SEPTEMBER 8, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 CV 7360 -
Charles R. Norgle, Judge.
Manion, Kanne, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE
Elena Matushkina and her daughter Svetlana Son filed this
suit against federal officials after a U.S. Consulate denied
Matushkina's immigrant visa application in 2015. The
well-established doctrine of consular nonreviewability makes
it impossible, or nearly so, for plaintiffs to challenge the
visa denial. Plaintiffs insist that their suit does not
challenge the visa denial. Instead, they seek relief under
the Administrative Procedure Act ("APA") from the
government's determination that Matushkina was
inadmissible when she tried to enter the country back in
2009. The district court dismissed for lack of standing.
one of those cases where the line between standing and the
merits is rather fine but makes little practical difference.
We affirm the dismissal but we do so on the merits rather
than for lack of standing. The case is in essence a challenge
to the visa denial, and that decision is not subject to
Factual and Procedural Background
The 2015 Visa Denial
Matushkina is a Russian citizen who applied for an immigrant
visa to the United States. Svetlana Son is Matushkina's
daughter and is a U.S. citizen. Sometime after Son became a
citizen in 2013, she filed an 1-130 visa petition on
Matushkina's behalf. The government approved that
petition, which allowed Matushkina to apply for the immigrant
visa. When Matushkina applied, however, a U.S. Consulate
denied her application in 2015 because U.S. Customs and
Border Protection ("CBP") had determined at the
border back in 2009 that she is inadmissible.
The 2009 Inadmissibility Determination
and Son insist that their suit does not challenge the 2015
visa denial but instead challenges the earlier 2009
determination by CBP. In 2009, Matushkina tried to visit the
United States on a visitor's (nonimmigrant) visa. When
she arrived at O'Hare International Airport in Chicago,
though, a CBP officer interviewed her and learned that
Matushkina had not disclosed to the U.S. Embassy that her
daughter was working in the United States in violation of her
student visa. Matushkina had been afraid to disclose that
fact because she feared she would not receive a visa. The
officer determined that Matushkina's failure to disclose
her daughter's violation of her student visa status was a
willful misrepresentation of a material fact, and that made
Matushkina herself inadmissible under 8 U.S.C. §
who are deemed inadmissible under section 1182(a)(6)(C)(i)
are subject to expedited removal under 8 U.S.C. §
1225(b)(1)(A)(i). However, CBP officers have the option of
allowing an inadmissible alien to withdraw her application
for admission, leave the country, and avoid removal
proceedings. See U.S. Dep't of Justice, CBP
Inspector's Field Manual 17.2(a) (2006). On the spot,
Matushkina withdrew her application for admission and
acknowledged that her nonimmigrant visa would be cancelled.
The CBP officer entered the inadmissibility finding in the
State Department's electronic lookout system.
Matushkina's nonimmigrant visa was cancelled, and she
promptly left the United States.
seven years after CBP's 2009 determination at O'Hare
Airport, Matushkina and Son filed this suit against the
Secretary of Homeland Security and the Chicago Area Port
Director of the CBP under the APA. Their complaint alleged
that the 2009 inadmissibility determination violated the APA
and that the CBP officer violated provisions of the CBP
Inspector's Field Manual and "due process and
notions of fundamental fairness." They asked the
district court ...