Zeng v. Pompeo ( 2018 )

17-2902-cv
Zeng v. Pompeo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of October, two thousand eighteen.
PRESENT: JOSÉ A. CABRANES,
ROBERT D. SACK,
Circuit Judges,
JOHN G. KOELTL,
District Judge.
XIAN YONG ZENG,
Plaintiff-Appellant, 17-2902-cv
v.
MICHAEL POMPEO, UNITED STATES SECRETARY OF
STATE, UNITED STATES CONSULATE GENERAL
GUANGZHOU, CHINA, SECRETARY KIRSTJEN
NIELSEN, THOMAS CIOPPA, JEFFERSON B. SESSIONS
III, UNITED STATES ATTORNEY GENERAL,
Defendants-Appellees.†
1

Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.
†
The Clerk of Court is directed to amend the caption to read as shown above.
FOR PLAINTIFF-APPELLANT: Xian Yong Zeng, pro se, Elmhurst, NY.
FOR DEFENDANTS-APPELLEES: Varuni Nelson, Rachel G. Balaban, and
Matthew Silverman, Assistant United
States Attorneys, for Richard P.
Donoghue, United States Attorney,
Eastern District of New York, Brooklyn,
NY.
Appeal from the July 20, 2017 judgment of the United States District Court for the Eastern
District of New York (Ann M. Donnelly, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Xian Yong Zeng (“Zeng”), proceeding pro se, appeals from the District
Court’s judgment dismissing the case as moot and denying his motion to amend his complaint based
on futility. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Zeng does not challenge the District Court’s finding of mootness in his appellate brief.
Accordingly, we deem any argument regarding the mootness of his complaint to be abandoned.
LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).
Zeng contends that the District Court erred in denying his motion to amend his complaint
to bring a due process claim challenging the Consulate’s denial of his wife’s visa. We review de novo a
District Court’s denial of leave to amend on the ground that amendment would be futile because the
proposed theory is meritless. Thea v. Kleinhandler, 807 F.3d 492, 496–97 (2d Cir. 2015). In general, a
district court should not dismiss a pro se complaint without permitting at least one opportunity to
amend, but leave to amend can be denied if amendment would be futile. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
We conclude that the District Court did not err in denying Zeng’s motion to amend,
although we reach this conclusion on slightly different grounds than the District Court. Zeng sought
to amend his complaint to state a due process claim based on the U.S. Consulate’s decision to deny
his wife a visa due to a finding that she had misrepresented her employment history in a prior visa
application.
The doctrine of consular nonreviewability generally bars courts from reviewing a consular
officer’s denial of a visa. Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009). But we
have concluded that there is a narrow exception where a plaintiff alleges that the denial of a visa to a
2
visa applicant violated the plaintiff’s First Amendment right to have the applicant present his views
in this Country. Id. at 125 (relying on Kleindienst v. Mandel, 408 U.S. 753 (1972)). Under such
circumstances, a court will review the consular officer’s denial of a visa to determine whether the
officer acted “on the basis of a facially legitimate and bona fide reason.” Id. (quoting Mandel, 408
U.S. at 769–70). This standard will be satisfied where a consular officer relies on a statutory ground
of inadmissibility, unless the plaintiff affirmatively proffers “a well supported allegation of bad
faith.” Id. at 137.
Zeng urges that the District Court erred in failing to apply this limited review and in failing
to conclude that the consular officer denied the visa without any bona fide reason to do so. We have
not decided whether this narrow exception to the consular nonreviewability doctrine applies to
constitutional challenges other than First Amendment challenges, such as due process challenges. Cf.
Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (construing Mandel to apply
where a plaintiff alleges that the visa denial “burdens a citizen’s own constitutional rights” and
applying Mandel to a due process claim). Nor have we ever decided whether a citizen has a due
process right to live in this country with their spouse. See id. at 2133-36 (Scalia, J., plurality opinion)
(holding that wife had no protectible liberty interest in living in the United States with her husband
and could not bring a due process claim based on denial of his visa application). But even if we were
to conclude that the limited “bona fide reason” review does apply to due process claims and that
Zeng has a due process right to live in the United States with his wife, we would affirm the ruling of
the District Court.
Here, the Consulate provided a bona fide and facially legitimate reason for denying Zeng’s
wife a visa—namely, that she had made a material misrepresentation about her employment when
applying for a visa. Such a misrepresentation rendered her inadmissible. See 8 U.S.C. § 1201(g) (“No
visa . . . shall be issued to an alien if . . . it appears to the consular officer . . . that such alien is
ineligible to receive a visa . . . under section 1182 of this title”); id. § 1182(a)(6)(C)(i) (“Any alien
who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure
or has procured) a visa, other documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.”). Moreover, Zeng’s allegation that the Consulate relied
on sixteen-year-old information does not constitute a well-supported allegation of bad faith. Neither
8 U.S.C. § 1201(g) nor § 1182(a)(6)(C)(i) contain a limitation on considering such information.
Accordingly, the Consulate has satisfied its minimal burden of providing a bona fide reason for
denying the visa, and we will not “look behind the exercise of [the consulate’s] discretion.” Am.
Acad. of Religion, 573 F.3d at 125 (quoting Mandel, 408 U.S. at 769–70). As such, Zeng’s proposed
amendment was futile, and the District Court did not err by denying Zeng’s motion to amend.
3
CONCLUSION
We have reviewed all of the arguments raised by Zeng on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 20, 2017 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4