                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 HILARIO RIVAS,                                    No. 09-56843
                      Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          2:09-cv-03287-
                                                    VBF-MAN
 JANET NAPOLITANO , Director, U.S.
 Department of Homeland Security;
 MICHAEL AYTES, Acting Director of                ORDER AND
 U.S. Citizenship and Immigration                  AMENDED
 Services; DAVID DOUGLAS, USCIS                     OPINION
 Los Angeles Field Office Director,
 Los Angeles District Office USCIS;
 ERIC H. HOLDER, JR., Attorney
 General, U.S. Attorney General;
 JOHN F. KERRY ,* U.S. Department of
 State; RAYMOND MCGARTH , U.S.
 Consul General for Ciudad Juarez,
 Mexico,
                Defendants-Appellees.


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




    *
      John F. Kerry is substituted for his predecessor, Hillary Rodham
Clinton, as Secretary of State. Fed. R. App. P. 43(c)(2).
2                      RIVAS V . NAPOLITANO

                    Submitted February 11, 2011**
                        Pasadena, California

                        Filed April 25, 2012
                      Amended March 28, 2013

          Before: Harry Pregerson, Kim McLane Wardlaw,
                 and Carlos T. Bea, Circuit Judges.

                               Order;
                     Opinion by Judge Pregerson;
         Partial Concurrence and Partial Dissent by Judge Bea


                           SUMMARY***


                            Immigration

    The panel affirmed in part and vacated in part and
remanded the district court’s dismissal for lack of subject
matter jurisdiction of Hilario Alfonso Rivas’s action for an
order to compel the government to act upon his Form I-601
Permission to Reapply for Admission and his letter requesting
reconsideration of the denial of his Application for Immigrant
Visa and Alien Registration Form. The panel held that the
consular official had a “facially legitimate and bona fide
reason” for rejecting Rivas’s Form I-601, and affirmed the


    **
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   RIVAS V . NAPOLITANO                      3

district court’s dismissal of those claims. The panel found,
however, that the district court erred in finding that the
doctrine of consular nonreviewability applied to the
consulate’s inaction on Rivas’s request for reconsideration.
The panel held that the “facially legitimate and bona fide
reason” exception did not apply to the request for
reconsideration because the government took no action on the
request. The panel held that for the same reason, the “fail to
take action” exception described in Patel v. Reno, 134 F.3d
929 (9th Cir. 1997) may apply, and vacated the dismissal as
to the claims concerning the request for reconsideration. The
panel remanded for the district court to determine in the first
instance whether it has jurisdiction under the Mandamus Act,
the Administrative Procedure Act, and the Declaratory
Judgment Act.

    Judge Bea, concurring in part and dissenting in part,
would affirm the district court’s order dismissing Rivas’s
claims for lack of subject matter jurisdiction. Judge Bea
agreed with the majority that the district court correctly
concluded that the doctrine of consular nonreviewability
prevents the federal courts from reviewing Rivas’s Form
I-601. Judge Bea, however, would conclude that because
Rivas admitted he violated the law which prohibits alien
smuggling, consular nonreviewability also deprives the courts
of subject matter jurisdiction to review his letter requesting
reconsideration.


                         COUNSEL

Brian D. Lerner and Christopher A. Reed, Law Offices of
Brian D. Lerner, APC, Long Beach, California for Plaintiff-
Appellant.
4                   RIVAS V . NAPOLITANO

Scott M. Marconda, Office of Immigration Litigation, District
Court Section, United States Department of Justice,
Washington, D.C. for Defendants-Appellees.


                           ORDER

    The opinion for Rivas v. Napolitano, 677 F.3d 849 (9th
Cir. 2012), filed on April 25, 2012, is amended as follows at
page 851, column A, lines 7–9:

      Remove <the government denies a visa without a
‘‘facially legitimate and bona fide reason.’’>

    Insert in its place <‘‘a U.S. citizen’s constitutional rights
are alleged to have been violated by the denial of a visa to a
foreigner’’ without a ‘‘facially legitimate and bona fide
reason’’ for the denial.>



                          OPINION

PREGERSON, Circuit Judge:

   Hilario Alfonso Rivas (“Rivas”) and his daughter Lorena
Rivas appeal the district court’s order granting Defendants’
motion to dismiss for lack of subject matter jurisdiction.
Rivas submitted an application for an immigrant visa based
on an approved I-130 petition filed by his daughter. The
United States Consulate in Ciudad Juarez, Mexico, denied
Rivas’s immigrant visa application. Rivas moved the district
court for an order compelling the Defendants to act upon
Rivas’s Permission to Reapply for Admission (“Form I-601”)
                       RIVAS V . NAPOLITANO                             5

and his letter requesting reconsideration of the denial of his
Application for Immigrant Visa and Alien Registration
Form.1 The district court found that the doctrine of consular
nonreviewability deprived the court of subject matter
jurisdiction to review the consular official’s discretionary
decisions. The district court also found that it had no
jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, the
Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et
seq., or the Declaratory Judgment Act, 5 U.S.C. § 702. We
affirm in part, vacate in part, and remand to the district court.

     I. Consular Nonreviewability

    Federal courts are generally without power to review the
actions of consular officials. Li Hing of Hong Kong, Inc. v.
Levin, 800 F.2d 970, 971 (9th Cir. 1986). However, at least
two exceptions to this rule exist. First, a court has
jurisdiction to review a consular official’s actions “when [the]
suit challenges the authority of the consul to take or fail to
take an action as opposed to a decision within the consul’s
discretion.” Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir.
1997). Second, the court has jurisdiction to review a consular
official’s actions when “a U.S. citizen’s constitutional rights
are alleged to have been violated by the denial of a visa to a
foreigner” without a “facially legitimate and bona fide
reason” for the denial. Bustamante v. Mukasey, 531 F.3d
1059, 1060 (9th Cir. 2008).




 1
   Although Rivas styled his letter to the Consular General as a “Motion
to Reopen,” the letter is not a “Motion” but instead constitutes a request
for reconsideration of his visa application.
6                  RIVAS V . NAPOLITANO

    II. Rivas’s Form I-601

    The district court correctly concluded that neither of the
exceptions to the doctrine of consular nonreviewability apply
to Rivas’s Form I-601. See Li Hing of Hong Kong, 800 F.2d
at 971. The district court concluded that the Defendants
submitted evidence that shows that a consular officer rejected
Rivas’s Form I-601 on February 5, 2008, and Rivas does not
contend otherwise. Because the consular official was
required only to accept or reject Rivas’s Form I-601, and he
rejected it, Patel’s “fail to take action” exception does not
permit us to entertain Rivas’s Form I-601 claim.

    Nor did the district court err by finding that there is a
“facially legitimate and bona fide reason” for the consular
official’s rejection of Rivas’s Form I-601. The consular
official based his decision to reject Rivas’s immigrant visa
application on Rivas’s purported admission to violating
Immigration and Nationality Act (“INA”) § 212(a)(6)(E),
which provides that “[a]ny alien who at any time knowingly
has encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E). While
Rivas contends that he never admitted to violating
§ 212(a)(6)(E), in his complaint, however, he admits to being
arrested on such a charge. Moreover, Rivas also “failed to
allege that the consular official did not in good faith believe
the information he had.” Bustamante, 531 F.3d at 1062.
Thus, the consular official had a “facially legitimate and bona
fide reason” for rejecting Rivas’s Form I-601. Id. at 1060.
We therefore affirm the district court’s dismissal of Rivas’s
claims as to the Form I-601 for lack of subject matter
jurisdiction.
                       RIVAS V . NAPOLITANO                             7

     III.      Rivas’s Request for Reconsideration

    The district court erred, however, in its finding that the
doctrine of consular nonreviewability applies to the
consulate’s inaction on Rivas’s request for reconsideration.
The “facially legitimate and bona fide reason” exception does
not apply to Rivas’s request for reconsideration because the
government took no action on the request.2 For the same
reason, however, the “fail to take action” exception described
in Patel may apply.

     The regulation found at 22 C.F.R. § 42.81(e), that governs
the procedure in refusing individual visas, is applicable here.
It states:

            Reconsideration of refusal. If a visa is
            refused, and the applicant within one year
            from the date of refusal adduces further
            evidence tending to overcome the ground of
            ineligibility on which the refusal was based,
            the case shall be reconsidered. In such
            circumstance, an additional application fee
            shall not be required.

(emphasis added). The mandatory language used in the
regulation makes the act of reconsideration non-discretionary

 2
   Unlike the Form I-601, Rivas’s letter requesting reconsideration of his
immigrant visa application was never acted upon because the government
claims not to have received it. Rivas, however, claims that he submitted
the letter and offers a United States Postal Service Label/Receipt Number
and a “signed-for” signature as proof that it was received. The district
court’s order assumes, without deciding, that the U.S. Consulate accepted
Rivas’s letter. W e leave it to the district court to make this factual
determination.
8                  RIVAS V . NAPOLITANO

when the applicant within a one year period from the denial
of a visa “adduces further evidence tending to overcome the
ground of ineligibility on which the refusal was based . . . .”
Id. Once this is done, consular officials have a duty to
reconsider a case and must take action.

    Because 22 C.F.R. § 42.81(e) by its plain terms imposes
a nondiscretionary, ministerial duty to reconsider the denial
of a visa application when the applicant adduces further
evidence tending to overcome the ground of ineligibility, the
district court has subject matter jurisdiction under the
Mandamus Act where the government fails to comply with
the regulation. See 28 U.S.C. § 1361; Patel, 134 F.3d at 931.
Moreover, because the consulate’s attention to requests for
reconsideration that fall within 22 C.F.R. § 42.81(e) is legally
required, that action may be compelled under the APA. See
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55,
63 (2004) (the “only agency action that can be compelled
under the APA is action legally required”). Similarly,
because resolution of claims for mandamus relief would
require implementation of federal regulations, thereby
providing a federal question, violations of 22 C.F.R.
§ 42.81(e) give rise to subject matter jurisdiction under the
Declaratory Judgment Act. See Nationwide Mut. Ins. Co. v.
Liberatore, 408 F.3d 1158, 1161–62 (9th Cir. 2005).

    Rivas submitted his request for reconsideration on August
5, 2008, less than one year after the January 2, 2008 refusal
of his visa application. With his request for reconsideration,
Rivas submitted records showing arrests—but not
convictions—for conspiracy to commit alien smuggling and
for harboring illegal aliens. The original rejection of Rivas’s
immigration visa application was premised on Rivas’s alleged
admission to alien smuggling, in violation of INA
                       RIVAS V . NAPOLITANO                              9

§ 212(a)(6)(E). Defendants, however, have failed to provide
any evidence regarding the details of Rivas’s purported
admission,3 nor attempted to prove that the supposed
admission was valid.4 See Pazcoguin v. Radcliffe, 292 F.3d
1209, 1215–16 (9th Cir. 2002). Rivas may have admitted
only to a 1974 arrest for attempted smuggling, not to conduct
that constitutes the essential elements of the crime.

    If it is true that his admission was only as to the arrest,
and there is no evidence that Rivas actually committed, or
was convicted of, alien smuggling, then Rivas has submitted
“evidence tending to overcome the ground of ineligibility on
which the refusal was based” and his case must be
reconsidered. 22 C.F.R. § 42.81(e).5 On the other hand, if it


  3
    Nor does the government provide any proof that Rivas admitted to
attempting to smuggle someone other than his spouse, parent, son, or
daughter, thereby making him ineligible for a humanitarian waiver under
8 U.S.C. § 1182(d)(11).

      4
     T he BIA has adopted a three part test for the acceptance of an
admission in the immigration context: (1) the admitted conduct must
constitute the essential elements of the crime; (2) the applicant must have
been provided with a definition and the essential elements of the offense
prior to his admission; and (3) the admission must be voluntary. See
Pazcoguin, 292 F.3d at 1215–16. W e express no opinion on whether the
BIA standard applies to the consular interview context.

   5
     Defendants’ argument that 22 C.F.R. § 42.81(e) does not compel
reconsideration of applications where an applicant was deemed to have an
“unwaivable ineligibility” is unconvincing. Persons convicted of murder
have a non-waivable ineligibility for a visa, but if an applicant found
ineligible on the basis of a murder conviction could later submit evidence
that the conviction had been vacated, such evidence would tend to
overcome the ground of ineligibility. In any event, Rivas would be
eligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(11) if he
attempted to smuggle his spouse, parent, son, or daughter. If Rivas had
10                     RIVAS V . NAPOLITANO

is true that Rivas admitted his arrest in his consular interview,
then the additional evidence submitted by Rivas would not
tend to overcome the ground of ineligibility on which his
refusal was based, 22 C.F.R. § 42.81(e) would not apply, and
we would lack jurisdiction over his appeal.

     The record on appeal is insufficient for us to determine
whether jurisdiction exists in this case because there is no
evidence as to what Rivas actually said in his consular
interview.6 Because the jurisdictional questions in this appeal
overlap completely with the merits of the question remaining
in this case (namely, whether the consulate violated 22 C.F.R.
§ 42.81(e)), dismissal for lack of subject matter jurisdiction
was not appropriate. Such a dismissal is proper only “where
it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.
1987) (citation and quotation marks omitted). Therefore, we
vacate the district court’s dismissal of Rivas’s claims
concerning the request for reconsideration and remand for the
district court to determine in the first instance whether the
court has jurisdiction. “To the extent that the jurisdictional
facts are disputed on remand, the parties should be allowed to
conduct discovery for the limited purpose of establishing


produced evidence that any smuggling he had admitted to was of a spouse,
parent, son, or daughter, such a submission would clearly fall within the
boundaries of 22 C.F.R. § 42.81(e).

     6
      The only evidence offered by Defendants on this point is the
Declaration of Santiago M. Burciaga, which states that “the consular
officer determined that Mr. Rivas Lopez is inadmissible as a matter of
law, having admitted to a violation of 8 U.S.C. § 1182(a)(6)(E).” This
hearsay statement is insufficient to prove that Rivas in fact admitted to the
alleged violation.
                   RIVAS V . NAPOLITANO                     11

jurisdictional facts before the claims can be dismissed.”
Siderman de Blake v. Republic of Argentina, 965 F.2d 699,
713 (9th Cir. 1992). Because disputes exist over (1) whether
the consulate received Rivas’s letter containing his motion to
reopen and (2) whether Rivas admitted to smuggling in his
consular interview on January 2, 2008, “the intertwined
jurisdictional facts must be resolved at trial by the trier of
fact.” Rosales v. U.S., 824 F.2d 799, 803 (9th Cir. 1987).

                            ***

    For the foregoing reasons, we AFFIRM the district
court’s order dismissing Rivas’s claims as to Form I-601 and
VACATE that part of the district court’s order dismissing
Rivas’s claims as to his request for reconsideration. We
REMAND for the district court to consider whether it has
jurisdiction under the Mandamus Act, the APA, and the
Declaratory Judgment Act. We remand to the district court
for further proceedings consistent with the views expressed
in this opinion. Each party shall bear its own costs on appeal.

  AFFIRMED IN PART, VACATED IN PART, and
REMANDED.



BEA, Circuit Judge, concurring in part and dissenting in part:

   I agree with the majority that the district court correctly
concluded that the doctrine of consular nonreviewability
prevents the federal courts from reviewing Rivas’ Permission
to Reapply for Admission (“Form I-601”). But I would
conclude, as did the district court, that because Rivas
admitted he violated the law which prohibits alien smuggling,
12                  RIVAS V . NAPOLITANO

consular nonreviewability also deprives us of subject matter
jurisdiction to review Rivas’ letter requesting reconsideration
of the denial of his Application for Immigrant Visa and Alien
Registration Form (“Reconsideration Letter”). Thus, I
respectfully dissent.

    As the majority states, the federal courts generally do not
have jurisdiction to review the actions of consular officials.
Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th
Cir. 1986). This is known as the doctrine of consular
nonreviewability. As an exception to the doctrine, a court has
jurisdiction to review consular actions “when [the] suit
challenges the authority of the consul to take or fail to take an
action as opposed to a decision within the consul’s
discretion.” Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir.
1997). Federal regulations govern the procedure in refusing
individual visas:

        Reconsideration of refusal. If a visa is
        refused, and the applicant within one year
        from the date of refusal adduces further
        evidence tending to overcome the ground of
        ineligibility on which the refusal was based,
        the case shall be reconsidered. In such
        circumstance, an individual application fee
        shall not be required.

22 C.F.R. § 42.81(e) (emphasis added).

    Rivas’ visa application was denied because he admitted
to a violation of alien smuggling laws in his consular
interview. In his Reconsideration Letter, Rivas submitted
documents to the consulate showing that Rivas was arrested
for conspiracy to commit alien smuggling. The documents
                   RIVAS V . NAPOLITANO                     13

also show that Rivas was not convicted of alien smuggling.
But did the documents “tend[] to overcome the ground of
ineligibility” on which the denial of Rivas’ visa was based?
Quite the contrary: Rivas failed to rebut his own admission he
had smuggled aliens into the United States.

    Rivas then filed an action in mandamus, declaratory relief
and other claims in the Central District of California.
Nowhere in the complaint does Rivas deny smuggling aliens.
In the facts section, Rivas states that he “was ordered
deported on June 2, 1973,” and that when he returned to the
United States in 1974, he “was arrested for conspiracy to
commit alien smuggling and harboring aliens.” (emphasis
added.) Indeed, Rivas appears to admit some violation of law
in his complaint: “The one incidence of removal in 1974
should be afforded little weight . . . Plaintiff has provided
show [sic] the government with evidence that he has been
rehabilitated and has been law abiding in the years following
this incident.”

    Defendants filed a Motion to Dismiss under, inter alia,
Fed. R. Civ. P. 12(b)(1). Defendants’ main argument was
straightforward:

       There is nothing to adjudicate . . . Because the
       consular officer determined that Mr. Rivas
       was involved in alien smuggling of persons
       other than his spouse, parent, so, or daughter,
       he did not qualify [for a visa] . . . The Court is
       without jurisdiction under the doctrine of
       consular nonreviewability to review the
       actions of the consular officer in denying the
       visa application, and lacks jurisdiction to
14                     RIVAS V . NAPOLITANO

         compel the State Department to reopen its
         decision to deny the visa.

In support of the Motion to Dismiss, Defendants submitted
the declaration of Santiago M. Burciaga, the Chief of
Immigrant Visas at the Ciudad Juarez consulate (“Burciaga
Declaration”).1 Burciaga stated: “[Rivas] was denied an
immigrant visa on January 2, 2008. The consular officer
determined that [Rivas] is inadmissible as a matter of law,
having admitted to a violation of 8 U.S.C. § 1182(a)(6)(E).”2,3
Rivas filed an opposition to the Motion to Dismiss, but did
not object to, or even mention, the Burciaga Declaration. He
merely concluded that “the record does not establish that he
is inadmissible under section 212(a)(6)(E) of the [INA].” Nor
did Rivas claim on appeal it was error to admit into evidence
the Burciaga Declaration.

   The nondiscretionary duty to reconsider a visa refusal,
under 22 C.F.R. § 42.81(e), is triggered only when the


 1
   In reviewing a motion to dismiss for lack of subject matter jurisdiction,
the court may consider “affidavits or any other evidence properly before
the court.” Sommatino v. United States, 255 F.3d 704, 710 n.3 (9th Cir.
2001).

     2
     8 U.S.C. § 1182(a)(6)(E) provides: “Any alien who at any time
knowingly has encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation of law is
inadmissible.”

 3
   Regarding Rivas’ admission, the consular official also determined that
“no waiver provision exists” under 8 U.S.C. § 1182(d)(11). Such
discretionary waivers are available “if the alien has encouraged, induced,
assisted, abetted, or aided only an individual who at the time of such
action was the alien’s spouse, parent, son, or daughter (and no other
individual) to enter the United States in violation of law.” Id.
                   RIVAS V . NAPOLITANO                    15

applicant adduces evidence tending to overcome the ground
of ineligibility. The ground of ineligibility upon which the
visa refusal was based was that Rivas had violated the law
prohibiting alien smuggling. The evidence Rivas adduced to
overcome that ground was that although he had been arrested
for alien smuggling, he had not been convicted of alien
smuggling.

    The problem with the sufficiency of his proof is that
8 U.S.C. § 1182(a)(6)(E) does not make ineligible for visas
only those who have been convicted of alien smuggling. It
bars those who have committed alien smuggling, regardless
whether they have escaped conviction. Unfortunately for
him, Rivas had already admitted he had committed alien
smuggling in violation of section 1182(a)(6)(E), prior to his
Reconsideration Letter.

    The sole remaining point to be discussed is whether the
record evidence proves that Rivas indeed did admit to alien
smuggling.

   The majority opinion’s arguments that Rivas did not
admit to alien smuggling are unconvincing.

    First, the majority states that Defendants “have failed to
provide any evidence regarding the details of Rivas’s
purported admission.” Majority Op. at 9. But if the evidence
in the record shows that Rivas admitted to violating the alien
smuggling statute, what further “details” would be relevant to
a consular official’s decision not to grant a visa account the
16                       RIVAS V . NAPOLITANO

applicant violated the law against alien smuggling?4 The
majority does not grace us with what “details” are necessary
to support Rivas admission nor, of course, any case or statute
authority that requires such “details.”

     The majority next states that Defendants have failed to
prove that Rivas’ admission was “valid.” Majority Op. at 9
(citing Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215–16 (9th
Cir. 2002).5 Pazcoguin dealt with admissions made by aliens
in the deportation context. In that context, BIA case law
established three requirements for valid admissions: the
admitted conduct must constitute the essential elements of a
crime, the party making the admission must have been
provided with a definition and essential elements of the
crime, and the admission must be voluntary. Id. In the
context of the immigration courts, where there are detailed
procedural safeguards, such requirements are understandable.
However, the majority has not presented any authority for the
proposition that such requirements apply to the conduct of


 4
   The majority also criticizes the government for failing to “provide any
proof that Rivas admitted to attempting to smuggle someone other than his
spouse, parent, son, or daughter, thereby making him inelgible for a
humanitarian waiver under 8 U.S.C. § 1182(d)(11).” Majority Op. at 9.
W rong. The Burciaga Declaration explicitly states that “no waiver
provision exists per INA § 212(d)(11) (8 U.S.C. § 1182(d)(11).”

  5
    Pazcoguin asked whether petitioner “admit[ted] committing acts which
constitute the essential elements . . . of a violation of . . . any law or
regulation of . . . a foreign country relating to a controlled substance . . . .”
292 F.3d at 1213 (edits in original). The petitioner was granted an
immigrant visa as the unmarried son of a lawful permanent resident, but
upon entry to the United States, an IJ found him excludable based on
statements admitting marijuana use while in the Philippines. Id. at 1212.
The BIA dismissed petitioner’s appeal, and the Ninth Circuit denied the
petition for review, holding Pazcoguin’s admission valid. Id. at 1219.
                      RIVAS V . NAPOLITANO                            17

consular officers interviewing visa applicants.6 Consular
interviews are very different from deportation proceedings, a
fact highlighted by the doctrine of consular nonreviewability.
The consulate’s discretionary decision whether to grant a visa
is unlike an Immigration Judge’s decision, based on detailed
laws and regulations, whether an alien is to be deported.

    As was the case with its requirement of “details” to
validate the admission, the majority fails to state what
provision of law requires the government to prove that an
admission of facts establishing inadmissibility before a
consular official is “valid”—much less what constitutes the
elements of when an admission is “valid.” Certainly,
Pazcoguin is of no help to such an argument. Besides taking
place in a totally different context, Pazcoguin’s admission
was valid enough to exclude him from admission even after
he had been granted a visa. See infra note 4. If general
standards by which an admission can be questioned as “valid”
are invoked—such as force, coercion or hoodwinking—I can
see nothing in the record to suggest that Rivas was so dealt
with by the Juarez consular officials. Certainly, the majority
do not cite any such record evidence, nor did Rivas even
claim that to be the fact in his district court papers or his brief
on appeal.

     Indeed, Rivas did not say one word about his admission
of alien smuggling detailed in Burciaga’s declaration. Not in
the district court; not in his briefs on appeal. Even Rivas does
not claim his admission to alien smuggling is not “valid.” It
is thus quite difficult to understand the majority’s dismissal


  6
     T he majority states: “W e express no opinion on whether the BIA
standard applies to the consular interview context.” Majority Op. at 9 If
that is so, why cite Pazcoguin?
18                 RIVAS V . NAPOLITANO

of Rivas’ admission on the ground it was not proved “valid,”
whatever that might mean.

    The majority criticizes the Burciaga Declaration as a
“hearsay statement [that] is insufficient to prove that Rivas in
fact admitted to the alleged violation.” Majority Op. at 10.

    First, the majority’s characterization of the Burciaga
Declaration as “hearsay” is plainly and demonstrably wrong.
Rivas’ admission is not hearsay. Under Fed. R. Evid.
801(d)(2)(A), a statement “offered against an opposing party”
that “was made by the party” is not hearsay. Rivas’
admission, offered against him here, is an “admission by a
party-opponent,” and is thus not hearsay under the Federal
Rules of Evidence.

    The majority would have a better argument if it
characterized Burciaga’s statement as lacking foundation or
personal knowledge. Under Fed R. Evid. 602, “[a] witness
may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.” Indeed, the Burciaga Declaration
mentions “[t]he consular officer” who interviewed Rivas.
Since it appears ambiguous whether Burciaga, who is the
Chief of Immigrant Visas at the Ciudad Juarez Consulate,
was that “consular officer” who himself interviewed Rivas,
Burciaga may have lacked personal knowledge of Rivas’
admission.

    However, Rivas never objected to the admission of the
Burciaga Declaration on grounds of lack of personal
knowledge, nor indeed on any other grounds. Thus, it
became permissible evidence on the Motion to Dismiss for
lack of subject matter jurisdiction. See, e.g., Pfingston v.
                      RIVAS V . NAPOLITANO                            19

Ronan Engineering Co., 284 F.3d 999, 1003 (9th Cir. 2002)
(“In order to preserve a hearsay objection, a party must either
move to strike the affidavit or otherwise lodge an objection
with the district court.”). Further, had Rivas objected to the
Burciaga Declaration below, Defendants could perhaps have
cured any deficiencies by submitting an affidavit from the
consular officer who actually interviewed Rivas, if he was
someone other than Burciaga. Rivas’ failure so to object
deprived Defendants of that opportunity.

    Next, the majority’s characterization of the Burciaga
Declaration as “insufficient” to prove Rivas’ admission is
puzzling. Majority Op. at 10. The majority devotes one
sentence to dismissing the Burciaga Declaration, so it is
difficult to divine what it means by “insufficient.” Does the
majority mean that one witness to Rivas’ admission is
insufficient proof? Surely that is incorrect. It is axiomatic
that the testimony of one credible witness is sufficient to
prove the truth of any fact testified to. See, e.g., 3 Fed. Jury
Prac. & Instr. § 10454 (“The weight of the evidence is not
necessarily determined by the number of witnesses . . . You
may find the testimony of a small number of witnesses as to
any fact is more credible than the testimony of a larger
number of witnesses to the contrary.”); Fifth Circuit Pattern
Jury Instructions (Civil Cases), Instruction No. 3.1 (2009)
(“The testimony of a single witness may be sufficient to
prove any fact, even if a greater number of witnesses may
have testified to the contrary, if after considering all the other
evidence you believe that single witness.”).7


 7
   I can think of only one crime for which the testimony of more than one
witness is required, and that is because of the explicit mandate of the
United States Constitution. “No Person shall be convicted of Treason
unless on the Testimony of two W itnesses to the same overt Act, or on
20                     RIVAS V . NAPOLITANO

    Last, the majority notes that where the “jurisdictional
questions in this appeal overlap completely with the merits of
the question remaining in this case . . ., dismissal for lack of
subject matter jurisdiction was not appropriate.” Majority
Op. at 10. It is true that the merits of this case overlap with
the jurisdictional question: both issues hinge on whether the
consulate had a nondiscretionary duty to act based on
additional materials submitted by Rivas. But the case the
majority cites for its conclusion that dismissal is not
warranted actually supports quite the opposite conclusion. In
Roberts v. Corrothers, we said:

         A court may not resolve genuinely disputed
         facts where the question of jurisdiction is
         dependent on the resolution of factual issues
         going to the merits. In such a case, the district
         court assumes the truth of allegations in a
         complaint or habeas petition, unless
         controverted by undisputed facts in the
         record.

812 F.2d 1173, 1177 (9th Cir. 1987) (citations and quotation
marks omitted) (emphasis added). Whether Rivas admitted
to alien smuggling is not a genuinely disputed fact, but rather
an admitted-by-petitioner undisputed fact in this record.

                                * * *

    For the above reasons, I would affirm the district court’s
order dismissing Rivas’ claims for lack of subject matter
jurisdiction.


Confession in open Court.” U.S. Const. art. III, § 3, cl. 1. Treason is not
at issue here.
