.”  Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 

1992) (per curiam); cf.  Saavedra, 197 F.3d at 1162 (“To put the matter in terms of

APA § 701(a)(1), we may infer that the immigration laws preclude judicial review

of consular visa decisions.”). 

      Having considered the doctrine of consular nonreviewability and found De

Castro’s arguments against its application unavailing, we agree that the district

court properly dismissed his mandamus petition for lack of subject matter

jurisdiction.  Accordingly, we affirm the district court’s decision. 

      AFFIRMED. 




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