Rivas

Order; Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge BEA.

ORDER

The opinion for Rivas v. Napolitano, 677 F.3d 849 (9th Cir.2012), filed on April 25, *1110 2012, is amended as follows at page 851, column A, lines 7-9:

Remove

Insert in its place <“a U.S. citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner” without a “facially legitimate and bona fide reason” for the denial. >

OPINION

Hilario Alfonso Rivas (“Rivas”) and his daughter Lorena Rivas appeal the district court’s order granting Defendants’ motion to dismiss for lack of subject matter jurisdiction. Rivas submitted an application for an immigrant visa based on an approved 1-130 petition filed by his daughter. The United States Consulate in Ciudad Juarez, Mexico, denied Rivas’s immigrant visa application. Rivas moved the district court for an order compelling the Defendants to act upon Rivas’s Permission to Reapply for Admission (“Form 1-601”) and his letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien…

concurring in part and dissenting in part:

I agree with the majority that the district court correctly concluded that the doctrine of consular nonreviewability prevents the federal courts from reviewing Rivas’ Permission to Reapply for Admission (“Form 1-601”). But I would conclude, as did the district court, that because Rivas admitted he violated the law which prohibits alien smuggling, consular nonreviewability also deprives us of subject matter jurisdiction to review Rivas’ letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien Registration Form (“Reconsideration Letter”). Thus, I respectfully dissent.

As the majority states, the federal courts generally do not have jurisdiction to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). This is known as the doctrine of consular nonre-viewability. As an exception to the doctrine, a court has jurisdiction to review consular actions “when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul’s discretion.” Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir.1997).…