Rouhigilavan v. Blinken

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TINA ROUHIGILAVAN

Plaintiff,

v. Case No. 24-cv-02255 (GMH)

MARCO RUBIO, 1

Secretary of State, et. al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Tina Rouhigilavan, an Iranian national, filed an H-1B nonimmigrant visa

application after she was hired by the University of California, Los Angeles, to engage in

postdoctoral scholarship for the school’s Department of Medicine. On January 17, 2024, Plaintiff

was interviewed concerning her nonimmigrant visa application by the Consular Section of the U.S.

Embassy in Dubai, United Arab Emirates. Shortly after the interview, Plaintiff was notified that

her visa application was refused under Section 221(g) of the Immigration and Nationality Act

(“INA”), subject to “administrative processing.” As of the date of this Memorandum Opinion,

Plaintiff’s visa application remains refused and subject to administrative processing.

Plaintiff brings this suit to compel the Secretary of State and the Director of the State

Department’s Office of Screening, Analysis, and Coordination to complete the administrative

processing and adjudication of her visa application. Plaintiff alleges three causes of action arising

under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5

The current Secretary of State Marco Rubio is substituted as Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

U.S.C. §§ 555(b), 706(1), 706(2), claiming that the delay in processing her visa application is

unreasonable and seeking an order compelling the government to timely adjudicate the application.

Defendants filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure, arguing that Plaintiff’s claims fail for two threshold reasons: (1) that Plaintiff fails

to allege a discrete, non-discretionary duty sufficient to state a claim for unreasonable delay under

the Mandamus Act or the APA; and (2) that Plaintiff’s claims are barred from judicial review under

the doctrine of consular nonreviewability.

Upon consideration of Defendants’ motion and the record, 2 the Court finds that, although

Plaintiff has identified a discrete, nondiscretionary duty for a consular officer to issue or refuse a

visa, Defendants fulfilled this duty by refusing the Plaintiff’s application under Section 221(g) of

the INA. Because Plaintiff has failed to identify any clear, nondiscretionary duty for the consular

officer to do anything more with respect to her visa application, the motion to dismiss is granted.

I. BACKGROUND

I. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes consular

officers to issue nonimmigrant visas to foreign nationals seeking to enter the United States. See

8 U.S.C. § 1201; 22 C.F.R. § 41.111. One of the primary methods by which nonimmigrants seek

to enter the United States is through work-sponsored visas, called “H-1B” visas, which allow U.S.

employers to temporarily employ foreign workers in specialty occupations. See 8 C.F.R.

§ 214.2(h)(1)(ii)(B); 8 U.S.C. § 1101(a)(15)(H).

The docket entries relevant to this Memorandum Opinion are (1) the Complaint, ECF No. 1; (2) Defendants’ Motion to Dismiss, ECF No. 7; (3) Plaintiff’s Opposition, ECF No. 8; (4) Defendants’ Reply, ECF No. 9; (5) Plaintiff’s Notice of Supplemental Authority, ECF No. 15; and (6) Defendants’ Response to Plaintiff’s Notice of Supplemental Authority, ECF No. 16. Page numbers cited herein are those assigned by Court’s CM/ECF system, and not the page numbers included in the filed document.

A nonimmigrant work visa application is initiated when an employer files an I-129 Petition

for Non-Immigrant Worker on behalf of a foreign national employee. See 8 C.F.R. § 214.2(h)(2).

Once the petition is approved, the foreign national employee, as well as his spouse and children,

may apply for a nonimmigrant visa by submitting a DS-160 visa application. See 22 C.F.R.

§ 41.103; 8 C.F.R. § 214.2(h)(9)(iv); see also 8 U.S.C. § 1202(c). Once the application is

submitted and fees paid, see 22 C.F.R. § 41.107, the applicant is required to attend an in-person

interview with a consular officer. 8 U.S.C. § 1202(h); see also id. § 1202(d). The INA places the

burden of proof on the applicant to establish eligibility to receive a visa. 8 U.S.C. § 1361.

Under INA Section 221(g)—the statutory provision under which Plaintiff’s visa

application was refused here—a consular officer shall refuse a visa if it appears that the application

does not comply with the INA. See 8 U.S.C. § 1201(g); see also 22 C.F.R. § 40.6 (“A visa can be

refused only upon a ground specifically set out in the law or implementing regulations.”); 9 Foreign

Affs. Manual (“FAM”) 301.4-1(b)(14) (characterizing a Section 221(g) refusal as a refusal in

which the “[a]pplication does not comply with the INA”). Specifically, a visa shall be refused

under INA Section 221(g) if the consular officer determines “from statements in the application or

in the papers submitted therewith,” that (1) the applicant is ineligible to receive a visa under

Section 1182 of the INA, which identifies classes of inadmissible aliens; (2) the application itself

fails to comply with the INA or its regulations; or (3) “the consular officer knows or has reason to

believe that such alien is ineligible to receive a visa . . . under section 1182 [of the INA], or any

other provision of law.” 8 U.S.C. § 1201(g); see also id. § 1182. Among other things, Section

1182 permits consular officers to refuse visas based on health-related grounds, criminal-related

grounds, and security-related grounds. See id. § 1182(a)(1)–(10). Upon refusing a visa, the

consular officer is required to “inform the alien of the ground(s) of ineligibility . . . and whether

there is, in law or regulations, a mechanism . . . to overcome the refusal.” 22 C.F.R. § 41.121(b)(1).

A refusal of a nonimmigrant visa under Section 221(g) may be overcome. See 9 FAM

403.10-4 (“[T]he applicant is entitled to present evidence to overcome a presumption or finding of

ineligibility. It is the policy of the U.S. Government to give the applicant every reasonable

opportunity to establish eligibility to receive a visa.”); see also 8 U.S.C. § 1361 (“If such person

fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa . . . no

visa or other document required for entry shall be issued to such person, . . . unless he establishes

to the satisfaction of the Attorney General that he is not inadmissible under any provision of this

chapter.” (emphasis added)); see generally 9 FAM § 306.2-2(A)(a) (describing administrative

process by which a visa applicant may overcome a visa refusal under Section 221(g)); see also

U.S. Dep’t of State, Admin. Processing Info., https://travel.state.gov/content/travel/en/usvisas/visa-information-resources/administrative-processing-information.html [https://perma.cc/4-4NK-RVZE] (“It is possible that a consular officer will reconsider a visa application refused under

221(g) at a later date, based on additional information or upon the resolution of administrative

processing, and determine that the applicant is eligible.”). That said, according to the FAM, “[a]

refusal under INA 221(g) is, legally, a refusal on the visa application, even if that refusal is

eventually overcome.” 9 FAM § 302.1-8(B)(c).

B. Factual Background

Plaintiff is an Iranian national seeking an employment-based nonimmigrant visa. ECF No.

1, ¶¶ 2–3. Following her employer’s submission of a petition for an H-1B visa on her behalf,

Plaintiff filed a nonimmigrant visa application. Id., ¶¶ 57–58. On January 17, 2024, Plaintiff

interviewed with a consular officer at the U.S. Embassy in Dubai, United Arab Emirates. Id., ¶

58. After the interview, and on the same day, she received a notice from the consular officer stating

that her application had been refused under section 221(g) of the U.S. Immigration and Nationality

Act and placed in “administrative processing.” See id., ¶ 58–59. That application has remained

“refused” and subject to “administrative processing” since the date of her interview. See id., ¶¶ 59–

60. Plaintiff alleges that such delay while her application is undergoing administrative processing

has caused severe hardship, including emotional and financial distress and the potential loss of her

employment. Id., ¶¶ 61–65.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

The “plaintiff bears the burden of establishing” subject matter jurisdiction. Green v.

Stuyvesant, 505 F. Supp. 2d 176, 177 (D.D.C. 2007); see also Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the

court’s [subject-matter] jurisdiction” and concerns a court’s ability to hear a particular claim.

Thomas v. Wash. Metro. Area Transit Auth., 305 F. Supp. 3d 77, 81 (D.D.C. 2018) (quoting Haase v.

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)); see Fed. R. Civ. P. 12(b)(1). In weighing a Rule

12(b)(1) motion, courts must “‘accept as true all of the factual allegations contained in the complaint’

and draw all reasonable inferences in favor of the plaintiff.” Schmidt v. U.S. Capitol Police Bd., 826

F. Supp. 2d 59, 65 (D.D.C. 2011) (quoting Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C.

Cir. 2008)). But courts are “not required . . . to accept inferences unsupported by the facts or legal

conclusions that are cast as factual allegations.” Id. (alteration in original) (quoting Rann v. Chao,

154 F. Supp. 2d 61, 64 (D.D.C. 2001)). Further, “a court ‘may consider such materials outside the

pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the

case.” O’Gilvie v. Corp. for Nat’l Cmty. Serv., 802 F. Supp. 2d 77, 80–81 (D.D.C. 2011) (quoting

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000)).

B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) challenges the complaint’s sufficiency to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Courts are called to “accept[] as

true” the well-pleaded factual allegations contained in the complaint, Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); see also Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), and

to construe them “in the light most favorable to the plaintiff[],” Vick v. Brennan, 172 F. Supp. 3d

285, 295 (D.D.C. 2016). See also Mirv Holdings, LLC v. U.S. Gen. Servs. Admin., 454 F. Supp.

3d 33, 41 (D.D.C. 2020) (“In evaluating a motion to dismiss under Rule 12(b)(6), ‘the Court must

construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences

that can be derived from the facts alleged.’” (quoting Hettinga v. United States, 677 F.3d 471, 476

(D.C. Cir. 2012))). Courts may also weigh “documents either attached to or incorporated in the

complaint[,] and matters of which [the court] may take judicial notice.” Vasaturo v. Peterka, 177

F. Supp. 3d 509, 511 (D.D.C. 2016) (alterations in original) (quoting EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). Ultimately, the complaint itself “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The moving

party bears the burden of “prov[ing] that no legally cognizable claims for relief exist.” Cohen v.

Bd. of Trs. of the Univ. of the Dist. of Columbia, 819 F.3d 476, 481 (D.C. Cir. 2016) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2015)).

III. DISCUSSION

Plaintiff asserts three causes of action arising under the Mandamus Act and the APA

claiming that the delay in processing her visa application is unreasonable and seeking an order

compelling the government to promptly adjudicate the application. ECF No. 1, ¶¶ 98–132.

Defendants move to dismiss on two independent grounds. First, they contend that Plaintiff has

failed to identify a clear, non-discretionary duty requiring Defendants to further process her visa

applications following the refusal. ECF No. 7 at 10–14. Second, they argue that the doctrine of

consular nonreviewability bars judicial review given that the consular officer has refused the visa

application. Id. at 14–18. Ultimately, the Court finds it unnecessary to resolve the second

argument because it agrees with the Defendants on the first. Accordingly, it will grant Defendants’

motion to dismiss on that basis alone.

A. Non-Discretionary Duty

Both APA and the Mandamus Act provide a cause of action for an agency’s failure to take

an action. See 5 U.S.C. § 706(1) (granting the reviewing court authority to “compel agency action

unlawfully withheld or unreasonably delayed.”); 28 U.S.C. § 1361 (granting district courts the

jurisdiction to compel “any agency . . . to perform a duty owed to the plaintiff”). Here, Plaintiff

proceeds under both, arguing that Defendants have a nondiscretionary duty to adjudicate the

subject visa application within a reasonable time and that they failed to do so because Plaintiff’s

application remains in “administrative processing.” ECF No. 8 at 19–20. Defendants respond that

Plaintiff’s claims should be dismissed because the visa applications were refused, and Plaintiff has

not identified a clear, non-discretionary duty requiring the consular officer to take any action

following the refusal. ECF No. 9 at 18. Thus, according to Defendants, there is no action that this

Court could compel under either the Mandamus Act or APA. The Court agrees with Defendants.

Both the APA and mandamus claims require that the relevant agency must have a discrete,

nondiscretionary duty to act. “Mandamus is an ‘extraordinary remedy, reserved only for the most

transparent violations of a clear duty to act.’” In re Ctr. for Biological Diversity, 53 F.4th 665,

670 (D.C. Cir. 2022) (quoting in re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000)).

To obtain a writ of mandamus, a petitioner must show, among other things, “that the agency has

violated ‘a crystal-clear legal duty.’” Id. (quoting In re Nat’l Nurses United, 47 F.4th 746, 752

(D.C. Cir. 2022)). Similarly, to proceed with an APA claim for unreasonable delay, a plaintiff

must allege that an agency has “failed to take a discrete agency action that it is required to take.”

Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis omitted). Therefore, to

proceed under either the APA or the Mandamus Act on a claim of unreasonable delay, a plaintiff

must allege “that an agency has a clear non-discretionary duty to take a specific action and that the

agency failed to take that action.” Sharifishourabi v. Blinken, No. 23-cv-3382, 2024 WL 3566226,

at *5 (D.D.C. July 29, 2024) (quoting Arabzada v. Donis, 725 F. Supp. 3d 1, 11 (D.D.C. 2024));

see also Norton, 542 U.S. at 65 (“The limitation to required agency action rules out judicial

direction of even discrete agency action that is not demanded by law (which includes, of course,

agency regulations that have the force of law).”).

Plaintiff contends that Defendants have a discrete and nondiscretionary duty to adjudicate

the subject visa application within a reasonable time and that they failed to do so because the

application remains pending in “administrative processing.” ECF No. 8 at 11–17, 20–21.

Defendants respond that the D.C. Circuit’s recent unpublished decision in Karimova v. Abate is

dispositive of this issue and of Plaintiff’s claims more generally. ECF No. 9 at 9 (discussing

Karimova v. Abate, No. 23-5178, 2024 WL 3517852 (D.C. Cir. July 24, 2024) (per curiam)).

Karimova held that the consular official’s rejection of a visa application subject to administrative

processing fulfilled any nondiscretionary duty that was owed. Karimova, 2024 WL 3517852, at

*3. Setting aside whether Karimova is binding on this Court because it is unpublished, 3 the Court

finds—as other judges have—its reasoning persuasive and adopts it for purposes of this decision. 4

The root of the confusion as to whether Karimova should be treated as binding lies in two conflicting D.C. Circuit Rules which address the precedential value of the Circuit’s unpublished decisions. See D.C. Cir. Rule 32.1(b)(1)(B); D.C. Cir. Rule 36(e)(2). Rule 32.1(b)(1)(B) states that unpublished decisions entered after January 1, 2002 “may be cited as precedent.” D.C. Cir. Rule 32.1(b)(1)(B); see also Fed. R. App. P 32.1(a) (“A court may not prohibit or restrict the citation of federal judicial opinions . . . designated as ‘unpublished,’ . . . and . . . issued on or after January 1, 2007.”). Clear enough. But then D.C. Circuit Rule 36(e)(2) seemingly takes that back; it states that “a panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition.” D.C. Cir. Rule 36(e)(2). Given that every unpublished decision necessarily reflects the panel’s determination that the decision has “no precedential value,” under Rule 36(e)(2), when, if ever, may an unpublished decision properly “be cited as precedent” under Rule 32.1(b)(1)(B)? The D.C. Circuit has not clearly answered this question. See Verizon v. FCC, 770 F.3d 961, 968 n.11 (D.C. Cir. 2014) (noting the tension between D.C. Cir. R. 32.1(b)(1) and 36(e)(2) and citing an unpublished decision “for its persuasive authority, and adopt[ing] its dicta as a holding”); Head v. Wilson, 792 F.3d 102, 109 & n.9 (D.C. Cir. 2015) (refusing to rely on an unpublished opinion entered before 2002 as precedent but noting, in dicta, that unpublished opinions entered after January 1, 2002 “may be cited as precedent” despite the language of Rule 36(e)(2)). Defendant relies on Khaksari v. Chairman, Broad. Bd. of Governors, 451 F. App’x 1, 4 (D.C. Cir. 2011), in which the D.C. Circuit noted that an unpublished decision “has the force of precedent,” citing Rule 32.1(b)(1)(B). See ECF No. 9 at 10–11. But Khaksari is itself an unpublished decision, making reliance on it questionable for the same reason that Karimova’s precedential value is in doubt.

See Datta, 2025 WL 752643, at *7 (“The Court agrees with the Circuit’s analysis [in Karimova] and finds it persuasive.”); Ramizi v. Blinken, 745 F. Supp. 3d 244, 260 (E.D.N.C. 2024) (“Karimova is unpublished and nonbinding. But the Court finds its reasoning persuasive . . . .”); see also Deylami v. Kvien, No. 23-cv-1393, 2025 WL 219064, at *5 (D.D.C. Jan. 16, 2025) (holding that “[t]he Karimova decision is fatal” to a claim brought under the APA); Mojaver v. Garland, No. 24-cv-0253, 2024 WL 4715419, at *2 (D.D.C. Nov. 07, 2024) (“Karimova addressed both mandamus and APA challenges to agency refusals of visa applications under INA § 221(g) for ‘administrative processing’ . . . and it is dispositive in this case.” (internal citation omitted)); Hemmat v. Blinken, No. 23-cv-2085, 2024 WL 4210658, at *4 (D.D.C. Sept. 17, 2024) (“The Karimova decision is fatal to Plaintiffs’ claim of unreasonable delay.”); Ibrahim v. Spera, No. 23-cv-3563, 2024 WL 4103702, at *1 (D.D.C. Sept. 6, 2024) (“[T]he Court agrees that the decision in Karimova requires the dismissal of this action[.]”); Rahman v. Bouldin, No. 25-cv-1836, 2025 WL 3248585, at *3 (D.D.C. Nov. 21, 2025) (finding Karimova to be non-binding but persuasive); Baradaran v. Rubio, No. 24-cv-2946, 2025 WL 2506546, at *2 (D.D.C. Sept. 2, 2025) (“Consistent with Karimova, the Court concludes that the Department did not violate a clear and direct legal duty . . . .”); Sabeti v. Blinken, No. 24-cv-2627, 2025 WL 2457753, at *3 (D.D.C. Aug. 26, 2025) (“[T]he Court finds Karimova persuasive: . . . the Department has already . . . satisf[ied] its obligation to act.”); Pour v. Rubio, No. 25-cv-573, 2025 WL 2374559, at *5 (D.D.C. Aug. 14, 2025) (stating that Karimova “contains reasoning that the Court finds persuasive”); but see Ahmed, 759 F. Supp. 3d at 10 n.4 (“Karimova is an unpublished opinion, and a ‘panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition.’ This Court has considered Karimova but declines to follow it.” (quoting D.C. Cir. R. 36(e)(2))); Haeri Mehneh v. Blinken, No. 24-cv-1374, 2024 WL 5116521, at *5 (D.D.C. Dec. 16, 2024) (“This Court joins others in finding Karimova nonbinding.”), appeal docketed, No. 25-5001 (D.C. Cir. Jan. 10, 2025); Rudd v. United States, No. 25-cv-2646, 2026 WL 946112, at *4 (D.D.C. Apr. 8, 2026) (“[E]ven if Karimova is non-precedential, the Court finds its essential reasoning persuasive . . . .”); Khoshdel Nikkho v. Rubio, No. 25-cv4172, 2026 WL 1382983, at *2 (D.D.C. May 18, 2026) (“Though not binding, Karimova is persuasive.”); Mumin v. Burns, No. 25-cv-3024, 2026 WL 1705918, at *4 (D.D.C. Jun. 12, 2026) (“[The Court] finds Karimova’s reasoning persuasive.”).

As this Court has recognized, unpublished D.C. Circuit opinions may “have persuasive

value aside from any precedential value or lack thereof.” United States v. Bikundi, 73 F. Supp. 3d

51, 55 n.1 (D.D.C. 2014) (citing Verizon, 770 F.3d at 968 n.11 (D.C. Cir. 2014)). Notably, unlike

many of the Circuit’s per curiam orders, Karimova was entered following oral argument and

includes a rather lengthy exegesis of its legal reasoning. Karimova, 2024 WL 3517852, at *1

(“This case was considered on . . . oral arguments of the parties.”); see In re Grant, 635 F.3d 1227,

1232 (D.C. Cir. 2011) (noting that whether there was oral argument is a relevant factor in

determining what weight to accord the Circuit’s unpublished decisions); Hart v. Massanari, 266

F.3d 1155, 1178 (9th Cir. 2001) (noting that typically, one of the key differences between published

and unpublished dispositions is the greater “judicial time and effort” invested in the former, while

the latter is essentially “a letter from the court to parties familiar with the facts” briefly describing

the decision and it’s “essential rationale” (quoting Fed. Jud. Ctr., Standards for Publication of

Judicial Opinions 3 (1973))). Thus, while Karimova may be an unpublished disposition, it more

closely resembles a published opinion in that it offers a more “comprehensive factual account[]

and precisely crafted holdings.” Hart, 266 F.3d at 1178.

Further, the Court agrees with other judges that have found “Karimova’s facts . . . not

meaningfully distinguishable from the facts at issue here.” Datta, 2025 WL 752643, at *6; accord

Alrubai v. Raines, No. 25-cv-2741, 2026 WL 1999135, at *3 (D.D.C. Jul. 10, 2026); Ramizi, 745

F. Supp. 3d at 259. As here, the plaintiff in Karimova was told her application was “officially

‘refused’” and placed in “administrative processing in order to verify qualification for [her

requested] visa.” Karimova, 2024 WL 3517852, at *2 (alteration in original) (quoting the record).

After almost a year with no movement she brought an unreasonable delay claim under the

Mandamus Act and APA, arguing that the consular officer had “breached [her] duty to . . . make a

final decision” on her visa application in violation of the consular officer’s duty to act in Section

555(b) of the APA to “conclude a matter presented” to the officer “within a reasonable time.” Id.

at *2–3 (alterations in original) (quoting the record); see 5 U.S.C. § 555(b. The plaintiff argued—

again like Plaintiff here—that “the consul’s duty ‘is not discharged by a refusal . . . due to

administrative processing, because that is not a final decision’ on the visa application.” Karimova,

2024 WL 3517852, at *2 (alteration in original) (quoting the record). By “final decision,” she

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.” Id. at *3. In short, the facts of Karimova

are substantially identical to those here.

The Court also finds Karimova’s legal reasoning persuasive. See Alrubai, 2026 WL

1999135, at *3; Datta, 2025 WL 752643, at *7; Ramizi, 745 F. Supp. 3d at 260. The D.C. Circuit

affirmed the district court’s dismissal of the plaintiff’s Mandamus Act and APA claims, holding

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,

2024 WL 3517852, at *4 (second alteration in original) (quoting 5 U.S.C. § 555(b)). By “officially

refus[ing]” the visa application, the court reasoned, the consular officer had done all the law

required; that is, the plaintiff had “received the ‘refused’ decision that the law expressly authorizes

as one of the allowed actions on a visa application.” Id. (citing 22 C.F.R. § 42.81 and 8 U.S.C. §

1201(g)); see 22 C.F.R. § 42.81(a) (obligating a consular officer, after a noncitizen has completed

an application and participated in an interview, to either “issue the visa” or “refuse the visa”). Nor

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

refused visa application in administrative processing.” Karimova, 2024 WL 3517852, at *3

(alteration in original) (emphasis added) (quoting Interstate Com. Comm’n v. N.Y., New Haven &

Hartford R. Co., 287 U.S. 178, 204 (1932)). According to the panel, “[n]othing in federal law

speaks to the ability of a consul, after making th[e] decision [to refuse a visa], to hold onto the

application in case circumstances later change in the applicant’s favor, thereby saving the applicant

the time and cost of filing a whole new visa application.” Id. at *4. Instead, “[i]f 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. at *2 (citing 9 FAM § 306.2-2(A)(a)(2)). The Circuit found that “[u]nless and until that

happens . . . the visa application remains officially refused,” and there is no “adequate legal basis”

that would compel the consular officer “to make yet another ‘final decision’ on her already-refused

visa application.” Id. at *2, *6.

The Court agrees with that legal analysis. INA Section 1202(e) states that “[t]he

application for a nonimmigrant visa . . . shall be disposed of as may be by regulations prescribed.”

8 U.S.C. § 1202(e) (emphasis added); see also id. § 1202(d) (stating “[a]ll nonimmigrant visa

applications shall be reviewed and adjudicated by a consular officer” (emphasis added)). The

Code of Federal Regulations directs that “[c]onsular officers must ensure that the [visa

application 5] is properly and promptly processed in accordance with the applicable regulations and

instructions.” 22 C.F.R. § 41.106 (emphasis added). Section 41.121(a), which provides greater

detail on a consular officer’s duty to “adjudicate[e]” nonimmigrant visas, states that “[w]hen a visa

application has been properly completed and executed in accordance with the provisions of the

INA and the implementing regulations, the consular officer must issue the visa, [or] refuse the

visa.” Id. § 41.121(a); see also id. § 42.81(a) (requiring the same for an immigrant visa). A refusal

Section 41.106 references Forms DS-160 and DS-156. See 22 C.F.R. § 41.106. Both DS-160 and DS-156 are application forms for filing nonimmigrant visas. See 22 C.F.R. § 41.103(a). Form DS-160 is submitted electronically, while the DS-156 must be signed by the applicant. See id. § 41.103(b).

“must be based on legal grounds, such as . . . INA 221(g) . . . or other applicable law.” Id. §

41.121(a) (emphasis added). Those regulations impose a clear, non-discretionary duty on a

consular officer to adjudicate a visa application by either granting or refusing it, which may be

enforced via the Mandamus Act or APA. See Datta, 2025 WL 752643, at *7; Yaghoubnezhad v.

Stufft, 734 F. Supp. 3d 87, 99–100 (D.D.C. 2024) (“‘Granting or refusing a final visa application

is a mandatory agency action’ under 22 C.F.R. §§ 41.106 and 41.121(a)” (quoting Vulupala v. Barr,

438 F. Supp. 3d 93, 100 (D.D.C. 2020))). As Plaintiff recognizes in her complaint when citing the

FAM, a consular officer “cannot temporarily refuse, suspend or hold . . . for future action” a

completed visa application. 9 FAM 403.7-3; ECF No. 1, ¶ 74. Rather, “[t]heir course of action is

binary: issue or refuse.” Ramizi, 745 F. Supp. 3d at 260; see also Karimova, 2024 WL 3517852,

at *1 (“[O]nce the applicant properly applies, the consular officer—by regulation—‘must issue’ or

‘refuse’ the visa.” (emphasis in original) (quoting 22 C.F.R. § 42.81(a)); see also 22 C.F.R. §

41.121(a) (“[T]he consular officer must issue the visa, [or] refuse the visa[.]”).

That is what the consular officer did here. Plaintiff concedes that the subject visa

application was refused by the consular officer and remains refused to date. ECF No. 1, ¶¶ 59–60.

That is all that the law requires. The consular officer having “officially refused” this visa

application, the “‘matter’ has . . . been ‘conclude[d],’” at least for purposes of any claim that may

exist under the Mandamus Act or APA, because Plaintiff has “received the ‘refused’ decision that

the law expressly authorizes as one of the allowed actions on a visa application.” Karimova, 2024

WL 3517852, at *4 (alteration in original) (quoting 5 U.S.C. § 555(b)); see also Datta, 2025 WL

752643, *7 (“[T]he consul’s refusal of plaintiff’s visa application means that plaintiff’s ‘matter has

already been conclude[d].’” (alteration in original) (quoting Karimova, 2024 WL 3517852, at *4));

Ramizi, 745 F. Supp. 3d at 260 (same); Yaghoubnezhad, 734 F. Supp. 3d at 102 (same). The State

Department “thereby discharged its nondiscretionary duty.” Yaghoubnezhad, 734 F. Supp. 3d at

101.

Plaintiff responds that a consular officer’s legally enforceable duty to adjudicate a visa

application is discharged only when a “final” decision on the application is issued that is not subject

to further “administrative processing.” ECF No. 8 at 12. But “[a]ccording 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.” Mojaver, 2024 WL 4715419, at *3; accord Jahani v. Rubio, No. 25-cv-989, 2025 WL

3653542, at *4 (D.D.C. Dec. 17, 2025); Kachooee v. Allen, No. 25-cv-139, 2025 WL 2986451, at

*3 (D.D.C. Oct. 23, 2025); Deylami, 2025 WL 219064, at *5. More, the requirement that a

“refusal” under Section 41.121(a) be “final” is nowhere to be found in that regulation or any other.

See 22 C.F.R. § 41.121(a) (authorizing a “refusal[ ]” under Section 221(g)). Nor can a requirement

of finality be found in the INA—Section 1202(e) requires only that nonimmigrant visa applications

be “disposed of” as prescribed by regulation. See 8 U.S.C. § 1202(e); see also id. § 1202(d) (stating

that “nonimmigrant visa applications shall be . . . adjudicated by a consular officer”). Nothing in

the INA or its implementing regulations suggests that “dispos[ing] of” or “adjudicat[ing]” a

nonimmigrant visa application requires more than reviewing and then “issu[ing]” or “refus[ing]”

it. See id. § 1202(d)–(e); 22 C.F.R. § 41.121 (“Conspicuously absent” from the INA’s regulations

“is any requirement that the refusal be ‘final’ or ineligible for discretionary re-adjudication or

‘administrative processing.’” Yaghoubnezhad, 734 F. Supp. 3d at 101.

Put another way, “nothing in section [41.121(a)] prevents a consular officer from refusing

a visa application and then evaluating it further via administrative processing.” Ramizi, 745 F.

Supp. 3d at 260; accord Karimova, 2024 WL 3517852, at *3; Ariani v. Rubio, No. 25-cv-349,

2025 WL 3653503, at *4 (D.D.C. Dec. 17, 2025); Baradaran v. Rubio, No. 24-cv-2946, 2025 WL

2506546, at *3 (D.D.C. Sept. 2, 2025). In fact, the INA’s implementing regulations explicitly

contemplate further processing and opportunity for administrative relief after a visa has been

refused pursuant to Section 221(g). For example, Section 41.121(b)(1) indicates that when a

consular officer refuses a visa application, he or she must inform the applicant “whether there is,

in law or regulations, a mechanism . . . to overcome the refusal.” 22 C.F.R. § 41.121(b)(1).

Further, Subsection (c) contemplates continuing review of visa applications by consular

supervisors, see id. § 41.121(c) (“Nonimmigrant refusals must be reviewed . . . by consular

supervisors . . . .”), and references the ability to “overcome . . . ineligibility . . . by the presentation

of additional evidence,” id. Subsection (d) explicitly contemplates the issuance of “advisory

opinions” by the State Department “to the consular officer for assistance in considering the case

further” after a “visa has been refused.” Id. § 41.121(d). This process appears to be exactly what

Plaintiff has experienced. Her visa application was refused by a consular officer, and she have

submitted additional information in the hope that it will “overcome the refusal.” Id. § 41.121(b)(1);

see ECF No. 1-8. But that “openness to reconsidering a prior refusal does not mean that the refusal

was not an official agency action.” Ramizi, 745 F. Supp. 3d at 261. Stated differently, “the

possibility of reconsideration of a refusal does not mean that the refusal was not a refusal.” Id. As

the D.C. Circuit observed in Karimova:

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. . . . But that refusal may

(or may not) be overcome with new information at a later date. See 9 FAM § 306.2-2(A)(a). If the consular officer gets enough new information, sometimes from

sources other than the applicant, 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 application remains officially refused.

Karimova, 2024 WL 3517852, at *2. And as the Supreme Court has explained, the “possibility”

that an agency “may revise” its decision “based on ‘new information’” “does not make an

otherwise definitive decision nonfinal.” U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 578 U.S.

590, 598 (2016); accord Sackett v. EPA, 566 U.S. 120, 127 (2012). Thus, not only has Plaintiff

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

visa application in administrative processing,” id. at *3 (alteration in original) (emphasis added)

(quoting N.Y, New Haven & Hartford R. Co., 287 U.S. at 204), the State Department’s regulations

expressly allow for consular officers to do so and make clear that the decision to permit postrefusal administrative processing is distinct from the refusal decision itself.

In this case, “[D]efendants already have taken definitive action”—they have refused

Plaintiff’s visa application—“and [Plaintiff is] effectively asking the Court to order [D]efendants

to ‘engage in discretionary re-adjudication of that action more quickly.’” Datta, 2025 WL 752643,

*8 (quoting Yaghoubnezhad, 734 F. Supp. 3d at 104). But Plaintiff has not identified any

cognizable basis in the law to root that duty. Again, a plaintiff seeking to bring a claim for

unreasonable delay under both the APA and the Mandamus Act must assert that the agency in

question has been tasked with a discrete, crystal-clear, nondiscretionary legal duty which the

government did not fulfill. See Norton, 542 U.S. at 64 (“[A § 706(1) claim] can proceed only

where a plaintiff asserts that an agency failed to take a discrete [] action that it is required to take.”

(emphasis in original)); In re Ctr. for Biological Diversity, 53 F.4th at 670 (“A petitioner seeking

mandamus must first establish that the agency has violated ‘a crystal-clear legal duty.’” (quoting

In re Nat’l Nurses United, 47 F.4th at 752)). In these circumstances, that means a plaintiff must

establish that the government had a nondiscretionary duty to “take further action on [the] visa

application” that has been placed in administrative processing following its refusal under Section

221(g). Ramizi, 745 F. Supp. 3d at 262; see also Karimova, 2024 WL 3517852, at *4–5

(articulating the duty the plaintiff claimed as one that would “dictate how the agency can handle

her rejected paperwork after a decision has been made” or a “demand for a post-adjudication ban

on holding her application administratively”).

Plaintiff points to sections of the APA and the INA, and its implementing regulations, as

potential sources of this duty. ECF No. 8 at 13–15. 6 None of them suffices. 7 Any reliance on

Section 555(b) of the APA is misplaced because Karimova expressly rejected it as a source of the

duty. 2024 WL 3517852, at *3–4. The court of appeals reasoned that Section 555(b) is a “general,

good-governance principle[]” that “simply expresses ‘a congressional view that agencies should

Plaintiff cites both Section 22, Part 41, and Section 22, Part 42, of the regulations as potential sources of duty. Part 41 governs the adjudication of nonimmigrant visas, while Part 42 governs the adjudication of immigrant visas. See 22 C.F.R. §§ 41–41.123 (titled “Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act”); id. §§ 42–42.84 (titled “Visas: Documentation of Immigrants Under the Immigration and Nationality Act”). Here, Applicant Plaintiff seeks adjudication of his nonimmigrant visa application. As such, any reliance on Part 42, which governs immigrant visa applications, appears misplaced.

Plaintiff also cites various provisions of the FAM as a potential source of the duty she claims. ECF No. 1, ¶¶ 10, 41, 46–53; ECF No. 8 at 14–15. The FAM is an internal policy document issued by the Department of State that describes, as relevant here, how it interprets consular officers’ responsibilities under the INA to issue or refuse a visa application, and how consular officers may implement those responsibilities in the field. See, e.g., 9 FAM 403.7–403.10; see Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 250–52 (D.C. Cir. 2014) (“An agency action that merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy.”). Standing alone, it imposes no mandatory duty on Defendants enforceable under the Mandamus Act or APA. See Ramizi, 745 F. Supp. 3d at 263 (stating that “the FAM is an ‘agency manual[] . . . which lack[s] the force of law” and “imposes no mandatory duty on Defendants” (alterations in original) (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000))); see also Avagyan v. Blinken, No. 22-cv-2643, 2022 WL 19762411, at *5 (D.D.C. Sept. 29, 2022) (describing the FAM as “nothing more than general policy statements with no legal force” in case involving review of final agency actions (quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 807–08 (D.C. Cir. 2006)); Pourshakouri v. Pompeo, No. 20-cv-402, 2021 WL 3552199, at *9 n.11 (D.D.C. Aug. 11, 2021) (noting that the FAM’s language indicating the Department’s “policy” of processing immediate relative visas within 30 days was “nonbinding” in a TRAC factor analysis). Even assuming that the FAM may create binding duties on the Department, Plaintiff has not identified any in this case because the FAM sections they identify either (1) encompass the same duties imposed under the INA and its implementing regulations, thereby adding nothing to the analysis, see, e.g., 9 FAM 504.11-2(A)(a) (requiring consular officers to either “issue[] or refuse[]” the visa “once [it] has been properly completed and executed before a consular officer”); or (2) employ merely aspirational language that falls short of creating a nondiscretionary duty, see, e.g., 9 FAM 504.11-3(A) (noting a supervisory consular officer “should” review a refusal under Section 221(g) “immediately” and “[i]deally . . . on the day of the refusal”). See Ramizi, 745 F. Supp. 3d at 263 (“[T]he FAM employs aspirational language (‘expects’ and ‘strive’), not the sort of ‘mandatory language’ that would ‘provide no room for agency discretion.’”).

act within reasonable time frames.’” Karimova, 2024 WL 3517852, at *3 (quoting TRAC, 750

F.2d at 77); see also 5 U.S.C. § 555(b) (providing that “[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”). It concluded that Section 555(b)’s “non-specific

directive to all agencies” does not impose on consular officers a “‘crystal-clear legal duty’ after

they have adjudicated a visa application to then forgo any potentially beneficial administrative

processing.” Id. (quoting In re Ctr. for Biological Diversity, 53 F.4th at 670); see also Liew v.

Sanders, 737 F. Supp. 3d 30, 37 (D.D.C. 2024) (“[The plaintiff] cannot rely on the ‘general

directive’ in § 555(b) ‘to impose a duty that has no basis in the INA or its implementing

regulations.’” (quoting Yaghoubnezhad, 734 F. Supp. 3d at 102)); see also Yaghoubnezhad, 734 F.

Supp. 3d at 102 (noting that, although § 555(b) “implies that the agency, at some point, must reach

a final decision, it ‘does not speak specifically to the duties of consular officers, and it uses the

open-ended phrase “within a reasonable time”’” (quoting Pourabdollah v. Blinken, No. 23-cv1603, 2024 WL 474523, at *6 n.5 (D.D.C. Feb. 7, 2024)).

Plaintiff’s reliance on Section 706(1) of the APA does not meaningfully move the needle

either. Datta, 2025 WL 752643, at * 8 (“Plaintiff’s reliance on Sections 706(1) and 555(b) of the

APA, as opposed to solely Section 555(b), does not meaningfully distinguish this case from

Karimova.”); Pasiukevich v. Lawton, No. 24-cv-3349, 2025 WL 2023207, at *4 (D.D.C. July 17,

2025) (“[U]nder the persuasive logic of Karimova, it is unclear how any provision of law requiring

that visas be either issued or refused, or otherwise mandating ‘agency action,’ see 5 U.S.C.

§ 706(1), could remain unsatisfied by the § 221(g) refusal that plaintiff received.”); accord Rajabi

v. Rubio, No. 24-cv-1968, 2026 WL 252233, at *4 (D.D.C Jan. 30, 2026). It provides that a court

may “compel agency action . . . unreasonably delayed.” 5 U.S.C. § 706(1). Like Section 555(b),

it is a general directive that says nothing about a consular officer’s obligations with respect to

processing visa applications following refusal. 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.” Datta, 2025 WL

752643, *8 (quoting Norton, 542 U.S. at 64). “[A]bsent ‘a specific, unequivocal command’ from

Congress requiring State to issue ‘final’ refusals or to complete ‘administrative processing,’ State

has not ‘unlawfully withheld’ any action that the Court has jurisdiction to ‘compel’ under §

706(1).” Yaghoubnezhad, 734 F. Supp. 3d at 102; Ramizi, 745 F. Supp. 3d at 262 (same).

Any reliance on INA Section 1202 is also unavailing. See ECF No. 8 at 19. Section

1202(d) provides that “[a]ll nonimmigrant visa applications shall be reviewed and adjudicated by

a consular officer.” 8 8 U.S.C. § 1202(d) (emphasis added). It “concludes a [] paragraph describing

the documentation that visa applicants must provide and to whom they must provide it.” Ramizi,

745 F. Supp. 3d at 262 (quoting Ali v. U.S. Dep’t of State, 676 F. Supp. 3d 460, 469 (E.D.N.C.

2023)); see 8 U.S.C. § 1202(b)–(d). “Read in context, this sentence [only] cabins the State

Department’s discretion as to who may review and decide immigrant visa applications,” i.e., that

is, it directs consular officers, and no one else, to adjudicate visa applications. Ramizi, 745 F.

Supp. 3d at 262 (alteration in original) (emphasis in original) (quoting Babamuradova v. Blinken,

633 F. Supp. 3d 1, 15 (D.D.C. 2022)); see also Saavedra Bruno v. Albright, 197 F.3d 1153, 1156

(D.C. Cir. 2021) (“The INA confers upon consular officers exclusive authority to review

To the extent Plaintiff also relies on Section 1202(e), it is also unavailing. It provides that “[t]he application for a nonimmigrant visa or other documentation as a nonimmigrant shall be disposed of as may be by regulations prescribed.” 8 U.S.C. § 1202(e) (emphasis added). This subsection merely directs consular officers to “dispose of” nonimmigrant visa applications as directed by regulation, and does not impose any additional, discrete, crystal-clear duty. And, as stated, the regulations direct only that a consular officer “issue” or “refuse” the visa. See 22 C.F.R. § 41.121(a).

applications for visas, precluding even the Secretary of State from controlling their

determinations.”).

In any event, on its face, Section 1202(d) says nothing about consular officers taking further

action on a visa application that has been placed in administrative processing following its refusal

under Section 221(g). Even if it does impose a nondiscretionary duty, the Court would find,

consistent with the Circuit’s decision in Karimova, that the duty was fulfilled when the consular

officer refused Plaintiff’s visa application. 9 See Ramizi, 745 F. Supp. 3d at 262; Yaghoubnezhad,

734 F. Supp. 3d at 99–100. As another judge in this district has held, “the fact that Karimova was

moving under the APA and an unreasonable delay theory, but that [a different] plaintiff is moving

under the [INA] . . . does not make a difference.” Ibrahim, 2024 WL 4103702, at *3. Plaintiff is

asking the Court to order the consulate “to adjudicate all visas ‘through conclusion.’” Id. (quoting

the record). But “one cannot read Karimova as saying anything other than a 221(g) refusal and

placement in administrative processing was a conclusion.” Id. (emphasis in original)); see

Karimova, 2024 WL 3517852, at *4. 10

Finally, Plaintiff points to 22 C.F.R. § 42.81(e) to establish a duty to issue a final decision

on her refused visa application. ECF No. 8 at 29. But that section is, by its terms, inapplicable to

Plaintiff similarly points to rules issued pursuant to the INA which require consular officers to “properly and promptly process[] visa applications,” and then to “issue” or “refuse” them. See 22 C.F.R. § 41.106 (“Consular officers must ensure that the Form DC-160 or, alternatively, Form DS-156 is properly and promptly processed in accordance with the applicable regulations and instructions.”); id. § 41.121(a) (“When a visa application has been properly completed and executed in accordance with the provisions of INA and the implementing regulations, the consular officer must issue the visa, [or] refuse the visa . . . ”); id. § 42.81(a) (same with respect to immigrant visas). The Court addressed 22 C.F.R. § 41.121 in more detail infra, but, as a general matter, any duties imposed by those regulations “were satisfied when [the subject] application was ‘refused.’” Datta, 2025 WL 752643, at *8 (citing Karimova, 2024 WL 3517852, at *4); Hemmat, 2024 WL 4210658, at *4 (same).

Similarly unavailing is any reliance on the various fee schedules for visa applicants. See 31 U.S.C. § 9701(b) (authorizing agencies to “prescribe regulations establishing a charge for a service or thing of value provided by the agency”); 22 C.F.R. §§ 22.1 (establishing a schedule of fees for consular services). To the extent State Department regulations requiring the collection of visa application fees “create[] a duty to complete the corresponding service,” the Court would find that “the consular officer did so by issuing the refusal decision.” Hemmat, 2024 WL 4210658, at *4; Datta, 2025 WL752643, at *8 (same); see also ECF No. 1-8.

nonimmigrant visa applications because it applies only to the “[p]rocedure in refusing immigrant

visas.” See id. § 42.81. The “[r]efusal of nonimmigrant visas,” like Plaintiff’s application here, is

governed by a different regulation—22 C.F.R. § 41.121—which does not include an equivalent

provision. See id. § 41.121. In any event, Section 42.81(e), even were it applicable to a

nonimmigrant visa application, would not help Plaintiff. Section 42.81(e) provides that “[i]f a visa

is refused, and the applicant within one year from the date of refusal adduces further evidence

tending to overcome the ground of ineligibility on which the refusal was based, the case shall be

reconsidered.” 22 C.F.R. § 42.81(e). While other courts have found that this language imposes a

duty on consular officers to reconsider refused visa applications if the applicant has submitted

additional evidence, they have reached this conclusion with little or no analysis of Section

42.81(e)’s language. See, e.g., Haeri Mehneh, 2024 WL 5116521, at *6 (stating conclusively that

“Section 42.81(e) of the INA creates a nondiscretionary duty” without discussing the statutory

language); Sheikhalizadehjahed v. Gaudiosi, No. 24-cv-1136, 2024 WL 4505648, at *8 (E.D. Cal.

Oct. 16, 2024) (stating Section 42.81(e) “creates a nondiscretionary duty to reconsider a refusal

under some circumstances” without statutory analysis). Others include only a bare-bones analysis

focusing on its inclusion of the word “shall” to establish a mandatory duty. See, e.g., GhannadRezaie v. Laitinen, 757 F. Supp. 3d 148, 153 (D. Mass. 2024) (emphasizing “shall” and noting

“[u]nlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a

requirement” (quoting Kingdomware Techs., Inc v. United States, 579 U.S. 162, 171 (2016)));

Rivas v. Napolitano, 714 F.3d 1108, 1111–12 (9th Cir. 2013) (stating that the “mandatory language

used in the regulation makes the act of reconsideration non-discretionary” and “its plain terms

imposes a nondiscretionary, ministerial duty”). This Court agrees with the general proposition that

“shall” usually indicates a mandatory duty. See Ballou v. Kemp, 92 F.2d 556, 558–59 (D.C. Cir.

1937). Nonetheless, the failure to construe the use of “shall” in its statutory context makes these

cases ultimately unpersuasive. See id. (noting that the word “shall” may be construed as

permissive when the context indicates it should receive such a construction); cf. Roberts v.

Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (“Statutory language . . . ‘cannot be construed in a

vacuum. . . . [T]he words of a statute must be read in their context[.]” (quoting Davis v. Mich. Dep’t

of Treasury, 489 U.S. 803, 809 (1989))); see also Sierra Club v. Leavitt, 355 F. Supp. 2d 544, 549

(D.D.C. 2005) (stating that to identify a nondiscretionary duty, a court must “interpret[] . . . the

intent of the regulation”).

Better is the analysis offered by Chief Judge Myers of the Eastern District of North

Carolina in the recent decision Ramizi v. Blinken. That decision found that Section 42.81(e) does

not impose a discrete, nondiscretionary duty on the consular officer “to complete the administrative

processing of [the plaintiff’s visa] application.” Ramizi, 745 F. Supp. 3d at 263. To reach that

conclusion the court considered all of Section 41.81(e)’s language, finding that any mandatory

duty to reconsider that it imposed was triggered only upon the consular officer determining that

the visa applicant had adduced further “evidence tending to overcome the ground of eligibility.’”

Id. at 263 (emphasis in original) (quoting 22 C.F.R. § 41.82(e)). That determination, Ramizi

reasoned, requires “the exercise of discretionary judgment by the consular officer reviewing such

evidence,” which is a task that is “necessarily [] highly subjective” and for which “there exist no

strict standards.” Id. (quoting El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004)). In fact,

Section 1182 of the INA contains “myriad grounds on which a foreign national may be denied

admission to the United States, many of which entail challenging and subjective judgment-calls.”

Id.; see 8 U.S.C. § 1182(a) (identifying numerous “[c]lasses of aliens ineligible for visas or

admission”). It is only when the consular officer makes that discretionary “determination that the

applicant has adduced additional evidence that tends to overcome the ground(s) of ineligibility on

which the refusal was based” that any “duty to reconsider a refused application under Section

42.81(e)” is triggered. Ramizi, 745 F. Supp. 3d at 264.

That determination is not subject to judicial review. That exercise of independent judgment

by the consular officer is “largely immune from judicial control” because it is “a fundamental

sovereign attribute,” Shaughnessy v. United States, 345 U.S. 206, 210 (1953), “exclusive” to

consular officers, “precluding even the Secretary of State from controlling their determinations,”

Saavedra Bruno, 197 F.3d at 1156. As courts have recognized, such decisions are “not standard

administrative fare,” “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,”

“generally fall outside the Judicial Branch’s wheelhouse,” Karimova, 2024 WL 3517852, at *5

(quoting Harisiades v. Shaughnessy, 342 U.S. 580, 588–598 (1952)), “implicate relations with

foreign power,” “involve classifications defined in the light of changing political and economic

circumstances,” and “are frequently of a character more appropriate to either the Legislature or the

Executive,” Yaghoubnezhad, 734 F. Supp. 3d at 101 (citation modified) (quoting Baan Rao Thai

Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021))). Accordingly, Ramizi concluded that “[a]

court may no more consider whether a foreign national has adduced evidence ‘tending to overcome

the ground of ineligibility’ on which the refusal was based [thus triggering reconsideration] than it

may consider whether the refusal was proper in the first instance.” Ramizi, 745 F. Supp. 3d at 264

(quoting 22 C.F.R. § 42.81(e)).

The Ramizi court also noted that “even if a refused applicant does adduce [evidence

tending to overcome the initial grounds for refusal], the consular officer’s obligation is limited to

‘reconsider[ation],’” which does not necessarily “require the government to take a discrete further

action with respect to the status of an application.” Id. at 264 n.5 (alteration in original) (first

quoting 22 C.F.R. § 42.81(e); and then quoting Berenjian v. Blinken, No. 24-cv-663, 2024 WL

3732451, at *3 (E.D. Va. Aug. 8, 2024)). Unlike the language used in 22 C.F.R. § 42.81(a), which

requires a consular officer to either “issue” or “refuse” the visa, the process of “reconsider[ation]”

under Section 42.81(e) does not clearly mandate a subsequent formal decision. As Ramizi

noted,”[w]here Congress uses specific terms in one section of a statute, but not another, ‘it is

generally presumed that Congress acts intentionally and purposely in the disparate inclusion or

exclusion,’ and courts should ‘refrain from concluding that the differing language in the two

subsections has the same meaning in each.’” Ramizi, 745 F. Supp. 3d at 264 n.5 (citation modified)

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)). For that additional reason, Ramizi

held that any duty to reconsider a refused visa application by the consular officer is not mandatory.

The Court finds Ramizi’s interpretation of Section 42.81(e) persuasive and adopts it here. 11

* * * * *

For all these reasons, the Court finds that Plaintiff has not identified a crystal-clear,

nondiscretionary duty requiring the consular officer to do anything other than what he or she has

already done—refuse the visa application under Section 221(g) and place it in administrative

processing. That duty having been fulfilled, as the Circuit found in Karimova, “nothing in federal

law” imposes a nondiscretionary duty on a consular officer to complete the administrative

processing of their visa application and “make yet another ‘final decision’ on [their] alreadyrefused visa application.” Karimova, 2024 WL 3517852, at *4, *6. Rather, any further action the

consular officer may take on the refused visa application is discretionary and not subject to the

“exceptional and rare relief of an order compelling the consular officer” to do something more—

Because the Court concludes that Defendants have fulfilled any mandatory statutory duty, the Court does not reach the issue whether Defendants’ have unreasonably delayed the performance of that duty under the TRAC factors.

much less to do it more quickly. Id. at *6. As such, Defendants’ motion to dismiss must be granted

for failure to state a claim under either the APA or the Mandamus Act.

Nonetheless, like other judges, this Court is troubled by the direction the Karimova

decision leads: “[I]nterpreting the refusal-for-administrative-processing approach to be the

conclusion of the matter before the agency has the potential to shield from judicial review

unreasonable delays that [would otherwise be] prohibited by the APA.” Awal v. U.S. Dep’t of State,

No. 24-cv-382, 2024 WL 4979661, at *9 (D. Minn. Dec. 4, 2024). It may also incentivize consular

officers to “refuse applications out of hand and then begin the true deliberation process thereafter,”

leaving visa applicants languishing in a state of administrative limbo with “no possibility for

judicial oversight of untimely decision making.” Haeri Mehneh, 2024 WL 5116521, at *5; see

also Datta, 2025 WL 752643, at *8 (“Karimova gives agencies carte blanche to administratively

process noncitizens’ visa applications ad infinitum with no avenue for judicial review.”). But

recognizing that problem and having the power to fix it are two different things.

“For more than a century, [the Supreme Court] has recognized 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.” Dep’t of State v Munoz, 602 U.S.

899, 907 (2024) (quoting Trump v. Hawaii, 585 U.S. 667, 702 (2018)); see also Harisiades, 342

U.S. at 588–89 (“[A]ny policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations, the war power, and the

maintenance of a republican form of government. Such matters are so exclusively entrusted to the

political branches of government as to be largely immune from judicial inquiry or interference.”).

Given that these “types of claims generally fall outside the Judicial Branch’s wheelhouse,”

Karimova, 2024 WL 3517852, at * 5, the Court agrees with the conclusion of another judge in this

District that “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.”

Datta, 2025 WL 752643, *9.

B. Consular Nonreviewability

Defendants also argue that Plaintiff’s claims should be dismissed for the independent

reason that the consular officer’s decision to refuse the visa application was final and therefore not

subject to judicial review under the consular nonreviewability doctrine. See ECF No. 7 at 10–14.

Consular nonreviewability “prevents a federal court from second-guessing a United States

consular officer’s decision to issue or withhold a visa.” Baan Rao Thai Rest., 985 F.3d at 1023.

The doctrine arises from consular officers’ “exclusive” authority “to review applications for visas,

precluding even the Secretary of State from controlling their determinations.” Saavedra Bruno,

197 F.3d at 1156. Under that doctrine, courts refrain from reviewing “substantive decisions to

approve or deny a visa” or commanding particular results. Al-Gharawy v. U.S. Dep’t of Homeland

Sec., 617 F. Supp. 3d 1, 12 (D.D.C. 2022) (emphasis omitted).

Some judges in this Circuit have found that the nonreviewability doctrine does not bar

judicial review of visa applications that have been refused pending administrative processing

because such refusals have been interpreted as not “sufficiently final to warrant the application of

[the] doctrine.” Vulupala, 438 F. Supp. 3d at 98; see, e.g., Nine Iraqi Allies Under Serious Threat v.

Kerry, 168 F. Supp. 3d 268, 292 (D.D.C. 2016) (“[B]ecause the applications . . . remain in

‘administrative processing’ and, therefore, have not been finally refused, the doctrine of consular

nonreviewability does not bar [the plaintiffs’] claims.”); Al-Gharawy., 617 F. Supp. 3d. at 16 (finding

that the consular nonreviewability doctrine did not apply because “the factual allegations in the

complaint . . . indicate that no final decision has been made”). These courts have reasoned that such

visa applications are “provisionally refused pending a final decision.” Al-Gharawy, 617 F. Supp. 3d

at 11.

Karimova casts significant doubt on that analysis. Again, it described a visa refusal under

Section 221(g) as a “matter . . . conclude[d].” Karimova, 2024 WL 3517852, at *4 (quoting

5 U.S.C. § 555(b)). Despite a consular officer “choos[ing] to place an officially refused application

in administrative processing,” which “may (or may not)” lead to the refusal being “overcome with

new information at a later date,” Karimova instructs that “[u]nless and until that happens . . . the

visa application remains officially refused.” Id. at *2. Karimova thus suggests that “a consular

officer’s refusal of a visa application is a final decision,” which may “upend[] prior decisions

examining the consular nonreviewability doctrine.” Datta, 2025 WL 752643, at *5–6; see also

Ibrahim, 2024 WL 4103702, at *3 (“While it troubles this Court, one cannot read Karimova as

saying anything other than a 221(g) refusal and placement in administrative processing was a

conclusion.” (emphasis in original)). If the refusal is “final agency action,” 5 U.S.C. § 704, as

Karimova suggests, then the applicant could challenge the refusal, for instance, under APA Section

706(2) as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”

id. § 706(2)(A). A challenge to a “final visa determination[],” however, would implicate consular

nonreviewability. Giliana v. Blinken, 596 F. Supp. 3d 13, 18 (D.D.C. 2022) (quoting Joorabi v.

Pompeo, 464 F. Supp. 3d 93, 100 (D.D.C. 2020)).

Nonetheless, Karimova did not decide how the principle of consular nonreviewability

applies in the context of a Section 221(g) visa refusal because the visa applicant “challenge[d] the

timing rather than the content of a consular visa decision.” Karimova, 2024 WL 3517852, at *6.

The court thus dismissed the visa applicant’s Mandamus Act and APA claims for failure to identify

a non-discretionary duty that the consular officer had not already fulfilled. Id. Here, too, Plaintiff

challenges only the timing of the consular decision, not the substance of the consular officer’s

refusal of the visa application. Because Plaintiff does not challenge the substance of the refusal,

the Court need not decide whether that refusal is judicially reviewable. Accordingly, the Court

will follow Karimova’s lead on that point as well, and grant Defendants’ motion to dismiss for

failure to state a claim. Id.; see also Datta, 2025 WL 752643, *6 (“[T]he 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.”). 12

IV. CONCLUSION

For the reasons stated, the Court will grant Defendants’ motion to dismiss. Plaintiff has

failed to establish that Defendants have a crystal-clear, nondiscretionary duty to take further action

on her visa application that has been placed in administrative processing following its refusal under

Section 221(g). Rather, the only nondiscretionary duty Plaintiff has identified is for Defendants

to “issue” or “refuse” her visa application. That duty was fulfilled when her visa application was

refused by the consular officer. Accordingly, there is nothing for this Court to compel Defendants

to do.

A separate Order dismissing the complaint will issue.

Date: August 12, 2026

G. MICHAEL HARVEY

UNITED STATES MAGISTRATE JUDGE

Plaintiff does purport to raise an APA Section 706(2) claim—which provides a remedy for a substantively unlawful final agency action—but nowhere challenges the substance of the refusal. Instead, she claims only that Defendants have unlawfully withheld agency action. See ECF No. 1, ¶¶ 100–103. Nor does she ask the Court to “hold unlawful and set aside” any agency action. See 5 U.S.C. § 706(2). Rather, she seeks only “an order compelling Defendants and those acting under them to perform their duty to adjudicate” her application. ECF No. 1 at 29. Plaintiff’s claim for agency action unlawfully withheld fails for the reasons already given, whether brought under Section 706(1) or 706(2). Cf. Norton v. S. Utah Wilderness All., 542 U.S. 55, 65 (2004) (“The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged ‘failure to revise land use plans in proper fashion’ and ‘failure to consider multiple use,’ in terms of ‘agency action unlawfully withheld’ under § 706(1), rather than agency action ‘not in accordance with law’ under § 706(2).” (citation omitted) (quoting Lujan v. Nat’l Defs. of Wildlife, 497 U.S. 871, 891 (1990)).

Rouhigilavan v. Blinken

Authorities cited

Opinion · public domain