                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MADELINE CARDENAS; ROLANDO                No. 13-35957
MORA-HUERTA,
          Plaintiffs-Appellants,           D.C. No.
                                      1:12-cv-00346-EJL
               v.

UNITED STATES OF AMERICA;                  OPINION
LORETTA E. LYNCH, Attorney
General; RAND BEERS, in his
official capacity as Secretary of
Homeland Security; JOHN F.
KERRY, United States Secretary
of State; IAN BROWNLEE, Consul
General of The United States,
City of Ciudad Juarez; JOHN
DOES, 1–7, Consular Officers,
American Consulate General
Visa Section at Ciudad Juarez,
            Defendants-Appellees.


      Appeal from the United States District Court
                for the District of Idaho
       Edward J. Lodge, District Judge, Presiding

          Argued and Submitted May 5, 2016
                  Portland, Oregon

                    Filed June 21, 2016
2                 CARDENAS V. UNITED STATES

     Before: Richard C. Tallman and Andrew D. Hurwitz,
    Circuit Judges and Anthony J. Battaglia,* District Judge.

                    Opinion by Judge Hurwitz


                           SUMMARY**


                            Immigration

    The panel affirmed the district court’s dismissal for
failure to state a claim of United States citizen Madeline
Cardenas’ complaint challenging the denial by the U.S.
consulate in Ciudad Juárez, Mexico, of her husband’s visa
application.

    The panel held that Justice Kennedy’s concurrence in
Kerry v. Din, 135 S. Ct. 2128 (2015), is the controlling
opinion regarding the standard of judicial review applicable
to a visa denial. The panel held that the consular officer in
this case satisfied the “facially legitimate and bona fide
reason” test, because he cited a valid statute of inadmissibility
and gave a bona fide factual reason that provided a “facial
connection” to the ground of inadmissibility: the belief that
Cardenas’ husband was a gang associate with ties to the
Sureno gang.


    *
     The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by
designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              CARDENAS V. UNITED STATES                   3

                       COUNSEL

Maria Elena Andrade, (argued) and Benjamin Stein, Andrade
Legal, Boise, Idaho; Robert Pauw (argued), Gibbs Houston
Pauw, Seattle Washington, for Plaintiffs-Appellants.

Katherine E.M. Goettel, (argued) and Stacey I. Young, Senior
Litigation Counsel; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division; William C.
Peachey, Director; United States Department of Justice,
Office of Immigration Litigation, Chicago, Illinois, for
Defendants-Appellees.

Robert Pauw, Gibbs Houston Pauw, Seattle Washington;
Charles Roth, Director of Litigation, National Immigrant
Justice Center, Chicago, Illinois; Hiroshi Motomura, Los
Angeles, California; for Amicus Curiae Law School
Professors.

Deborah S. Smith, Immigration Clinic Director, University of
Idaho College of Law, Moscow, Idaho, for Amicus Curiae
American Immigration Lawyers Association.
4              CARDENAS V. UNITED STATES

                         OPINION

HURWITZ, Circuit Judge:

    A consular officer denied the visa application of Rolando
Mora-Huerta, a Mexican national, on the ground that he was
a “gang associate” who intended to enter the United States
to engage in unlawful conduct.               See 8 U.S.C.
§ 1182(a)(3)(A)(ii). This suit, by Mora’s wife, Madeline
Cardenas, a United States citizen, attacks the consular
officer’s decision. The district court dismissed Cardenas’
complaint for failure to state a claim.

    The critical issue on appeal is the standard of judicial
review applicable to the visa denial. In Kleindienst v.
Mandel, the Supreme Court explained that judicial review of
a denial that implicates a constitutional right is limited to
ensuring that the decision was supported by a “facially
legitimate and bona fide reason.” 408 U.S. 753, 770 (1972).
But, because that standard “is used relatively infrequently,”
its precise meaning has long been “elusive.” Marczak v.
Greene, 971 F.2d 510, 517 (10th Cir. 1992). The Supreme
Court again addressed the issue in Kerry v. Din, 135 S. Ct.
2128 (2015), but was unable to agree on a single rationale for
denying relief. We hold today that, under Marks v. United
States, 430 U.S. 188, 193 (1977), and our recent en banc
decision in United States v. Davis, No. 13-30133 (9th Cir.
June 13, 2016), Justice Kennedy’s concurrence in Din is the
controlling opinion. Applying that opinion, we affirm the
district court’s dismissal of Cardenas’ complaint.
                  CARDENAS V. UNITED STATES                               5

I. Background1

    In June 2008, Mora, who had no lawful status allowing
his presence in this country, was routed into removal
proceedings after a traffic stop. U.S. Immigration and
Customs Enforcement (“ICE ”) created a Form I-213 “Record
of Inadmissible Alien” that states, “MORA was identified as
a Sureno gang associate . . . by Nampa Police Department”
and that “MORA was a passenger in a vehicle owned and
driven by a [REDACTED] who had identifiers consistent to
being a member of the Sureno gang.”

    Mora voluntarily departed to Mexico, and Cardenas filed
an immediate-relative petition on his behalf.2 The Citizenship
and Immigration Service approved the petition and Mora
applied for a visa. On March 5, 2010, he was interviewed by
a consular officer in Ciudad Juárez, Mexico, who asked him
whether he was in a criminal gang; Mora denied gang
membership.

    Several months later, the consulate denied Mora’s visa
application, citing 8 U.S.C. § 1182(a)(3)(A)(ii), which makes
inadmissible “[a]ny alien who a consular officer or the


  1
    Because this is an appeal from an order dismissing the first amended
complaint for failure to state a claim, we take its well-pleaded allegations
as true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).
  2
   An immediate-relative petition allows a child, spouse, or parent of a
U.S. citizen to become eligible to enter the United States as a lawful
permanent resident, Robinson v. Napolitano, 554 F.3d 358, 361 (3d Cir.
2009), without waiting the “years—or even decades” that other visa
applicants do, Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2199
(2014).
6                 CARDENAS V. UNITED STATES

Attorney General knows, or has reasonable ground to believe,
seeks to enter the United States to engage solely, principally,
or incidentally in . . . any other unlawful activity.”3 An
official with the Ciudad Juárez consulate later clarified the
basis for this decision in an email to Mora’s prior counsel:

         At the time of Mr. Mora’s June 16, 2008
         arrest, Mr. Mora was identified as a gang
         associate by law enforcement.              The
         circumstances of Mr. Mora’s arrest, as well
         as information gleaned during the consular
         interview, gave the consular officer sufficient
         “reason to believe” that Mr. Mora has ties to
         an organized street gang.

    In September 2010, Mora submitted evidence to the
consulate in support of his continued denial of gang
association. On February 8, 2012, the consulate stated that,
after “careful review” of the additional evidence, it would not
overturn the inadmissibility determination. Mora asked the
State Department to issue an Advisory Opinion overturning
the consular officer’s decision; the Department declined.

    Cardenas and Mora (collectively, “Cardenas”) then filed
this suit challenging the § 1182(a)(3)(A)(ii) inadmissibility
determination. The parties stipulated to an extension of time

     3
       Mora’s visa application was also denied under 8 U.S.C.
§ 1182(a)(9)(B)(i)(II), which renders inadmissible for 10 years any alien
unlawfully present in the United States for one year or more. Plaintiffs do
not challenge that ground, which can be waived. See 8 U.S.C.
§ 1182(a)(9)(B)(v). The government also initially denied Mora’s visa
under 8 U.S.C. § 1182(a)(9)(A)(i), which makes inadmissible any alien
ordered removed under certain provisions of law, but later withdrew that
ground for denial because Mora had voluntarily departed.
               CARDENAS V. UNITED STATES                     7

to answer the complaint to allow a second consular interview
and presentation of additional evidence. At the second
interview, Mora attempted to present an expert opinion
stating that he has never been a member of a gang, along with
a letter stating that he was accepted into a tattoo removal
program, but consular officers refused to accept or review
these documents. The consulate again denied Mora’s visa
application under § 1182(a)(3)(A)(ii).

    Cardenas then moved to compel the government to
answer the complaint and attached as exhibits to her motion
the documents the consular officers had refused to accept and
an affidavit from Mora describing the interview. The
government simultaneously moved to dismiss the complaint.
Cardenas sought leave to file a first amended complaint,
adding defendants and describing the second interview and
denial.

    The district court granted the motion to amend, construed
the motion to dismiss the original complaint as a motion to
dismiss the first amended complaint, and granted the motion.
Citing Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir.
2008), the court held that Cardenas had a protected liberty
interest in marriage entitling her to seek review of the denial
of Mora’s visa application. But, the court found the consular
officer’s determination “facially legitimate and bona fide”
because he had reason to believe that Mora had “ties” to a
gang.

    Cardenas timely appealed. We have jurisdiction under
28 U.S.C. § 1291. We review a dismissal for failure to state
a claim de novo. Cervantes v. United States, 330 F.3d 1186,
1187 (9th Cir. 2003).
8              CARDENAS V. UNITED STATES

II. Discussion

    A. The Doctrine of Consular Non-Reviewability

    The Supreme Court has “long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control.” Fiallo v. Bell, 430 U.S. 787,
792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210
(1953)). Congress has “plenary power to make rules for the
admission of aliens and to exclude those who possess those
characteristics which Congress has forbidden.” Mandel,
408 U.S. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123
(1967)). “When Congress delegates this plenary power to the
Executive, the Executive’s decisions are likewise generally
shielded from administrative or judicial review.” Andrade-
Garcia v. Lynch, No. 13-74115, — F.3d —, 2016 WL
1719320, at *3 (9th Cir. Apr. 29, 2016).

    “Despite these rulings, ‘courts have identified a limited
exception to the doctrine of consular nonreviewability where
the denial of a visa implicates the constitutional rights of
American citizens.’” Id. (quoting Bustamante, 531 F.3d at
1061) (alteration omitted). This limited exception traces to
the Supreme Court’s decision in Mandel. Ernest Mandel was
a Belgian journalist, author, and revolutionary Marxist, who
had been temporarily admitted to the United States in 1962
and 1968 as a journalist and campus speaker. Mandel,
408 U.S. at 756. On both occasions, Mandel was found
ineligible for admission under § 212(a)(28) of the
Immigration and Nationality Act, which barred aliens who
advocate world communism, but the Attorney General gave
him a discretionary waiver. Id. at 757. In 1969, Mandel was
invited to speak at several American universities. Id. at
               CARDENAS V. UNITED STATES                     9

756–57. The consulate denied Mandel’s visa application,
again finding him inadmissible under § 212(a)(28). Id. at
757–58. The Attorney General declined to grant a waiver
because Mandel’s 1968 travels “went far beyond the stated
purposes of his trip, on the basis of which his admission had
been authorized and represented a flagrant abuse of the
opportunities afforded him to express his views in this
country.” Id. at 759. Mandel sued, joined by a number of
American professors who had invited him to speak or
expected to participate in colloquia with him. Id. at 759–60.

    While the Supreme Court held that “Mandel personally,
as an unadmitted and nonresident alien, had no constitutional
right of entry,” the Court found that the denial of Mandel’s
visa implicated the professors’ First Amendment rights to
receive ideas. Id. at 762, 765–67. The Supreme Court found,
however, that Congress’s plenary power to exclude aliens
prevailed. Id. at 765–69. Congress could have enacted a
blanket prohibition on the admission of communist aliens;
instead, it had delegated to the Attorney General the
discretion to waive this prohibition. Id. at 767, 770. And,
“when the Executive exercises this power negatively on the
basis of a facially legitimate and bona fide reason, the courts
will neither look behind the exercise of that discretion, nor
test it by balancing its justification against the First
Amendment interests of those who seek personal
communication with the applicant.” Id. at 770.

    The Supreme Court returned to the reviewability of
consular visa decisions last year in Din. Fauzia Din, a U.S.
citizen, was married to Kanishka Berashk, an Afghan citizen
who worked as a payroll clerk at the Afghan Ministry of
Social Welfare during Taliban rule. Din v. Kerry, 718 F.3d
856, 858 (9th Cir. 2013), vacated, 135 S. Ct. 2128 (2015).
10              CARDENAS V. UNITED STATES

The consulate denied Berashk’s visa application, finding him
inadmissible under 8 U.S.C. § 1182(a)(3)(B), “a broad
provision that excludes aliens on a variety of terrorism-
related grounds.” Id. The government did not provide any
further explanation of the denial or specify which of the nine
subsections of § 1182(a)(3)(B) applied. Id. at 858–59; Din,
135 S. Ct. at 2132.

     Din sued, relying on Bustamante, which held that under
the Due Process Clause, Mandel judicial review is available
when a citizen’s spouse is denied a visa. See Bustamante,
531 F.3d at 1062. The district court granted the government’s
motion to dismiss. We reversed, holding that Mandel
requires “the identification of both a properly construed
statute that provides a ground of exclusion and the consular
officer’s assurance that he or she ‘knows or has reason to
believe’ that the visa applicant has done something fitting
within the proscribed category.” Din, 718 F.3d at 856
(quoting Am. Acad. of Religion v. Napolitano, 573 F.3d 115,
126 (2d Cir. 2009)). We found that the government had not
met this standard, because it did not offer the factual basis for
its denial or “cite to a ground narrow enough to allow us to
determine that [the statute] has been ‘properly construed.’”
Id. at 861–62 (quoting Am. Acad., 573 F.3d at 126).

    A fractured Supreme Court reversed. The plurality
opinion by Justice Scalia, joined by the Chief Justice and
Justice Thomas, rejected our holding in Bustamante and
stated that a citizen whose spouse is denied a visa is not
injured under the Due Process Clause. Din, 135 S. Ct. at
2131. Accordingly, the plurality found that no process was
due to Din under the Constitution because she “was not
deprived of ‘life, liberty, or property’ when the Government
               CARDENAS V. UNITED STATES                     11

denied [her spouse] admission to the United States.” Id. at
2138.

    Justice Kennedy, joined by Justice Alito, concurred in the
judgment. Id. at 2139. The concurrence assumed without
deciding that Din’s constitutional rights were burdened by the
visa denial, but held that the reasons for the visa denial given
by the Government satisfied Mandel’s “facially legitimate
and bona fide” standard. Id. at 2140. The concurrence found
that the consular officer’s citation to § 1182(a)(3)(B)
provided a facially legitimate reason to deny admission and
“indicates [the government] relied upon a bona fide factual
basis.” Id.

   Justice Kennedy’s concurring opinion expressly rejected
Din’s claim that the government was required to provide
additional facts underlying the determination.

       But unlike the waiver provision at issue in
       Mandel, which granted the Attorney General
       nearly unbridled discretion, § 1182(a)(3)(B)
       specifies discrete factual predicates the
       consular officer must find to exist before
       denying a visa. Din, moreover, admits in her
       Complaint that Berashk worked for the
       Taliban government, which, even if itself
       insufficient to support exclusion, provides at
       least a facial connection to terrorist activity.
       Absent an affirmative showing of bad faith on
       the part of the consular officer who denied
       Berashk a visa—which Din has not plausibly
       alleged with sufficient particularity—Mandel
       instructs us not to “look behind” the
       Government’s exclusion of Berashk for
12                CARDENAS V. UNITED STATES

         additional factual details beyond what its
         express reliance on § 1182(a)(3)(B)
         encompassed.

Id. at 2140–41 (quoting Mandel, 408 U.S. at 770) (other
citation omitted).4

     B. The Law After Din

    Because no single rationale commanded a majority of the
Court in Din, Cardenas urges us to re-adopt the standard in
our opinion in that case. However, our Din approach was
squarely rejected by a majority of the Supreme Court, Din,
135 S. Ct. at 2131, and therefore we are not free to return to
it.

    The government argues that Justice Kennedy’s
concurrence controls. We agree. In Marks v. United States,
the Supreme Court held that “[w]hen a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
430 U.S. 188, 193 (1977) (internal quotation marks and
citation omitted). As we recently explained, “the narrowest


  4
    The four dissenting Justices would have held that Din was denied due
process because the government failed to give her “a statement of reasons,
some kind of explanation, as to why the State Department denied her
husband a visa,” which could have been “either the factual basis for the
Government’s decision or a sufficiently specific statutory subsection that
conveys effectively the same information.” Id. at 2144–45 (Breyer, J.,
dissenting); see also id. at 2146 (noting that perhaps the reason was
Berashk’s employment as a payroll clerk for the Taliban government,
“[b]ut there is no way to know if that is so”).
                CARDENAS V. UNITED STATES                     13

opinion must represent a common denominator of the Court’s
reasoning; it must embody a position implicitly approved by
at least five Justices who support the judgment.” United
States v. Davis, No. 13-30133, slip op. at 14 (9th Cir. June 13,
2016) (en banc) (quoting King v. Palmer, 950 F.2d 771, 781
(D.C. Cir. 1991)); accord Lair v. Bullock, 697 F.3d 1200,
1205 (9th Cir. 2012) (the narrowest opinion must be the
“logical subset of other, broader opinions” (quoting United
States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.
2005)). “Stated differently, Marks applies when, for
example, ‘the concurrence posits a narrow test to which the
plurality must necessarily agree as a logical consequence of
its own, broader position.” United States v. Epps, 707 F.3d
337, 348 (D.C. Cir. 2013) (quoting King, 950 F.2d at 782).

    Justice Kennedy’s concurrence fits this description. The
Din plurality’s broad position was that (1) “an unadmitted
and nonresident alien . . . has no right of entry into the United
States, and no cause of action to press in furtherance of his
claim for admission,” and (2) the Due Process Clause does
not enable an alien’s citizen spouse to bring suit on his behalf.
135 S. Ct. at 2131. The Kennedy concurrence’s narrower
position is that, even assuming a citizen spouse can bring
such a challenge, the challenge fails as long as the consular
officer has cited a valid statute of inadmissibility which
implies a bona fide factual basis behind the denial. Id. at
2140–41. The plurality would necessarily agree that, when
the consular officer cites such a statute, the denial stands, at
least in a case only raising the due process rights of a citizen
14               CARDENAS V. UNITED STATES

spouse. The Kennedy concurrence therefore represents the
holding of the Court.5

     Under the Din concurrence, the facially legitimate and
bona fide reason test has two components. First, the consular
officer must deny the visa under a valid statute of
inadmissibility.      Id. (consular officer’s citation to
§ 1182(a)(3)(B) “suffices to show that the denial rested on a
determination that Din’s husband did not satisfy the statute’s
requirements,” and “the Government’s decision to exclude an
alien it determines does not satisfy one or more of [the
statutory conditions for entry] is facially legitimate under
Mandel”). Second, the consular officer must cite an
admissibility statute that “specifies discrete factual predicates
the consular officer must find to exist before denying a visa,”
or there must be a fact in the record that “provides at least a
facial connection to” the statutory ground of inadmissibility.
Id. at 2141. Once the government has made that showing, the
plaintiff has the burden of proving that the reason was not
bona fide by making an “affirmative showing of bad faith on
the part of the consular officer who denied [ ] a visa.” Id.

     C. Application of the Din Test

    As Cardenas implicitly recognizes by advocating for a
broader standard of review, adoption of Justice Kennedy’s
Din concurrence as the controlling opinion of the Court
dooms her claims in this case. The consular officer gave a
facially legitimate reason to deny Mora’s visa because he
cited a valid statute of inadmissibility, § 1182(a)(3)(A)(ii),


 5
    Justice Kennedy’s concurrence would also control under the “results”
approach urged in Judge Bea’s Davis dissent. See Davis, No. 13-30133,
slip op. at 43 (Bea, J., dissenting).
                  CARDENAS V. UNITED STATES                           15

which denies entry to an alien who intends to enter with the
intent to engage in “unlawful activity.” He also provided a
bona fide factual reason that provided a “facial connection”
to the statutory ground of inadmissibility: the belief that Mora
was a “gang associate” with ties to the Sureno gang.6

    Cardenas argues that she properly alleged bad faith
because, when Mora appeared for the second interview, the
consular officer refused to accept or review the proffered
expert opinion that Mora had never been a gang member or
the letter showing his acceptance into a tattoo removal
program. But, the allegations about the second interview
obviously cannot raise a plausible inference that the officer
acted in bad faith in making the original decision. And,
although counsel’s purpose in arranging the second interview
was to allow Mora to submit additional evidence, that the
consular officer did not accept Mora’s new documents does
not show bad faith. During his second interview, Mora was
extensively questioned by two officials and was given the
opportunity to argue that he had no ties to the Sureno gang.7




 6
   Cardenas argues that the statutory phrase “any other unlawful activity”
only refers to unlawful activity related to national security, citing the
heading and other subsections of § 1182(a)(3)(A). But, Cardenas waived
this argument by failing to raise it below—she did not mention the words
“national security” in her response to the motion to dismiss, much less
argue that the statute was so limited. See Conn. Gen. Life Ins. Co. v. New
Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003) (arguments
raised for the first time on appeal are usually not considered).
  7
   In any event, as the government noted at argument, the visa denial is
without prejudice to future applications. If Mora has new information, he
can submit a new visa application.
16             CARDENAS V. UNITED STATES

    Cardenas also alleges that the consular officer acted on
the basis of racial stereotypes. According to Mora’s affidavit,
at his second interview, he told the consular officer that he
was pulled over on the way to the home of his friend,
Cuauhtemoc Coss. They then discussed whether Coss was a
gang member. When Mora said that Coss had two tattoos,
one featuring the name of his daughter and another saying
“Brown Pride,” the officer said, “[w]ith those tattoos, you
don’t believe he’s a gang member?” Mora asserts that this
was racial discrimination and therefore bad faith. But, the
conversation about Coss is not alleged in the first amended
complaint; it is only mentioned in Mora’s affidavit, which
was attached to Cardenas’ motion to have defendants answer
the complaint. And, even if the affidavit is considered, the
remark does not plausibly establish that the decision to deny
Mora a visa was made on a forbidden racial basis, as opposed
to a possibly mistaken basis about what Coss’ tattoos
signified. See Din, 135 S. Ct. at 2141 (Kennedy, J.,
concurring) (requiring that bad faith be “plausibly alleged
with sufficient particularity”).

                      CONCLUSION

     The judgment of the district court is AFFIRMED.
