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Immigration – Visa Application

By: Derek Hawkins//March 21, 2017//

Immigration – Visa Application

By: Derek Hawkins//March 21, 2017//

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7th Circuit Court of Appeals

Case Name: Esmeralda Y. Morfin and Adrian Ulloav. Rex W. Tillerson and John F. Kelly

Case No.: 15-3633

Officials: WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges

Focus: Immigration – Visa Application

In 2009 Adrian Ulloa, a citizen of Mexico, married Esmeralda Morfin, a citizen of the United States. She began the process of getting approval for his permanent residence (and ultimately citizenship). But because Ulloa was present in the United States without authority, this process required him to return to Mexico and obtain a visa for a lawful entry. In 2014 he applied at the consulate in Ciudad Juarez. After twice interviewing Ulloa, the State Department denied his request for a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. See 21 U.S.C. §841(a)(1). The U.S. Attorney dismissed the indictment a few months later (the record does not show why), and Ulloa denies the charge, but the absence of a trial means that he lacks a favorable adjudication In this suit under the Administrative Procedure Act, 5 U.S.C. §702, Morfin and Ulloa asked the district court to find that the decision not to give Ulloa a visa is arbitrary and not supported by substantial evidence. Defendants (the Secretaries of State and Homeland Security) replied that decisions to grant or deny visa applications are committed to agency discretion and so are outside the scope of judicial review under the APA. See 5 U.S.C. §701(a)(2). The district court agreed and dismissed the suit for lack of subject-matter jurisdiction. That was a misstep. As we explain in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017), §701(a)(2) does not curtail jurisdiction granted by other laws. Commitment of a topic to agency discretion is a reason to decide in the agency’s favor but does not imply that a court lacks adjudicatory competence. We concluded in Builders Bank that §701(a)(2) “is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.” 846 F.3d at 275.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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