Case Name in Immigration Case - Unavailable

1
In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-01139-TC
_____________
ROULA HAMMOUD, ET AL.,
Plaintiffs
v.
MARCO RUBIO,1
Defendant
_____________
MEMORANDUM AND ORDER
Plaintiffs Roula Hammoud and Taha Matteo sued the United
States Secretary of State, Marco Rubio, asserting that consular officers
in Lebanon have unreasonably delayed making a final decision on their
children’s visa applications for admission into the United States. Doc.
1. Rubio moved to dismiss. Doc. 10. For the following reasons, his
motion is granted.
I
A
A party may move to dismiss for lack of jurisdiction under Fed. R.
Civ. P. 12(b)(1). There are, generally speaking, two ways to challenge
subject-matter jurisdiction, one being facial and the other being factual.
Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022). A facial challenge
accepts the facts in the complaint as true but argues they fail to state a
1 When suit was filed, Antony Blinken was the Secretary of State and the
named defendant. Marco Rubio was sworn in as United States Secretary of
State on January 21, 2025. In accordance with Rule 25(d)(1) of the Federal
Rules of Civil Procedure, Rubio is substituted for the former Secretary of
State, Antony Blinken, as the defendant. No further action is necessary.
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basis for jurisdiction, while a factual attack contests the validity of ju-
risdictional facts. Id. Either way, “[t]he objection that a federal court
lacks subject-matter jurisdiction … may be raised … at any stage in the
litigation.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (citing Fed.
R. Civ. P. 12(b)(1) and 12(h)(3)). An objection to a plaintiff’s standing
is an objection that a federal court lacks subject-matter jurisdiction. See
Baker v. USD 229 Blue Valley, 979 F.3d 866, 868 (10th Cir. 2020). Ju-
risdictional questions may be entwined with the merits of a case. If
they are, then a court must convert a putative Rule 12(b)(1) motion
into a Rule 12(b)(6) motion or a motion for summary judgment. Kerr
v. Polis, 20 F.4th 686, 700 (10th Cir. 2021).
B
Plaintiffs Roula Hammoud and Taha Matteo brought this action
under the Administrative Procedure Act, 5 U.S.C. §§ 551–559, seeking
an order directing that a final decision be made on their children’s visa
applications. Doc. 1.2 The facts of their case are straightforward, but a
description of the legal context governing the relevant visa-application
process will help contextualize the parties’ dispute.
1. The Immigration and Nationality Act typically requires that a
noncitizen seeking admission to the United States obtain a visa. 8
U.S.C. § 1181(a); Dep’t of State v. Muñoz, 602 U.S. 899, 903 (2024). Visa
decisions are left to the legislative and executive branches of the federal
government. Trump v. Hawaii, 585 U.S. 667, 702–03 (2018). In particu-
lar, “Congress sets the terms for entry, and the Department of State
implements those requirements at United States Embassies and con-
sulates in foreign countries.” Muñoz, 602 U.S. at 903.
Congress created a special application process for immediate rela-
tives of U.S. citizens seeking admission to the country. Kerry v. Din, 576
U.S. 86, 89 (2015). This process first requires the citizen-relative to file
a petition with U.S. Citizenship and Immigration Services asking to
classify the noncitizen who is seeking admission as an immediate rela-
tive. Muñoz, 602 U.S. at 904. Immediate relatives include citizens’ par-
ents, spouses, and unmarried children under the age of 21. Scialabba v.
Cuellar de Osorio, 573 U.S. 41, 46 (2014). A noncitizen whose petition is
approved may then apply for a visa. Muñoz, 602 U.S. at 904. The visa-
2 All references to the parties’ briefs are to the page numbers assigned by
CM/ECF.
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application process entails submitting written materials and participat-
ing in an interview with a consular officer abroad. Id.
After the interview, the consular officer decides whether to issue
or refuse the noncitizen’s visa application. See 8 U.S.C. § 1201(g). A
consular officer may not issue a visa to an applicant who does not meet
the eligibility requirements set forth in the Immigration and Nationality
Act and its corresponding regulations. Kerry, 576 U.S. at 89; 8 U.S.C.
§§ 1201(a)(1) & (g); 22 C.F.R. § 41.121. For example, consular officers
must refuse visa applications if the applicant has been convicted of
certain crimes, 8 U.S.C. § 1182(a)(2), or if the applicant has engaged in
terrorist activity, 8 U.S.C. § 1182(a)(3)(B). See also Kerry, 576 U.S. at 89;
Muñoz, 602 U.S. at 905.
Sometimes consular officers must refuse visa applications for less
evident reasons. Relevant here is when a consular officer refuses a visa
application because further administrative processing is required to en-
sure that the applicant is eligible for admission into the country. 8
U.S.C. § 1201(g); see, e.g., Karimova v. Abate, No. 23-5178, 2024 WL
3517852, at *2 (D.C. Cir. July 24, 2024) (“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.”). The Foreign Affairs Manual, which pro-
vides guidance to consular officers making visa decisions, notes that
an officer who has refused a visa application for further administrative
processing may re-open and re-adjudicate the application, overcoming
the initial refusal. 9 FAM 306.2-2(A)(a)(2)(a).
2. That legal background sets the stage for the visa-application pro-
cess that applied to the plaintiffs’ children in this case. In 2016, the
plaintiffs—Roula Hammoud and Taha Matteo—got married in Leba-
non. Doc. 1 at ¶ 11. At the time, Hammoud had two biological chil-
dren, I.B. and L.B., who became Matteo’s stepchildren. Id. at ¶¶ 2, 10.
Matteo is a U.S. citizen, id. at ¶ 1, and in 2023, Hammoud became a
citizen too, id. at ¶ 11. The married couple lives in Wichita, Kansas,
along with a child that the pair had together. Id. at ¶ 26. The other two
children, however, reside in Lebanon. Id. at ¶ 2. Their visa applications
are the crux of this lawsuit.
In November 2020, Matteo started the process of obtaining visas
for I.B. and L.B., who were fourteen and ten-years old, respectively.
Doc. 1 at ¶ 12. Matteo first petitioned to classify I.B. and L.B. as his
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immediate-relative stepchildren. Id.; 8 U.S.C. § 1151(b). The National
Visa Center, which is part of the Department of State, approved
Matteo’s petitions and assigned case numbers for I.B. and L.B.’s visa
applications. Doc. 1 at ¶¶ 15–17. The National Visa Center further de-
termined that I.B. and L.B. had submitted the necessary documenta-
tion to qualify for a visa, so it scheduled an interview for the children,
which took place in Lebanon in May 2023. Id. at ¶¶ 13, 18–20. Accord-
ing to the plaintiffs, the children’s visa applications have been in “on-
going ‘administrative processing’” since then. Id. at ¶ 27. The parties
agree that the consular officers made the decision not to issue visas to
I.B. and L.B. pursuant to 8 U.S.C. § 1201(g). Doc. 10 at 4; Doc. 12 at
2. That provision precludes officers from issuing a visa to an individual
when, after the interview, there are still questions regarding the appli-
cant’s eligibility to enter the United States. 8 U.S.C. § 1201(g)(1). And
the parties agree that the consular officers’ decision that further ad-
ministrative processing was warranted is characterized as a “refusal” of
I.B. and L.B.’s visa applications, even though they dispute the legal
significance of that characterization. Doc. 12 at 2; Doc. 13 at 1.
Matteo and Hammoud have sought answers from the consular of-
fice in Lebanon regarding the status of I.B. and L.B.’s visa applications.
Doc. 1 at ¶ 23. They allege that their “attempts to resolve this matter
have been either ignored or met with dismissive boilerplate responses.”
Id. And the plaintiffs further state that the processing delay has left
them “in absolute despair.” Id. at ¶ 28. Specifically, Hammoud has
sought medical treatment due to the “tremendous stress and anguish”
that she has experienced while separated from her children. Id. at ¶¶ 23,
27.
Based on the processing delay, Matteo and Hammoud sued the
Secretary of State of the United States, who is currently Marco Rubio.
Doc. 1. The plaintiffs assert two causes of action. One is a claim under
the Administrative Procedure Act, 5 U.S.C. §§ 551–559, and the other
is a request for a writ of mandamus. Id. at 7–8. Under both claims,
Matteo and Hammoud request an order requiring Rubio “to issue a
final decision on the visa applications of [I.B. and L.B.].” Id. at ¶ 54.
Rubio moved to dismiss. Doc. 10. In particular, Rubio asserts that the
plaintiffs lack standing because they have not alleged an injury that a
judgment in their favor could meaningfully redress. Id. at 6. And, even
if Matteo and Hammoud had standing, Rubio contends that the delay
they describe was not unreasonable. Id. at 9–13.
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II
Matteo and Hammoud have not established that a judgment grant-
ing the relief they seek could meaningfully redress their injury—the
alleged delay in resolving their children’s visa applications. As a result,
they do not have standing to pursue their claims.
A
“Article III confines the federal judicial power to the resolution of
‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021) (quoting U.S. Const. art. III, § 2, cl. 1.); see also Spokeo, Inc.
v. Robins, 578 U.S. 330, 338 (2016). “For there to be a case or contro-
versy under Article III, the plaintiff must have . . . standing.” TransUn-
ion, 594 U.S. at 423. “Regardless of the stage of litigation at which [fed-
eral courts evaluate] standing, the standing inquiry remains focused on
whether the party invoking jurisdiction had a sufficient stake in the
outcome when the suit was filed.” Rio Grande Found. v. Oliver, 57 F.4th
1147, 1162 (10th Cir. 2023). Plaintiffs “must demonstrate standing sep-
arately for each form of relief sought.” WildEarth Guardians v. Pub/Serv.
Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012) (quoting Friends of the
Earth, Inc. v. Laidlaw Env’t Serv. (TOC), Inc., 528 U.S. 167, 185 (2000))
(internal quotation marks omitted).
Standing requires a plaintiff to have “suffered an injury in fact” that
is “fairly traceable to the challenged action of the defendant” and is
likely to be “redressed by a favorable decision.” Laufer v. Looper, 22
F.4th 871, 876 (10th Cir. 2022) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992)). “These requirements ensure that ‘the plain-
tiff has alleged such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction.’” Looper, 22
F.4th at 876 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009)).
The injury in fact must be “an invasion of a legally protected inter-
est which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up).
For an injury to be concrete, it must be “real” rather than “abstract,”
but not necessarily “tangible.” Lupia v. Medicredit, Inc., 8 F.4th 1184,
1190–91 (10th Cir. 2021). In other words, “it must actually exist.”
Spokeo, 578 U.S. at 340. And “[a] statutory violation does not neces-
sarily establish injury in fact.” Looper, 22 F.4th at 876 (explaining that
Spokeo and TransUnion recently clarified that fact). “For an injury to be
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particularized, it ‘must affect the plaintiff in a personal and individual
way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1); see also Spokeo, 578 U.S.
at 339. “[A]ctual or imminent [means] that the injury must have already
occurred or be likely to occur soon.” Food & Drug Admin. v. All. for
Hippocratic Med., 602 U.S. 367, 381 (2024). And “[a]n alleged future in-
jury is sufficiently imminent ‘if the threatened injury is certainly im-
pending, or there is a substantial risk that the harm will occur.’” Looper,
22 F.4th at 876 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014)).
As to causation, the plaintiff must show that “its injury is ‘fairly
traceable to the challenged action’” of the defendant. Rocky Mountain
Peace & Just. Ctr. v. U.S. Fish & Wildlife Serv., 40 F.4th 1133, 1152 (10th
Cir. 2022) (quoting Friends of the Earth, 528 U.S. at 180). For Article III
purposes, that means “proof of a substantial likelihood that the de-
fendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005). To make that showing,
“plaintiffs bear the burden of pleading and proving concrete facts
showing that the defendant’s actual action has caused the [harm or a]
substantial risk of harm.” Rocky Mountain Peace & Just. Ctr., 40 F.4th at
1152 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5
(2013)) (quotation marks omitted).
Regarding redressability, “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”
Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1325 (10th Cir. 2022)
(quoting Lujan, 504 U.S. at 560) (internal quotation marks omitted). In
other words, “a party must show that a favorable court judgment is
likely to relieve the party’s injury.” WildEarth, 690 F.3d at 1182 (quot-
ing City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1264 (10th Cir.
2011)). “The plaintiff must show that a favorable judgment will relieve
a discrete injury, although it need not relieve his or her every injury.”
WildEarth, 690 F.3d at 1182 (quoting Nova Health Sys., 416 F.3d at
1158).
And finally, when assessing standing, federal courts are not to
“open the door to merits considerations at the jurisdictional stage.”
Smith v. Albany Cnty. Sch. Dist. No. 1 Bd. of Trs., 121 F.4th 1374, 1378
(10th Cir. 2024) (internal quotation marks omitted). Thus, “[f]or pur-
poses of standing, [courts] must assume the Plaintiffs’ claim has legal
validity.” COPE v. Kan. State Bd. of Educ., 821 F.3d 1215, 1220 (10th
Cir. 2016) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082,
1092–93 (10th Cir. 2006) (en banc)). In other words, “standing in no
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way depends on the merits of the plaintiff’s contention that particular
conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975).
B
Matteo and Hammoud lack standing for two independent reasons.
Neither the sole defendant in this case—Secretary of State, Marco Ru-
bio—nor a federal court has the legal authority to adjudicate or order
consular officers to determine a visa application that has been refused
because further administrative processing was needed. As a result, the
plaintiffs’ alleged injuries resulting from the delay in administrative
processing cannot be redressed by a judgment in their favor.
1
Rubio first argues that he cannot redress Matteo and Hammoud’s
injuries because he “lacks the authority to adjudicate visas, which lies
in the exclusive province of consular officers.” Doc. 10 at 6. Congress
explicitly outlined the Secretary of State’s role in granting and refusing
visas in the Immigration and Nationality Act. See 8 U.S.C. § 1104(a).
Specifically, it authorized the Secretary of State to administer and en-
force immigration and nationality laws related to “the powers, duties,
and functions of diplomatic and consular officers of the United
States.” Id. But there is a caveat: Congress expressly withheld from the
Secretary of State’s authority “those powers, duties, and functions con-
ferred upon the consular officers relating to the granting or refusal of
visas.” Id. In other words, the statute affords consular officers “exclu-
sive authority to review applications for visas, precluding even the Sec-
retary of State from controlling their determinations.” Baan Rao Thai
Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (quoting Saavedra
Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999)).
Although the Secretary of State lacks authority to adjudicate the
merits of a visa application, courts disagree on whether Congress au-
thorized the Secretary of State to control the timing of visa determina-
tions. See Shamim v. Rubio, No. 25-50016, 2025 WL 1399166, at *2
(N.D. Ill. May 14, 2025) (noting the split in authority). For example,
some courts have found that a consular officer’s exclusive control over
the decision to grant, deny, or revoke a visa “is not the same as control
over the timing by which the consular officer considers the applications
presented to her.” Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617 F.
Supp. 3d 1, 10–11 (D.D.C. July 27, 2022); see also, e.g., Salem v. Noem,
No. 24-11522, 2025 WL 1567864, at *4 (N.D. Ill. June 3, 2025).
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According to those courts, Congress only withheld the Secretary of
State’s authority over the outcome of a visa application—not his con-
trol over a consular officer’s pace in granting or denying visa applica-
tions. Raouf v. U.S. Dep’t of State, 702 F. Supp. 3d 19, 28–30 (D.N.H.
2023). In contrast, some courts have held that the plain text of the
Immigration and Nationality Act compels the opposite conclusion. See,
e.g., Yaghoubnezhad v. Stufft, 734 F. Supp. 3d 87, 97–98 (D.D.C. May 9,
2024). They reason that Congress, by withholding duties related to
granting and refusing visas from the Secretary of State’s authority, nec-
essarily barred the Secretary of State from involving himself in any con-
sular visa decisions—including the timing of those decisions. See, e.g.,
Shamim, 2025 WL 1399166, at *2. As one court noted, the powers, du-
ties, and functions related to granting and denying visas necessarily in-
clude “administrative guidance for the pace of visa adjudications and
the completion of administrative processing.” Yaghoubnezhad, 437 F.
Supp. 3d at 98–99.
Neither the Supreme Court nor the Tenth Circuit has considered
whether the Immigration and Nationality Act authorizes the Secretary
of State to expedite or otherwise direct consular officers to make a visa
determination within a reasonable time. It is therefore necessary to
turn to principles of statutory interpretation to determine whether the
Immigration and Nationality Act authorizes the Secretary of State to
provide the relief the plaintiffs seek. The primary task in interpreting a
federal statute is “to determine congressional intent.” Coffey v. Freeport
McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th Cir. 2009). That
inquiry “start[s] with the plain meaning of the text.” Wichita Ctr. for
Graduate Med. Educ., Inc. v. United States, 917 F.3d 1221, 1224 (10th Cir.
2019) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). “If the
statutory language is unambiguous and ‘the statutory scheme is coher-
ent and consistent’ . . . ‘[t]he inquiry ceases.’” Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 171 (2016) (quoting Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002)); accord United States v. Sprenger, 625 F.3d
1305, 1307 (10th Cir. 2010)). So, if a statute’s terms are clear and un-
ambiguous, the plain language of the statute controls. United States v.
Brown, 529 F.3d 1260, 1265 (10th Cir. 2008); see also A. Scalia & B. Gar-
ner, Reading Law: The Interpretation of Legal Texts 56 (2012) (“[T]he pur-
pose [of a statute] must be derived from the text, not from extrinsic
sources such as legislative history or an assumption about the legal
drafter’s desires.”).
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Rubio’s authority to require consular officers to adjudicate a visa
application depends on whether the pace of a consular officer’s visa
determinations is a duty, task, or function that relates to granting and
refusing visa applications. As the Supreme Court has noted, “Congress
characteristically employs the phrase [‘relate to’] to reach any subject
that has ‘a connection with, or reference to,’ the topics the statute enu-
merates.” Coventry Health Care of Missouri, Inc. v. Nevils, 581 U.S. 87, 95–
96 (2017) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992)); see also Relate, Webster’s students dictionary (1962) (defining
“relate to” as “[t]o bring into connection,” “[t]o establish relationship
between,” “[t]o have relationship or connection,” or “to belong”). Ab-
sent statutory language limiting the phrase “relates to,” the plain mean-
ing of the text suggests that it encompasses a broad range of conduct.
See Lamar, Archer & Cofrin, Llp v. Appling, 584 U.S. 709, 717–18 (2018)
(collecting Supreme Court cases interpreting the term “relating to” and
noting that it has a broad ordinary meaning); Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 139 (1990) (finding that a law “relates to” an
employee benefit plan “even if the law is not specifically designed to
affect such plans, or the effect is only indirect”). The administrative
process a consular officer follows when he or she decides to grant or
deny a visa, including the pace of that process, has a direct connection
and relationship to the officer’s visa determination itself. That means
the Secretary of State cannot control it. 8 U.S.C. § 1104(a); A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts 56–57 (2012)
(noting that it is unnecessary to look beyond the text of a statute to
determine its meaning where the text is unambiguous). As one court
noted, the Act’s plain language precludes the conclusion that the Sec-
retary has any “residual authority to control the timing by which con-
sular officers consider applications presented to them.” Yaghoubnezhad
v. Stufft, 734 F. Supp. 3d 87, 97–98 (D.D.C. 2024); see also Givehchi v.
Rubio, No. 24-2343, 2025 WL 859841, at *3 (D. Kan. Mar. 19, 2025);
Calvary Albuquerque, Inc. v. Blinken, 720 F. Supp. 3d 1138, 1167–68
(D.N.M. 2024), aff’d sub nom. Calvary Albuquerque Inc. v. Rubio, 136 F.4th
1217 (10th Cir. 2025), vacated on denial of reh’g en banc, 154 F.4th 1246
(10th Cir. 2025).
Hammoud and Matteo’s response in opposition actually confirms
this conclusion. That is because they do not confront Rubio’s argu-
ment that he is the wrong defendant in light of Congress’s decision to
grant exclusive authority over duties related to granting and denying
visas to consular officers—not the Secretary of State. Instead, they re-
assert their allegations as to why the consular officers in Lebanon have
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unreasonably delayed a final determination on their children’s visa ap-
plications. See Doc. 12 at 3–6. For example, they state that they have
standing because “[t]he consular officer’s failure to adjudicate the visa
applications, and to hold the case in ‘administrative processing’ with-
out any end in sight,” unlawfully deprives them of their right to receive
a final visa determination. Id. at 6. The plaintiffs’ repeated assertions of
why they believe the consular officers’ actions have been unlawful do
not meaningfully address why Rubio—the Secretary of State—has the
authority to direct the consular officers in Lebanon to expedite their
administrative processing of I.B. and L.B.’s visa applications. The
plaintiffs only sued Rubio, and, as a result, they have not met their
burden to establish standing. See Rio Grande Found. v. City of Santa Fe, 7
F.4th 956, 960–61 (10th Cir. 2021) (dismissing a case for lack of juris-
diction and emphasizing that the plaintiff had the burden to establish
standing).
2
Even if Rubio were a proper defendant, he contends that the order
the plaintiffs seek would not redress their injuries. Doc. 10 at 7–9. In-
voking the Administrative Procedure Act (APA), 5 U.S.C. §§ 551–559,
Hammoud and Matteo seek to order consular officers in Lebanon to
“issue a final decision” on I.B. and L.B.’s visa applications, Doc. 1 at
¶ 54, or find that a final decision on their applications has been “inor-
dinately delayed,” id. at ¶ 55. Because the decision not to issue any final
decision on a visa application is considered a “refusal,” this relief would
require the consular officers to complete the administrative processing
of I.B. and L.B.’s visa applications, re-open their applications, and
make a new determination as to whether to issue or refuse a visa. See
22 C.F.R. § 41.121(a) (noting that Section 1201(g) is a legal ground for
refusal under the Immigration and Nationality Act); 9 Foreign Affairs
Manual 504.11-4(A) (2022) (“You should find that an applicant has
overcome a [visa refusal] . . . when the applicant has presented addi-
tional evidence, allowing you to re-open and re-adjudicate the case, or
when the case required additional administrative processing, which has
been completed.”). The parties disagree on whether the APA author-
izes federal courts to issue such relief—specifically, an order directing
consular officers to complete administrative processing of a refused
visa application, re-open the application, and then re-adjudicate it.
Individuals who have been harmed by agency action may bring a
claim under the APA. 5 U.S.C. § 702; Norton v. S. Utah Wilderness All.,
542 U.S. 55, 61–62 (2004). They can sue over inaction, too, if an agency
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“unlawfully withheld or unreasonably delayed” its actions. 5 U.S.C.
§ 706(1); Norton, 542 U.S. at 61–62. But an APA claim alleging a failure
to act under Section 706(1) may “proceed only where a plaintiff asserts
that an agency failed to take a discrete agency action that it is required to
take.” Id. at 64 (emphasis in original).
Hammoud and Matteo have not identified a discrete action that
consular officers are required to take. In particular, they have not
pointed to any authority requiring consular officers to finish the ad-
ministrative processing of a visa application and determine whether to
overcome the applicant’s initial refusal. They did not, for example, sug-
gest that the Immigration and Nationality Act creates such a duty. And
for good reason: Courts regularly hold that consular officers’ duty to
issue or deny a visa is fulfilled once the officers refuse the visa based
on the need for additional administrative processing. See, e.g., Jung v.
Goldman, No. 24-2500, 2025 WL 2687983, at *10 (D. Colo. Sep. 19,
2025) (collecting cases); Yaghoubnezhad, 734 F. Supp. 3d at 94 (quoting
9 Foreign Affairs Manual 302.1-8(B) (2023)) (noting that a refusal
based on the consular officer’s belief that the applicant may be ineligi-
ble based on the available information “is, legally, a refusal on a visa
application, even if that refusal is eventually overcome”). True, the
guidance that consular officers receive allows them to overcome the
prior refusal by re-opening and re-adjudicating the visa. 9 Foreign Af-
fairs Manual 302.1-8(B) (2023). But that is a discretionary decision. Id.
Neither statutory nor regulatory guidance requires consular officers to
re-open a refused visa application at all, let alone within a specified
period of time. Norton, 542 U.S. at 65 (noting that only statutory and
regulatory mandates justify a judicial decree compelling an agency to
act within a certain time period).
The plaintiffs instead point to one of the APA’s “Ancillary Provi-
sions” to create such a duty. Doc. 1 at ¶ 31 (citing 5 U.S.C. § 555(b)).
In other words, they seek to use a general APA process to create a
specific enforceable duty under the Immigration and Nationality Act.
Section 555(b) provides that “within a reasonable time, each agency
shall proceed to conclude a matter presented to it.” This is a “non-
specific directive to all agencies” that “leaves officials ample room for
judgment based on the circumstances.” Karimova v. Abate, No. 23, 5178,
2024 WL 3517852, at *3 (D.C. Cir. July 24, 2024) (quoting 5 U.S.C. §
555(b)). Its general language, which applies to all agency action, does
not support the conclusion that consular officers have a discrete duty
to determine, within a certain period of time, whether to grant or refuse
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a visa application that was already refused for further administrative
processing. See Hi-Tech Pharmacal Co., Inc. v. U.S. Food & Drug Admin,
587 F. Supp. 2d 1, 9 (D.C. Cir. 2008) (“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 de-
layed.’”). To hold otherwise would allow individuals to file suits under
the APA for any delay in any agency’s action, which would contradict
the well-settled interpretation of the APA that “[f]ailures to act are
sometimes remediable . . . but not always.” Norton, 542 U.S. at 61. As
a result, the order that Hammoud and Matteo seek cannot meaning-
fully redress their injuries, depriving them of standing. See Lujan v. Defs.
of Wildlife, 504 U.S. 555, 569 (1992) (concluding that the redressability
requirement had not been met where “resolution by the District Court
would not have remedied respondents’ alleged injury” because it would
not have been binding on the agencies); California v. Texas, 593 U.S.
659, 673 (2021) (explaining that an unenforceable injunction fails to
fulfill the constitutional redressability requirements).
III
For the foregoing reasons, Rubio’s Motion to Dismiss, Doc. 10, is
GRANTED.
It is so ordered.
Date: December 30, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
Case 6:24-cv-01139-TC-ADM Document 15 Filed 12/30/25 Page 12 of 12