                                                                           FILED
                           NOT FOR PUBLICATION                              APR 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NUNG FA TAN; RUI YE LI,                          No. 09-55329

             Plaintiffs - Appellants,            D.C. No. 2:08-cv-05275-VBF-RC

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
U.S. Attorney General; CONDOLEEZA
RICE, U.S. Secretary of State; ROBERT
GOLDBERG, Consul General, United
States Consulate, Guangzhou China;
JONATHAN SCHARFEN, Acting
Director, U.S.C.I.S.,

             Defendants - Appellees.



                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                             Submitted April 6, 2010 **
                               Pasadena, California

Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiffs Nung Fa Tan and Rui Ye Li appeal the district court’s order

dismissing their complaint for lack of subject matter jurisdiction and failure to state

a claim upon which relief could be granted. We have jurisdiction under 28 U.S.C.

§ 1291 and now affirm.

      After the United States Consulate in Guangzhou, China, denied Li’s visa

application, Plaintiffs filed a complaint in federal district court against the Consul

General in Guangzhou, China, the Acting Director of USCIS, and other

government officials. The first through fourth causes of action in the complaint

alleged violations of the Immigration and Nationality Act and accompanying

regulations, the Administrative Procedure Act, and the Freedom of Information

Act. “[I]t has been consistently held that the consular official’s decision to issue or

withhold a visa is not subject either to administrative or judicial review.”

Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008) (quoting Li Hing of

Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986)) (alteration in

original). Because the decisions of consular officers are not subject to judicial

review on non-constitutional claims, see id. (noting “a limited exception to the

doctrine where the denial of a visa implicates the constitutional rights of American

citizens”), the district court properly dismissed the first through fourth causes of

action for lack of subject matter jurisdiction.


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      Plaintiffs’ fifth and sixth causes of action alleged that Defendants “are

depriving Plaintiff Li of her right to family unity” and “are depriving Plaintiff Li of

adjustment of status as a permanent resident” without due process of law. The

district court properly dismissed these causes of action because Li is not a U.S.

citizen. See id. at 1062 (“[A] U.S. citizen raising a constitutional challenge to the

denial of a visa is entitled to a limited judicial inquiry regarding the reason for the

decision.”).

      After noting the deficiencies in Plaintiffs’ complaint, the district court

dismissed the complaint with leave to amend. Plaintiffs did not file an amended

complaint, so the district court properly dismissed the case.

      AFFIRMED.




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