Konshina v. Rubio et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page1ofii

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

EKATERINA KONSHINA,
Plaintiff,
Vv.

MARCO RUBIO, Secretary of State,
PAMELA BONDI, Attorney General

of the United States,

KRISTI NOEM, Secretary, U.S.
Department of Homeland Security,
CHRISTOPHER LANDAU, Deputy
Secretary of State, U.S.
Department of State,

JULIE M. STUFFT, Senior Bureau
Official, Bureau of Consular
Affairs, U.S. Department of State,
RICHARD C. VISEK, Acting Legal
Adviser, U.S. Department of State,
ALEXANDER TITOLO, Charge
d’Affaires, U.S. Embassy in
Belgrade, Serbia,

NICOLAS HELTZEL, Chief, Consular
Section, U.S. Embassy in
Belgrade, Serbia,

CIVIL ACTION
NO. 25-10357-WGY

Defendants.

eer ee ee eee ee ee ee ee ee ee ee eee ee eee eee eee ee

YOUNG, D.J. December 22, 2025
MEMORANDUM AND ORDER
In this action, the Plaintiff Ekaterina Konshina
(“Konshina”), a Russian citizen, appeared for an “F-1” visa
interview at the United States Embassy in Belgrade, Serbia on
October 28, 2024. As a result of the interview, the consular

officer provided a Form 221(g) to Konshina. That form notified

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page 2of11

Konshina that her visa application was refused, and placed into
“administrative processing.” To date -- a year later -- nothing
further has occurred. The Defendants Marco Rubio, Pam Bondi,
Kristi Noem, Christopher Landau, Julie Stufft, Richard Visek,
Alexander Titolo, and Nicholas Heltzel are each sued in their
official capacity (collectively, “the Public Officials”), for
unreasonable delay under the Administrative Procedure Act. The
Public Officals moved to dismiss, which is opposed. After
hearing, and considering the parties’ submissions, the motion,
ECF No. 10, is ALLOWED and the action is DISMISSED without
prejudice because the elapsed time in light of the factors
discussed below is not unreasonable as matter of law.
I. INTRODUCTION

A. Procedural History

This action was filed on February 11, 2025. Compl., ECF
No. 1. On April 21, 2025, the Public Officials filed their
motion to dismiss, with supporting memorandum of law. Defs.’
Mot. Dismiss (“the Motion” or “Mot.”), ECF No. 10; Defs.’ Mem.
Supp. Defs.’ Mot. Dismiss (“Defs.’ Mem.”), ECF No. 11. Konshina
filed her opposition on May 5, 2025. Pl.’s Mem. Opp. Defs.’
Mot. Dismiss (“Pl.’s Opp’n”), ECF No. 14. The Court held a
hearing on June 26, 2025 and, with agreement of the parties
continued the matter without decision until September 30, 2025.

Elec. Clerk’s Notes, ECF No. 18. The parties filed supplemental

[2]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page3of11

filings on August 22, 2025 and September 15, 2025, respectively.
Notice of Suppl. Facts, ECF No. 19; Defs.’ Notice of Suppl.
Authorities, ECF No. 20.

B. Facts Alleged

The facts are undisputed. On October 28, 2024, Konshina
appeared for an F-1 visa interview at the United States Embassy
in Belgrade, Serbia. As a result of the interview, Konshina was
provided a Form 221(g), noting that her visa application was
placed into “administrative processing,” in both the original
and its translated versions. See Compl., Ex. A, ECF No. 1-4.
The administrative processing has not been completed. One
communication from the Belgrade Embassy claims that Konshina’s
application is still undergoing processing and that the case is
not concluded. Id., Ex. F at 2, ECF No. 1-9. Just over 13
months have elapsed since the consular action placed this visa
application into administrative processing.
II. ANALYSIS |

Konshina brings two counts in her complaint. As to Count
I, she asserts a delay claim in violation of 5 U.S.C. § S55(b),
which requires the government to conclude matters presented to
them within a “reasonable time”, ostensibly under the
Administrative Procedure Act, 5 U.S.C. § 706(1). Compl. JQ 44-

55. As to Count II, Konshina seeks mandamus, pursuant to 28

[3]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page4ofi11

U.S.C. § 1361, to compel the government to perform their duty to
complete their review. Id. 44 56 - 66.

The Public Officials move to dismiss, arguing that the
consular nonreviewability doctrine shields the action, that
placing the matter into administrative processing constitutes
final action and there is therefore, no delay and that, even on
the merits, the delay is insufficiently long to be considered
unreasonable. Mot. 1-2.

A. Doctrine of Consular Non-reviewability Likely Does Not
Bar Review

“The Immigration and Nationality Act (INA) does not
authorize judicial review of a consular officer's denial of a
visa; thus, as a rule, the federal courts cannot review those

decisions.” Dept. of State v. Munoz, 144 S. Ct. 1812, 1820

(2024) (footnote omitted). “This principle is known as the
doctrine of consular nonreviewability.” Id. The Public
Officials argue that “with [Konshina’s] visa application
adjudicated and refused, and with no law that provides
authorization to allow the Court to review the visa refusal,
[Konshina’s] claim is nonjusticiable.” Defs.’ Mem. 11. In this
district, there is a split on this issue with respect to whether
administrative processing is final action. As another session
of this Court wrote recently, “[a]t issue here . .. is not

whether the Court can review a final visa adjudication, but

[4]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page5of11

rather whether the Court can compel Defendants to adjudicate a
visa application during administrative processing.” Ahadian v.
Rubio, No. 24-CV-12168-ADB, 2025 WL 1617224, at *6 (D. Mass.
June 6, 2025) (Burroughs, J.) (collecting cases). As that court
observed, where there is a split of district court persuasive
authority, and an absence of guidance from the Supreme Court and
First Circuit, the court “assume[d] that the consular
nonreviewability doctrine does not bar judicial review of
Plaintiffs’ claims to compel agency action under the APA.” Id.

(citing Conley v. U.S. Dep't of State, 731 F. Supp. 3d 104, 110

(D. Mass. 2024) (Saylor, J.)). This Court adopts this approach
as well, and presumes without ruling that the doctrine of
consular nonreviewability does not apply where the delay as
alleged is not unreasonable.

The First Circuit has, recently, found that the doctrine of
consular nonreviewability did not preclude judicial review of a

different non-final visa determination. Teles de Menezes v.

Rubio, 156 F.4th 1, n.3 (lst Cir. 2025). While acknowledging
that “[a] consular officer's decision ‘to admit or to exclude an
alien’ is generally ‘final and conclusive,’” Id. at 9 (citing
Munoz, 144 S. Ct. at 1820), the First Circuit found a consular
officer’s classification action -- which resulted in a delay of

a visa application -- properly reviewable. Id. at 9-10.

[5]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page6of11

B. Administrative Processing Status Likely can Sustain an
Unreasonable Delay Claim

“Neither the Supreme Court nor the First Circuit has
addressed whether the allegation that a visa application was
placed under ‘administrative processing’ can sustain an

unreasonable delay claim.” Taha v. Blinken, 765 F. Supp. 3d 91,

95 (D. Mass. 2025) (Gorton, J.). Courts in this district are

split. Compare Taha 765 F. Supp. at 95 (administrative

processing subject to consular nonreviewability doctrine) ;

Conley, 731 F. Supp. 3d at 111 (same) with Ahadian, 2025 WL
1617224, at *6 (presuming administrative processing not subject

to consular nonreviewability doctrine); Mustafin v. Rubio, No.

24-CV-12484-ADB, 2025 WL 1594754, at *5 (D. Mass. June 5, 2025)
(Burroughs, J.) (same); Manshadi v. Allen, No. 24-CV-10118-ADB,
2025 WL 524173, at *4 (D. Mass. Feb. 18, 2025) (Burroughs, J.)

(same); Ghannad-Rezaie v. Laitinen, 757 F. Supp. 3d 148, 153-54

(D. Mass. 2024) (Saris, J.) (consular nonreviewability doctrine
inapplicable). This Court need not decide, but concludes only
for purposes of this motion that “administrative processing” is
subject to an unreasonable delay claim under the APA.

Cc. Unreasonable Delay

Even presuming without ruling that the doctrine of consular
non—reviewability does apply, and that placing Konshina’s visa

application into administrative processing limbo is not final

[6]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page 7ofi11

action under the APA, the claim fails on the merits because the
delay here is not unreasonable as matter of law. The Court
analyzes the issue under the six-factor test in

Telecommunications Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80

(D.c. Cir. 1984), the TRAC factors, which are:
(1) agencies must make decisions under a rule of
reason;
(2) where Congress has provided a timetable or other
indication of the speed with which it expects the
agency to proceed in the enabling statute, that may

supply content for this rule of reason;

(3) delay that might be reasonable in the sphere of
economic regulation are less tolerable when human
health and welfare are at stake;

(4) the effect of expedition on agency activities of a
higher or competing priority;

(5) the nature and extent of the interests prejudiced
by delay; and

(6) impropriety is not a prerequisite to unreasonable
delay.

See id.
Konshina argues that a TRAC factor analysis is

inappropriate at the motion to dismiss stage, citing to out-of-

circuit cases for the proposition that the TRAC factor analysis

ought not be determined at the motion to dismiss stage. Pl.’s

Opp’n. 13-14 (citing, e.g., Bustos v. Mayorkas, CV 20-1348

KG/SMV, 2021 WL 3931173, *8 (D.N.M. Sept. 2, 2021) (“The Court

concurs with Defendants that the TRAC factors provide helpful

(7]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page 8of11

guidance to a court but finds that it is too early in the
proceedings for them to be of use. Most of the TRAC factors
require a court to go beyond the allegations in the Complaint
and make factual findings about matters outside of the
pleadings.”).

As the Public Officials persuasively argue, however, courts
in this district routinely apply the TRAC factor test to the
allegations in the complaint. Defs.’' Mem. 14 n. 3 (citing

Celebi v. Mayorkas, 744 F. Supp. 3d 100, 105 (D. Mass. 2024)

(Gorton, J.)). See also Novack v. Miller, 727 F. Supp. 3d 70,

76-78 (D. Mass. 2024) (Kelley, J.) (unreasonable delay claim);

Tang v. United States, No. CV 23-13187-RGS, 2024 WL 1836624, at

*1 (D. Mass. Apr. 26, 2024) (Stearns, J.) (same). Indeed, the
cases in this district that have addressed the issue in this
action appear uniformly to reject Konshina’s prematurity
argument, and instead address the TRAC factors to the well-

pleaded factual allegations of the complaint. See Ahadian, 2025

WL 1617224, at *7; Mustafin, 2025 WL 1594754, at *6; Ghannad-
Rezaie, 757 F. Supp. 3d at 154-55. This Court finds the above
cases persuasive, and follows that procedure here.

All of the TRAC factors favor a finding that the delay is
not unreasonable. As to the first two factors, rule of reason
and guidance related thereto, these factors favor the Public

Officials. The Public Officials acknowledge a rule of reason

[8]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page9ofi11

applies, and that typically means a first in, first out policy.
They further argue that there is no statutory timeframe, and
that the 180 day statute argued by Konshina is precatory, and
therefore not determinative. Defs.’ Mem. 15. As Judge
Burroughs recently ruled, “[a]s to the first factor, for visa
applications, courts have generally found that an agency's
process is governed by a ‘rule of reason,’ namely adjudicating
them ‘in the order they were filed.’” Manshadi, 2025 WL 524173,
at *5 (citation omitted). As for the second factor, “although
Congress has a stated policy on the timing of visa applications
to the effect that ‘[i]t is the sense of Congress that the
processing of an immigration benefit application should be
completed not later than 180 days after the initial filing of
the application,’ 8 U.S.C. § 1571(b), courts have interpreted §
1571(b) as nonbinding on agencies.” Manshadi, 2025 WL 524173,
at *5 (citations omitted). This Court agrees. Factors one and
two favor the Public Officials.

As for factors 3 and 5, the types of hardships alleged by
Konshina, here general allegations of injuries personally,
professionally, educationally, financially, medically, and
emotionally, see Compl. q 66, are garden variety hardships
typical to F-1 visa applicants, and not the types of hardship
that weigh in her favor. See Defs.’ Mem. 16-17 (collecting

cases).

[9]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page 10of11

As for factor 4, there is no information in the complaint
that bears on this factor. Similarly, as for the final factor,
there is no allegation of bad faith or impropriety.

All factors balance in favor of the Public Officials. The
length of time itself is not determinative, and it is not
insignificant to Konshina, but there are no facts alleged
plausibly here to warrant a conclusion that the one year delay

is unreasonable as matter of law.

[10]

Case 1:25-cv-10357-WGY Document 21 Filed 12/22/25 Page11of11

III. CONCLUSION
For the reasons stated above, the motion to dismiss, ECF
No. 10, is ALLOWED and the action is DISMISSED without

prejudice. See e.g., Ahadian, 2025 WL 1617224, at *7; Mustafin,

2025 WL 1594754, at *9; Ghannad-Rezaie, 757 F. Supp. 3d at 154-

55. The Clerk is directed to enter a separate order of
dismissal without prejudice.

SO ORDERED.

Within. 4 Gora

WILLIAM G. YOUNG
JUDG

of the
UNITED STATES}

1 This is how my predecessor, Peleg Sprague (D. Mass. 1841-1865),
would sign official documents. Now that I’m a Senior District
Judge I adopt this format in honor of all the judicial
colleagues, state and federal, with whom I have had the
privilege to serve over the past 47 years.

[11]