Aleksan Khachatryan ; Daniel Danuns v. Antony J. Blinken

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEKSAN K HACHATRYAN ; DANIEL
DANUNS ,
Plaintiffs-Appellants,
v.
ANTONY J. BLINKEN , in his official
capacity as U.S. Secretary of State;
J OHN J. SULLIVAN , in his official
capacity as U.S. Ambassador to the
Russian Federation; MERRICK B.
GARLAND , in his official capacity as
Attorney General; ALEJANDRO
M AYORKAS , in his official capacity
as Secretary of the Department of
Homeland Security; U.S.
DEPARTMENT OF STATE ; U.S.
DEPARTMENT OF HOMELAND
SECURITY; U.S. CITIZENSHIP AND
I MMIGRATION SERVICES ; DOES , 1–
10, Consular Officers, American
Embassy Visa Section at Moscow,
Defendants-Appellees.
No. 18-56359
D.C. No.
2:18-cv-01358-
MWF-KS
OPINION

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2 KHACHATRYAN V . BLINKEN
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted April 14, 2020*
Pasadena, California
Filed July 14, 2021
Before: Daniel P. Collins and Kenneth K. Lee, Circuit
Judges, and Gregory A. Presnell,** District Judge.
Opinion by Judge Collins;
Dissent by Judge Presnell
* The panel unanimously concludes that this case is suitable for
decision without oral argument. See F ED. R. A PP . P. 34(a)(2)(C).
** The Honorable Gregory A. Presnell, United States District Judge
for the Middle District of Florida, sitting by designation.

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KHACHATRYAN V . BLINKEN 3
SUMMARY***
Visas/Consular Nonreviewability
Affirming the district court’s judgment dismissing for
failure to state a claim a civil action brought by Aleksan
Khachatryan and Daniel Danuns, respectively a Russian
citizen and his U.S. citizen adult son, challenging the
Government’s decision to deny Khachatryan an immigrant
visa, the panel held that (1) Khachatryan has no cause of
action to challenge the visa denial because he is an
unadmitted and nonresident alien; (2) Danuns’s complaint
pleaded sufficient facts with particularity to raise a plausible
inference that Khachatryan’s visa was denied in bad faith in
violation of Danuns’s Fifth Amendment right to due process;
and (3) the district court nevertheless properly dismissed
Danuns’s claims because he does not have a liberty interest,
protected by due process, in living in the United States with
his unadmitted and nonresident alien father.
The panel explained that although decisions regarding
the admission and exclusion of foreign nationals are subject
to the doctrine of consular nonreviewability, the Supreme
Court has identified a “circumscribed judicial inquiry” for
review of consular decisions that involve a violation of
constitutional rights. However, the panel concluded that, as
a foreign national seeking admission into the United States,
Khachatryan has no constitutional right to entry, and so he
personally has no ability to bring a cause of action
challenging his denial of admission. The panel explained
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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that, in this context, the exception to consular reviewability
applies only when the denial of a visa allegedly burdens the
constitutional rights of a U.S. citizen. The panel therefore
concluded that the rule of consular nonreviewability barred
all of Khachatryan’s claims, and barred Danuns’s claims
except to the extent his claims were based on a cognizable
violation of his own constitutional rights.
Following the approach of Justice Kennedy’s
concurrence in Kerry v. Din, 576 U.S. 86 (2015), the panel
first addressed whether, assuming that Danuns has a
protected liberty interest, he had sufficiently alleged a due
process violation. The panel reasoned that only if it
concluded that Danuns had alleged a failure of due process
would it then need to address the Government’s broader
contention that Danuns lacks an underlying liberty interest
that is protected by due process. Applying the three-part test
set forth in Justice Kennedy’s concurrence, the panel held
that Danuns had adequately pleaded that the handling of his
father’s visa application did not satisfy the relevant due
process standards. First, the panel concluded that the
Government had sufficiently cited a valid statutory provision
under which the visa was denied. Second, the panel
concluded that the cited statute specifies discrete factual
predicates that must exist before the consular officer may
deny a visa. The panel explained that because the
Government had carried its burden to establish these first
two requirements, the burden shifted to Danuns to plead and
prove that the cited reason was not bona fide by making an
affirmative showing of bad faith on the part of the consular
officer who denied the visa. The panel concluded that
Danuns had pleaded sufficient facts with particularity to
raise a plausible inference of subjective bad faith on the part
of the consular official who denied the visa.

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KHACHATRYAN V . BLINKEN 5
Because Danuns had sufficiently pleaded bad faith, the
panel concluded that it could not sustain the dismissal on that
ground, and thus turned to the issue of whether Danuns
lacked a protected liberty interest in the first place. The
panel explained that the plurality and dissent in Din both
agreed—and therefore a majority agreed—that procedural
due process at least extends under the Court’s current
caselaw to any “implied fundamental liberty,” but they
differed as to whether procedural due process protects some
new set of additional “nonfundamental liberty interests.”
The panel determined that it need not resolve this dispute,
however, because Danuns lacks a protected liberty interest
under either approach.
The panel wrote that the question before it was whether
the “liberty” specially protected by the Due Process Clause
includes a right of familial association that itself includes a
right of an adult child to bring his or her alien parent into the
United States. The panel wrote that it was aware of no
precedent that has recognized any such right. Explaining
that this court may recognize a new fundamental liberty
interest only if it is objectively, deeply rooted in this
Nation’s history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would
exist if it were sacrificed, the panel concluded that Danuns’s
claimed right to bring his father to the United States did not
meet that standard. Thus, the panel concluded that Danuns
has no protected liberty interest under the approach of the
Din plurality.
The panel found no basis for reaching a different
conclusion under the approach of the Din dissenters.
Explaining that the dissenters also posited a further set of
constitutionally based liberty interests entitled to procedural
due process protection, but that are not fundamental rights

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requiring substantive due process protection, the panel
concluded that, even assuming arguendo there are any such
liberty interests, there still is no basis for concluding that it
would embrace the particular liberty interest Danuns asserts.
The panel wrote that none of the reasoning relied upon by
the Din dissenters extends here, explaining that the
relationship of an adult child with his or her parents bears no
relationship to the unique institution of marriage (at issue in
Din), and while the Supreme Court has recognized a
constitutionally based liberty interest against arbitrary
interference with extended-family living arrangements
within the United States, it has never suggested that any such
protection entails a constitutionally rooted expectation that
one will be allowed to bring one’s parents or adult children
into the United States.
Dissenting, District Judge Presnell wrote that the
majority departs from established Ninth Circuit precedent by
concluding that Danuns has no protectable liberty interest to
assert—a ruling that effectively eviscerates the exception to
consular nonreviewability and makes it virtually impossible
for anyone other than a spouse to rectify the Government’s
bad faith denial of a visa application. Judge Presnell wrote
that by claiming that this case involves a novel liberty
interest, the majority fails to adhere to this Court’s clear
precedent recognizing a constitutional liberty interest
between parent and child. Because Danuns adequately pled
bad faith on the part of the Government, and Danuns has a
protected liberty interest in his relationship with his father,
Judge Presnell wrote that Danuns is entitled to judicial
review of his procedural due process challenge to the
Government’s denial of Khachatryan’s visa.

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KHACHATRYAN V . BLINKEN 7
COUNSEL
H. Henry Ezzati, Ezzati Law P.C., Irvine, California, for
Plaintiffs-Appellants.
Nicola T. Hanna, United States Attorney; David M. Harris,
Chief, Civil Division; Daniel O. Blau, Assistant United
States Attorney; United States Attorney’s Office, Los
Angeles, California; for Defendants-Appellees.
OPINION
COLLINS, Circuit Judge:
Plaintiffs-Appellants Aleksan Khachatryan and Daniel
Danuns, respectively a Russian citizen and his U.S. citizen
adult son, appeal the district court’s dismissal of their civil
complaint challenging the Government’s decision to deny
Khachatryan an immigrant visa. Because Khachatryan is an
unadmitted and nonresident alien, he has no cause of action
to challenge the visa denial, and his claims were properly
dismissed. Danuns claims that his Fifth Amendment right to
due process was violated by the denial of his father’s visa
because a consular officer allegedly denied that visa in bad
faith. We agree that Danuns’s complaint pleads sufficient
facts with particularity to raise a plausible inference that
Khachatryan’s visa was denied in bad faith. Nevertheless,
we conclude that the district court properly dismissed
Danuns’s claims because he does not have a liberty interest,
protected by due process, in living in the United States with
his unadmitted and nonresident alien father. We therefore
affirm.

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I
We begin by recounting Khachatryan’s ultimately
unsuccessful effort, over a period of more than 14 years, to
obtain an immigrant visa to reside in the United States. We
then briefly set forth the procedural history leading up to the
district court’s dismissal of the case at the pleading stage.
A
In reviewing the dismissal of Plaintiffs’ operative
complaint for failure to state a claim, we take as true the
well-pleaded allegations of that complaint, Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), and “we ‘consider only
allegations contained in the pleadings, exhibits attached to
the complaint, and matters properly subject to judicial
notice,’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012) (citation omitted). Applying those standards, we take
the following facts as true.1
Khachatryan, a native of Armenia, married Karine
Galustian in Armenia, in the former Soviet Union, in March
1990. The couple had three children, including Arman
Khachatryan, who is now known as Daniel Danuns. At some
point, Khachatryan became a citizen of the Russian
Federation and moved from Armenia to Moscow. After
Khachatryan’s marriage to Galustian ended in divorce in
1 To the extent that some of the facts we recount reflect materials
submitted in connection with the Government’s motion to dismiss rather
than the allegations of the operative complaint itself, we may properly
consider such further factual contentions to the extent that they constitute
additional matters that Plaintiffs could plead if they were given leave to
amend. See Broidy Cap. Mgmt., LLC v. State of Qatar, 982 F.3d 582,
586 (9th Cir. 2020).

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KHACHATRYAN V . BLINKEN 9
Moscow in 1999, Galustian moved with the children to the
United States.
Khachatryan later married Ripsime Akhverdian, a U.S.
citizen, in Moscow in June 2001. That same month,
Akhverdian filed with the U.S. Immigration and
Naturalization Service (“INS”), at the U.S. Embassy in
Moscow, a “petition for alien relative” (Form I-130)
sponsoring Khachatryan for an immigrant visa.2 Three
months later, the INS “Officer-in-Charge” at the Embassy
issued a “Notice of Intent to Deny,” asserting that
Khachatryan’s decree of divorce from Galustian, which had
been submitted with the Form I-130, was fraudulent. The
notice requested additional documents and set a due date for
Akhverdian to respond.
In January 2002, prior to that due date, Akhverdian
formally withdrew the petition, explaining that she had not
had sufficient time to obtain the requested documents.
Nonetheless, the INS Officer-in-Charge at the Embassy
thereafter sent a “Decision” denying Akhverdian’s petition
on January 18, 2002. Although the INS decision
acknowledged the agency’s receipt of the withdrawal notice,
the decision expressly disregarded that withdrawal and
proceeded to deny the petition on the ground that the divorce
certificate was fraudulent and that there was evidence that
2 The relevant functions of the INS were subsequently transferred to
the Bureau of Citizenship and Immigration Services—now known as
United States Citizenship and Immigration Services (“USCIS”)—
pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, 2196, 2205. See 6 U.S.C. §§ 271(b), 291; see also Name
Change from the Bureau of Citizenship and Immigration Services to U.S.
Citizenship and Immigration Services, 69 FED. REG. 60938 (Oct. 13,
2004). We discuss the current visa procedures in more detail below. See
infra at 12–13.

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Khachatryan had married Akhverdian “for the purpose of
evading” immigration laws. Akhverdian’s counsel objected,
noting that the INS’s actions in disregarding the withdrawal
and deciding the petition were directly contrary to Matter of
Cintron, 16 I. & N. Dec. 9 (B.I.A. 1976). See id. at 9 (“Just
as any United States citizen or lawful permanent resident
may file a visa petition in behalf of an alien, so may he [or
she] withdraw the petition before a decision has been
rendered. The action of the District Director in refusing to
consider the petition withdrawn was erroneous.”). On
March 5, 2002, the Officer-in-Charge acknowledged the
agency’s error and affirmed that Akhverdian’s petition was
deemed “to be withdrawn” rather than denied.
In October 2002, Akhverdian filed a new Form I-130 on
Khachatryan’s behalf, but this time she did so at the INS
office in Los Angeles. In August 2003, the INS’s successor
agency, USCIS, denied Akhverdian’s renewed petition,
based solely on its assertion that her previous visa petition
had been denied on grounds of fraud on January 18, 2002.
Given the INS’s earlier acknowledgment that the January
2002 denial was invalid under Matter of Cintron and that the
previous application had been withdrawn before decision,
the stated ground for this denial was plainly erroneous.
Nonetheless, USCIS reiterated its denial of the second
petition on this ground on October 6, 2003.
Khachatryan and Akhverdian subsequently divorced in
2005. After the divorce, Khachatryan had repeated
difficulties in attempting to obtain a tourist visa to visit his
children in the United States. In trying to resolve that
problem, Khachatryan and his attorneys made numerous
administrative inquiries over several years in an effort to
correct the administrative record. Those efforts bore fruit
when, in January 2009, USCIS, on its own motion, formally

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KHACHATRYAN V . BLINKEN 11
reopened the denial of Akhverdian’s 2002 petition. USCIS’s
reopening decision acknowledged that, in light of Matter of
Cintron, a “petition that is withdrawn by a petitioner may not
be denied,” and that, as a result, USCIS’s denials of
Akhverdian’s renewed petition in August 2003 and October
2003 had erred in relying on “a ‘previous decision,’ which
was never made.” But the USCIS reopening decision went
further and also held that “the Service did not prove that the
marriage” to Akhverdian “was entered into for the purpose
of evading immigration laws” (emphasis added). USCIS’s
grant of sua sponte reopening wiped out the prior USCIS
denials and thereby had the effect of allowing the renewed
petition to be withdrawn. (In view of Khachatryan’s
intervening divorce from Akhverdian, there was at that point
no basis on which to proceed with that renewed petition on
the merits.)
Despite this development, Khachatryan continued to
have difficulty obtaining a tourist visa, and his family
reached out to their elected representatives for help. In
October 2011, the U.S. Customs and Border Protection
(“CBP”) responded to an inquiry from then-U.S. Senator
Barbara Boxer concerning the situation. The CBP’s letter
acknowledged that the “documentation” the Senator’s office
had provided “indicates that Mr. Khachatryan has been
unable to obtain an immigrant visa due to inaccurate charges
contained in U.S. Customs and Border Protection (CBP)
records relating to fraud.” The CBP stated that, while it
could not disclose specific law-enforcement records, it could
assure the Senator that “we have undertaken a review of our
records, and any required changes or updates have been
made.” Two months later, however, the U.S. Embassy in
Moscow sent a letter by email to U.S. Representative
Howard Berman’s office, stating that Khachatryan had been
denied a tourist visa because he was presumptively an

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intending immigrant, and not a tourist, and because he had
been denied an immigrant visa in 2003 based on his having
presented a fraudulent divorce certificate in support of his
application. The Embassy letter to Representative Berman
made no reference to USCIS’s reopening of the August 2003
and October 2003 denials of an immigrant visa for
Khachatryan.
On March 26, 2012, Danuns, who was then a U.S.
citizen, filed a new Form I-130 petition seeking to sponsor
his father so that the latter could obtain an immigrant visa.
Under the Immigration and Nationality Act (“INA”), a
parent seeking an immigrant visa ordinarily may be
sponsored by a U.S.-citizen child only if that child is “at least
21 years of age,” 8 U.S.C. § 1151(b)(2)(A)(i); see also id.
§ 1154(a)(1)(A)(i), and Danuns was 22 years old on the day
he filed the application. In its current form, the statute
requires the sponsor to file a petition (the I-130 Form) with
USCIS in order to “establish[] the sponsor-applicant
relationship.” Doe #1 v. Trump, 984 F.3d 848, 855 (9th Cir.
2020); see also 8 U.S.C. § 1154(a)(1)(A)(i).3 “After an
investigation of the facts in each case,” USCIS “shall . . .
approve the petition and forward one copy thereof to the
Department of State,” if USCIS “determines that the facts
stated in the petition are true and that the alien in behalf of
whom the petition is made” is a qualifying “immediate
relative.” 8 U.S.C. § 1154(b). However, “no petition shall
be approved” if the alien previously “sought to be accorded”
immediate relative status as a spouse of a U.S. citizen “by
reason of a marriage determined by [USCIS] to have been
3 The INA actually says that the petition should be filed with the
“Attorney General,” but that reference is “deemed to refer to the
Secretary” of Homeland Security or to the appropriate agency within that
department, see 6 U.S.C. § 557, and here that is USCIS, see id. § 271(b).

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KHACHATRYAN V . BLINKEN 13
entered into for the purpose of evading the immigration
laws.” Id. § 1154(c)(1). Once the petition is approved by
USCIS and forwarded to the Department of State, “the alien
then may ‘apply for a visa by submitting the required
documents and appearing at a United States Embassy or
consulate for an interview with a consular officer.’” Doe #1,
984 F.3d at 855 (citation omitted); see also 8 U.S.C.
§§ 1201(a)(1)(A), 1202(a)–(b), (e); 22 C.F.R. § 42.62. The
“consular officer then determines whether to issue or refuse
the visa application.” Doe #1, 984 F.3d at 855 (citing
8 U.S.C. § 1201(a)(1)(A), (g); id. § 1204; 22 C.F.R.
§§ 42.71(a), 42.81(a)).
In October 2012, USCIS approved Danuns’s petition. Its
approval notice cautioned that approval “does not guarantee
that the alien beneficiary will subsequently be found to be
eligible for a visa.” Khachatryan applied for the immigrant
visa, and he appeared for an interview at the U.S. Embassy
in Moscow on October 16, 2013. The Embassy, however,
thereafter sent the petition back to USCIS for further
consideration in light of USCIS’s 2003 determination that
Khachatryan had presented a fraudulent divorce certificate
in support of a prior visa application.
On July 25, 2014, USCIS issued a “Notice of Intent to
Revoke” its approval of Danuns’s petition sponsoring his
father. The notice correctly noted that Akhverdian’s first
sponsorship petition had been withdrawn, but it nonetheless
stated that the “U.S. Embassy, Moscow reviewed the second
visa petition and determined that the submitted record failed
to reflect any new circumstances or any new information to
be considered and the Service adhered to the previous
decision.” The notice did not mention that, because the first
petition had been withdrawn, the Officer-in-Charge at the
Embassy had acknowledged in March 2002 that there was

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no valid “previous decision” on the first petition. Nor did
the notice mention that USCIS itself had concluded in 2009
that it had erred in 2003 in relying on the erroneous denial of
the first petition. The notice also stated that, “[u]pon review
of the entire record,” USCIS had “independently
conclude[d] that [Khachatryan] entered into the prior
marriage for the sole purpose of circumventing immigration
laws.” This, too, was inconsistent with USCIS’s contrary
finding in 2009, which the notice did not mention.
After Plaintiffs submitted their response to the notice,
USCIS in September 2014 again reversed course and
decided to reaffirm its prior approval of Danuns’s
sponsorship petition. Accordingly, it forwarded the petition
to the Department of State. Over the next seven months,
counsel for Danuns and his father made repeated inquiries as
to the status of the matter, but to no avail. In April 2015, the
National Visa Center (“NVC”) at the State Department
responded that it had never received the petition back from
USCIS. After further inquiries, counsel learned a month
later that the petition had somehow been sent to “archives”
rather than to the State Department. The NVC finally
forwarded the petition to the U.S. Embassy in Moscow in
July 2015.
Counsel for Danuns and his father thereafter followed up
with the Embassy in Moscow to find out about the status of
the matter, and counsel was told on November 11, 2015 that
the Embassy had denied Khachatryan’s visa petition.
Counsel was provided with a “Refusal Worksheet” that was
actually dated more than six weeks earlier—“30-Sep-
2015”—but which had not previously been received by
Khachatryan or his counsel. The Refusal Worksheet was a
barebones check-the-box form, and it simply stated that the
visa was denied under INA “Section 212(a)(6C) 1 [sic]” due

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KHACHATRYAN V . BLINKEN 15
to “Fraud or Misrepresentation” of an unspecified nature.
See 8 U.S.C. § 1182(a)(6)(C)(i) (INA § 212(a)(6)(C)(i))
(providing that any alien who has sought a visa “by fraud or
willfully misrepresenting a material fact” is inadmissible);
id. § 1361 (visa generally may not be issued to an
inadmissible alien). Dissatisfied with this terse explanation,
counsel requested additional information from the Embassy.
In response, counsel received an email on November 25,
2015 stating as follows:
Dear Ms. Gambourian,
Your client, Mr. Aleksan Khachatryan, was
found ineligible for a visa under INA
[§] 212(a)(6)(C)(1), for fraud and
misrepresentation. Mr. Khachatryan was
found to have applied for and received U.S.
visas three times under a false identity from
2000–2002. He was also found to have
submitted a false divorce certificate in
support of a previous immigrant visa petition.
[Section] 212(a)(6)(C)(1) [ineligibility] is a
permanent ineligibility, and under U.S.
immigration law no waiver is available for
Mr. Khachatryan’s visa classification.
B
Khachatryan and Danuns filed this lawsuit on February
18, 2018, naming as defendants USCIS, the Departments of
State and Homeland Security, the heads of those
Departments, the U.S. Ambassador to Russia, the Attorney
General, and unnamed “Doe” Embassy consular officers
(collectively, “the Government”). After the district court
dismissed Plaintiffs’ original complaint with leave to amend,

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Plaintiffs filed their operative First Amended Complaint.
That complaint alleges three causes of action. First, both
Danuns and Khachatryan sought to challenge, under the
Administrative Procedure Act (“APA”), the determination
that Khachatryan was inadmissible under INA
§ 212(a)(6)(C)(i). Second, Danuns alleged that his due
process rights were violated by the denial of a visa to his
father, and he sought appropriate declaratory relief for that
alleged violation. Third, Danuns and Khachatryan asserted
that the Government violated their Fifth and Sixth
Amendment rights by denying the visa in bad faith and by
refusing to allow them to examine the evidence on which the
Government relied.
The district court dismissed the First Amended
Complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). In doing so, the court assumed
arguendo that Danuns had an “interest in being reunited with
his father in the United States” that was protected by the Due
Process Clause, but the court concluded that Danuns
nonetheless had failed to plead sufficient facts to raise a
plausible inference of a due process violation under the
applicable legal standards. Because the court concluded that
the denial of a visa to Khachatryan was otherwise not subject
to judicial review, it dismissed the action with prejudice.
Danuns and Khachatryan timely appealed. We have
jurisdiction under 28 U.S.C. § 1291. We review dismissals
for failure to state a claim de novo. Stoyas v. Toshiba Corp.,
896 F.3d 933, 938 (9th Cir. 2018).
II
Decisions regarding the admission and exclusion of
foreign nationals are a “‘fundamental sovereign attribute
exercised by the Government’s political departments.’”

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KHACHATRYAN V . BLINKEN 17
Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018) (citation
omitted); see also Ventura-Escamilla v. INS, 647 F.2d 28, 30
(9th Cir. 1981) (“[T]he power to exclude or expel aliens, as
a matter affecting international relations and national
security, is vested in the Executive and Legislative branches
of government.”). Given this broad authority of the political
branches over the admission and exclusion of foreigners, we
“have long recognized” and applied the “doctrine of consular
nonreviewability,” under which “‘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–
05 (9th Cir. 2018) (citation omitted). Although Congress
could conceivably create by statute some mechanism for
review of individual consular decisions, it has not seen fit to
take any such action to displace the rule of consular
nonreviewability. See id. at 1108 (holding that “the APA
provides no avenue for review of a consular officer’s
adjudication of a visa on the merits”).
Nonetheless, the Supreme Court has recognized a
“circumscribed judicial inquiry” for review of consular
decisions that involve a violation of constitutional rights.
Trump v. Hawaii, 138 S. Ct. at 2419 (tracing this exception
to Kleindienst v. Mandel, 408 U.S. 753 (1972)); see also
Allen, 896 F.3d at 1097 (“[T]he only standard by which we
can review the merits of a consular officer’s denial of a visa
is for constitutional error.”).4 However, as a “foreign
national[] seeking admission” into the United States,
4 In Allen, we recognized that 28 U.S.C. § 1331 would provide
jurisdiction over a non-statutory cause of action for declaratory and
equitable relief against alleged unconstitutional conduct in the denial of
a visa, but subject to the substantive constraints of the consular
nonreviewability doctrine. See 896 F.3d at 1102; see also id. at 1108
(“[W]e have assumed that the courts will be open to review of
constitutional claims, even if they are closed to other claims.”).

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Khachatryan has “no constitutional right to entry,” and so he
personally has no ability to bring a cause of action
challenging his denial of admission. Trump v. Hawaii,
138 S. Ct. at 2419; see also Kerry v. Din, 576 U.S. 86, 88
(2015) (plurality) (“[B]ecause Berashk is an unadmitted and
nonresident alien, he has no right of entry into the United
States, and no cause of action to press in furtherance of his
claim for admission.” (emphasis added)); Mandel, 408 U.S.
at 762 (“It is clear that Mandel personally, as an unadmitted
and nonresident alien, had no constitutional right of entry to
this country as a nonimmigrant or otherwise.”).
Accordingly, where, as here, the denial of a visa to an
unadmitted and nonresident alien is at issue, the exception to
consular reviewability involving constitutional claims only
applies “when the denial of a visa allegedly burdens the
constitutional rights of a U.S. citizen.” Trump v. Hawaii,
138 S. Ct. at 2419 (emphasis added).
It follows that the rule of consular nonreviewability bars
all of Khachatryan’s claims and that it also bars Danuns’s
claims except to the extent that his claims are based on a
cognizable violation of his own constitutional rights.5
Indeed, Plaintiffs do not meaningfully contest these points in
their briefs in this court. Instead, they contend only that
Danuns adequately pleaded that the denial of a visa to his
father was done in bad faith and that, as a result, the visa
denial violated his rights under the Due Process Clause,
which he asserts protects his interest in being reunited with
5 As the Government correctly notes, in light of our decision in
Allen, neither Khachatryan nor Danuns has a cause of action under the
APA. 896 F.3d at 1108.

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KHACHATRYAN V . BLINKEN 19
his father in the United States.6 The Government contests
both of these points, arguing that Danuns failed to plead bad
faith and that, in any event, Danuns is not entitled to due
process here because he has no constitutionally protected
interest in having his father immigrate to the United States.
The Supreme Court addressed a similar set of questions
in Kerry v. Din, in which a U.S. citizen (Fauzia Din) asserted
that her due process rights were violated in connection with
the denial of a visa to her husband, an Afghan citizen living
in Afghanistan. 576 U.S. at 88 (plurality). A plurality of
three Justices held that the denial of a visa to Din’s husband
did not implicate any “fundamental liberty interest” of Din
and that, as a result, “there is no process due to her under the
Constitution” with respect to that denial. Id. at 97, 101.
However, two concurring Justices—Justice Kennedy and
Justice Alito—found it unnecessary to reach the
constitutional question of whether Din “has a protected
liberty interest in the visa application of her alien spouse,”
because they concluded that, “even assuming she has such
an interest, the Government satisfied due process” in
denying the visa. Id. at 102 (Kennedy, J., concurring in the
judgment).
Confronted with the novel constitutional question of
whether Danuns has a protected liberty interest in his
father’s visa application, we conclude that we should follow
the same approach as Justice Kennedy’s Din concurrence,
and that we should first address whether, assuming that
Danuns has such a protected interest, he has sufficiently
alleged a violation of due process under the standards set
6 Plaintiffs have thus abandoned any claims in their complaint that
are based on any other asserted constitutional right.

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20 KHACHATRYAN V . BLINKEN
forth by that concurrence.7 See Cardenas v. United States,
826 F.3d 1164, 1167 (9th Cir. 2016) (holding that, under
Marks v. United States, 430 U.S. 188 (1977), “Justice
Kennedy’s concurrence in Din is the controlling opinion”).
Only if we conclude that Danuns has alleged a failure of due
process would we then need to address the Government’s
broader contention that persons such as Danuns lack an
underlying liberty interest that is protected by due process.
III
We therefore turn first to the question of whether,
assuming Danuns has a constitutionally protected liberty
interest, he has adequately pleaded that the handling of his
father’s visa application did not satisfy the relevant due
process standards. We conclude that he has.
A
In Cardenas, we held that Justice Kennedy’s
concurrence in Din was the controlling opinion and that, as
a result, the standards he articulated for determining what
process was “due” in the visa-denial context were binding.
826 F.3d at 1171–72. We described those standards as
establishing a three-part inquiry. First, we examine whether
the consular officer denied the visa “under a valid statute of
inadmissibility.” Id. at 1172. Second, we consider whether,
in denying the visa, the consular officer “cite[d] an
admissibility statute that ‘specifies discrete factual
7 The question of whether a U.S. citizen “has a protected liberty
interest in the visa application of her alien spouse” was a novel one for
the Supreme Court in Din, see 576 U.S. at 102 (Kennedy, J., concurring
in the judgment), but that question had previously been answered in the
affirmative by this court in Bustamante v. Mukasey, 531 F.3d 1059, 1062
(9th Cir. 2008).

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KHACHATRYAN V . BLINKEN 21
predicates the consular officer must find to exist before
denying a visa’” or whether, alternatively, there is “a fact in
the record that ‘provides at least a facial connection to’ the
statutory ground of inadmissibility.” Id. (quoting Din,
576 U.S. at 105 (Kennedy, J., concurring in the judgment)).
The Government has the burden to establish that these two
elements are satisfied. Id. If it carries that burden, then we
proceed to the third step, which requires us to determine
whether the plaintiff has carried his or her “burden of
proving that the [stated] reason was not bona fide by making
an ‘affirmative showing of bad faith on the part of the
consular officer who denied [the] visa.’” Id. (quoting Din,
576 U.S. at 105 (Kennedy, J., concurring in the judgment)).
The Government contends, however, that the three-part
framework described in the Din plurality and Cardenas was
abrogated by the Supreme Court in Trump v. Hawaii. We
disagree. The Government notes that, in Trump v. Hawaii,
the Court described Justice Kennedy’s concurrence in Din as
establishing “that the Government need provide only a
statutory citation to explain a visa denial,” see 138 S. Ct. at
2419, and the Court did not mention the additional portions
of the Din concurrence that addressed the need for “discrete
factual predicates” or the possibility of making “an
affirmative showing of bad faith.” But this dog-that-didn’t-
bark theory provides no basis for concluding that the five-
Justice majority in Trump v. Hawaii—which included
Justice Kennedy and Justice Alito—thereby silently
jettisoned these other aspects of the Din plurality.
The Government overlooks the fact that Trump v.
Hawaii did not involve review of a discrete individual visa
denial, but rather, a broad-based challenge to a presidential
proclamation that imposed certain generally applicable
restrictions on the entry of aliens from specified countries.

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22 KHACHATRYAN V . BLINKEN
Id. at 2405–07. It is therefore unsurprising that, in adapting
the standards set forth in the Din plurality and in earlier cases
to the context of a broad policy established in a presidential
proclamation, the Court did not recite the portions of the Din
plurality’s test that are specifically tailored to addressing the
review of a particular visa denial decision involving an
individual alien. Nothing in Trump v. Hawaii suggests that,
in the context of the review of an individual visa denial, as
in Din, the standards set forth by the Din concurrence would
not continue to apply.
B
We therefore proceed to apply the three-part framework
of the Din concurrence, as set forth in our decision in
Cardenas. See Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc).
1
First, we conclude that the Government sufficiently cited
a valid statutory provision under which the visa was denied.
Although it would seemingly be a very easy task to supply a
statutory citation, the Embassy nonetheless managed to mis-
identify the relevant provision in both of its communications
with Khachatryan’s counsel. In the initial “Refusal
Worksheet,” the Embassy identified INA “Section
212(a)(6C) 1” as the relevant provision that rendered
Khachatryan inadmissible, and in its follow-up email to
counsel, it cited the provision as section “212(a)(6)(C)(1).”
The actual provision is § 212(a)(6)(C)(i) of the INA, which
declares inadmissible any alien who engages in specified
forms of fraud in connection with an application for a visa
or other benefit under the INA. See 8 U.S.C.
§ 1182(a)(6)(C)(i). Plaintiffs were not prejudiced by these
minor errors, because the Embassy’s communications also

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KHACHATRYAN V . BLINKEN 23
confirmed that the basis for the denial was alleged fraud, and
Plaintiffs’ complaint expressly confirms that they
understood that the asserted basis for the visa denial was
“INA § 212(a)(6)(C)(i).”
Second, § 212(a)(6)(C)(i) is a statute that “specifies
discrete factual predicates the consular officer must find to
exist before denying a visa.” Din, 576 U.S. at 105 (Kennedy,
J., concurring in the judgment). As relevant here, the factual
predicate is that the alien “sought to procure or has
procured[] a visa, other documentation, or admission into the
United States” by “fraud or willfully misrepresenting a
material fact.” 8 U.S.C. § 1182(a)(6)(C)(i). Alternatively,
there are “fact[s] in the record that ‘provide[] at least a facial
connection to’ the statutory ground of inadmissibility.”
Cardenas, 826 F.3d at 1172 (quoting Din, 576 U.S. at 105
(Kennedy, J., concurring in the judgment)). Specifically, the
Embassy’s follow-up email to counsel states that
Khachatryan was “found” to “have submitted a false divorce
certificate in support of a previous immigrant visa petition”
and to “have applied for and received U.S. visas three times
under a false identity from 2000–2002.” Thus, the
Government has satisfied both of the alternatives for meeting
the second element of the Din test.
Because the Government has carried its burden to
establish these first two requirements, the burden shifts to
Danuns to plead and prove that the cited reason “was not
bona fide by making an ‘affirmative showing of bad faith on
the part of the consular officer who denied [the] visa.’”
Cardenas, 826 F.3d at 1172 (quoting Din, 576 U.S. at 105
(Kennedy, J., concurring in the judgment)).

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24 KHACHATRYAN V . BLINKEN
2
Because this case was decided at the pleading stage,
Danuns’s burden was to affirmatively allege facts “with
sufficient particularity” to raise a “plausibl[e]” inference that
the consular officer acted in “bad faith.” Din, 576 U.S. at
105 (Kennedy, J., concurring in the judgment); see also
Cardenas, 826 F.3d at 1173. In Bustamante v. Mukasey,
531 F.3d 1059 (9th Cir. 2008), we construed this
requirement as imposing a burden to allege subjective “bad
faith,” i.e., that “the consular official did not in good faith
believe the information he [or she] had” or that the
“Consulate acted upon information it knew to be false.” Id.
at 1062–63 (emphasis added). Consequently, it “is not
enough to allege that the consular official’s information was
incorrect.” Id. But that does not mean that the objective
unreasonableness of a stated reason for a visa denial is
irrelevant, particularly at the pleading stage. On the
contrary, the more objectively unreasonable a stated basis
for denying a visa is, the more plausible is the inference that
the consular officer who accepted it acted in subjective bad
faith. The unreasonableness of a consular officer’s actions
thus remains a factor to consider in assessing whether the
plaintiff has pleaded facts with sufficient particularity to give
rise to a plausible inference of subjective bad faith. Cf. CRST
Van Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099,
1112 (9th Cir. 2007) (fact that litigant’s claim was
“objectively specious” was a factor that permitted district
court to “infer subjective bad faith” in litigant’s persisting in
asserting the claim).
In evaluating Danuns’s allegations, we begin by
addressing the Embassy’s reliance on the ground that
Khachatryan had assertedly submitted a false divorce
certificate in connection with his earlier visa application in

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KHACHATRYAN V . BLINKEN 25
2001. We find two sets of particularized allegations to be
especially pertinent on this score.
First, on at least three separate occasions, USCIS
specifically examined the allegation that Khachatryan had
committed marriage fraud and had submitted a false divorce
certificate, and each time USCIS concluded that this charge
was unsubstantiated. Specifically, USCIS in 2009 formally
reopened its prior denial of Khachatryan’s second visa
application, and in doing so USCIS expressly concluded that
“the Service did not prove that [Khachatryan’s] marriage
was entered into for the purpose of evading immigration
laws.” The 2009 reopening order also expressly mentioned
the prior allegation of a fraudulent divorce certificate and
necessarily found that allegation unsupported as well.
USCIS evidently reached the same conclusion again in
October 2012, when it approved Danuns’s sponsorship
petition, because the applicable statute governing such
petitions expressly forbids approval if the sponsored relative
engaged in marriage fraud. See 8 U.S.C. § 1154(c). And
USCIS adhered to that same conclusion in September 2014
when it expressly reaffirmed its approval of Danuns’s
petition after the Embassy sent it back to USCIS. The
Embassy had returned the petition to USCIS precisely so that
it could reconsider the matter in light of the earlier supposed
decision that Khachatryan had presented a fraudulent
divorce certificate. After initially issuing an error-filled
“Notice of Intent to Revoke,”8 USCIS subsequently
8 As noted earlier, see supra at 13–14, the notice contained several
serious mistakes. First, the notice relied on adherence to a “previous
decision,” when in fact the prior (unlawful) decision had been
withdrawn. Second, the notice failed to acknowledge that USCIS itself
had concluded in 2009 that it had erred in 2003 in relying on the same
supposed previous decision. Third, the notice purported to conclude that

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26 KHACHATRYAN V . BLINKEN
reviewed the information presented by Khachatryan’s
counsel and instead reaffirmed its decision to approve the
petition.
Thus, on three separate occasions, the other agency
charged with reviewing the same marriage-fraud
allegations—USCIS—specifically examined the matter and
concluded that the charges were unsubstantiated.9 In
Bustamante, we concluded that a consular official’s reliance
upon information supplied by another agency was a factor
that weighed strongly against a finding of bad faith. See
531 F.3d at 1063. Conversely, the Embassy’s persistent and
unexplained refusal to accept the repeated conclusions of
USCIS—and to do so even after the Embassy had
specifically asked USCIS to take another look at the
matter—is a factor that weighs in favor of an inference of
bad faith.
Second, in addition to stubbornly refusing to accept
USCIS’s contrary conclusions, the Embassy erroneously
continued to assert that Khachatryan’s prior visa application
had been denied rather than withdrawn. In a declaration
from a State Department attorney submitted to the district
court, the Government explained that, after receiving the
reaffirmed approval from USCIS, the Embassy then
“reviewed the basis for the prior finding of ineligibility
under INA § 212(a)(6)(C)(i)” (emphasis added). But as we
have explained, the first such finding was withdrawn in 2002
Khachatryan had engaged in marriage fraud, but without mentioning
USCIS’s expressly contrary finding in 2009.
9 Moreover, another component of DHS—CBP—also represented
in a letter to Senator Boxer that the fraud “charges” against Khachatryan
were “inaccurate” and in that same letter it reassured her that the relevant
records had been updated to reflect as much. See supra at 11.

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KHACHATRYAN V . BLINKEN 27
as plainly unlawful under Matter of Cintron, and both
agencies thereafter kept mistakenly treating that prior
decision as valid. See supra at 9–11, 13–14. Moreover, the
stated basis for the Embassy’s return of the petition to
USCIS in 2013 was the supposed “2003 finding” that
Khachatryan had presented a fraudulent divorce certificate,
but the referenced 2003 USCIS decision had been formally
withdrawn in 2009, on the grounds that it was substantively
wrong and that it had relied on an invalid (and also
withdrawn) prior decision of the INS Officer-in-Charge at
the Embassy. USCIS thus ultimately corrected itself twice
on this point, once in 2009 and again in 2014, but the
Embassy in 2015 again inexplicably reverted to acting as if
there had been a valid “prior finding.”
The Government nonetheless insists that, even if such
considerations might support an adverse inference with
respect to the Embassy’s reliance upon prior marriage fraud
in denying Khachatryan’s visa, that does not affect the
Embassy’s alternative conclusion that Khachatryan had
obtained visas under a false name in 2000–2002. We
disagree.
Our obligation in reviewing the motion to dismiss is to
examine the allegations of the complaint as a whole and to
draw all reasonable inferences in favor of Danuns. See
Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th
Cir. 2017). We conclude that, when considered against the
backdrop of the other factual allegations set forth above, the
Embassy’s much-belated and out-of-the-blue assertion that
Khachatryan had committed a different form of fraud more
than 13 years earlier supports, rather than defeats, a
reasonable inference of bad faith. Taken as a whole, the
allegations establish that Khachatryan engaged in a 14-year
effort to obtain a visa during which the Embassy continually

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28 KHACHATRYAN V . BLINKEN
disregarded the findings of USCIS and instead repeatedly
relied on the legally and factually invalid contention that he
had already previously been found to have engaged in
marriage fraud. After USCIS for the third time reaffirmed
that the marriage fraud finding was unsupported, the
Embassy suddenly for the first time over that 14-year period
hauled out the contention that Khachatryan used a false
name to obtain a visitor’s visa in the 2000–2002 time frame,
and the Government now insists we must take this new
allegation at face value.10 The Government may be right in
suggesting that the very belated discovery of this new
allegation was simply an “administrative oversight,” but the
overall pattern of troubling behavior over such an extended
period of time is enough to raise a plausible contrary
inference that the consular officer acted in subjective bad
faith rather than out of a “desire to get it right.” Yafai v.
Pompeo, 912 F.3d 1018, 1022 (7th Cir. 2019).
We hold that Danuns has carried his substantial burden
to plead sufficient facts with particularity to raise a plausible
inference of subjective bad faith on the part of the consular
official who denied Khachatryan’s visa.
IV
Because Danuns has sufficiently pleaded bad faith, we
cannot sustain the dismissal in this case on that ground that,
even assuming that Danuns has a protected liberty interest at
stake, he received whatever process was “due.” We
therefore turn to the Government’s argument that the
10 Khachatryan has specifically pleaded that the Embassy’s new
fraud allegation is false, and he also submitted a declaration averring
under penalty of perjury that he has never committed identity fraud.

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KHACHATRYAN V . BLINKEN 29
judgment should be affirmed on the alternative ground that
Danuns lacks a protected liberty interest in the first place.
A majority of the Supreme Court reaffirmed in Din that
procedural due process rights attach to “liberty interests” that
are based on “nonconstitutional law, such as a statute” or that
are properly recognized as constitutionally based. Din,
576 U.S. at 97–98 (plurality); id. at 108 (Breyer, J.,
dissenting). Here, Danuns does not point to any statute or
other source of nonconstitutional law that would grant him a
protected liberty interest in having his father come to the
United States. Rather, his contention is that he possesses a
constitutionally based liberty interest similar to the one that
we recognized for spouses in Bustamante. See Bustamante,
531 F.3d at 1062; see also supra note 7.
The plurality and the dissent in Din nonetheless differed
in articulating the standards for determining what
constitutionally based liberty interests are entitled to
procedural due process protection. Both agreed—and
therefore a majority of the Court agreed—that procedural
due process at least extends under the Court’s current
caselaw to any “implied fundamental liberty,” i.e., to any
liberty that is protected against substantive deprivation by
the Constitution. Din, 576 U.S. at 93 (plurality) (emphasis
added); id. at 107–08 (Breyer, J., dissenting).11 But they
differed as to whether procedural due process protects some
new set of additional “nonfundamental liberty interests”—
i.e., liberty interests that are assertedly based in the
11 To be sure, the plurality did not endorse what it described as the
“textually unsupportable doctrine of implied fundamental rights,” but it
acknowledged that the Court had recognized such rights, and the
plurality concluded that a logical consequence of such a recognition
would be that procedural due process protections would attach to such
rights. Din, 576 U.S. at 93 (plurality).

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30 KHACHATRYAN V . BLINKEN
Constitution (rather than in statute or other nonconstitutional
law) but that did not constitute a “fundamental” right.
Compare id. at 99 (plurality), with id. at 107–10 (Breyer, J.,
dissenting). We need not resolve this dispute here because
we conclude that Danuns lacks a protected liberty interest
under either approach.
A
Under the applicable standards that the Supreme Court
has articulated for assessing whether a claimed
unenumerated right is fundamental, Danuns lacks any
relevant fundamental right in having his father admitted into
the United States.
1
Danuns’s due process claim is based on the contention
that his “freedom to make personal choices in family life” is
a constitutionally protected liberty interest and that the
denial of his father’s visa deprives him of that liberty so as
to trigger procedural due process protections. We think that
Danuns defines the asserted interest at too high a level of
generality.
The Supreme Court has instructed us to “exercise the
utmost care” before “break[ing] new ground” in the area of
unenumerated fundamental rights, Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992), and the Court has
insisted on “a ‘careful description’ of the asserted
fundamental liberty interest,” Washington v. Glucksberg,
521 U.S. 702, 721 (1997) (citation omitted). Thus, new
fundamental rights ordinarily “must be defined in a most
circumscribed manner, with central reference to specific
historical practices.” Obergefell v. Hodges, 576 U.S. 644,
671 (2015) (citing Glucksberg, 521 U.S. at 721). The only

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KHACHATRYAN V . BLINKEN 31
exception that the Court has recognized from Glucksberg’s
insistence on “central reference to specific historical
practices” is for fundamental rights involving “marriage and
intimacy.” Id.; see also id. (Court has rejected Glucksberg’s
strict emphasis on historical tradition “with respect to the
right to marry and the rights of gays and lesbians”). Unlike
Din and Bustamante, which involved a marital relationship,
see Din, 576 U.S. at 88 (plurality); Bustamante, 531 F.3d at
1062, this case does not involve marriage or any comparable
relationship of sexual intimacy. As the Court in Obergefell
recognized, the marital relationship is “unlike any other in
its importance to the committed individuals,” and its unique
legal status rests on “related rights of childrearing,
procreation, and education.” 576 U.S. at 666–67.12 The
relationship between a parent and an adult child lacks these
distinctive features. Accordingly, Glucksberg’s general
rule—i.e., that new fundamental rights should be narrowly
defined and rooted in historical practice—is what governs
here, rather than Obergefell’s exception. Glucksberg,
521 U.S. at 721.
Because we must thus define the asserted fundamental
right at issue here “in a most circumscribed manner,” see
Obergefell, 576 U.S. at 671, we cannot ignore the fact that
what Danuns claims here is a right to a particular type of
relationship with his father—namely, one in which both he
and his nonresident alien father will both physically live in
the United States. As a result, the “question before us is
whether the ‘liberty’ specially protected by the Due Process
Clause includes” a right of familial association that “itself
includes” a right of an adult child to bring his or her alien
12 Obergefell thus belies the dissent’s suggestion that, from a
constitutional perspective, marital relationships are no different from
parent/adult-child relationships. See Dissent at 48 n.4.

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32 KHACHATRYAN V . BLINKEN
parent into the United States. Glucksberg, 521 U.S. at 723.
We are aware of no precedent from this court or from the
Supreme Court that has recognized any such right.
The dissent contends that we have already recognized the
relevant liberty interest on which Danuns relies, because we
have held “‘that a parent has a fundamental liberty interest’”
in the “‘companionship and society’” of his or her adult
child, Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
2004) (citation omitted), and we have also stated that this
“‘constitutional interest in familial companionship and
society logically extends to protect children’”—including
adult children—“‘from unwarranted state interference with
their relationships with their parents,’” Lee v. City of Los
Angeles, 250 F.3d 668, 676, 685 (9th Cir. 2001) (citation
omitted) (applying this principle in the context of an adult
child with significant mental difficulties).13 See also
Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,
1169 (9th Cir. 2013); Ward v. City of San Jose, 967 F.2d 280,
283 (9th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411,
1418–19 (9th Cir. 1987), overruled in part on other grounds
by Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1
(9th Cir. 1999) (en banc). But in each of these cases, the
state actors at issue allegedly directly interfered with a
parent/adult-child relationship that already existed within the
United States, either by causing the death of the plaintiff’s
adult child or parent, see Johnson, 724 F.3d at 1164 (son shot
and killed during arrest); Toguchi, 391 F.3d at 1055 (son
died under care of prison doctor); Ward, 967 F.2d at 283 (son
13 Several of our sister circuits have disagreed and concluded that
any fundamental liberty interests only extend to a relationship between a
parent and a minor child. See, e.g., McCurdy v. Dodd, 352 F.3d 820,
828–30 (3d Cir. 2003); Butera v. District of Columbia, 235 F.3d 637,
654–56 (D.C. Cir. 2001).

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KHACHATRYAN V . BLINKEN 33
shot and killed during encounter with police); Smith,
818 F.2d at 1413–14 (father shot and killed during encounter
with police), or by physically separating, and precluding
contact with, the plaintiff’s adult child, see Lee, 250 F.3d
at 685–86 (mentally ill son was wrongfully extradited to
New York based on misidentification, and for two years
conservator mother was falsely told “his whereabouts were
unknown”). Here, unlike in those cases, Danuns does not
contend that the Government has directly interfered with an
existing domestic relationship within the United States; on
the contrary, he contends only that the United States has
denied him the ability to create such a living arrangement
within the United States.
The dissent contends that, under Bustamante and the
panel opinion that the Supreme Court reviewed in Din, we
are obligated to define the relevant liberty interest at the very
highest level of generality, so that it would include adult-
child relationships and presumably many others as well. See
Dissent at 46, see also id. at 50 & n.7. That is wrong.
Neither decision even considered, much less decided,
whether there is a relevant cognizable liberty interest in the
visa application of any family member other than a spouse.
See Din v. Kerry, 718 F.3d 856, 860 (9th Cir. 2013) (“In
Bustamante, we recognized that a citizen has a protected
liberty interest in marriage that entitles the citizen to review
of the denial of a spouse’s visa.” (emphasis added)).
Likewise, in describing the limited review of visa denials
that emerged from the Supreme Court’s fractured decision
in Din, we held in Cardenas only that the narrow review
afforded by Justice Kennedy’s Din concurrence applies “at
least in a case only raising the due process rights of a citizen
spouse.” 826 F.3d at 1171 (emphasis added). The dissent’s
suggestion that our precedent has already decided that visa-

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34 KHACHATRYAN V . BLINKEN
review rights extend to all family relationships is
demonstrably incorrect.
Moreover, the dissent’s broader framing of the liberty
interests at stake cannot be reconciled with the Supreme
Court’s decision in Din. Although the Court was sharply
divided as to whether the plaintiff there had a relevant liberty
interest, no member of the Court employed the highly
generalized analysis that Danuns and the dissent advocate
here. Applying Glucksberg’s requirement of a “‘careful
description of the asserted fundamental liberty interest,’” the
Din plurality defined the liberty interest at issue as a “right
to live in the United States with [one’s] spouse” and
concluded that “[t]here is no such constitutional right.”
576 U.S. at 88, 93 (plurality) (quoting Glucksberg, 521 U.S.
at 721). While disagreeing as to whether Din actually had a
protected liberty interest, the dissenters in Din did not differ
as to the proper level of generality for framing that question:
they likewise defined the liberty interest involved as the
ability to live together as spouses in the United States. See
id. at 107 (Breyer, J., dissenting) (stating that the “liberty
interest” at issue was Din’s “freedom to live together with
her husband in the United States” (emphasis added)); id. at
108 (noting that the “institution of marriage . . . encompasses
the right of spouses to live together and to raise a family”
(emphasis added)); id. at 110 (concluding that the
Constitution protects a citizen’s “freedom to live together
with her spouse in America” (emphasis added)). And in
assuming arguendo that Din had a protected liberty interest,
Justice Kennedy’s concurrence similarly defined that
interest as being “a protected liberty interest in the visa
application of her alien spouse.” Id. at 102 (Kennedy, J.,
concurring in the judgment); see also id. at 101
(characterizing the right asserted as the “constitutional right
to live in this country with [her] husband”). But in all events,

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KHACHATRYAN V . BLINKEN 35
every member of the Court in Din framed the liberty interest
in question as tied specifically to the marital relationship.
As we have explained, the relationship between an adult
child and parent is not comparable to marriage and is not
exempt from Glucksberg’s general rule that fundamental
liberty interests must be carefully and narrowly defined. See
supra at 31–32.
Accordingly, the question presented here is whether,
under the standards set forth in applicable Supreme Court
precedent, we should now recognize a fundamental liberty
interest of an adult child to bring an alien parent into the
United States. For the reasons explained in the next section,
the answer to that question is no.
2
Under Glucksberg, we may recognize a new
fundamental liberty interest only if it is “objectively, deeply
rooted in this Nation’s history and tradition, and implicit in
the concept of ordered liberty, such that neither liberty nor
justice would exist if [it] were sacrificed.” Glucksberg,
521 U.S. at 720–21 (citations and internal quotation marks
omitted). Danuns’s claimed right to bring his father to the
United States does not meet this standard.
As an initial matter, we note that the right that Danuns
asserts finds no support from the original understanding of
the “liberty” protected against deprivation, without adequate
procedures, by the Fifth Amendment’s Due Process
Clause.14 As the Din plurality explained, “at the time of the
14 The Din plurality did not suggest, nor do we, that all of the rights
that were originally understood to be protected by procedural due
process are also fundamental rights that receive substantive due process

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36 KHACHATRYAN V . BLINKEN
Fifth Amendment’s ratification, the words ‘due process of
law’ were understood ‘to convey the same meaning as the
words “by the law of the land”’ in Magna Carta.” 576 U.S.
at 91 (plurality) (quoting Murray’s Lessee v. Hoboken Land
& Improvement Co., 59 U.S. 272, 276 (1856)).
Contemporary “description[s] of the rights protected by
Magna Carta” from authorities such as Edward Coke and
William Blackstone emphasized property rights, as well as
rights of physical security and mobility within one’s country,
but not a right to bring adult relatives into one’s country. Id.
at 91–92.
Magna Carta itself mentioned the right not to “‘be taken,
or imprisoned, or be disseised of his [or her] freehold . . . or
be outlawed, or exiled, or any otherwise destroyed.’” Id.
at 91 (quoting Magna Carta, ch. 29 (1225 ed.)). Coke
elaborated on these rights as including the liberty to pursue
one’s “livelihood” and “franchises,” as well as the rights to
not be “forejudged of life, or limbe, disherited, or put to
torture, or death.” Edward Coke, The Second Part of the
Institutes of the Laws of England 46–48 (W. Rawlins, 6th
ed. 1681), quoted in Din, 576 U.S. at 91 (plurality).
Blackstone’s articulation included “the power of loco-
motion, of changing situation, or removing one’s person to
whatsoever place one’s own inclination may direct; without
imprisonment or restraint, unless by due course of law.”
1 William Blackstone, Commentaries *134.
protection. Rather, as in the Din plurality opinion, it is helpful first to
set forth that traditional understanding of procedural due process before
turning to the question of whether, under substantive due process
principles, we should recognize a new right that would then, in turn,
trigger procedural due process protection under the Din plurality’s
approach.

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KHACHATRYAN V . BLINKEN 37
The only mention of transnational movement in this
original understanding of the underlying rights protected by
procedural due process consists of Coke’s reference to the
right not to be “exiled,” see Coke, supra, at 46, and
Blackstone’s reference to the “right to abide in [one’s] own
country so long as [one] pleases; and not to be driven from
it unless by the sentence of the law,” 1 Blackstone, supra, at
*137. This right not to be expelled from one’s country, of
course, does not include a right to have one’s adult relatives
immigrate to one’s country.
Against this backdrop, we perceive little basis for
concluding that the right claimed by Danuns satisfies
Glucksberg’s test for recognizing a new “fundamental
liberty interest,” which requires a grounding in “[o]ur
Nation’s history, legal tradition, and practices.” 521 U.S. at
721. Nor does Danuns’s claimed liberty interest find any
support in historical practices specifically relating to the
immigration of relatives. On the contrary, the relevant
history confirms that, “[a]lthough Congress has tended to
show ‘a continuing and kindly concern . . . for the unity and
the happiness of the immigrant family,’ this has been a
matter of legislative grace rather than fundamental right.”
Din, 576 U.S. at 97 (plurality) (citation omitted).
For example, a 1790 statute automatically naturalized the
resident minor children of naturalizing parents, but made no
provision for nonresident parents of naturalized adults. See
Act to Establish an Uniform Rule of Naturalization, ch. 3,
§ 1, 1 Stat. 103, 104 (1790). Regarding parent/adult-child
relationships specifically, our immigration laws have often
given parents of adult citizen children “preference” in
admission, but they have also sometimes subjected them to
annual quotas, reflecting congressional “ambivalence
toward family members outside the nuclear family, such as

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38 KHACHATRYAN V . BLINKEN
siblings and adult children.” See Kerry Abrams, What
Makes the Family Special?, 80 U. Chi. L. Rev. 7, 16 (2013);
see also id. at 10–16; An Act to Limit the Immigration of
Aliens into the United States, Pub. L. No. 67-5, § 2(a), (d),
42 Stat. 5, 5–6 (1921); Immigration Act of 1924, Pub. L. No.
68-139, §§ 4–6, 43 Stat. 153, 155–56; Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, § 205(b), 66
Stat 163, 180. Indeed, adult children of U.S. citizens were
given no immigration preference between 1924 and 1952.
See Abrams, supra, at 13–14. In view of this history and
practice, it is impossible to conclude that an adult citizen’s
asserted right to live with his or her parent in the United
States is “‘deeply rooted in this Nation’s history and
tradition’” or that it is essential to “‘ordered liberty.’” See
Glucksberg, 521 U.S. at 721 (citations omitted).
Danuns relies on the Supreme Court’s decision in Moore
v. City of East Cleveland, 431 U.S. 494 (1977), but Moore
provides no support for the fundamental right claimed here.
In Moore, the Supreme Court invalidated, on substantive due
process grounds, an ordinance that applied criminal penalties
to a grandmother for living in the same household with her
two grandsons, who were cousins. 431 U.S. at 496–99, 503–
06 (plurality); id. at 520–21 (Stevens, J., concurring in the
judgment) (relying upon property rights rather than familial
rights). In reaching this conclusion, the plurality explained
that “[t]he tradition of uncles, aunts, cousins, and especially
grandparents sharing a household along with parents and
children has roots equally venerable and equally deserving
of constitutional recognition.” Id. at 504. But the Moore
plurality was referring only to a tradition of extended family
members who are already in the United States choosing to
live together. Id. at 501 (affording constitutional protection
“to the family choice involved in this case”). It framed its
constitutional holding in terms of a prohibition on the city’s

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KHACHATRYAN V . BLINKEN 39
“forcing all to live in certain narrowly defined family
patterns,” id. at 506, and it did not even remotely advert to,
or suggest, that there was a comparable constitutional
interest in having one’s extended family come to the United
States so that one could then choose to live together here.
Because an adult citizen has no fundamental right to
have his or her unadmitted nonresident alien parent
immigrate into the United States, Danuns has no
constitutional liberty interest that is protected by the Due
Process Clause under the approach set forth in the Din
plurality.
B
We find no basis for reaching a different conclusion
under the approach set forth by the Din dissenters.15 The
Din dissenters differed with the plurality as to the
circumstances in which “nonconstitutional law” might
create “‘an expectation’” that a particular liberty will not be
taken away “without fair procedures,” 576 U.S. at 108
(Breyer, J., dissenting) (citation omitted); id. at 98–99
(plurality) (criticizing the dissent’s position as erroneously
expansive), but we need not address that particular debate
here given that Danuns does not rely upon any such
15 The concurring Justices in Din did not address the underlying
question as to how to identify constitutionally based liberty interests that
would be protected by procedural due process. 576 U.S. at 102
(Kennedy, J., concurring in the judgment); cf. Fiallo v. Bell, 430 U.S.
787, 788, 794–95 (1977) (holding that legislative classification
addressing which parents of U.S. citizens qualify for “special preference
immigration status” survived Mandel scrutiny, but without addressing
whether plaintiffs were correct in claiming that the statute infringed
various constitutional interests, including the asserted “fundamental
constitutional interests of United States citizens and permanent residents
in a familial relationship”).

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40 KHACHATRYAN V . BLINKEN
nonconstitutional law. The dissenters also posited that there
is a further set of constitutionally based liberty interests that
are entitled to “procedural due process protection” but that
are not “fundamental rights requiring substantive due
process protection.” Id. at 108 (Breyer, J., dissenting); but
see id. at 99 (plurality) (asserting that “[t]he dissent fails to
cite a single case supporting its novel theory of implied
nonfundamental rights”). Assuming arguendo that there are
any such liberty interests, there still is no basis for
concluding that it would embrace the particular liberty
interest that Danuns asserts here.
In describing this asserted category of nonfundamental
liberty interests “arising under the Constitution,” the Din
dissent pointed to the following cases, which it described
using the following parentheticals:
Paul v. Davis, 424 U.S. 693, 701 (1976)
(right to certain aspects of reputation;
procedurally protected liberty interest arising
under the Constitution); Goss v. Lopez,
419 U.S. 565, 574–575 (1975) (student’s
right not to be suspended from school class;
procedurally protected liberty interest arising
under the Constitution); Vitek v. Jones,
445 U.S. 480, 491–495 (1980) (prisoner’s
right against involuntary commitment;
procedurally protected liberty interest arising
under the Constitution); Washington v.
Harper, 494 U.S. 210, 221–222 (1990)
(mentally ill prisoner’s right not to take
psychotropic drugs; procedurally protected
liberty interest arising under the
Constitution).

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KHACHATRYAN V . BLINKEN 41
576 U.S. at 109–10 (Breyer, J., dissenting). The dissenters
concluded that, because “the institution of marriage, which
encompasses the right of spouses to live together and to raise
a family, is central to human life, requires and enjoys
community support, and plays a central role in most
individuals’ ‘orderly pursuit of happiness,’” Din’s asserted
liberty interest in having her unadmitted nonresident spouse
come to the United States was protected by procedural due
process even if she did not have a fundamental right in that
regard. Id. at 108 (citation omitted). Thus, the Din
dissenters drew upon both “a citizen’s [fundamental] right to
live within this country” and the “strong expectation that
government will not deprive married individuals of their
freedom to live together without strong reasons and (in
individual cases) without fair procedure” in order to
conclude that Din had a protected liberty interest in “liv[ing]
together with her husband in the United States.” Id. at 107–
09.
None of the reasoning relied upon by the Din dissenters
extends to Danuns’s claimed liberty interest here. As noted
earlier, the relationship of an adult child with his or her
parents bears no relationship to the unique “institution of
marriage.” 576 U.S. at 108 (Breyer, J., dissenting).16 Adult
16 Because Din leaves in place this court’s recognition of procedural
due process rights in the context of spousal visas, see 576 U.S. at 102
(Kennedy, J., concurring in the judgment) (assuming such a right
arguendo); id. at 107 (Breyer, J., dissenting) (recognizing such a right);
Bustamante, 531 F.3d at 1062, the dissent is wrong in suggesting that
our decision “effectively eliminates the Mandel exception to the doctrine
of consular non-reviewability.” See Dissent at 49. Had the plaintiff here
been a U.S. citizen spouse rather than a U.S. citizen adult child, the
outcome would necessarily have been different under Din and
Bustamante. See supra at 33–35. And, as we have noted, the Supreme
Court has held that marital relationships are “unlike any other” and

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42 KHACHATRYAN V . BLINKEN
children do not ordinarily have responsibility for their
parents’ debts; while such relationships can be close and
important, they do not involve the unique physical and
emotional intimacy of the marital relationship; and such
relationships do not entail a comparable expectation that
these persons will “live together” and “raise a family”
together. Id. To be sure, the Supreme Court has recognized
a constitutionally based liberty interest against arbitrary
interference with extended-family living arrangements
within the United States, see Moore, 431 U.S. at 502–06
(plurality); cf. Smith v. Organization of Foster Fams. for
Equal. & Reform, 431 U.S. 816, 844 (1977) (emphasizing
that “the importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of daily
association” (emphasis added)), but the 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. See supra at 38–39.
The other cases cited by the Din dissenters are likewise
dissimilar in a way that confirms the weakness of Danuns’s
claim to a constitutionally based liberty interest here. These
cases involved intrusions on physical integrity, Harper,
494 U.S. at 221–22 (forced administration of antipsychotic
drugs); Vitek, 445 U.S. at 491–94 (involuntary commitment
in mental hospital), and reputational harms, Paul, 424 U.S.
at 701–02 (declining to recognize a relevant liberty interest
in “reputation alone”); Goss, 419 U.S. at 574–75
(reputational interests associated with suspension from
school, which also deprived the student of state-law
therefore have a special constitutional status. Obergefell, 576 U.S.
at 666–67.

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KHACHATRYAN V . BLINKEN 43
education rights). None of these liberty interests bears the
remotest similarity to Danuns’s asserted right to bring his
father from Russia to the United States.
* * *
We hold that an adult citizen lacks a constitutionally
protected liberty interest, protected by the Fifth
Amendment’s Due Process Clause, in the Government’s
decision whether to admit the citizen’s unadmitted
nonresident alien parent into the United States. Danuns’s
claims were therefore properly dismissed for failure to state
a claim. And because Khachatryan lacks any cause of action
to contest the denial of his request for a visa, his claims were
properly dismissed as well. We therefore affirm the
judgment of the district court.
AFFIRMED.
PRESNELL, District Judge, dissenting:
The doctrine of consular non-reviewability is a
substantial barrier for a U.S. citizen to overcome when
asserting a due process challenge to the denial of a family
member’s visa application. The only avenue for relief is
reliance on the Mandel exception, which requires a showing
of bad faith on the part of the consular official and the
implication of a constitutional right. Needless to say, this
exception is extremely difficult to sustain and is rarely
successful.
This is, therefore, a rare case because it makes the
remarkable finding (with which I agree) that the petitioner
has met his burden of pleading bad faith. Unfortunately, this

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44 KHACHATRYAN V . BLINKEN
is also an exceptional case because the majority departs from
established Ninth Circuit precedent by concluding that the
petitioner has no protectable liberty interest to assert—a
ruling that effectively eviscerates the Mandel exception and
makes it virtually impossible for anyone other than a spouse
to rectify our government’s bad faith denial of a visa
application. I therefore respectfully dissent.
In Din v. Kerry, this Court held that “Din has a
constitutionally protected due process right to limited
judicial review of her husband’s visa denial, which stems
from her ‘[f]reedom of personal choice in matters of
marriage and family life,’” 718 F.3d 856, 868 (9th Cir. 2013)
(citing Bustamante v. Mukasey, 531 F.3d 1059, 1061–62 (9th
Cir. 2008)). The Supreme Court’s ruling in Kerry v. Din,
576 U.S. 86 (2015) did not disturb the Ninth Circuit’s
holding as to Bustamante. Indeed, this Court later held in
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016)
that Justice Kennedy’s opinion—which declined to
comment on whether Din’s constitutional rights were
implicated—controls. See Din, 576 U.S. at 104–06
(Kennedy, J., concurring) (determining that the Government
provided adequate process without deciding whether Din’s
constitutional rights were implicated). We are therefore
bound to apply our holding in Bustamante and must adhere
to our interpretation of that holding in Din. See Montana v.
Johnson, 738 F.2d 1074, 1077 (9th Cir. 1984) (only en banc
decisions, Supreme Court decisions, or subsequent
legislation overrule the decisions of prior panels).
The majority concedes, as it must, the precedential effect
of Bustamante and this Court’s opinion in Din. See
Cardenas, 826 F.3d at 1171–72. This Circuit clearly
recognizes a protected liberty interest between spouses in the
immigration context. What the majority fails to do is adhere

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KHACHATRYAN V . BLINKEN 45
to Smith and its progeny, which also recognize a
constitutional liberty interest as between parent and child.
In Smith, this Court held that “a parent has a
constitutionally protected liberty interest in the
companionship and society of his or her child” and that “this
constitutional interest . . . logically extends to protect
children from unwarranted state interference with their
relationships with their parents.” Smith v. City of Fontana,
818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037
(9th Cir. 1999) (determining that adult children have this
protected interest); see also Lee v. City of Los Angeles,
250 F.3d 668, 685 (9th Cir. 2001) (recognizing that a
parent’s fundamental liberty interest in the companionship
of a child is “well established” and logically extends to
protect a child’s interest in a parent’s companionship); Ward
v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1991)
(recognizing that familial relationship between parent and
child gave rise to due process action in Smith); Wheeler v.
City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018)
(“[C]hildren’s Fourteenth Amendment rights to
companionship with their parents have been interpreted as
reciprocal to their parents’ rights.”); Johnson v. Bay Area
Rapid Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013).
Therefore, Danuns plainly has a constitutionally protected
liberty interest in his father’s companionship.1
1 We are not, as the majority contends, fabricating a new
constitutional right. Nor are we suggesting that every type of familial
relationship can support a Mandel challenge. Rather, we are simply
applying well-established Ninth Circuit precedent, recognizing a liberty
interest between a parent and a child, in the immigration context.

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46 KHACHATRYAN V . BLINKEN
When applying Bustamante to Smith, the answer is
obvious. Danuns has a liberty interest in rectifying the
Government’s bad faith denial of his father’s visa
application.
In Bustamante, this Court held that when considering a
Mandel challenge, we must look to the general right that is
implicated. See Bustamante, 531 F.3d at 1062. Bustamante,
a U.S. citizen, sought to obtain a visa for her husband, a
Mexican citizen. Id. at 1060. Bustamante claimed that the
denial of her petition violated her “protected liberty interest
in her marriage.” Id. at 1062. Applying Mandel, this Court
first determined that the “[f]reedom of personal choice in
matters of marriage and family life is, of course, one of the
liberties protected by the Due Process Clause.” Id. This
Court then determined that this liberty interest encompassed
her interest in her husband’s visa and, therefore, was
sufficient to support her due process challenge.2 Id.
Smith establishes that Danuns has a constitutionally
protected liberty interest in his father’s companionship. See
Smith, 818 F.2d at 1418. Taken with this Court’s analysis in
Bustamante, the general liberty interest identified by Smith
clearly encompasses Danuns’ petition for his father to enter
the United States and is therefore sufficient to support his
due process claim.
Instead of applying Bustamante to this case, the majority
disregards Smith and contends that we must apply
Glucksberg to analyze a new fundamental right. The
Government contends that it did not interfere with Danuns’
2 This Court proceeded to affirm on the basis that the Government
had established a facially legitimate and bona fide reason for its denial.
Bustamante, 531 F.3d at 1062.

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KHACHATRYAN V . BLINKEN 47
right to his father’s companionship when it denied his I-130
Petition. The majority agrees and states that this is because
the only right implicated was the novel right of “an adult
child to bring his or her alien parent into the United States.”3
This analysis is fundamentally flawed because, by claiming
that this case involves a novel liberty interest, the majority
fails to adhere to this Court’s clear precedent.
This Court held in Bustamante that the general liberty
interest in personal choice in marriage and family life was
sufficient to support a Mandel claim. Bustamante, 531 F.3d
at 1062. We did not limit that interest by redefining it as a
separate, previously unrecognized right to bring one’s
spouse into the United States. Indeed, the majority’s
approach is almost identical to the Government’s argument
in Din, which we rejected as an attempt to overturn
Bustamante. Din v. Kerry, 718 F.3d 856, 860 n.1 (9th Cir.
2013) (“The Government’s contention that Bustamante is
not good law is meritless.”). Bustamante held that a citizen
family member’s right to judicial review under Mandel is
based on a more general liberty interest, rather than a limited
right of an alien to reside in the United States. Id. Neither
Bustamante’s holding, nor this Court’s interpretation of that
holding were overturned by the Supreme Court’s ruling in
Din. See Cardenas, 862 F.3d at 1171–72 (holding that
Justice Kennedy’s concurrence represents the holding in
Kerry v. Din).
The majority attempts to circumvent our holding in
Smith by noting that Bustamante did not address a parent-
3 In support of its position, the Government cites to several
unpublished and out-of-circuit district court cases that have no bearing
on our analysis. The majority (rightfully) declined to rely on these cases
in addressing the constitutional question before us.

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48 KHACHATRYAN V . BLINKEN
child relationship.4 Rather than apply Bustamante’s holding
to the parent-child companionship right already recognized
in this Circuit, the majority looks to Justice Scalia’s non-
binding plurality opinion in Din to guide its analysis.
Justice Scalia reasoned that the right to marriage does not
extend to immigration decisions. Din, 576 U.S. at 101. The
majority similarly determines that Danuns’ liberty interest in
his father’s companionship is not implicated by the
Government’s denial of Khachatryan’s visa. The majority
then frames Danuns’ claim here as the right of “an adult child
to bring his or her alien parent into the United States.” But
Justice Scalia’s plurality opinion does not control here and,
as confirmed by Cardenas, did not overturn Bustamante. We
are bound by Bustamante and we must therefore recognize
that Danuns’ right to companionship with his father supports
his right to judicial review under Mandel.5
4 The majority claims that a marital relationship is entitled to a
higher level of protection under the Constitution than the relationship
between a parent and child. But there is no legal support for this claim,
let alone any sociological basis for this distinction.
5 The majority contends that the Supreme Court’s fractured Din
opinion compels its framing of the constitutional right in this case. But
this is incorrect for two reasons. First, the narrow framing that Justice
Scalia discussed did not command a majority in Din. In his dissent,
Justice Breyer did not narrowly frame the right at issue, but instead, he
stated that the fact pattern before the court fell within the broad right to
marriage. See Din, 576 U.S. at 108 (Breyer, J., dissenting) (“the
institution of marriage . . . encompasses the right of spouses to live
together”). And Justice Kennedy specifically disclaimed any intent to
consider the constitutional question before the Court. Id. at 102
(Kennedy, J., concurring). Second, this Circuit already held in Cardenas
that Din did not provide any binding constitutional analysis.

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KHACHATRYAN V . BLINKEN 49
The majority’s limited approach to framing
constitutional rights in the immigration context effectively
eliminates the Mandel exception to the doctrine of consular
non-reviewability. Here, Danuns has sufficiently pled bad
faith.6 And his relationship with his father is constitutionally
protected. However, if the Government’s bad faith decision
to deny his father’s visa does not impact his right in the way
Mandel requires, then it is difficult to see how any case could
satisfy this standard.
The majority’s approach not only contravenes our own
precedent; it undermines the Supreme Court’s intent in
establishing the Mandel exception in the first place. Indeed,
the majority seems to implicitly acknowledge its error here
by admitting that it would decide this case differently if it
involved a spousal relationship. This statement is not
consistent with the majority’s approach to framing the
constitutional issue in this case and is detached from this
Circuit’s analysis in Bustamante. It is unclear why the
majority would recognize spousal rights in a Mandel claim
aside from the simple reason that this Court already did so in
Bustamante.
In an effort to elide Smith, the majority notes that Smith
and its progeny involved pre-existing relationships in the
United States. But those were not immigration cases, so that
distinction has questionable relevance to the issue here.
6 It should be noted that Mandel already imposes a stringent burden
on plaintiffs—“an affirmative showing of bad faith on the part of the
consular officer.” Din, 576 U.S. at 105 (Kennedy, J., concurring).
Without reaching the constitutional question, plaintiffs rarely succeed in
pleading bad faith. To date, no circuit court has made or upheld a finding
of bad faith. Only one circuit court has ruled against the Government
under Mandel and that ruling was not based on a bad faith finding. See
Allende v. Shultz, 845 F.2d 1111, 1116 (1st Cir. 1988).

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50 KHACHATRYAN V . BLINKEN
Bustamante and Din were immigration cases that recognized
the constitutional liberty interest, even though they involved
foreign spouses with no pre-existing relationship in the
United States.7
Moreover, even if this were a valid distinction, it would
not apply here because Khachatryan has an extensive history
of his relationship with Danuns in the United States.
Khachatryan has been involved in Danuns’ life since an
early age and has a history of visiting Danuns in this country.
Khachatryan visited the United States twelve times before
his initial application was denied, including a 35 day visit to
spend time with his children. As recognized by the majority,
there is not a shred of evidence that Khachatryan engaged in
any untoward behavior or that there is anything else going
on here aside from Danuns’ attempt to enjoy a meaningful
relationship with his father. It is unclear what else the parties
could do for their relationship to find protection under the
majority’s test.
Khachatryan has spent nearly twenty years attempting to
lawfully reside with his son in this country, thwarted by the
Government’s errors and bad faith. Since he has adequately
pled bad faith on the part of the Government, and because he
has a protected liberty interest in his relationship with his
father, Danuns is entitled to judicial review of his procedural
due process challenge to the Government’s denial of
Khachatryan’s visa. I would therefore reverse and remand
7 In framing the marital right that was implicated, this Court looked
to constitutional precedent without regard to whether the right had
previously been applied in an immigration context. See Bustamante,
531 F.3d at 1062 (citing Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632, 639–40 (1974)).

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KHACHATRYAN V . BLINKEN 51
this case to the district court for proceedings consistent with
this opinion.

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