RAMIZI v. BLINKEN (2024)

ORDER

This matter comes before the court on Defendants’ motion to dismiss [DE 8]. Plaintiffs, a United States citizen (“Plaintiff Nazanin”) and her foreign national parents (“Plaintiff Soheila,” “Plaintiff Hossein,” and collectively, “Plaintiff Parents”), seek an order compelling Defendants to adjudicate Plaintiff Parents’ immigrant visa applications. DE 1 at 1. But Defendants have adjudicated those applications. Plaintiff Soheila's has been issued; Plaintiff Hossein's was refused. And Plaintiffs have failed to identify a discrete, nondiscretionary duty for Defendants to reconsider Plaintiff Hossein's refusal through subsequent administrative processing. Accordingly, and for the reasons that follow, Defendants motion to dismiss is granted.

I. Legal Framework

“Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). This judicial recognition is predicated in part on the principle that “foreign nationals seeking admission have no constitutional right to entry.” Trump v. Hawaii, 585 U.S. 667, 703 (2018). Congress has exercised its fundamental sovereign power over the admission and exclusion of foreign nationals by passing the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., which establishes that “a foreign national generally may [not] be admitted into the United States [until] being issued a visa.” Farahani v. Laitinen, No. 1:23-CV-922, 2024 WL 2785043, at *3 (M.D.N.C. May 30, 2024).

Among other methods, foreign nationals may pursue issuance of a visa if a relative who is a United States citizen or lawful permanent resident sponsors them. 8 U.S.C. § 1151(b). “Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative.” Kerry v. Din, 576 U.S. 86, 89 (2015). “If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer.” Id.; see also 8 U.S.C. §§ 1201(a)(1)(A) & 1202(h). Generally, the foreign national seeking a visa completes the application before the consular officer, then participates in the interview. See 22 C.F.R. §§ 42.61(a) & 42.62.

“A consular office is required by law to act on visa applications.” Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997). To that end, “[w]hen a visa application has been properly completed and executed before a consular officer ․, the consular officer must issue the visa, refuse the visa under INA 212(a) or 221(g) or other applicable law or ․ discontinue granting the visa.” 22 C.F.R. § 42.81(a) (emphasis added). The consular officer must refuse the visa if “it appears to the consular officer ․ that such alien is ineligible to receive a visa,” or “the consular officer knows or has reason to believe that such alien is ineligible to receive a visa.” 8 U.S.C. § 1201(g). “If a visa is refused,” the applicant has “one year from the date of refusal [to] adduce[ ] further evidence tending to overcome the ground of ineligibility on which the refusal was based,” in which case the refusal “shall be reconsidered.” 22 C.F.R. § 42.81(e).

II. Plaintiff's Facts 1

Plaintiff Nazanin is a United States citizen. DE 1 at 1. Her parents are Iranian nationals who reside in Iran. Id. at 13-14. Plaintiff Nazanin sought immigrant visas for Plaintiff Parents, so she filed a petition on behalf of her parents. Id. at 14. The United States Citizenship and Immigration Services (USCIS) approved Plaintiff Nazanin's petition. Id.

Plaintiff Parents then completed immigrant visa applications and appeared for interviews on May 11, 2023, at the Consular Section of the U.S. Embassy Yerevan (Armenia). Id. At the conclusion of their interviews, the consular officer informed Plaintiff Parents that their applications were “refused” and would undergo “administrative processing pursuant to INA § 221(g).” Id. Following the refusal of their applications, and in response to an email from the Embassy, Plaintiff Parents submitted “15 years of detailed history including addresses, employment, travel, and social media handles.” Id.

Months passed, but Plaintiff Parents’ “visa application status on the State Department [ ] website continues to show that the case is ‘Refused.’ ” Id. at 15. The refusal notice states that Plaintiff Parents’ applications “remain refused while undergoing [administrative] processing:”

DE 1-1 at 1.

III. Procedural History

Plaintiffs initiated this action on December 20, 2023, approximately seven months after the interviews at the Embassy. See DE 1. Plaintiffs contend that the visa applications remain indefinitely in “administrative processing,” and that this delay “has placed a severe emotional and financial strain” on them. Id. at 2. Plaintiffs assert that Defendants’ “unreasonable delay” in adjudicating the applications violates “[s]tatutes, regulations, and agency guidance,” which “make clear that the Defendants have a mandatory duty to adjudicate Plaintiffs’ visa applications within a reasonable time.” Id. Plaintiffs bring claims under the Administrative Procedure Act (APA) and the Mandamus Act, through which they seek a court order compelling Defendants to “issue a final decision” on the visa applications. Id. at 3.

Defendants filed the motion to dismiss, in which they raise of litany of jurisdictional and merits challenges to the Complaint. DE 8; DE 9. First, Defendants argue that Plaintiffs’ claim are moot because the consular officer refused the visa applications after the interviews. DE 9 at 7-8. Next, Defendants contend that Plaintiffs lack standing to challenge their visa application determinations. Id. at 8-10. Defendants then assert that Plaintiffs have failed to identify a discrete, nondiscretionary duty for Defendants to act on the visa applications. Id. at 11-17. Defendants also aver that the doctrine of consular non-reviewability precludes judicial review. Id. at 18-20. Lastly, Defendants argue that, even if the court could reach the merits of Plaintiffs’ claim, it fails because the delay in this case is not unreasonable. Id. at 20-28.

Plaintiffs respond that their claim is not moot because Defendants have not yet issued “a final decision” on the visa applications. DE 12 at 10 (emphasis in original). Plaintiffs also rejoin that they have plausibly alleged an injury caused by Defendants’ conduct and redressable by the court, so they have standing. Id. at 11. Plaintiffs then counter that their claims are justiciable, citing the APA's “broad presumption in favor of judicial review.” Id. at 12. Plaintiffs also argue that the doctrine of consular non-reviewability is inapplicable because “there has been no final decision on [the] visa applications.” Id. at 17. Finally, Plaintiffs contend that dismissal on the merits would be “premature” because a claim of unreasonable delay requires “fact-based inquiries not suitable for disposition” at the motion to dismiss stage. Id. at 22.

Defendants filed a reply, in which they argue that Plaintiffs failed to meaningfully rebut each of the arguments in the motion to dismiss. See generally DE 14 at 1-9.

In the course of its review of Defendants’ motion to dismiss, the court investigated the one visa application number included in the Complaint.² That investigation “reveal[ed] that the immigrant visa for case number YRV2022772001 was ‘Issued’ on June 12, 2024.” DE 17 at 1. Accordingly, the court ordered Plaintiffs to show cause why this action should not be dismissed as moot. Id. at 2. In response to the court's show cause order, Plaintiffs stated that the visa application number included in the Complaint corresponded to Plaintiff Soheila's application, but that Plaintiff Hossein's application remained in administrative processing. DE 18 at 2, 4. Plaintiffs thus conceded that any claim related to Plaintiff Soheila is moot, so the court dismisses that claim.³

Further, notwithstanding the imprecise pleading in the Complaint, the court deems the show cause order discharged as to the visa application of Plaintiff Hossein. Issuance of Plaintiff Soheila's visa does not render Plaintiff Hossein's claim moot, because his application is separate. The analysis that follows is limited to Plaintiff Hossein's visa application.

IV. Standards of Review

a. Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Through such a motion, a defendant may raise either a facial or factual challenge to subject matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A facial challenge “contend[s] that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (internal quotation mark omitted). A factual challenge contends “that the jurisdictional allegations of the complaint [a]re not true.” Adams, 697 F.2d at 1219.

A district court treats facial and factual challenges to subject matter jurisdiction differently. “When a defendant makes a facial challenge to subject matter jurisdiction,” the plaintiff is “afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration,” namely that the court accepts the factual allegations as true and construes them in the light most favorable to the plaintiff. Kerns, 585 F.3d at 192. But with a factual challenge, the court may “go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations.” Adams, 697 F.2d at 1219. Defendants here raise a facial challenge to the court's subject matter jurisdiction because they do not dispute any of the facts Plaintiffs alleged in the Complaint, only the legal conclusions to be drawn from those facts.

b. Rule 12(b)(6)

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N. Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). As a result, the court accepts the complaint's factual allegations as true, and construes them in the light most favorable to the plaintiff. Nemet Chevrolet, 591 F.3d at 255.

Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” the “allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And importantly, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Likewise, “[l]abels, conclusions, recitation of a claim's elements, and naked assertions devoid of further factual enhancement will not suffice.” ACA Fin. Guar. Corp. v. City of Buena Vista, Virginia, 917 F.3d 206, 211 (4th Cir. 2019). Ultimately, when considering a motion to dismiss, the court must “draw on its judicial experience and common sense” to determine whether the complaint “states a plausible claim for relief.” Iqbal, 556 U.S. at 679.

c. Compelling Agency Action

The court has two paths to compel agency action, but they traverse common ground. First, the APA provides that “[a] person suffering legal wrong because of agency action ․ is entitled to judicial review thereof.” 5 U.S.C. § 702. Agency action includes agency inaction; a court must “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). But because a court may only remedy unlawful agency inaction, a plaintiff seeking to compel agency action must identify “a discrete agency action that [the agency] is required to take.” Gonzalez v. Cuccinelli, 985 F.3d 357, 366 (4th Cir. 2021) (internal italics omitted).

By requiring plaintiffs to identify a discrete, nondiscretionary duty to act, “the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs—principally writs of mandamus under the All Writs Act, now codified at 28 U.S.C. § 1651(a).” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004). To obtain a writ of mandamus, like under the APA, the plaintiff must identify “a specific, unequivocal command” to act, L.C.C. v. New York, N.H. & H.R. Co., 287 U.S. 178, 204 (1932), and show “that the government agency or official is violating” that command, American Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Because a federal court's mandamus jurisdiction extends only to “compel[ling] an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,” 28 U.S.C. § 1361 (emphasis added), it necessarily follows that a plaintiff must identify “a precise, definite act, purely ministerial,” and one “about which the [agency or official] had no discretion whatever,” U.S. ex rel. Dunlap v. Black, 128 U.S. 40, 46 (1888). In sum, “[t]he standards for APA relief ․ and for mandamus here are identical.” Citizens for Resp. & Ethics in Washington v. U.S. S.E.C., 916 F. Supp. 2d 141, 151 (D.D.C. 2013).

V. Analysis

Plaintiffs bring one claim under the Mandamus Act, and three claims under the APA. DE 1 at 18-28. All the claims target the same conduct and seek the same relief. Because the governing standards are substantially the same, the court will consider the four claims together. E.g., Gonzalez, 985 F.3d at 366; SUWA, 542 U.S. at 63; C.R.E.W., 916 F. Supp. 2d at 151.

a. Mootness

Defendants contend that Plaintiffs’ claim of unreasonable delay is moot because Plaintiff Hossein's visa application was refused at the conclusion of his consular interview. DE 9 at 7-8. Plaintiffs respond that, because Plaintiff Hossein's application is undergoing further administrative processing after it was refused, Defendants have not rendered a “final” decision on the application, so therefore the claim is not moot. DE 12 at 10.

“The mootness doctrine is an important part” of Article Ill's limitation on federal court “jurisdiction to cases and controversies.” Eden, LLC v. Just., 36 F.4th 166, 169 (4th Cir. 2022). That said, the doctrine “constitutes a relatively weak constraint on federal judicial power.” United States v. Springer, 715 F.3d 535, 540 (4th Cir. 2013). A case is only moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (internal quotation marks omitted).

Plaintiffs’ claim is not moot because nothing has “occur[ed] during the pendency of [this action] that makes it impossible for a court to grant effective relief” to Plaintiffs. Fleet Feet, Inc. v. NIKE, Inc., 986 F.3d 458, 463 (4th Cir. 2021). The refusal of Plaintiff Hossein's visa application does not moot Plaintiffs’ claim because that refusal occurred months before Plaintiffs instituted this suit. Plaintiffs are not seeking reversal of that refusal. They seek an order compelling Defendants to conclude the administrative processing of Plaintiff Hossein's application and render what they term a “final” decision. DE 1 at 1, 3, 28-29. A court order to that effect would provide “effectual relief” to Plaintiffs, so their claim is not moot. Knox, 567 U.S. at 307.

b. Standing

Defendants also argue that Plaintiffs lack standing, citing as support a line of cases that stand for the proposition that foreign nationals lack standing to challenge determinations associated with their visa applications. DE 9 at 8-9. This argument lacks merit because it misconstrues the nature of Plaintiffs’ claim. As just explained, Plaintiffs are not challenging the refusal of Plaintiff Hossein's visa application after his interview in May 2023. They are challenging the lengthy period of post-refusal administrative processing that followed. See DE 1 at 3.

“Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The “irreducible constitutional minimum of standing” requires a showing that the plaintiff has suffered an injury in fact that is traceable to the challenged conduct of the defendant and redressable by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “[I]t is not enough that the party invoking the power of the court have a keen interest in the issue.” Hollingsworth v. Perry, 570 U.S. 693, 700 (2013).

Defendants only challenge that Plaintiffs have adequately alleged an injury in fact. See DE 9 at 8-10. But it is settled law “that a person's interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact.” Hawaii, 585 U.S. at 698. That is the injury Plaintiffs allege to have been caused by the monthslong period of administrative processing of Plaintiff Hossein's visa application. DE 1 at 16 (alleging that “the persistent delay in adjudication of the visa application” has caused Plaintiffs “a nightmare of living apart for years” and “the ever-increasing fear that they will be separated indefinitely”).

Defendants’ argument, that “the INA does not afford any party ․ a judicially cognizable interest relating to the process of issuing or denying a visa to a non-citizen abroad,” DE 9 at 10, appears to “confuse standing with the merits,” Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020); see also Hawaii, 585 U.S. at 699 (government's argument that plaintiffs’ claims “are not justiciable because the [Establishment] Clause does not give them a legally protected interest in the admission of particular foreign nationals ․ concerns the merits rather than the justiciability of plaintiffs’ claims”).⁴ Whether Plaintiffs possess “standing in no way depends on the merits” of their claim. Warth v. Seldin, 422 U.S. 490, 500 (1975). Otherwise, “every unsuccessful plaintiff will have lacked standing in the first place.” Covenant Media Of SC, LLC v. City Of N. Charleston, 493 F.3d 421, 429 (4th Cir. 2007). Plaintiffs’ “interest in being united with [each other] is sufficiently concrete and particularized” to confer standing, Hawaii, 585 U.S. at 698, and this court must endeavor to avoid a “drive-by jurisdictional ruling[ ],” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91 (1998), because alleged “[d]eficiencies in the statement of a federal cause of action should normally be addressed by a motion under rules challenging the sufficiency of the complaint,” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). Plaintiffs have standing to bring their claims.

c. Consular Nonreviewability

Defendants further assert that the court “cannot order relief here based upon the doctrine of consular non-reviewability.” DE 9 at 18. The court disagrees.

“The doctrine of consular nonreviewability is well established.” Sesay v. United States, 984 F.3d 312, 315 (4th Cir. 2021). The doctrine is also straightforward: it “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, 985 F.3d 1020, 1024 (D.C. Cir. 2021). In other words, because “[t]he [INA] does not authorize judicial review of a consular officer's [issuance or] denial of a visa ․, the federal courts cannot review those decisions.” Department of State v. Munoz, 144 S. Ct. 1812, 1820 (2024).

But the doctrine does not apply to Plaintiffs’ claim. As the court has distinguished, Plaintiffs are not challenging the consular officer's refusal of Plaintiff Hossein's visa application, but rather the period of post-refusal administrative processing that has ensued after the refusal. See DE 1 at 3. Consular nonreviewability “does not bar suits that merely seek to compel some agency action—regardless of the substance of that action.” Al-Gharawy v. U.S. Dep't of Homeland Sec., 617 F. Supp. 3d 1, 12 (D.D.C. 2022); accord Sharifi v. Blinken, No. 1:23-CV-5112, 2024 WL 1798185, at *3 (E.D.N.Y. Apr. 25, 2024) (finding that doctrine of consular nonreviewability did not apply because “a distinction exists between challenging an agency action and challenging an agency's inaction”); Ebrahimi v. Blinken, No. 23-CV-3867, 2024 WL 2020038, at *7 (N.D. Ill. May 3, 2024) (holding that “where the Section 221(g) refusal is followed by assurances of further adjudication[,] courts have overwhelmingly concluded that the doctrine of consular nonreviewability does not apply”); Obad v. Dep't of State, No. 3:23-CV-409, 2024 WL 412758, at *3 (S.D. Miss. Jan. 17, 2024) (concluding that where “[p]laintiffs are not asking for review of a consular decision to deny a visa,” but instead “ask this Court to compel Defendants to remove [the] application from administrative processing ․ [the] doctrine of consular nonreviewability does not apply”). “The doctrine of consular nonreviewability thus does not bar this suit.” Jahangiri v. Blinken, No. 23-CV-2722, 2024 WL 1656269, at *6 (D. Md. Apr. 17, 2024).

d. Merits

Whether a plaintiff seeks a writ of mandamus or compulsion of agency action under the APA, the plaintiff must identify a discrete, nondiscretionary duty to act. E.g., Gonzalez, 985 F.3d at 366; SUWA, 542 U.S. at 63. Only then may the court remedy an agency's allegedly unlawful inaction. 5 U.S.C. § 706(1); 28 U.S.C. § 1361. Defendants assert that Plaintiffs have failed to “establish a clear, nondiscretionary duty” for Defendants to adjudicate Plaintiff Hossein's visa application. DE 9 at 11. Plaintiffs respond by identifying a series of statutes and regulations that they argue imposes such a duty on Defendants. DE 12 at 12-17.

Plaintiffs’ argument as to 22 C.F.R. § 42.81(a) has merit. The court thus finds that Plaintiffs have identified a clear, nondiscretionary duty to act. But critically, Defendants have satisfied that duty by refusing Plaintiff Hossein's visa application after his consular interview. The Complaint therefore fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).

“To assess whether an agency is bound to act, [a court must] first look to the text of the relevant [ ] regulation[ ].” Lovo v. Miller, 107 F.4th 199, 211 (4th Cir. 2024); see also Fort Stewart Sch. v. Fed. Lab. Rels. Auth., 495 U.S. 641, 654 (1990) (“It is a familiar rule of administrative law that an agency must abide by its own regulations.”). Section 42.81(a) provides that, “[w]hen a visa application has been properly completed and executed before a consular officer ․, the consular officer must issue the visa, refuse the visa under INA 212(a) or 221(g) or other applicable law or ․ discontinue granting the visa.” 22 C.F.R. § 42.81(a) (emphasis added). This “use[ ] of mandatory language provide[s] no room for agency discretion.” Lovo, 107 F.4th at 211. Section 42.81(a)’s mandatory language therefore establishes that “[a] consular office is required by law to act on visa applications.” Patel, 134 F.3d at 932; Oduor v. Blinken, No. 1: 23-CV-00908, 2024 WL 1406548, at *3 n.4 (D.D.C. Mar. 29, 2024) (“the State Department has a mandatory duty to act once an I-130 applicant has been interviewed and the petition has been approved and forwarded to the appropriate embassy”); Allen v. Milas, 896 F.3d 1094, 1108 (9th Cir. 2018) (“a visa application must be adjudicated one way or the other”).

To determine whether Defendants have fulfilled or abdicated that duty, a brief repetition of the relevant factual allegations is warranted. Plaintiff Nazanin submitted a petition on behalf of Plaintiff Hossein. DE 1 at 14. USCIS granted that petition. Id. Plaintiff Hossein then completed his visa application and participated in an interview. Id.

At the conclusion of that interview, the consular officer informed Plaintiff Hossein that his visa application was refused. Id. Plaintiff Hossein thereafter submitted additional information in response to an email from the Embassy. Id. But his application remains refused to this day while undergoing administrative processing. Id. at 15.

Considering similar factual circumstances, some district courts have held that a foreign national's visa application subject to administrative processing “ha[s] not been finally refused.” Sawahreh v. United States Dep't of State, 630 F. Supp. 3d 155, 160 (D.D.C. 2022); see also Jahangiri, 2024 WL 1656269, at *6 (collecting cases); Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 286 (D.D.C. 2016) (concluding that “the failure to receive a visa before ‘administrative processing’ is completed is not a denial at all”). But the D.C. Circuit's “recent, unpublished decision in Karimova v. Abate ․ casts doubt on the accuracy of the reasoning in those [prior district court] decisions.” Sharifishourabi et al. v. Blinken, No. 23-CV-3382, 2024 WL 3566226, at *5 (D.D.C. July 29, 2024).

In Karimova, the plaintiff, “a citizen and resident of Azerbaijan,” sought “an immigrant visa to enter the United States.” Karimova v. Abate, No. 23-5178, 2024 WL 3517852, at *2 (D.C. Cir. July 24, 2024). She completed a visa application and participated in an interview at the United States Embassy in Georgia. Id. At the conclusion of her interview, the consular officer “refused her application” and “placed her application in administrative processing.” Id. (internal quotation marks omitted). “The status of [her] application remain[ed] refused,” and she subsequently “filed suit in federal district court,” seeking an order that “the consular officer [ ] perform her duty to finally adjudicate her visa.” Id. In short, the circumstances in Karimova are identical to this case.

The D.C. Circuit upheld the dismissal of the plaintiff's complaint. Id. at *3. Citing Section 42.81(a), the court concluded that the plaintiff “received the ‘refused’ decision that the law expressly authorizes as one of the allowed actions on a visa application.” Id. at *4. The “consular officer reviewed her application, interviewed her, and ruled that no visa would be granted.” Id. Because “[n]othing in federal law speaks to the ability of a consul, after making [a refusal], to hold onto the application in case circumstances later change in the applicant's favor,” id., the D.C. Circuit held that the plaintiff could not identify a clear, nondiscretionary duty for the consular officer “to make yet another ‘final decision’ on her already-refused visa application,” id. at *6.

Karimova is unpublished and non-binding. But the court finds its reasoning persuasive and adopts it for purposes of this order. Section 42.81(a) obligates a consular officer, after a foreign national has completed an application and participated in an interview, to either “issue the visa” or “refuse the visa.” 22 C.F.R. § 42.81(a). As Plaintiffs acknowledge in the Complaint (referencing the State Department's Foreign Affairs Manual (“FAM”)), consular officers have no authority to “temporarily refuse, suspend, or hold the visa for future action.” DE 1 at 11 (citing 9 FAM § 504.9-2). Their course of action is binary: issue or refuse. And here, the consular officer “refused” Plaintiff Hossein's visa application. Id. at 14. Accepting that allegation as true, Defendants have fulfilled their discrete, nondiscretionary duty under Section 42.81(a). See SUWA, 542 U.S. at 63 (“A failure to act is not the same thing as a denial. The latter is the agency's act of saying no to a request; the former is simply the omission of an action without formally rejecting a request.”).

Further, nothing in Section 42.81(a) prevents a consular officer from refusing a visa application, and then evaluating it further via administrative processing. In fact, the rest of the regulation expressly contemplates such a process. “If a visa is refused,” a visa applicant has “one year from the date of refusal [to] adduce [ ] further evidence tending to overcome the ground of ineligibility on which the refusal was based,” in which “case [the application] shall be reconsidered.” 22 C.F.R. § 42.81(e). Subsection (e) accurately describes Plaintiff Hossein's circumstances. His visa application was refused under Subsection (a), and he has now submitted additional information which Plaintiffs hope will “overcome the ground of ineligibility on which the refusal was based.” Id. Because Subsection (e) authorizes reconsideration of a refusal, the court finds that a consular officer is permitted, under Subsection (a) to refuse a visa application but offer the possibility that a closed door might be opened in response to new information. See Karimova, 2024 WL 3517852, at *2.

Plaintiffs’ argument to the contrary, in essence, has two components. The first is that, because Plaintiff Hossein's visa application is still undergoing administrative processing, Defendants have not rendered a “final” decision on the application. The second component is that Defendants have a mandatory duty to issue such a final decision. Each argument falters.

As to the finality of the refusal, whether or not Defendants may issue a subsequent decision on Plaintiff Hossein's visa application has no bearing on the issue of whether his application was “officially refused” following the consular interview. Karimova, 2024 WL 3517852, at *2. Plaintiffs allege that the consular officer informed Plaintiff Hossein that his application, after its refusal, would undergo “administrative processing pursuant to INA § 221(g),” DE 1 at 14, and the State Department's website informs him that his application “will receive another adjudication once [administrative] processing is complete,” DE 1-1 at 1. But evidence of Defendants’ openness to reconsidering a prior refusal does not mean that the refusal was not an official agency action.

The Supreme Court has considered a similar principle in another context. In Delaware State College v. Ricks, the plaintiff faculty member sued his employer after he was denied tenure, alleging that racial discrimination animated the denial. Delaware State Coll. v. Ricks, 449 U.S. 250, 254 (1980). The issue presented was when the unlawful employment action occurred for purposes of calculating the limitations period; the college argued the denial of tenure was the relevant action, and the plaintiff argued that, because he filed a grievance with the college after the denial of his tenure, the unlawful employment action did not occur until the college denied his grievance. See id. at 252-54.

The Supreme Court rejected the plaintiff's contention that the denial of tenure “was only an expression of intent that did not become final until the grievance was denied.” Id. at 260. Just because the college was willing to “entertain[ ] a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative.” Id. at 261. Because a “grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made,” the court found that the relevant action was the initial denial of tenure. Id.

Those principles track the factual and legal circumstances of this case. Plaintiff Hossein took part in a consular interview, and his visa application was officially refused at the conclusion of that interview. DE 1 at 14. That refusal was no mere “expression of intent.” Ricks, 449 U.S. at 260. After a consular interview, the officer must either “issue the visa” or “refuse the visa.” 22 C.F.R. § 42.81 (a). The officer has no authority to express agency intent by “temporarily refus[ing], suspend[ing], or hold[ing] the visa for future action.” DE 1 at 11 (citing 9 FAM § 504.9-2).

Plaintiff Hossein's subsequent submission of information to the Embassy does not alter that conclusion, and is in fact consistent with the regulatory framework. See 22 C.F.R. § 42.81(e). The allegation and evidence that Defendants are still considering his visa application via administrative processing does not in any way undercut the court's finding that the application was officially refused after the consular interview. In that respect, the submission of additional information is akin to the grievance procedure in Ricks; Plaintiff Hossein seeks “a remedy for a prior decision, not an opportunity to influence that decision before it is made.” Ricks, 449 U.S. at 261.

Put another way, the possibility of reconsideration of a refusal does not mean that the refusal was not a refusal. The court thus finds that Defendants discharged their nondiscretionary duty to adjudicate Plaintiff Hossein's visa application when the consular officer refused it after the interview. The more recent weight of authority supports this conclusion. E.g., Aslam v. Heller, No. 1:23-CV-971, 2024 WL 3535389, at *6 (M.D.N.C. July 23, 2024) (“Plaintiff's argument that Defendants must take particular actions after refusing a visa application for administrative processing under Section 221(g) in order to discharge their non-discretionary duty to grant or to refuse a visa application [ ] requires the Court to impose a duty that has no basis in the INA or its implementing regulations”); Ameen v. United States Dep't of State, No. 1:23-CV-01397, 2024 WL 3416264, at *3 (E.D. Va. July 15, 2024) (explaining that “an initial refusal followed by further inquiry is consistent with visa statutes and regulations”); Yaghoubnezhad v. Stufft, No. 1:23-CV-03094, 2024 WL 2077551, at *8 (D.D.C. May 9, 2024) (observing that although “consular officers have a duty to adjudicate completed visa applications ․ [, c]onspicuously absent from [the relevant regulation] is any requirement that the refusal be ‘final’ or ineligible for discretionary re-adjudication or ‘administrative processing’ ”); Conley v. U.S. Dep't of State, No. 24-CV-10131, 2024 WL 1640074, at *4 (D. Mass. Apr. 16, 2024) (“It is undisputed that the application has been denied. [ ] The fact that the agency identified a specific contingency that might warrant reconsideration does not change the analysis.”).

As to Plaintiffs’ second argument (that Defendant must conclude the administrative processing by rendering a subsequent decision), Plaintiffs have failed to identify any discrete, nondiscretionary duty for Defendants to take further action on Plaintiff Hossein's visa application. Plaintiffs offer several statutes and regulations, but none are availing.

The Complaint cites one provision of the APA, which provides that, “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). But this provision only expresses a general “congressional view that agencies should act within reasonable time frames.” Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70, 77 (D.C. Cir. 1984). “Section 555(b)’s generality and indistinctness are particularly acute problems for [Plaintiffs] due to the nature of [their] claim.” Karimova, 2024 WL 3517852, at *4.

To obtain relief under Section 706(1) of the APA or the Mandamus Act, a plaintiff must identify “a discrete agency action that [the agency] is required to take.” SUWA, 542 U.S. at 64 (emphasis in original). “The obvious inability for a court to function in [ ] a day-to-day managerial role over agency operations is precisely the reason why the APA limits judicial review to discrete agency actions.” Village of Bald Head Island v. U.S. Army Corps of Engineers, 714 F.3d 186, 194 (4th Cir. 2013). But Section 555(b) does not identify a discrete agency action; by its plain terms, it applies to every agency action. Thus, “[t]he general directive of Section 555(b) is a far cry from the discrete agency action that courts require when issuing an order compelling agency action unlawfully withheld or unreasonably delayed.” Hi-Tech Pharmacal Co. v. U.S. Food & Drug Admin., 587 F. Supp. 2d 1, 9 (D.D.C. 2008). The court therefore finds that Section 555(b) does not impose a discrete, nondiscretionary duty on Defendants to take further action on Plaintiff Hossein's visa application.

Plaintiffs also identify a provision of the INA, which states that “immigrant visa applications shall be reviewed and adjudicated by a consular officer.” 8 U.S.C. § 1202(b). This quoted language does not create a discrete, nondiscretionary duty; it “concludes a long paragraph describing the documentation that visa applicants must provide and to whom they must provide it.” Ali v. United States Dep't of State, 676 F. Supp. 3d 460, 469 (E.D.N.C. 2023). “Read in context, this sentence [only] cabins the State Department's discretion as to who may review and adjudicate immigrant visa applications.” Babamuradova v. Blinken, 633 F. Supp. 3d 1, 15 (D.D.C. 2022) (emphasis in original). Further, even if Section 1202(b) did create a mandatory duty, the court would find that Defendants discharged it when the “consular officer reviewed [Plaintiff Hossein's] application, interviewed [him], and ruled that no visa would be granted.” Karimova, 2024 WL 3517852, at *4.

Plaintiffs next refer to the FAM, which expresses that the State Department “expects” consular officers “to strive to meet” a 30-day deadline for immediate relative visas and a 60-day deadline for family-based immigrant visas. 9 FAM § 504.7-2(b). This provision in the FAM falls short in creating a discrete, nondiscretionary duty for two reasons. First, the FAM employs aspirational language (“expects” and “strive”), not the sort of “mandatory language” that would “provide no room for agency discretion.” Lovo, 107 F.4th at 211; see also Poursohi v. Blinken, No. 21-CV-01960, 2021 WL 5331446, at *9 (N.D. Cal. Nov. 16, 2021) (“the pronouncement is precatory and endows no rights on Plaintiffs”). Second, the FAM is an “agency manual[ ] ․ which lack[s] the force of law.” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000); Scales v. I.N.S., 232 F.3d 1159, 1166 (9th Cir. 2000) (“the FAM ․ is not an interpretation arrived at after ․ a formal adjudication or notice-and-comment rulemaking”) (internal quotation marks omitted); cf. United States v. Ellen, 961 F.2d 462, 466 (4th Cir. 1992) (holding that “interpretive guide” that was “primarily for the use of agency personnel” was “interpretive” and did not carry force of law). The court thus finds that the FAM imposes no mandatory duty on Defendants.

Lastly, the court considers 22 C.F.R. § 42.81(e). That provision provides foreign nationals whose applications have been refused “an opportunity to submit additional evidence and obtain reconsideration.” Din, 576 U.S. at 112 (Breyer, J., dissenting); see also Munoz, 144 S. Ct. at 1831 (Sotomayor, J., dissenting) (explaining that, under Section 42.81(e), a “noncitizen denied admission” may “submit more evidence and request reconsideration”). Specifically, the regulation 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).

Section 42.81(e) does not impose a discrete, nondiscretionary duty on Defendants to complete the administrative processing of Plaintiff Hossein's application and “make yet another ‘final decision’ on [his] already-refused visa application.” Karimova, 2024 WL 3517852, at *6. For one, the use of the phrasing, “evidence tending to overcome the ground of eligibility,” implies the exercise of discretionary judgment by the consular officer reviewing such evidence. In Polfliet v. Cuccinelli, the Fourth Circuit concluded that a statute permitting the Secretary of Homeland Security to revoke a visa petition for what he “deem[ed] good and sufficient cause” conferred discretionary authority that was unreviewable by the courts. Polfliet v. Cuccinelli, 955 F.3d 377, 381 (4th Cir. 2020). Like that phrasing, “the discretionary nature” of the language in Section 42.81(e) “is apparent from the plain language of the statute.” El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004). In both cases, the decision “necessarily is highly subjective, and there exist no strict standards for making [such a] determination.” Id.

This conclusion is compelled by consideration of the myriad grounds on which a foreign national may be denied admission to the United States, many of which entail challenging and subjective judgment-calls. See generally 8 U.S.C. § 1182. The exercise of this judgment is “a fundamental sovereign attribute” that is “largely immune from judicial control.” Shaughnessy, 345 U.S. at 210. 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 than it may consider whether the refusal was proper in the first instance. See Mathews v. Diaz, 426 U.S. 67, 81 (1976) (explaining that, because “decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary”); see also City of New York v. United States Dep't of Def, 913 F.3d 423, 432 (4th Cir. 2019) (emphasizing that agency command must be “clear enough to avoid substituting judicial judgments for those of the executive branch”). Concluding otherwise would undermine the “well established” doctrine of consular nonreviewability. Sesay, 984 F.3d at 315. The court thus holds that a consular officer's duty to reconsider a refused application under Section 42.81(e) is discretionary, and based on that officer's independent determination that the applicant has adduced additional evidence that tends to overcome the ground(s) of ineligibility on which the refusal was based. 5 U.S.C. § 701(a)(2).⁵

To the extent a consular officer has any nondiscretionary duty under Section 42.81(e), that duty is only to review information submitted by a refused applicant to determine whether that evidence tends to overcome the ground of ineligibility. But the Complaint contains no allegation that Defendants have refused to review the information Plaintiff Hossein submitted after his application was refused. See generally DE 1. To the contrary, Plaintiffs allege that the review is ongoing. See id. at 15, 18. Based on the Complaint's allegations, the court finds that Section 42.81(e) does not create a discrete, nondiscretionary duty, and so therefore the court “cannot compel [Defendants] to act—let alone to act faster.” Gonzalez, 985 F.3d at 366.

VI. Conclusion

The court possesses subject-matter jurisdiction over this dispute because 22 C.F.R. § 42.81(a) imposes a clear and mandatory duty on Defendants to adjudicate Plaintiff Hossein's visa application. But Defendants discharged that duty by refusing his application at the conclusion of his consular interview. The Complaint therefore fails to state a claim under Section 42.81(a) upon which relief may be granted. And Plaintiffs have not identified any other statute or regulation that clearly obligates Defendants to take further action on his application. Defendants’ motion [DE 8] is therefore GRANTED, and the Complaint [DE 1] is DISMISSED. The Clerk of Court is directed to close this case.

SO ORDERED this 14th day of August, 2024.

FOOTNOTES

2.   The court's consideration of the State Department's Consular Electronic Application Center is appropriate because the status page of Plaintiff Parents’ visa applications “was integral to and explicitly relied on in the complaint and because the [P]laintiffs do not challenge its authenticity.” Phillips v. LCI lnt'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); see also DE 1-1 at 1 (attaching screenshot of page to support allegation that applications remain refused and in administrative processing). Alternatively, consideration is appropriate because “a federal court may consider matters of public record ․ in conjunction with a Rule 12(b)(6) motion.” Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009).

3.   Because Plaintiff Soheila has received the relief she seeks in the Complaint, her claim “is therefore moot.” Garcia Martinez v. Johnson, No. 16-CV-0325, 2016 WL 4120446, at *1 (D. Md. Aug. 1, 2016) (dismissing claim as moot where USCIS adjudicated immigrant application after plaintiff filed suit); see also Liu v. Schiltgen, 120 F. App'x 65, 67 (9th Cir. 2005) (holding that “claim of agency inaction is moot” when the agency “reached a final determination on [plaintiff's] application while [the] action was pending in district court,” because the court could “no longer grant effective relief”).

4.   The line of cases Defendants cite to support their standing argument traces back 50 years to Kleindienst v. Mandel, where the Supreme Court explained that foreign nationals have “no constitutional right of entry to this country as a nonimmigrant or otherwise.” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). But that undisputed proposition is only minimally helpful to a court's standing inquiry. A constitutional injury is sufficient to confer Article III standing, but it is by no means necessary. See Trans Union LLC v. Ramirez, 594 U.S. 413, 425 (2021) (discussing “[v]arious” harms that “readily qualify as concrete injuries under Article III”).

5.   In addition, even if a refused applicant does adduce such evidence, the consular officer's obligation is limited to “reconsider[ation].” 22 C.F.R. § 42.81(e). A process of reconsideration does not clearly contemplate a subsequent formal decision. The consular officer is not required to “issue the visa” or affirm the “refus [al of] the visa.” 22 C.F.R. § 42.81(a). Where 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.” Russello v. United States, 464 U.S. 16, 23 (1983). The court thus finds that any “duty to reconsider does not require the government to take a discrete further action with respect to the status of an application.” Berenjian v. Blinken, No. 1:24-CV-00663, 2024 WL 3732451, at *3 (E.D. Va. Aug. 8, 2024).

RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE