UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ) SHUVO JIT DATTA, ) ) Plaintiff, ) ) v. ) Civil Action No. 24-2937 (PLF) ) 1 MARCO A. RUBIO, ) Secretary of State, et al., ) ) Defendants. ) ____________________________________)

OPINION

On November 6, 2023, Plaintiff Shuvo Jit Datta, a national of the People’s

Republic of Bangladesh, submitted an Online Nonimmigrant Visa Application (Form DS-160)

with the U.S. Consulate in Jeddah, Saudi Arabia. See Compl. § V ¶ 1, 3. The consular officer

ultimately refused Mr. Datta’s application and placed it in “administrative processing.” Id. ¶ 4.

Mr. Datta asks the Court to compel the defendants to adjudicate his visa application.

Pending before the Court is defendants’ motion to dismiss the complaint pursuant

to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon careful

consideration of the parties’ written submissions and the relevant authorities, the Court grants

defendants’ motion and dismisses the complaint.2

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, current U.S. Secretary of State Marco A. Rubio and current U.S. Attorney General Pamela J. Bondi are “automatically substituted” as parties to this litigation. 2 The Court has reviewed the following papers in connection with this matter: Plaintiff’s Complaint for Writ of Mandamus (“Compl.”) [Dkt. No. 1]; Defendants’ Motion to I. BACKGROUND

A. Statutory Background

The Immigration and Nationality Act (“INA”),

et seq., sets out

the process by which noncitizens can apply for visas to enter the United States. At issue in this

case is an H-1B visa, an employment-based visa that allows noncitizens to perform services in a

“specialty occupation” at a U.S. company for up to three years, with the opportunity to extend

the visa for additional lengths of time.

(a)(15)(H)(i)(b).

To apply for an H-1B visa, a noncitizen must obtain both an approved labor

certification and an approved visa petition from their employer. U.S. Dep’t of State, H-1B

Specialty Occupations, DOD Coop. Rsch. and Dev. Project Workers, and Fashion Models,

Petition Filing Process, https://perma.cc/63T8-88PU (last visited Feb. 18, 2025). Then, the

noncitizen must complete and submit a Form DS-160, the Online Nonimmigrant Visa

Application, and appear for an interview before a consular officer at the U.S. Consulate in the

noncitizen’s home country.

(h);

(a), 42.62. During the

interview, the noncitizen makes and executes an H-1B visa application. See

(a)(1)(B), 1202(c)-(d). “All nonimmigrant visa applications shall be reviewed and

adjudicated by a consular officer.”

(d). The noncitizen bears the burden of

proving that he or she is eligible to receive the visa.

.

After the noncitizen’s visa application has been completed and executed before a

consular officer, the consular officer must “issue the visa” or “refuse the visa.”

(a);

(g). The consular officer “cannot temporarily refuse, suspend, or

Dismiss (“Mem.”) [Dkt. No. 6]; Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss (“Opp.”) [Dkt. No. 7]; and Defendants’ Reply in Further Support of Defendants’ Motion to Dismiss (“Rep.”) [Dkt. No. 10]. 2 hold the visa for future action” after the interview. Vol. 9, Foreign Affairs Manual (“FAM”)

§§ 504.1-3(g), 504.9-2. The consular officer must complete this process “properly and

promptly . . . in accordance with the applicable regulations and instructions.”

. If the consular officer determines that “additional information from sources other than

the applicant may help establish an applicant’s eligibility for a visa,” he may “refuse” the visa

pending further administrative processing pursuant to Section 221(g) of the INA. See U.S. Dep’t

of State, Admin. Processing Info., https://perma.cc/44NK-RVZE (last visited Feb. 18, 2025);

(g); Gundas v. Blinken, Civil Action No. 24-1064 (RC),

, at *1

(D.D.C. Dec. 10, 2024).

Under the Mandamus Act, “district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.”

. Under the

Administrative Procedure Act (“APA”), “[w]ith due regard for the convenience and necessity of

the parties or their representatives and within a reasonable time, each agency shall proceed to

conclude a matter presented to it.”

(b). The APA also permits courts to compel

agency action that is “unreasonably delayed.”

(1). Under Section 706(1) of the

APA, however, “a delay cannot be unreasonable with respect to action that is not required” by

law. Norton v. S. Utah Wilderness Alliance,

, 63 n.1 (2004); see also

(“[A]

claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a

discrete agency action that it is required to take.”) (emphasis in original).

B. Factual and Procedural Background

Plaintiff last entered the United States on a B-1/B-2 visa in 2023. Compl. § V ¶ 1.

On July 11, 2023, plaintiff was offered a Research Assistant position in the Department of

3 Chemical Engineering at the Massachusetts Institute of Technology (“MIT”). Id. ¶ 2. His

intended start date was December 1, 2023. Id. On October 2, 2023, MIT petitioned for an H-1B

visa for plaintiff, which was approved by the U.S. Citizenship and Immigration Services

(“USCIS”) on October 11, 2023. Id. ¶ 3. The petition is valid until November 30, 2025. Id.

On November 6, 2023, plaintiff submitted a Form DS-160 to the U.S. Consulate

in Jeddah, Saudi Arabia. Compl. § V ¶ 3. Plaintiff attended his visa interview with the consular

officer in Jeddah on November 14, 2023. Id. ¶ 4. After the interview, plaintiff was provided

with a “221(g) slip” stating that his visa application was “refused under administrative

processing and that it may take up to 6 months” for administrative processing to conclude. Id.

The 221(g) slip also stated that plaintiff “may be asked to provide additional information later.”

Compl. at Ex. 7. To date, plaintiff’s visa application remains refused. Compl. § V ¶ 4. Despite

multiple email inquiries to the Consular Section of the U.S. Consulate in Jeddah, plaintiff has

received no further updates or responses. Id. ¶ 5. Plaintiff alleges significant emotional distress,

psychological harm, and financial strain due to his visa application remaining in administrative

processing for several months with no update or explanation. Id. ¶¶ 8-9.

On October 17, 2024, plaintiff filed this action against Antony J. Blinken, former

U.S. Secretary of State (replaced by Secretary Marco A. Rubio on January 21, 2025), Merrick B.

Garland, former U.S. Attorney General (replaced by Attorney General Pamela J. Bondi

(“Attorney General Bondi”) on February 5, 2025), Ur Mendoza Jaddou, Director of the USCIS

(“USCIS Director Jaddou”), Richard C. Visek, Acting Legal Advisor for the Office of the Legal

Adviser, Julie M. Stufft, Deputy Assistant Secretary for Visa Services at the U.S. Department of

State, Michael Ratney, U.S. Ambassador to Saudi Arabia, Allison Dilworth, Deputy Chief of

Mission to the U.S. Embassy in Saudi Arabia, and Dao Le, Consul General to the U.S. Consulate

4 in Jeddah, Saudi Arabia, in their official capacities (collectively, “defendants”). See Compl.

§ III ¶¶ 12-19. Plaintiff alleges that defendants unreasonably delayed the final adjudication of

his visa application and seeks to compel adjudication under the APA,

(b), 706(1), and the Mandamus Act,

. See Compl. § II ¶¶ 4-5.

On December 20, 2024, defendants filed a motion to dismiss pursuant to

Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Mem. at 1. On

December 26, 2024, plaintiff filed his opposition. See Opp. at 1. On January 16, 2025,

defendants filed their reply. See Rep. at 1.

II. STANDARD OF REVIEW

A. Motions to Dismiss Under Rule 12(b)(1) of the Federal Rules of Civil Procedure

Federal courts are courts of limited jurisdiction, possessing only those powers

authorized by the Constitution and an act of Congress. See Janko v. Gates,

(D.C. Cir. 2014); Abulhawa v. U.S. Dep’t of the Treasury,

(D.D.C. 2017). Lack of subject matter jurisdiction is fatal to a court’s authority to hear a case.

See FED. R. CIV. P. 12(h)(3). The plaintiff bears the burden of establishing that the Court has

jurisdiction. See Khadr v. United States,

(D.C. Cir. 2008); Walen v. United

States,

(D.D.C. 2017). In determining whether to grant a motion to

dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil

Procedure, the Court must construe the complaint in the plaintiff’s favor and treat all

well-pleaded factual allegations as true. See Attias v. CareFirst, Inc.,

(D.C.

Cir. 2017). Although the Court must grant a plaintiff the benefit of all reasonable inferences, it

“need not accept factual inferences drawn by plaintiffs if those inferences are not supported by

facts alleged in the complaint,” and the Court need not accept a plaintiff’s legal conclusions.

5 Disner v. United States,

(D.D.C. 2012) (quoting Speelman v. United

States,

(D.D.C. 2006)). In determining whether a plaintiff has established

jurisdiction, the Court may consider materials beyond the pleadings where appropriate. See

Cumis Ins. Soc’y, Inc. v. Clark,

(D.D.C. 2018).

B. Motions to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure

To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6),

a plaintiff must plead facts that “give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

(2007) (alteration

in original). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient factual matter, accepted

as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

); see Spence v.

U.S. Dep’t of Veterans Affs.,

(D.C. Cir. 2024). And “[a] claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” In re Interbank Funding Corp.

Sec. Litig.,

(D.C. Cir. 2010) (quoting Ashcroft v. Iqbal,

).

In deciding a motion to dismiss under Rule 12(b)(6), the Court “must accept the

plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.”

Sanchez v. Off. of State Superintendent of Educ.,

(D.C. Cir. 2022); see

Ashcroft v. Iqbal,

. The Court considers the complaint in its entirety, see Tellabs,

Inc. v. Makor Issues & Rights, Ltd.,

(2007), and construes it liberally,

granting plaintiffs “the benefit of all inferences that can [reasonably] be derived from the facts

alleged.” Sickle v. Torres Advanced Enter. Sols., LLC.,

(D.C. Cir. 2018).

6 The Court, however, need not accept all inferences drawn by the plaintiff “if such inferences are

unsupported by the facts set out in the complaint.” Nurriddin v. Bolden,

(D.C.

Cir. 2016). Nor is the Court “bound to accept as true a legal conclusion couched as a factual

allegation.” Ashcroft v. Iqbal,

; see also Kaempa v. Myers,

(D.C. Cir. 2004) (“Nor must we accept as true the complaint’s factual allegations insofar as they

contradict exhibits to the complaint or matters subject to judicial notice.”).

III. DISCUSSION

Plaintiff seeks declaratory and injunctive relief for defendants’ alleged failure to

carry out functions delegated to them by law, specifically their duty to “process nonimmigrant

visas properly and promptly.” Compl. § I ¶ 2 (quoting

). Plaintiff alleges

causes of action arising under the APA,

(b), 706(1), and the Mandamus Act,

, claiming that the delay in further adjudication of his visa application is

unreasonable and seeking an order compelling defendants to adjudicate the application “without

further delay.” Compl. at 13;

at § II ¶¶ 4-5. The Court addresses plaintiff’s APA and

mandamus claims jointly because whether a plaintiff seeks a writ of mandamus or to compel

agency action under the APA, the Court only has jurisdiction where the plaintiff can identify a

discrete, non-discretionary duty for the agency to act. See, e.g., Heckler v. Ringer,

(1984); Norton v. Southern Utah Wilderness All.,

(2004).

Defendants advance three arguments in support of their motion to dismiss. First,

defendants argue that plaintiff lacks standing to sue USCIS Director Jaddou and Attorney

General Bondi because neither defendant had a role in the adjudication of plaintiff’s visa

application, and both defendants lack the authority to re-open and re-adjudicate the application.

Mem. at 4-5. Second, defendants argue that the consular nonreviewability doctrine bars judicial

7 review of the consular officer’s decision to refuse plaintiff’s visa application. Id. at 10-13.

Third, defendants argue that plaintiff’s complaint fails to identify a clear, non-discretionary duty

requiring defendants to further adjudicate plaintiff’s visa application. Id. at 5-10. The Court

agrees with defendants’ first and third arguments and grants defendants’ motion to dismiss.

A. Improper Defendants

“Article III of the Constitution confines the jurisdiction of federal courts to

‘Cases’ and ‘Controversies.’” FDA v. Alliance for Hippocratic Med.,

, 378 (2024).

To establish standing, “a plaintiff must demonstrate (i) that she has suffered or likely will suffer

an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and

(iii) that the injury likely would be redressed by the requested judicial relief.” Id. at 380 (citing

Summers v. Earth Island Inst.,

(2009), and Lujan v. Defenders of

Wildlife,

(1992)); accord New York Ctr. for Foreign Pol’y Affs. v. U.S.

Dep’t of State, Civil Action No. 20-3847 (PLF),

, at *3 (D.D.C.

July 12, 2024). If a plaintiff cannot demonstrate all three requirements, the Court must dismiss

plaintiff’s lawsuit for lack of jurisdiction. See Hoffman v. Jeffords,

(D.D.C. 2001), aff’d, Civil Action No. 02-5006,

(D.C. Cir. May 6, 2002).

Here, plaintiff has failed to establish the causation and redressability requirements

of standing as they relate to USCIS Director Jaddou and Attorney General Bondi.

1. The Causation Requirement

Plaintiff fails to allege any involvement of USCIS Director Jaddou or Attorney

General Bondi in the allegedly delayed adjudication of his visa application. Plaintiff asserts that

USCIS Director Jaddou is a proper defendant because she reports to the Deputy Secretary of the

8 U.S. Department of Homeland Security (“DHS”), whose powers and duties include the

administration and enforcement of immigration laws, approving visa petitions, and “issu[ing]

regulations regarding visa issuances and assign[ing] staff to consular posts.” Opp. at 13.

Plaintiff asserts that Attorney General Bondi is a proper defendant because the Executive Office

for Immigration Review (“EOIR”), a component of the Department of Justice, is responsible for

“conducting immigration court proceedings, appellate reviews, and administrative hearings to

administer and interpret U.S. immigration laws.”

.

These general arguments, however, fail to establish a meaningful connection

between the defendants’ actions and plaintiff’s alleged injuries. See Siddiqui v. Blinken,

, 75 (D.D.C. 2022) (dismissing USCIS Director and Attorney General as defendants

because plaintiff made “no substantive allegations about [their] roles” in processing plaintiff’s

visa petition); Kahbasi v. Blinken, Civil Action No. 23-1667 (LLA),

, at *4

(D.D.C. June 27, 2024) (dismissing Attorney General as defendant because plaintiff failed to

connect Attorney General’s actions and plaintiff’s alleged injuries).

2. The Redressability Requirement

Plaintiff fails to demonstrate how either USCIS Director Jaddou or Attorney

General Bondi have the authority to redress his injury. The INA, which governs visa application

processing, “expressly delegates to consular officers” – and not to any other individuals – “the

decision whether to issue immigrant and nonimmigrant visas.” Kolesnikov v. Blinken, Civil

Action No. 23-1675 (TSC),

, at *2 (D.D.C. Aug. 2, 2024). Because “consular

officers [have] exclusive authority” in adjudicating his application, plaintiff cannot show that his

injury is redressable by USCIS Director Jaddou or Attorney General Bondi. See Siddiqui v.

Blinken, 646 F. Supp. 3d at 75.

9 Plaintiff’s claims against USCIS Director Jaddou and Attorney General Bondi

therefore must be dismissed for lack of standing.

B. Consular Nonreviewability Doctrine

Defendants argue that plaintiff’s claims must be dismissed because the consular

officer’s decision to refuse plaintiff’s visa application is final and thus unreviewable under the

consular nonreviewability doctrine. See Mem. at 10. Plaintiff counters that because his visa

application was refused for further “administrative processing,” the consular officer’s decision is

not final and is therefore subject to judicial review. See Opp. at 21. As explained below, the

Court finds it unnecessary to resolve this dispute.

The consular nonreviewability doctrine “shields a consular official’s decision to

issue or withhold a visa from judicial review.” Baan Rao Thai Restaurant v. Pompeo,

(D.C. Cir. 2021); see also Dep’t of State v. Muñoz,

, 908 (2024)

(“The [INA] does not authorize judicial review of a consular officer’s denial of a visa; thus, as a

rule, the federal courts cannot review those decisions.”). The consular nonreviewability doctrine

arises from policy concerns associated with foreign relations, matters normally left to the

“political branches of government.” See Saavedra Bruno v. Albright,

(D.C.

Cir. 2021) (quoting Harisiades v. Shaughnessy,

(1952)). The doctrine only

precludes judicial review of a consular officer’s “final visa determinations.” See Shabestary v.

Sanders, Civil Action No. 24-362 (CRC),

, at *3 (D.D.C. Dec. 16, 2024)

(quoting Giliana v. Blinken,

, 18 (D.D.C. 2022)) (emphasis added).

Several judges in this district have concluded that a consular officer’s decision to

refuse a visa application for further administrative processing is not a final decision, and thus the

consular nonreviewability doctrine does not apply. See, e.g., Baygan v. Blinken, Civil Action

10 No. 23-2840 (JDB),

, at *4 (D.D.C. Aug. 8, 2024) (concluding that a

Section 221(g) refusal pending administrative processing is not a final decision); Al-Gharawy v.

U.S. Dep’t of Homeland Sec.,

, 11 (D.D.C. 2022) (same); Vulupala v.

Barr,

, 99 (D.D.C. 2020) (same).

In this Court’s view, the D.C. Circuit’s recent opinion in Karimova v. Abate

(“Karimova”) casts doubt on the reasoning in those decisions. See Civil Action

No. 23-5178,

(D.C. Cir. July 24, 2024) (per curiam). In Karimova, the

Circuit explained that a visa application “remains officially refused” once “a consular officer

makes an official decision refusing to issue a visa,” even if the visa is later “place[d] . . . in

administrative processing.”

. Karimova suggests that once “[a] consular officer

reviewed [plaintiff’s] application, interviewed [him], and ruled that no visa would be granted,”

plaintiff’s application was “officially refused” despite its subsequent placement in administrative

processing. Asadi v. U.S. Dep’t of State, Civil Action No. 23-1953 (RC),

,

at *4 (D.D.C. Aug. 15, 2024) (quoting Karimova,

, at *4). In other words, a

consular officer’s refusal of a visa application is a final decision.

In any event, the Court need not determine the extent to which Karimova upends

prior decisions examining the consular nonreviewability doctrine because there are independent

reasons to dismiss plaintiff’s claims. See infra Section III.C; Hamdan v. Oudkirk, Civil Action

No. 24-1001 (BAH),

, at *6 (D.D.C. Oct. 23, 2024) (post-Karimova suit

assuming favorably to plaintiff that the consular nonreviewability doctrine does not bar review of

their claims because the claims fail for other reasons); Sharifishourabi v. Blinken, Civil Action

No. 23-3382 (RC),

, at *13-14 (D.D.C. July 29, 2024) (noting that Karimova

“casts doubt” on prior decisions concerning the consular nonreviewability doctrine, but finding

11 that it “need not conclusively determine the extent to which [Karimova] disrupts prior decisions”

because dismissal was appropriate on the merits).

C. Non-Discretionary Duty

Defendants also argue that plaintiff’s claims are unreviewable because plaintiff

cannot identify a “clear, non-discretionary duty requiring a consular officer to take any action”

on plaintiff’s visa application now that it has been refused. See Mem. at 5. Defendants again

point to Karimova as dispositive of plaintiff’s claims.

. Plaintiff contends that

adjudication of his visa application is a discrete, non-discretionary agency action that defendants

have failed to perform within a reasonable time. Opp. at 15-16. Plaintiff also cites a decision

from this district and an out-of-circuit decision from California that decline to follow Karimova.

Id.; see Hajizadeh v. Blinken, Civil Action No. 23-1766 (LLA),

, at *3 n.3

(D.D.C. Aug. 2, 2024) (“This court has considered Karimova but declines to follow it.”);

Sheikhalizadehjahed v. Gaudiosi, Civil Action No. 24-1136 (SCR),

, at *7 n.6

(E.D. Cal. Oct. 16, 2024) (“The Court is not persuaded by Karimova’s holding on § 555(b).”).

Karimova’s facts are not meaningfully distinguishable from the facts at issue here,

and the Court finds the D.C. Circuit’s reasoning in Karimova persuasive.3 In Karimova, as in the

3 Judges in this district are split as to whether Karimova is precedential. In Hajizadeh v. Blinken, Judge AliKhan notes that Karimova is not “controlling” because it is “an unpublished disposition,” citing D.C. Circuit Rule 36(a)(2). Civil Action No. 23-1766,

(LLA), at *3 n.3 (Aug. 2, 2024). See also Ahmed v. Blinken, Civil Action No. 24-0153 (LLA),

, at *4 n.4 (D.D.C. Nov. 27, 2024). Magistrate Judge Faruqui agrees. See Haeri Mehneh v. Blinken, Civil Action No. 24-1374,

, at *5 (ZMF) (D.D.C. Dec. 16, 2024). But other judges in this district have treated Karimova as binding precedent. See, e.g., Deylami v. Kvien, Civil Action No. 23-1393,

, at *5 (TSC) (D.D.C. Jan. 16, 2025); Mojaver v. Garland, Civil Action No. 24-0253 (ABJ),

, at *2-3 (D.D.C. Nov. 7, 2024); Amjad v. Schofer, Civil Action No. 24-1773 (CJN),

, *1 (D.D.C. Oct. 4, 2024). This Court leaves the question of Karimova’s precedential nature for another day. 12 instant case, a consular officer interviewed the plaintiff and “officially refused” her visa

application and “placed her application in administrative processing in order to verify

qualifications for [her requested] visa.” Karimova,

, at *2 (internal quotation

marks omitted). About a year after her interview, the plaintiff filed suit alleging that the consular

officer had breached their duty under Section 555(b) of the APA to “make a final decision” on

the plaintiff’s visa application because a refusal pending administrative processing “is not a final

decision.”

(internal quotation marks omitted). By “final decision,” the plaintiff meant that

the consular officer was “required to either issue her a visa or refuse her application, without

then also placing it in administrative processing.”

. The plaintiff “[i]nvok[ed] both the

Administrative Procedure Act and the Mandamus Act,” and “asked the court to compel the

consular officer to . . . finally adjudicate her visa.”

The government moved to dismiss the

plaintiff’s complaint, arguing that courts cannot review consular decisions on visa applications

under the consular nonreviewability doctrine and that, in any case, there had not been

unreasonable delay in processing the plaintiff’s visa application.

The district court granted

the government’s motion to dismiss.

The D.C. Circuit affirmed, describing the visa application process as follows:

[O]nce the [visa] applicant properly applies, the consular officer – by regulation – “must issue” or “refuse” the visa.

(a) (emphasis added); see 9 FAM § 504.1-3(g) . . . .

After a consular officer makes an official decision refusing to issue a visa because the applicant has not carried her burden of showing eligibility, the official may then conclude that the applicant could perhaps still receive a visa eventually if circumstances change. As a result, the consular officer may choose to place an officially refused application in administrative processing . . . . If the consular officer gets enough new information, . . . the officer can determine sua sponte that the administrative processing is “completed” and may then re-open and re-adjudicate the applicant’s case. Id. § 306.2-2(A)(a)(2). Unless and until that happens, though, the visa

13 application remains officially refused. Because the visa application has already been officially refused, keeping the door open in administrative processing can only benefit, never hurt, the applicant’s entry prospects.

Karimova,

, at *1-2 (emphasis added; footnote omitted).

The Circuit held that because the plaintiff’s visa application was officially refused

before being placed into administrative processing, the plaintiff’s “matter ha[d] already been

conclude[d].” Karimova,

, at *4 (internal quotation marks omitted); see

(b). “She received the ‘refused’ decision that the law expressly authorizes as one of

the allowed actions on a visa application.”

; see

;

(g).

The Circuit noted that “even on [the plaintiff’s] reading, Section 555(b) at most could have

entitled her to the official refusal decision she already received [because] Section 555(b) does not

in any way dictate how the agency can handle her rejected paperwork after a decision has been

made.” Karimova,

, at *4 (emphasis in original). The Circuit also found

“[n]othing in federal law [that] speaks to the ability of a consul, after [refusing an application], to

hold onto the application in case circumstances later change in the applicant’s favor . . . saving

the applicant the time and cost of filing a whole new visa application.”

Accordingly, the

Circuit concluded that there was no basis to compel agency action under Section 555(b) of the

APA or the Mandamus Act because the plaintiff failed to identify a clear, non-discretionary duty

requiring the government to further adjudicate an already-refused visa application. See

.

The Court agrees with the Circuit’s analysis and finds it persuasive. As other

judges in this district have held, “[g]ranting or refusing a final visa application is a mandatory

agency action” under

and 41.121(a). Vulupala v. Barr,

, 100 (D.D.C. 2020); Khazaei v. Blinken, Civil Action No. 23-1419 (JEB),

, at *6 (D.D.C. Sept. 18, 2023). Here, a consular officer has refused plaintiff’s visa

14 application. Compl. § V ¶ 4. Plaintiff has conceded that to date, his visa application “remains

refused.” Id. And as the Circuit explained in Karimova, the consul’s refusal of plaintiff’s visa

application means that plaintiff’s “matter has already been conclude[d].” See Karimova,

at *4 (internal quotation marks omitted); see also Deylami v. Kvien, Civil Action

No. 23-1393 (TSC),

, at *5 (D.D.C. Jan. 16, 2025) (“Because refusal concludes

the matter presented by a visa application, Section 555(b) does not establish a duty to take the

action that [plaintiff] claims has been unreasonably delayed—further adjudicating his refused

visa application.”); Mojaver v. Garland, Civil Action No. 24-0253 (ABJ),

,

at *3 (D.D.C. Nov. 7, 2024) (“According to the Court of Appeals, the APA does not create a

non-discretionary duty for defendants to revisit visa applications after they have been

‘refused’ under section 221(g), no matter what the consulate said it was doing next.”);

Amjad v. Schofer, Civil Action No. 24-1773 (CJN),

, at *1 (D.D.C.

Oct. 4, 2024) (same); Hemmat v. Blinken, Civil Action No. 23-2085 (TSC),

,

at *4 (D.D.C. Sept. 17, 2024) (same); Ibrahim v. Spera, Civil Action No. 23-3563 (ABJ),

, at *3 (D.D.C. Sept. 6, 2024) (same).

Plaintiff argues that he “does not seek to challenge or adjudicate the merits of a

decision to issue or withhold his application.” Opp. at 19 (internal quotations omitted). Rather,

his claims challenge the defendants’ unreasonable delay in issuing a “final” decision on his visa

application, no matter what that decision may be.

. The Court is not persuaded by

this distinction, at least as it applies here. Had the defendants taken no adjudicatory action, the

Court does not doubt its power to “compel the agency to issue a decision – up or down – on a

long-pending application.” Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d at 13.

In this case, however, defendants already have taken definitive action, and plaintiff is effectively

15 asking the Court to order defendants to “engage in discretionary re-adjudication of that action

more quickly.” Yaghoubnezhad v. Stufft,

, 104 (D.D.C. 2024). The Court

cannot order further review or adjudication of plaintiff’s visa application without requiring the

consular officer to re-examine the merits of the application. See

(“Even if such an order does

not expressly mandate [the defendant] to reach a specific outcome on Plaintiffs’ visas, it still

affects the substance of [the defendant’s] initial refusals by requiring their reexamination.”).

Plaintiff’s other attempts to identify a legal basis for the duty he claims are also

unavailing. Plaintiff’s reliance on Sections 706(1) and 555(b) of the APA, as opposed to solely

Section 555(b), does not meaningfully distinguish his case from Karimova. Compl. § II ¶¶ 4-5.

Like Section 555(b), a claim under Section 706(1) “can proceed only where a plaintiff asserts

that an agency failed to take a discrete agency action that it is required to take,” a threshold

requirement that plaintiff has not met. See Norton v. S. Utah Wilderness Alliance,

(2004) (emphasis in original). Plaintiff also identifies several laws and regulations

requiring consular officers to “properly and promptly” process visa applications and then to

“issue” or “refuse” them. Compl. § IV ¶ 31; see

, 41.121(a). Those duties

were satisfied when plaintiff’s application was “refused.” See Karimova,

,

at *4. And to the extent that the State Department’s collection of a visa application fee

under

creates a duty to adjudicate the corresponding visa application, the

consular officer did so by issuing the refusal decision. See Opp. at 8; see also Hemmat v.

Blinken,

, at *4 (D.D.C. Sept. 17, 2024) (finding the same).

Still, the Court acknowledges that it is “extremely difficult to square the Circuit’s

analysis [in Karimova] . . . with the communications that visa applicants actually receive from

various consulates.” Ibrahim v. Spera,

, at *3 n.2. Here, after the consular

16 officer refused plaintiff’s visa application, plaintiff was informed that he “may be asked to

provide additional information later” and that it may take “up to 6 months” for administrative

processing to conclude. Compl. at Ex. 7. He was instructed to email the consulate office if he

did not receive an update more than 6 months after his interview.

He was even promised

“another adjudication [of his visa application] once [administrative processing] is complete.”

Compl. at Ex. 8. These communications would lead any reasonable person to believe that

consideration of their visa application is not concluded, and that the refusal of their application is

not final. Though defendants may have fulfilled their statutory duties to plaintiff, their

communications led plaintiff to believe that his visa application was in a state of limbo.

The Court is also troubled by Karimova’s practical effect. As Magistrate Judge

Faruqui noted, Karimova’s holdings incentivize agencies charged with the adjudication of visa

applications to simply “refuse applications out of hand and then begin the true deliberation

process thereafter,” leaving “no possibility for judicial oversight of untimely decision making.”

Haeri Mehneh v. Blinken, Civil Action No. 24-1374 (ZMF),

, at *5 (D.D.C.

Dec. 16, 2024). Just as plaintiff’s application has languished in “administrative processing” for

over a year with no updates, Karimova gives agencies carte blanche to administratively process

noncitizens’ visa applications ad infinitum with no avenue for judicial review.

Yet the Circuit makes an important, separate point in Karimova: plaintiff’s claims

“[are] not standard administrative fare.” Karimova,

, at *5. Rather, they

“ar[ise] within a field that is vitally and intricately interwoven with contemporaneous policies in

regard to the conduct of foreign relations and the war power.”

(quoting Harisiades v.

Shaughnessy, 342 U.S. at 588–589) (brackets and internal quotations omitted); see also Dep’t of

State v. Munoz,

, 907 (2024) (“For more than a century, this Court has recognized

17 that the admission and exclusion of foreign nationals is a fundamental sovereign attribute

exercised by the Government’s political departments largely immune from judicial control.”)

(quoting Trump v. Hawaii,

(2018)). Consequently, these “types of claims

generally fall outside the Judicial Branch’s wheelhouse.” Karimova,

, at *5.

See also Saavedra Bruno v. Albright,

(D.C. Cir. 1999) (“[w]hen it comes to

matters touching on national security or foreign affairs—and visa determinations are such

matters—the presumption of [judicial] review ‘runs aground.’”) (quoting Dep’t of Navy v.

Egan,

(1988)); Gonzalez Paredes v. Vila,

(D.D.C. 2007) (“[t]he conduct of foreign relations is not entrusted to the judiciary.”).

In this Court’s view, the statutory gap that, in theory, allows agencies to issue pro

forma refusals while continuing to administratively process visa applications is best filled by

Congress, not this Court. See Mathews v. Diaz,

(1976) (explaining that, because

“decisions [concerning the admission of foreign nationals] may implicate our relations with

foreign powers, and since a wide variety of classifications must be defined in the light of

changing political and economic circumstances, such decisions are frequently of a character

more appropriate to either the Legislature or the Executive than to the Judiciary”).

The Court thus finds that plaintiff has failed to identify a clear, non-discretionary

duty requiring defendants to further adjudicate his already-refused visa application.

Accordingly, there is no basis under the APA or the Mandamus Act for the Court to order

defendants to take any additional action.4

4 Even assuming arguendo that defendants have a duty to act, plaintiff’s complaint falls short of proving that defendants’ alleged delay is “unreasonable” under TRAC. See Telecommunications Rsch. & Action Ctr. v. F.C.C.,

, 80 (D.C. Cir. 1984). In his complaint, plaintiff alleges that 11 months had passed since his visa application was refused. Compl. § V ¶ 9. The Court is sensitive to how frustrating such a delay must be for plaintiff. 18