                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 18 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TANIA GOLKAR,                                    No. 11-57044

              Plaintiff - Appellant,             D.C. No. 2:11-cv-04845-JFW-
                                                 FFM
  v.

JOHN KERRY, United States Secretary of           MEMORANDUM*
State; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                       Argued and Submitted May 10, 2013
                              Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, Senior District
Judge.**

       Plaintiff-Appellant Tania Golkar (“Ms. Golkar”) appeals the district court’s

order granting Defendant-Appellee Kerry’s motion to dismiss for failure to state a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for Colorado, sitting by designation.
claim and for lack of subject matter jurisdiction pursuant to the doctrine of

consular nonreviewability. We have jurisdiction to review a final decision of the

district court pursuant to 28 U.S.C. § 1291, and we reverse and remand.

      On December 23, 2005, Ms. Golkar, a United States citizen, filed Immigrant

Visa Petitions (Form I-130) on behalf of her father (“Mr. Golkar”) and mother,

both dual citizens of Canada and Iran. The immigrant visa petitions were

approved. In April 2007, Ms. Golkar’s parents applied for immigrant visas with

the United States Consulate in Abu Dhabi, United Arab Emirates. Ms. Golkar’s

mother was issued an immigrant visa by the State Department in November 2007,

and she immigrated to the United States.

      On March 25, 2008, the Consulate denied Mr. Golkar’s immigrant visa

pursuant to Immigration and Nationality Act (“INA”) § 212(a), codified at 8 U.S.C

§ 1182(a).1

      Ms. Golkar requested additional information from the State Department

regarding the denial of her father’s visa application, but she received no additional

      1
        Ms. Golkar’s complaint states that her father’s visa “was denied by the
Consulate under section 212(a)(3)(A)(1),” but she contends in her briefs that the
Consulate’s March 2008 denial did not specify the subsection of § 212(a) on which
the denial was based. For purposes of this appeal, we construe the facts in the light
most favorable to Ms. Golkar and assume that the Consulate did not specify a
subsection of § 212(a) [§ 1182(a)] in its March 2008 denial, that specificity coming
only in 2010. See infra.

                                           2
information. It was not until August 4, 2010, over two years after her father’s visa

application was denied, and only after she appealed to Congressman Henry

Waxman for assistance, that she found out from Congressman Waxman’s office

that her father’s visa was specifically denied pursuant to INA § 212(a)(3)(A)(1).2

      In 2011, Ms. Golkar filed a complaint in federal court seeking declaratory

relief, injunctive relief, and a writ of mandamus. The government moved to

dismiss Ms. Golkar’s complaint, asserting that the district court lacked subject

matter jurisdiction and the complaint failed to state a claim upon which relief can

be granted, citing the doctrine of consular nonreviewability. The district court

granted the government’s motion to dismiss for “the reasons set forth in

Defendants’ Motion to Dismiss and Reply.” The district court dismissed without

leave to amend and with prejudice.

      Federal courts are generally without jurisdiction to review the actions of

      2
        INA § 212(a)(3)(A)(1) is not a valid code section. INA § 212(a)(3)(A),
codified at 8 U.S.C. § 1182(a)(3)(A), however, states:
              Any alien who a consular officer or the Attorney General
              knows, or has reasonable ground to believe, seeks to enter
              the United States to engage solely, principally, or
              incidentally in (i) any activity (I) to violate any law of the
              United States relating to espionage or sabotage or (II) to
              violate or evade any law prohibiting the export from the
              United States of goods, technology, or sensitive information
              . . . is inadmissible.


                                          3
consular officials. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th

Cir. 1986). Nevertheless, courts have identified at least two exceptions to this rule:

(1) 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,” and (2) “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.” Rivas v. Napolitano, 714 F.3d 1108, 1110 (9th Cir. 2013) (internal

quotation marks omitted). Here, the court has jurisdiction to review under the first

exception, because the consular officer failed to take a mandatory action as

required by 22 C.F.R. § 42.81(b) and (e).

      The consular officer here failed to take a mandatory action to inform Ms.

Golkar and her father “of the provision of law or implementing regulation on

which the refusal” of the visa was “based and of any statutory provision of law or

implementing regulation under which administrative relief [wa]s available.” 22

C.F.R. § 42.81(b). A citation to § 1182(a) alone did not inform Ms. Golkar and her

father of the provision of law on which the visa refusal was based and of any




                                            4
statutory or regulatory provisions under which relief was available.3

      Under 22 C.F.R. § 42.81(e), the consular officer is obligated to reconsider a

case if “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.” 22 C.F.R. § 42.81(e); see also Rivas, 714 F.3d at 1111. Section 1182(a),

however, is over 7,000 words long and includes hundreds of reasons why an alien

may be found inadmissible. The citation to § 1182(a) thus did not provide any hint

of the actual reason for finding Mr. Golkar inadmissible. Without a more specific

reason why Mr. Golkar was found inadmissible, it was impossible for him to

“adduce[] further evidence tending to overcome the ground of ineligibility on

which the refusal was based.” 22 C.F.R. § 42.81(e). Thus, Mr. Golkar was unable



      3
         The government argues that, under 8 U.S.C. § 1182(b)(3), a consular
officer is not required to provide any written “notice stating the determination or
listing the specific provision or provisions of law under which that alien is
inadmissible if the alien is inadmissible under 8 U.S.C. §§ 1182(a)(2) or (3).”
However, we held in Din v. Kerry, 718 F.3d 856, 865 (9th Cir. 2013), that 8 U.S.C.
§ 1182(b) “simply creates a statutory right to information, and limits the scope of
that right.” This limited statutory right does not preclude a regulation, such as 22
C.F.R. § 42.81(b), from requiring that a consular officer provide more information
when refusing an immigration visa. See Din,718 F.3d at 864 (“State Department
regulations require consular officers to ‘inform the applicant of the provision of
law or implementing regulation on which the refusal is based and of any statutory
provision of law or implementing regulation under which administrative relief is
available,’ 22 C.F.R. § 42.81(b), and make no exception for denials based on
§ 1182(a)(2) or (a)(3).”).

                                          5
to ask for reconsideration of the visa refusal within one year, as required by 22

C.F.R. § 42.81(e).

      It is no help that the Golkars were provided with a more specific statutory

ground for Mr. Golkar’s inadmissibility two years after the denial of his visa.

First, the information came over a year too late for Mr. Golkar to ask for a

reconsideration of the visa refusal pursuant to 22 C.F.R. § 42.81(e). Second, the

information came from Congressman Waxman’s office, not from the consular

officer, as required by 22 C.F.R. § 42.81(b).

      Because the consular officer failed to take a mandatory action, this court has

jurisdiction to review Ms. Golkar’s claims.4 We therefore remand Ms. Golkar’s

claims for further proceedings, with instructions to the district court to require the

consular officer to state the specific subsection of § 1182(a) under which Mr.

Golkar’s visa was denied and to reinstate the year-long period for reconsideration

under 22 C.F.R. § 42.81(e).

      REVERSED and REMANDED.




      4
       Because we find jurisdiction pursuant to the first exception to consular
nonreviewability, we need not address the second exception.

                                           6
