UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARTEM SHUSHKOV,

Plaintiff,

v. Civil Action No. 24 - 2265 (LLA)

MARCO RUBIO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Artem Shushkov, a Russian national residing in Serbia, seeks to compel

Defendants—Marco Rubio, in his official capacity as Secretary of State, and Timothy W. Smith,

in his official capacity as Director of the Office of Screening, Analysis, and Coordination (“SAC”)

at the U.S. Department of State—to adjudicate his immigration visa application. ECF No. 1.1

Mr. Shushkov contends that his F-1 visa application has been unreasonably delayed in violation

of the Administrative Procedure Act (“APA”),

et seq., and the Mandamus Act,

. ECF No. 1 ¶¶ 77-115. Defendants have moved to dismiss Mr. Shushkov’s claim

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 5. For the reasons

explained below, the court will grant the motion to dismiss in part and deny the motion to dismiss

in part.

1 Although Mr. Shushkov named former Secretary of State Antony J. Blinken and former SAC Director Robert Jachim as Defendants, Secretary Rubio and Director Smith are “automatically substituted” as parties under Federal Rule of Civil Procedure 25(d). I. BACKGROUND

The court draws the following facts, accepted as true, from Mr. Shushkov’s complaint.

Wright v. Eugene & Agnes E. Meyer Found.,

(D.C. Cir. 2023). It further takes

judicial notice of “information posted on official public websites of government agencies.” Arab

v. Blinken,

, 63 n.1 (D.D.C. 2022).

The Immigration and Nationality Act (“INA”) provides that a noncitizen “who is a bona

fide student qualified to pursue a full course of study and who seeks to enter the United States

temporarily and solely” to pursue the course of study may apply for an F-1 visa.

(a)(15)(F)(i). To obtain an F-1 visa, the foreign national must complete several steps. See

U.S. Dep’t of State, Student Visa, https://perma.cc/2CC7-2J95. First, the applicant must

electronically submit a Form DS-160 to the consular office corresponding to the jurisdiction in

which he resides.

(a), 41.103(a). Typically, the applicant must undergo an

in-person interview with a consular officer.

(h). At the end of the interview, State

Department regulations require that the consular officer either issue or refuse the visa.

(a); see Al-Gharawy v. U.S. Dep’t of Homeland Sec.,

, 13 (D.D.C. 2022).

However, if the consular officer determines that he needs further information, he may “refuse” the

visa pending further administrative processing, which typically consists of additional

information-gathering, pursuant to Section 221(g) of the INA. U.S. Dep’t of State, Administrative

Processing Information, https://perma.cc/44NK-RVZE; see

(g); Giliana v.

Blinken,

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

In October 2023, Mr. Shushkov filed a DS-160 Application for Nonimmigrant Visa. ECF

No. 1 ¶ 43. He sought an F-1 visa to pursue a PhD in Systems Engineering at the Stevens Institute

of Technology in New Jersey.

. Mr. Shushkov was interviewed at the U.S. Embassy

in Belgrade, Serbia later that month.

. After the interview, his visa was refused under

2 Section 221(g) for further administrative processing, and he was informed that he would need to

submit additional documentation.

; see

(g). Mr. Shushkov provided

the requested documents. ECF No. 1 ¶ 45. He has since sent several inquiries to the embassy

about the status of his application but has received no new information.

.

The delay in the adjudication of Mr. Shushkov’s visa since October 2023 has caused

Mr. Shushkov “severe and particular harm” by risking his admission and funding in the PhD

program and inducing “immense stress and anxiety.”

. Mr. Shushkov also alleges

that he is unable to obtain full-time work in Serbia while he awaits his visa decision.

.

In August 2024, Mr. Shushkov filed a complaint seeking to compel the final adjudication

of his visa application. ECF No. 1. Defendants have moved to dismiss under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 5. The matter is fully briefed. ECF Nos. 5 to 9.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction,” and it is generally presumed that “a cause

lies outside [of] this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). Under Federal Rule of Civil Procedure 12(b)(1), the court must dismiss an action

unless the plaintiff can establish, by a preponderance of the evidence, that the court possesses

subject-matter jurisdiction. Green v. Stuyvesant,

(D.D.C. 2007). In

reviewing such a motion, the court “is not limited to the allegations set forth in the complaint” and

“‘may consider materials outside the pleadings.’” Morrow v. United States,

(D.D.C. 2010) (quoting Jerome Stevens Pharms., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005)). Additionally, when reviewing a motion to dismiss pursuant to

Rule 12(b)(1), the court is required to “assume the truth of all material factual allegations in the

3 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. Fed. Deposit Ins. Corp.,

, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Rule 12(b)(6), the court will dismiss a complaint that does not “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,

(2007)).

“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

evaluating a motion under Rule 12(b)(6), the court accepts all well-pleaded factual allegations in

the complaint as true. See Erickson v. Pardus,

(2007); see also Atherton v. D.C.

Off. of the Mayor,

(D.C. Cir. 2009). Although the plausibility standard does

not require “detailed factual allegations,” it “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly,

.

Nor will “‘naked assertion[s]’ devoid of ‘further factual enhancement’” suffice. Iqbal,

(alteration in original) (quoting Twombly,

).

In determining whether a complaint fails to state a claim, a court may consider only the

facts alleged in the complaint and “any documents either attached to or incorporated in the

complaint and matters of which [the court] may take judicial notice.” N. Am. Butterfly Ass’n v.

Wolf,

(D.C. Cir. 2020) (alteration in original) (quoting Hurd v. District of

Columbia,

(D.C. Cir. 2017)).

4 III. DISCUSSION

Defendants raise two primary challenges to Mr. Shushkov’s claims: (1) that the doctrine of

consular nonreviewability bars consideration of his claims, ECF No. 5 at 10-13; and (2) that

Mr. Shushkov fails to identify a discrete agency action that Defendants were obligated to, but did

not, take, id. at 5-10.2 The court considers each argument in turn.

A. Consular Nonreviewability

Defendants argue that the court must dismiss under Rule 12(b)(6) based on the doctrine of

consular nonreviewability. ECF No. 5, at 10.3 In the context of visa adjudications, “[c]onsular

nonreviewability shields a consular official’s decision to issue or withhold a visa from judicial

review, at least unless Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo,

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

, 908 (2024). However, “a long

line of decisions from this Court have held that the consular nonreviewability doctrine applies only

to final decisions and thus does not bar judicial review of a consular officer’s delay when a visa

application has been provisionally refused pending a final decision.” Al-Gharawy, 617 F. Supp.

3d at 11 (collecting cases).

2 In a departure from similar cases, Defendants do not argue for dismissal based on the factors set forth in Telecommunications Research & Action Center v. Federal Communications Commission,

(D.C. Cir. 1984) (“TRAC”), the very analysis required to evaluate a claim of unreasonable delay. ECF No. 5, at 1. Instead, in a footnote, Defendants claim that they will move for judgment on the pleadings based on the TRAC factors if the court denies their motion to dismiss.

at 1 n.1. While allowed by the Federal Rules of Civil Procedure, Defendants’ approach strikes the court as an exercise in gamesmanship that increases litigation costs for the parties and taxes limited judicial resources. The court encourages Defendants to litigate more efficiently in the future. 3 It is well established that the doctrine of consular nonreviewability is not jurisdictional. See Dep’t of State v. Muñoz,

, 908 n.4 (2024).

5 In response to this longstanding precedent, Defendants point to the D.C. Circuit’s decision

in Karimova v. Abate, No. 23-CV-5178,

, at *3 (D.C. Cir. July 24, 2024),

arguing that while there may have previously been “some debate . . . as to whether the doctrine

applie[s] in cases seeking to compel action on visa applications in post-refusal administrative

processes, Karimova necessitates an end to that debate.” ECF No. 5, at 12. In Defendants’ view,

Karimova conclusively establishes that where a visa application has been refused under

Section 221(g) and placed in administrative processing, a final decision has been rendered on the

application. ECF No. 7, at 14; see Karimova,

, at *2-3, *6. The court disagrees.

As an initial matter, the court notes—contrary to Defendants’ assertion, ECF No. 5, at 6

n.2; ECF No. 7, at 4—that the D.C. Circuit’s decision in Karimova does not bind it. The D.C.

Circuit has twice declined to publish Karimova. See Karimova,

, at *6; Order,

Karimova v. Abate, No. 23-5178 (D.C. Cir. Sep. 10, 2024), Doc. No. 2074062, at 1. Under the

D.C. Circuit’s rules, “[w]hile unpublished dispositions may be cited[,] . . . a panel’s decision to

issue an unpublished disposition means that the panel sees no precedential value in that

disposition.” D.C. Cir. R. 36(e)(2) (emphases added).4 This court takes the D.C. Circuit at its

word and considers, but does not find itself bound by, Karimova.

4 Defendants cite D.C. Circuit Rule 32.1(b)(1)(B) for the proposition that unpublished opinions “may be cited as precedent,” ECF No. 7, at 4 (quoting D.C. Cir. R. 32.1(b)(1)(B)), which is true as far as it goes. But as the D.C. Circuit has explained—in a published opinion that is binding on this court—“[w]hile [unpublished] dispositions have some precedential value, they are ‘obviously . . . not of the same precedential value as would be an opinion of this Court treating the question on the merits.’” In re Grant,

(D.C. Cir. 2011) (quoting Edelman v. Jordan,

(1974)). Accordingly, these decisions “may be considered persuasive authority, but they do not constrain a panel of the [C]ourt from reaching a contrary conclusion in a published opinion after full consideration of the issue.”

Other than their say-so, ECF No. 7, at 4, Defendants have pointed to no authority suggesting that this court should take a different approach.

6 Having considered Karimova, the court is not inclined to follow it. In Karimova, the

plaintiff was in a position substantially similar to Mr. Shushkov’s: she had applied for a visa,

interviewed at an embassy, had her application “officially ‘refused’” under Section 221(g), and

then had her application placed in administrative processing.

, at *2 (quoted

sources omitted). Relying on various regulations and the Department of State’s Foreign Affairs

Manual (“FAM”), the D.C. Circuit reasoned that placing an application in administrative

processing must be a “final” decision because a relevant regulation instructed that a consular

officer “must issue” or “refuse” a visa following an interview,

at *1 (quoting

(a)), and because the FAM directed that, after an interview, “[c]onsular officers ‘cannot

temporarily refuse, suspend, or hold the visa for future action,’”

(quoting 9 FAM § 504.1-3(g)).

Drawing on these sources, the D.C. Circuit characterized Ms. Karimova as requesting “yet another

‘final decision’ on her already-refused visa application,” as opposed to a final decision in the first

instance. Id. at *6.

This interpretation places too much emphasis on the current language in the FAM—which

does not carry the force of law, see Aramnahad v. Rubio, No. 24-CV-1817,

, at

*7 (D.D.C. Mar. 31, 2025)—and too little emphasis on the allegations in a plaintiff’s complaint

and the realities of the visa-adjudication process. See Al-Gharawy, 617 F. Supp. 3d at 16

(“Although the State Department may ‘choose[] to characterize a section 221(g) notification as a

“refusal,”’ that magic word is not a get-out-of-review-free card . . . [and] the Court must examine

[a plaintiff’s] allegations to determine whether the complaint sufficiently alleges that the consular

officer’s ‘refusal’ was in fact an ‘interim decision [that] is not sufficiently final to warrant the

application of the [consular nonreviewability] doctrine.’” (citation omitted) (quoting Vulupala v.

Barr,

, 98 (D.D.C. 2020))).

7 It is impossible to square Defendants’ assertion that placement in “administrative

processing” was a final disposition of Mr. Shushkov’s visa application with the allegations in his

complaint. Mr. Shushkov alleges that, after his interview, he “was informed that he would need

further administrative processing and would need to submit additional documents,” and he then

“received an email confirming that he needed to respond to a DS-5535 questionnaire and submit

additional documents.” ECF No. 1 ¶¶ 44-45. Accepting these allegations as true and drawing all

inferences in Mr. Shushkov’s favor—as this court must, see Iqbal, 556 U.S. at 678—Mr. Shushkov

has sufficiently alleged that he has not yet received a final decision on his visa application. See

Aramnahad,

, at *8; cf. Ibrahim v. Spera, No. 23-CV-3563,

,

at *3 n.2 (D.D.C. Sep. 6, 2024) (noting “that it is extremely difficult to square [Karimova’s]

analysis, which is based largely on agency regulations, with the communications that visa

applicants actually receive from various consulates”).

Additionally, Defendants’ reliance on the FAM for the proposition that a Section 221(g)

refusal for administrative processing is a final decision ignores the fact that, until very recently,

the FAM referred to cases in administrative processing as ones where “a final determination is

deferred.” ECF No. 1 ¶ 38 (quoting ECF No. 1-2). Defendants may have amended the language

in the FAM, but “administrative processing” remains the same: a non-final disposition that may or

may not be changed by an applicant’s supplementation of his application.5

5 The court’s conclusion that placement in administrative processing under Section 221(g) is not a final determination is underscored by language on the Department of State’s website, of which the court takes judicial notice. See Arab, 600 F. Supp. 3d at 63 n.1. The website explains that an application is placed in administrative processing when “[t]he consular officer could not conclude [a person] w[as] elegible [sic] for the visa sought and additional administrative processing of [the] application is required.” U.S. Dep’t of State, INA Section 221(g) – Incomplete Application or Supporting Documentation, https://perma.cc/27VZ-FMBN. It further elaborates that a person who (continued on next page)

8 Mr. Shushkov does not challenge a final decision denying his visa application, nor does he

contend that this court should order the State Department to grant his application. See generally

ECF No. 1. Rather, he argues only that Defendants must “adjudicate [his] visa application within

a reasonable time.” Id. ¶ 27. Several courts in this district have found, even after Karimova, that

“the doctrine of consular nonreviewability does not bar challenges to timing as opposed to

substance.” de Belinay v. Mayorkas, No. 24-CV-240,

, at *4 (D.D.C.

Mar. 3, 2025) (quoting Shabestary v. Sanders, No. 24-CV-362,

, at *3 (D.D.C.

Dec. 16, 2024)); see, e.g., Aramnahad,

, at *10; Mahmoodi v. Altman-Winans,

No. 24-CV-2010,

, at *4-5 (D.D.C. Mar. 11, 2025); Baygan v. Blinken, No. 23-

CV-2840,

, at *4-5 (D.D.C. Aug. 8, 2024). This court follows suit and

determines that Mr. Shushkov’s action is properly understood as an attempt to compel an

adjudication that has been unreasonably delayed, rather than one aimed at changing a final decision

that has already been rendered. Accordingly, the case is not barred by the doctrine of consular

nonreviewability.6

is placed in administrative processing “will be given a letter stating this[,] and the embassy or consulate will contact [him] when the administrative processing is complete.”

An inability to “conclude” whether a person is eligible for a visa is plainly different from a conclusive determination that a person is ineligible for a visa. And the language on the website, which instructs applicants to wait for the embassy or consulate to contact them after administrative processing is complete, supports the court’s conclusion that an applicant in this position is still awaiting a final decision on his application. 6 The upshot of this conclusion for Defendants is that the court will dismiss Mr. Shushkov’s claims that are premised on Section 706(2) of the APA (Counts I and III), because Section 706(2) is limited to “final agency action,” which has not yet occurred here. Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric.,

(D.C. Cir. 2020) (quoting Lujan v. Nat’l Wildlife Fed’n,

(1990)); see Lee v. Blinken, No. 23-CV-1783,

, at *7 (D.D.C. Feb. 15, 2024) (dismissing a Section 706(2) claim for lack of final agency action where the plaintiff’s visa was placed in administrative processing after a Section 221(g) refusal).

9 B. Non-Discretionary Duty

Defendants also contend that Mr. Shushkov has failed to allege that “the government

agency or official is violating a clear duty to act”—a threshold requirement for a mandamus claim

and a merits question for a claim of unreasonable delay under the APA. Am. Hosp. Ass’n v.

Burwell,

(D.C. Cir. 2016); see ECF No. 5, at 5.7 Defendants argue that

Mr. Shushkov “cannot identify a clear, non-discretionary duty requiring a consular officer to take

any action” on his visa application “now that it has been refused under INA Section 221(g)” and

placed in administrative processing. ECF No. 5, at 5. As support for this proposition, Defendants

again point to Karimova, which they argue is “dispositive” in cases like this one, where

“[p]laintiffs seek to compel State Department officials to act further on visa applications refused

under INA Section 221(g) and undergoing post-refusal administrative processing.” Id. at 6.

In Karimova, the D.C. Circuit held that the plaintiff had “not identified an adequate legal

basis” for her action seeking to “compel[] the consular officer overseeing her visa application to

make yet another ‘final decision’ on her already-refused visa application.”

,

at *6. The Court characterized the plaintiff as “argu[ing] that Section 555(b) [of the APA]—and

7 Defendants waffle on whether they are seeking dismissal on this basis under Rule 12(b)(1) or Rule 12(b)(6) and fail to parse through the individual counts in the complaint. Compare ECF No. 5, at 5 (asking for a dismissal with prejudice concerning non-discretionary duty), with ECF No. 7, at 13 (invoking Rule 12(b)(1) as the basis for a dismissal concerning non-discretionary duty). Under the Mandamus Act, a plaintiff must show (1) “a clear and indisputable right to relief,” (2) that the government “is violating a clear duty to act,” and (3) “that no adequate alternative remedy exists” in order to establish jurisdiction. Burwell,

. The court will thus review Count IV under the Rule 12(b)(1) standard. In contrast, under the APA, the question whether a non-discretionary duty exists is not jurisdictional. See Sierra Club v. Jackson,

(D.C. Cir. 2011) (explaining that “a complaint seeking review of agency action ‘committed to agency discretion by law,’ has failed to state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1)” (citation omitted) (quoting

(a))). The court will thus review Count II under the Rule 12(b)(6) standard.

10 only Section 555(b)—‘places a clear, non-discretionary duty’ on her consular officer to

re-adjudicate her already-refused application.”

. The Court easily determined that

“Section 555(b) does no such thing,” and instead “simply expresses ‘a congressional view that

agencies should act within reasonable time frames.’”

(quoting Telecomms. Rsch. & Action Ctr.

v. Fed. Commc’ns Comm’n,

(D.C. Cir. 1984) (“TRAC”)).

The problem for Defendants is that this rationale is wholly inapplicable given this court’s

understanding of the visa process. See supra Part III.A. It may be true that Section 555(b) does

not create a duty to re-adjudicate a final decision where one has already been made, but, as this

court sees it, that is not what plaintiffs like Mr. Shushkov (or Ms. Karimova) are seeking. Instead,

they are seeking an initial, final determination on their visa applications. In this way, any

discussion of how Section 555(b) applies to requests to re-adjudicate final visa decisions means

very little for a plaintiff who seeks an initial final decision and wishes for it to be made “within [a]

reasonable time frame[]” as Section 555(b) requires. TRAC,

.

Here, Mr. Shushkov alleges that a nondiscretionary duty to adjudicate his visa application

can be located in a wide range of “statutes, precedents, agency regulations, and guidelines,”

including

(b),

(e),

(a), multiple sections of the

FAM, the INA, and the APA. ECF No. 1 ¶¶ 58-68. Several courts in this district have concluded

that there is a duty to complete adjudication of a visa application, explaining “that both the APA

and State Department regulations create a clear duty to adjudicate visa applications within a

reasonable time.” Rashidian v. Garland, No. 23-CV-1187,

, at *5

(D.D.C. Mar. 8, 2024); see also, e.g., Aramnahad,

, at *8-10; Kahbasi v. Blinken,

No. 23-CV-1667,

, at *5 (D.D.C. June 27, 2024); Ameer v. Schofer, No. 23-

CV-3066,

, at *4 (D.D.C. June 4, 2024); Vulupala, 438 F. Supp. 3d at 100. This

11 court continues to agree with this view. Issuing a final decision on a visa application is plainly a

discrete agency action, and it is required by both the APA and federal regulations. See Khazaei v.

Blinken, No. 23-CV-1419,

, at *6 (D.D.C. Sep. 18, 2023); see also Mashpee

Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003) (explaining that

the APA “imposes a general but nondiscretionary duty upon an administrative agency to pass upon

a matter presented to it ‘within a reasonable time,’

(b), and authorizes a reviewing

court to ‘compel agency action unlawfully withheld or unreasonably delayed,’

§ 706(1)”).8

* * *

Because Mr. Shushkov’s claims are not barred by the doctrine of consular

nonreviewability, because, in Counts II and IV, Mr. Shushkov seeks a final determination on his

visa application by pointing to several sources of law creating a nondiscretionary duty for

Defendants to make such a decision, and because Defendants fail to otherwise contest

Mr. Shushkov’s claims of unreasonable delay, the court determines that Mr. Shushkov may

proceed on Counts II and IV of his complaint.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss,

ECF No. 5, is DENIED as to Counts II and IV and GRANTED as to Counts I and III. It is further

8 Even if the court read Karimova with the D.C. Circuit’s understanding that Section 221(g) refusals are final, Mr. Shushkov could still proceed with Counts II and IV. That is because—even taking the argument on the D.C. Circuit’s own terms—the Court did not rule that no source of law creates a nondiscretionary duty to re-adjudicate a visa application, just that “Section 555(b)—and only Section 555(b) . . . does no such thing.”

, at *3. Even if this court discounted Section 555(b), Mr. Shushkov has cited ample additional sources of law that he contends establish a nondiscretionary duty to adjudicate his visa application. ECF No. 1 ¶¶ 58-68. At this early stage of litigation, that is sufficient.

12 ORDERED that Defendants shall respond to Mr. Shushkov’s complaint on or before

September 2, 2025.

LOREN L. ALIKHAN United States District Judge Date: August 18, 2025

13