Nimul Chheng; Nhep Chheng v. U.s. Department of Homeland Security

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIMUL CHHENG; NHEP CHHENG,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendant-Appellee.
No. 21-17040
D.C. No. 3:21-cv-03223-JSC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted August 14, 2023
San Francisco, California
Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,** District Judge.
Plaintiffs-Appellants Nhep Chheng (“Nhep,” a naturalized citizen) and his
adult son Nimul Chheng (“Nimul,” a native and citizen of Cambodia) appeal the
district court’s grant without leave to amend of Defendant-Appellee U.S.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
FILED
SEP 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Department of Homeland Security’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s dismissal for failure to state a claim and may affirm on any
basis supported by the record. ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d
999, 1004 (9th Cir. 2014). We review a district court’s denial of leave to amend
for an abuse of discretion. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000) (en banc). We affirm.
1. The Chhengs challenge the denial of Nimul’s visa application, which
Nhep sponsored. We have held that pursuant to the doctrine of consular
nonreviewability, “ordinarily, a consular official’s decision to deny a visa to a
foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104
(9th Cir. 2018) (quoting Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.
2008)). But, a “circumscribed judicial inquiry” may be made where a consular
decision involves a violation of a U.S. citizen’s constitutional rights. Khachatryan
v. Blinken, 4 F.4th 841, 849 (9th Cir. 2021) (quoting Trump v. Hawaii, 138 S. Ct.
2392, 2419 (2018)).
As a foreign national, Nimul does not have a constitutional right of entry and
therefore cannot challenge the visa denial. See Kleindienst v. Mandel, 408 U.S.
753, 762 (1972). Additionally, Nhep fails to show a constitutionally protected
liberty interest in his non-citizen adult child’s visa application sufficient to state a

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due process claim that would fall within the exception to the doctrine of consular
nonreviewability. In Khachatryan, we considered the inverse relationship and
found no constitutionally protected liberty interest in the visa denial of an adult
U.S. citizen’s non-citizen parent. 4 F.4th at 862 (“[T]he [Supreme] Court has
never suggested that whatever protection applies to extended-family relationships
entails a constitutionally rooted expectation that one will be allowed to bring one’s
parents or adult children into the United States.”). Given the reciprocal nature of
the parent-child interest in familial association, we conclude that the holding of
Khachatryan controls here. See Smith v. City of Fontana, 818 F.2d 1411, 1418
(9th Cir. 1987) (recognizing reciprocal rights between the interests of parents and
children), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d
1037, 1040 n.1 (9th Cir. 1999) (en banc); Wheeler v. City of Santa Clara, 894 F.3d
1046, 1058 (9th Cir. 2018) (noting that children’s “rights to companionship with
their parents have been interpreted as reciprocal to their parents’ rights”).
Therefore, Nhep has not shown he has a constitutionally protected liberty interest
in the denial of his non-citizen adult child’s visa, and his claims were properly
dismissed.
2. The Chhengs argue the district court abused its discretion in
dismissing their suit without leave to amend. However, dismissal without leave to
amend is proper if “the pleading could not possibly be cured by the allegation of

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other facts.” Lopez, 203 F.3d at 1127 (quoting Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995)). Because the Chhengs cannot cure the lack of a
constitutionally protected interest, dismissal without leave to amend was proper.
The decision of the district court is AFFIRMED.1
1 The Chhengs’ motion to expedite is denied as moot. Dkt. No. 29.

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