Nung Tan v. Eric Holder, Jr.

MEMORANDUM

Plaintiffs Nung Fa Tan and Rui Ye Li appeal the district court’s order dismissing their complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. We have jurisdiction under 28 U.S.C. § 1291 and now affirm.

After the United States Consulate in Guangzhou, China, denied Li’s visa application, Plaintiffs filed a complaint in federal district court against the Consul General in Guangzhou, China, the Acting Director of USCIS, and other government officials. The first through fourth causes of action in the complaint alleged violations of the Immigration and Nationality Act and accompanying regulations, the Administrative Procedure Act, and the Freedom of Information Act. “[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.” Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir.2008) (quoting Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986)) (alteration in original). Because the decisions of consular officers are not subject to judicial review on non-constitutional claims, see id. (noting “a…