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Matushkina v. Nielsen

United States Court of Appeals, Seventh Circuit

December 7, 2017

Elena Matushkina and Svetlana Son, Plaintiffs-Appellants,
v.
Kirstjen M. Nielsen, Secretary of Homeland Security, and Matthew Davies, Chicago Area Port Director, U.S. Customs & Border Protection, Defendants-Appellees.

          ARGUED SEPTEMBER 8, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 CV 7360 - Charles R. Norgle, Judge.

          Before Manion, Kanne, and Hamilton, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE

         Plaintiffs 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.

         This is 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 judicial review.

         I. Factual and Procedural Background

         A. The 2015 Visa Denial

         Elena 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.

         B. The 2009 Inadmissibility Determination

         Matushkina 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. § 1182(a)(6)(C)(i).

         Aliens 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.

         C. This Lawsuit

         Almost 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 ...


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