UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RIZWANA BEGUM YOUNUS,

Plaintiff,

v. Civil Action No. 24-cv-2333

MATTHEW PALMER, et al.

Defendants.

MEMORANDUM OPINION

Rizwana Younus filed a petition for a writ of mandamus against the U.S. Customs and

Immigration Services (“USCIS”) to compel agency action on her husband’s I-130 visa application.

Defendants move to dismiss, arguing that Petitioner failed to state a claim. ECF No. 5 (“MTD”).

For the reasons below, the court will GRANT Defendants’ Motion.

I. BACKGROUND

The Immigration and Nationality Act (“INA”),

et seq., permits immigrant

visas for relatives of U.S. citizens. A citizen seeking permanent resident status for a spouse may

complete Form I-130, Petition for Alien Relative, with USCIS.

, 1151(b)(2)(A)(i)

(defining a spouse as an “immediate relative[ ]” of a citizen for Form I-130 petitioners);

(a)(1). If USCIS approves the petition, the case is forwarded to the National Visa Center

(“NVC”) for processing.

(a)(3).

The foreign spouse must then submit paperwork and processing fees to NVC. See

(outlining application fees and additional required documentation). Once the

application is complete, NVC schedules a consular interview for the applicant at the embassy with

Page 1 of 7 jurisdiction over the applicant’s residence.

§ 42.62. The consular officer must either issue or

refuse the visa following the interview. Id. § 42.81(a).

A visa refusal

means the consular officer determined that the applicant was not eligible for a visa after completing and executing the visa application and any required interview. It is possible that a consular officer will reconsider a visa application refused . . . at a later date, based on additional information or upon the resolution of administrative processing, and determine that the applicant is eligible. When a consular officer refuses a case . . . , she or he will convey to the applicant whether the applicant is required to provide any further documentation or information, or whether the case requires additional administrative processing.

“Administrative Processing Information,” U.S. Dep’t of State, https://perma.cc/XHN8-SS9D.

If the consular officer refuses the application and places it into administrative processing,

“[t]he duration of the administrative processing will vary based on the individual circumstances of

each case.” Id.

Petitioner filed an I-130 visa application on behalf of her husband, Sayd Akbar Khan, who

resides in the United Kingdom, in April 2022. Mandamus Pet. ¶ 2, ECF No. 1 (“Pet.”). USCIS

initially approved the application in June 2023. Id. ¶ 18. After Khan’s December 2023 interview

at the U.S. Embassy, his application was refused and placed into “administrative processing.” Id.

¶¶ 20–21; Joint Status Rep. ¶ 1, ECF No. 8.

In June 2024, in response to an email inquiring about his application status, the Embassy

informed Khan that his “application is subject to additional administrative processing, which is

mandatory and cannot be waived.” Pet. ¶ 25. The visa application remains refused. See “Visa

Status Check,” U.S. Dep’t of State Consular Electronic Application Center,

https://ceac.state.gov/ceacstattracker/status.aspx (showing petitioner’s visa application number

(LND2023668002) as “refused”); Joint Status Rep. ¶ 5.

Page 2 of 7 Petitioner challenges the delay in action on her husband’s application under the

Administrative Procedure Act (“APA”), the Mandamus Act, and the Fifth Amendment’s Due

Process Clause. Pet. ¶¶ 27–43. She seeks an order directing authorities to process Khan’s visa

application “within fifteen (15) calendar days” of its forthcoming order. Id. ¶ 44(c).

II. LEGAL STANDARD

Under Rule 12(b)(1), a plaintiff must establish jurisdiction by a preponderance of the

evidence. See Lujan v. Defs. of Wildlife,

(1992). A court considering a Rule

12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and

‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived

from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011)

(quoting Thomas v. Principi,

(D.C. Cir. 2005)).

III. ANALYSIS

Defendants argue (1) that Petitioner’s claims fail because there is no discrete agency action

that a consular officer was required to, but did not, take, and (2) that Petitioner’s claims are barred

by the consular nonreviewability doctrine. See MTD at 4–12. Petitioner responds that the

government has an obligation under the INA,

(b), the APA, and the Due Process

Clause to review her visa application in a “reasonable time.”

(b). Pet.’s Opp’n at

12–16, ECF No. 6 (“Opp’n”). She further argues that the consular nonreviewability doctrine does

not apply because “there has been no legitimate decision precluding judicial review.”

.

Because Petitioner does not allege “that an agency failed to take a discrete agency action

that it is required to take,” Defendants’ Motion to Dismiss will be granted. Norton v. S. Utah

Wilderness All.,

(2004) (emphasis omitted). Accordingly, the court need not reach

Defendants’ consular nonreviewability argument.

Page 3 of 7 A. Agency Duty

A party seeking mandamus relief must show that an agency must have violated “a crystal-

clear legal duty.” In re Ctr. for Biological Diversity,

(D.C. Cir. 2022) (quoting

In re Nat’l Nurses United,

(D.C. Cir. 2022)). Similarly, to make a Section 706

claim under the APA, Petitioner must “identify a legally required, discrete act that the [agency]

has failed to perform[.]” Montanans for Multiple Use v. Barbouletos,

(D.C.

Cir. 2009) (discussing this “threshold requirement for a [Section] 706 failure-to-act claim”).

Although Petitioner points to Section 1202(b) under the INA, Section 555(b) under the APA, and

the Fifth Amendment, none establish a duty for Defendants. Pet. ¶¶ 35, 36, 39–43.

First, Section 1202(b) describes the documentation a visa applicant must provide and to

whom it must be provided. The section concludes: “All immigrant visa applications shall be

reviewed and adjudicated by a consular officer.”

(b). But it does not require a

specific action by the State Department. “Read in context, this sentence cabins the State

Department’s discretion as to who may review and adjudicate immigrant visa applications; it does

not mandate that all applications actually be adjudicated.” Babamuradova v. Blinken,

, 15 (D.D.C. 2022) (emphasis in original). Indeed, at least three other judges on this court

have concluded that Section 1202(b) does not impose a discrete duty when a party challenges a

delay in adjudicating a visa application. See, e.g., Khamrabaeva v. Blinken, No. 22-cv-1219,

, at *5 (D.D.C. Sept. 24, 2022); Pushkar v. Blinken, No. 21-cv-2297,

at *10 (D.D.C. Sept. 23, 2021); Zarei v. Blinken, No. 21-cv-02102,

at

*1 (D.D.C. Sept. 30, 2021). This court joins them.

Second, D.C. Circuit precedent forecloses Petitioner’s APA claim under Section 555(b).

In Karimova v. Abate, as here, the plaintiff had been interviewed for a visa, but her application had

been “refused” and “placed . . . in administrative processing.” No. 23-5178,

, Page 4 of 7 at *2 (D.C. Cir. July 24, 2024) (internal quotation marks omitted). The plaintiff likewise claimed

that the subsequent delay was unlawful and “asked the court to ‘compel’ the consular officer to

perform her duty to finally adjudicate her visa.”

The Circuit refused to grant that relief because

the plaintiff had “not identified any law ‘plainly prescrib[ing]’ that the consular officer not put an

officially refused visa application in administrative processing.”

at *3 (quoting Interstate Com.

Comm’n. v. New York, N.H. & H.R. Co.,

(1932)).

In so holding, the Circuit specifically rejected the plaintiff’s reliance on APA Section

555(b).

(b) (“[E]ach agency shall proceed to conclude a matter presented to it”

“with due regard for the convenience and necessity of the parties or their representatives and within

a reasonable time.”). The Circuit reasoned that the plaintiff’s “‘matter’ ha[d] already been

‘conclude[d]’” when the consular officer refused her application. Karimova,

,

at *4. Thus, “Section 555(b) at most could have entitled her to the official refusal decision she

already received” and “does not in any way dictate how the agency can handle her rejected

paperwork after” refusal.

(emphasis in original).

Petitioner’s Due Process claim fares no better, whether styled as a substantive or procedural

due process claim. “A noncitizen does not have a right to a visa, or ‘a constitutionally-protected

interest in the procedures by which such visas are obtained.’” Khan v. Bitter, No. 23-cv-1576,

, at *8 (D.D.C. Feb. 23, 2024) (first citing see Kleindienst v. Mandel,

(1972); then quoting Smirnov v. Clinton,

(D.D.C. 2011)). Likewise,

the Supreme Court

long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause . . . . He therefore has no entitlement to procedural rights other than those afforded by statute.

Page 5 of 7 Dep’t of Homeland Sec. v. Thuraissigiam,

(2020); see also Farooqui v. U.S.

Dep’t of State, No. 23-cv-1081,

, at *7 (D.D.C. March 19, 2024) (rejecting the

argument that the Due Process Clause creates a duty for the State Department to process a visa);

Armah v. U.S. Dep’t of State, No. 22-cv-1714,

, at *10–11 (D.D.C. May 28,

2024) (same); Khan,

, at *9 (same); Akrayi v. U.S. Dep’t of State, No. 22-cv-

1289,

, at *6 (D.D.C. March 9, 2023) (same).

Petitioner identifies no other legal duty. Opp’n at 12–16. And both parties agree that the

court need not analyze Defendants’ delay under Telecomms. Rsch. & Action Ctr. (“TRAC”) v. Fed.

Comm. Comm’n,

(D.C. Cir. 1984). MTD at 6; Opp’n at 6. 1

A. Consular Nonreviewability

Defendants also contend that the consular nonreviewability doctrine renders Petitioner’s

refused-yet-processing visa application immune from judicial review. MTD at 8–12. That

doctrine “shields a consular official’s decision to issue or withhold a visa from judicial review, at

1 The balance of the TRAC factors weighs in favor of finding that Petitioner’s delayed visa application is not unreasonable. TRAC,

. The first and second TRAC factors tilt in Defendants’ favor because Congress tends to give agencies “wide” discretion in their visa processing timelines. Skalka v. Kelly,

, 153–54 (D.D.C. 2017) (finding that a two-year delay in processing a visa application is not unreasonable). And “no statutory or regulatory timeframe [exists] within which the State Department or a consular officer must re- adjudicate visa applications.” Isse v. Whitman, No. 22-cv-3114,

, at *7 (D.D.C. June 26, 2023). The fourth TRAC factor also leans in Defendants’ favor because granting expedited agency action is considered inappropriate when that relief “would simply ‘reorder’ a queue of applicants seeking adjudication” and when no concomitant “‘net gain’ in such adjudications is achieved.” Tate v. Pompeo,

, 149 (D.D.C. 2021) (quoting In re Barr Labs., Inc.,

(D.C. Cir. 1991)). The sixth TRAC factor does not favor either side because “the court need not ‘find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.’” TRAC,

(quoting Pub. Citizen Rsch. Grp. v. Comm’r, Food & Drug Admin.,

(D.C. Cir. 1984)). On the other hand, only the third and fifth TRAC factors weigh in Petitioner’s favor, because prolonged separation from a spouse may be considered a risk to human health and welfare. Didban v. Pompeo,

, 177 (D.D.C. 2020).

Page 6 of 7 least unless Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021). But courts in this district have rejected applying it where “administrative

processing” remains ongoing, and a “final decision” is “yet to come.” Al-Gharawy v. U.S. Dep't

of Homeland Sec.,

, 16 (D.D.C. 2022).

Similarly, this court need not decide the issue. “Dismissal based on consular

nonreviewability . . . is a merits disposition under Federal Rule of Civil Procedure 12(b)(6).” Baan

Rao,

. And because the court concludes that there are independent reasons to

dismiss Petitioner’s claims, see supra Section I.A, it need not decide whether consular

nonreviewability applies, see Almaqrami v. Pompeo,

, 784 n.3 (D.C. Cir. 2019)

(“[C]ourts may assume without deciding that a plaintiff’s statutory claims are reviewable and

proceed to the merits notwithstanding consular nonreviewability.” (internal quotation marks

omitted)).

IV. CONCLUSION

For the above reasons, the court GRANTS Defendants’ Motion to Dismiss. A

corresponding order shall follow shortly.

Date: August 1, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 7 of 7