United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
United States consular officer denied the tourist visa
application of Vera Soko-Zopi, a Liberian citizen seeking to
visit the United States to obtain medical care. Her father,
Kervin Soko, a Liberian citizen residing in Wisconsin, has
brought a lawsuit challenging that denial. Defendant has
moved to dismiss. For the reasons set forth below, I will
grant defendant's motion and dismiss the case.
9, 2018, Soko-Zopi met with a consular officer at the United
States Embassy in Monrovia, Liberia about her nonimmigrant
tourist visa application. Soko says that the officer rejected
Soko-Zopi's application and, in the process, insulted
them both by suggesting that Soko would not be able to
support Soko-Zopi financially when she visited the United
States. Soko filed suit the next day, alleging that the
denial was the result of “discrimination and
racism.” Dkt. 1, at 2.
moved to dismiss, arguing that the court lacks jurisdiction
to hear the case and, in the alternative, that Soko fails to
state a claim upon which relief may be granted. Dkt. 11.
Although Soko filed a response to defendant's motion,
Dkt. 15, he did not address any of defendant's arguments.
But he did attach a three-page declaration from Soko-Zopi
that provides an exhaustive recounting of her conversation
with the consular officer. See Dkt. 15-1.
dismiss Soko's complaint because it does not
“plausibly allege with sufficient
particularity” that the consular officer who denied his
daughter's visa application lacked a “facially
legitimate and bona fide reason” to do so. Kerry v.
Din, 135 S.Ct. 2128, 2141 (2015) (Kennedy, J.,
concurring). Although I would normally give a pro se litigant
like Soko an opportunity to comply with this pleading
requirement by amending his complaint, it is clear from
Soko-Zopi's declaration that no amount of additional
detail will overcome this threshold requirement. So I will
dismiss the case for failure to state a claim upon which
relief may be granted.
challenging the denial of his daughter's visa application
in federal court, Soko asks for an exception to the
“general norm of nonreviewability” afforded
consular officers' visa decisions. Hazama v.
Tillerson, 851 F.3d 706, 708 (7th Cir. 2017).
“Consular nonreviewability is the general rule that
decisions to issue or withhold a visa are not reviewable in
court unless Congress says otherwise.” Matushkina
v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017) (internal
quotation marks omitted), reh'g denied (Jan. 26,
2018). But although the bar posed by consular
nonreviewability is well-established, it may not be absolute.
The Court of Appeals for the Seventh Circuit has suggested
that there might be “at least two possible
exceptions.” Hazama, 851 F.3d at 708. First, a
court “may conduct a limited review to determine
whether a visa was denied for a bona fide and facially
legitimate reason.” Id. “Second, review
may also be permitted where a denial of an alien's
application affects a U.S. citizen's constitutional
discussed in an earlier order, Dkt. 4, at 2, Soko doesn't
qualify for the second exception because he is not a U.S.
citizen. But I noted that it might be possible for him to
proceed under the first exception if he could make a
sufficient showing (1) that the exception in fact exists (the
law on that point remains unsettled), and (2) that the
consular officer did not have bona fide and facially
legitimate reasons for denying the visa.
has not made either showing. I need not analyze whether the
first exception to the doctrine of consular nonreviewability
exists; even assuming that it did, Soko's claims would be
dismissed for failing to plausibly allege with sufficient
particularity that the consular officer had no bona fide and
facially legitimate reason to deny his daughter's visa
suggests that the consular officer's denial was racist
and discriminatory, but he provides no supporting factual
allegations. In Kerry v. Din, the Supreme Court
articulated the relevant pleading requirement for plaintiffs
seeking to challenge a consular officer's visa denial
decision as not bona fide or facially legitimate:
“Absent an affirmative showing of bad faith on the part
of the consular officer who denied [the individual] a
visa-which [the plaintiff must] plausibly allege with
sufficient particularity-[courts will not] ‘look
behind' the Government's exclusion of [the
individual] for additional factual details beyond what its
express reliance” on the relevant provision of the
Immigration and Nationality Act encompassed. 135 S.Ct. 2141
(Kennedy, J., concurring) (citation omitted). Here, Soko has
made no affirmative showing of bad faith on the part of the
consular official. His complaint includes only a bare
allegation that “discrimination and racism was the
cause” of the visa denial. Dkt. 1, at 2.
declaration from Soko-Zopi that Soko attaches to his
opposition to the motion to dismiss does provide additional
detail. But even had Soko attached this declaration to his
original complaint, it would nonetheless fail to state a
claim. Soko-Zopi provides an exhaustive account of her
interview with the counselor officer on May 9, 2018.
See Dkt. 15-1, at 2-3. Soko-Zopi, who I infer was
pregnant at the time, was seeking a tourist visa to give
birth in an American hospital. She says that the officer
expressed skepticism that her father and husband would be
able to cover the cost of her medical care, and that he
denied her application when she was unable to provide proof
of medical insurance. Although Soko-Zopi and Soko found the
officer's treatment insulting, they have made no
affirmative showing of bad faith. In seeking a nontourist
visa, Soko-Zopi needed to overcome the statutory presumption
of immigrant intent. See 8 U.S.C. § 1184(b)
(“Every alien . . . shall be presumed to be an
immigrant until he establishes to the satisfaction of the
consular officer, at the time of application for a visa, and
the immigration officers, as the time of application for
admission, that he is entitled to a nonimmigrant status . . .
.”). It appears from Soko-Zopi's account of her
conversation with the officer that the officer did not
believe she had overcome this presumption. Nothing in her
declaration indicates that the consular officer acted in bad
faith. And given the comprehensiveness of Soko-Zopi's
account of her conversation with the officer, it does not
appear that a more complete account of the facts could
possibly cure this defect.
may believe that the denial of his daughter's visa
application was unfair, but that does not provide him with a
claim actionable in federal court. See, e.g.,
Morfin v. Tillerson, 851 F.3d 710, 713-14 (2017),
cert. denied, 138 S.Ct. 380 (2017); Hazama,
851 F.3d at 709; Matushkina, 877 F.3d at 295-96.
Accordingly, I will dismiss his complaint for failure to
state a claim upon which relief can be granted.
IT IS ORDERED that plaintiff Kervin Soko's complaint is
DISMISSED for failure to state a claim upon which relief may
be granted. The clerk of court is directed to enter judgment
in favor ...