ZELENSKAIA et al v. RUBIO et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 25-cv-4315 (GMH)
MEMORANDUM OPINION AND ORDER
Plaintiffs are nine Russian and Belarusian students and researchers who have been accepted
to American universities and are seeking nonimmigrant visas to allow them to attend those
universities. Plaintiffs each submitted a nonimmigrant visa application and were interviewed by
consular officers at various U.S. Embassies. Each application was “refused” under Section 221(g)
of the Immigration and Nationality Act (“INA”), subject to “administrative processing,” where
they remain as of the date of this Memorandum Opinion.
Plaintiffs bring this suit to compel the Secretary of State and the Acting Director of the
National Vetting Center to promptly complete the administrative processing and adjudication of
their visa applications. Plaintiffs allege four causes of action arising under the Mandamus Act, 28
U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 706(1), 706(2),
claiming that the delay in processing their visa application is unreasonable and seeking an order
compelling the government to timely adjudicate the application. 	Defendants move to dismiss
1 The current Secretary of State Marco Rubio is substituted as Defendant pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure.
MARIIA ZELENSKAIA, et. al.,
Plaintiffs,
v.
MARCO RUBIO,1 Secretary of State,
et. al.,
Defendants.
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under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiffs’
claims fail for two threshold reasons: (1) that Plaintiffs fail 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 Plaintiffs’ claims are barred from judicial review under the doctrine of consular
nonreviewability. On the merits, Defendants argue that any delay at issue is reasonable.2
Upon consideration of Defendants’ motion and the record,3 the Court finds that, although
Plaintiffs have identified a nondiscretionary duty for a consular officer to issue or refuse a visa,
Defendants fulfilled this duty by refusing the Plaintiffs’ applications under Section 221(g) of the
INA. Because any mandatory duty has been fulfilled, the motion to dismiss will be granted.
2 Defendants also argue that Plaintiffs have failed to establish that they have standing to sue one of the Defendants—
the Acting Director of the Department of Homeland Security’s National Vetting Center—because Plaintiffs have failed
to allege that official plays any ongoing role in the adjudication of the subject visa application and therefore cannot
provide the relief requested. See ECF No. 10 at 11. The Court disagrees. To establish standing to sue, a plaintiff must
show that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). Plaintiffs have alleged that the Director of the National Vetting Center is involved in administrative processing
because the National Vetting Center “handles security vetting for all nonimmigrant visa cases” and “[m]ost, if not all
of the ‘administrative processing’ that is unreasonably delaying Plaintiffs occurs under the National Vetting Center’s
jurisdiction.” ECF No. 1, ¶ 26. Taking all allegations as true and drawing all reasonable inferences in Plaintiffs’ favor,
see Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011), they have sufficiently alleged that the
Acting Director of the National Vetting Center is involved in administrative processing of nonimmigrant visa
applications such that the Court has the “ability to redress [P]laintiffs’ grievances.” See Sarshartehran v. Rubio, No.
24-cv-633, 2025 WL 1261787, at *1, *3 & n.3 (W.D. Va. May 1, 2025) (permitting case against the director of the
National Vetting Center when the plaintiff alleged he “handles security vetting for nonimmigrant visa applications”
and “plaintiffs allege[d] that most, if not all, of the administrative processing of their visa applications ‘occurs under
[his] jurisdiction’”). “Because [the Acting Director] either does or could play a role in the pace of visa adjudications,
an order from this court directing him to move more quickly would likely redress [Plaintiffs’] harms.” Ahmed v.
Blinken, 759 F. Supp. 3d 1, 9 (D.D.C. 2024).
3 The docket entries relevant to this Memorandum Opinion are (1) the Complaint, ECF No. 1; (2) Defendants’ Motion
to Dismiss, ECF No. 10; (3) Plaintiffs’ Opposition, ECF No. 12; and (4) Defendants’ Reply, ECF No. 13. Page
numbers cited herein are those assigned by Court’s CM/ECF system, and not the page numbers included in the filed
document.
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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 methods by which nonimmigrants seek to enter
the United States is through school-sponsored visas, called “F-1” visas. 	A nonimmigrant may
receive an F-1 visa if they are “a bona fide student qualified to pursue a full course of study and
who seeks to enter the United States temporarily and solely for the purpose of pursuing such a
course of study . . . at an established college” or “university.” 8 U.S.C. § 1101(a)(15)(F)(i); see
also 22 C.F.R. § 41.12. The INA also authorizes consular officers to issue nonimmigrant exchange
visitor visas, called “J-1” visas. A nonimmigrant may receive a J-1 visa if they are “a bona fide
student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of
specialized knowledge or skill” seeking admission “for the purpose of teaching, instructing or
lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or
receiving training.” 8 U.S.C. § 1101(a)(15)(J).
A nonimmigrant student or exchange visitor visa application is initiated when an individual
is accepted for full-time enrollment in a U.S. education or exchange visitor program. 8 C.F.R. §
214.2(f)(1)(i)(A) 	(“A nonimmigrant 	student 	may 	be 	admitted 	into 	the 	United 	States 	in
nonimmigrant status . . . if . . . [t]he student presents a Form 1-20 . . . certified by the Student and
Exchange Visitor Program . . . for attendance by F-1 foreign students.”); id. § 214.3(k) (requiring
the school to certify and issue a Form 1-20 to an accepted foreign student and his or her dependents
indicating admission to a school); id. § 214.2(j)(i) (“A nonimmigrant exchange visitor…may be
admitted into the United States in J-1 . . . status . . . if the exchange visitor . . . presents a SEVIS
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Form DS-2019 issued in his or her own name by a program approved by the Department of State
for participation by J-1 exchange visitors.”); see also 8 C.F.R. § 41.62.
Like all nonimmigrant visa applicants, once an F-1 or J-1 applicant is found to meet the
eligibility requirements for their respective visa, they are required to submit Form DS-160, a
nonimmigrant visa application. See 22 C.F.R. § 41.103; 8 U.S.C. § 1202(c) (“Every alien applying
for a nonimmigrant visa . . . shall make application therefor in such form and manner as shall be
by regulations prescribed.”). 	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) (“All nonimmigrant visa applications shall be reviewed
and adjudicated by a consular officer.”). The INA places the burden of proof on the applicant to
establish eligibility to receive a visa. 8 U.S.C. § 1361. “The consular officer shall ensure that the
application is fully and properly completed . . . .” 22 C.F.R. § 41.103(b). Once the application is
fully completed and executed, “the consular officer must issue the visa, [or] refuse the visa.”4 Id.
§ 41.121(a); see also 8 U.S.C. § 1202(e) (“The application for a nonimmigrant visa or other
documentation as a nonimmigrant shall be disposed of as may be by regulations prescribed.”). All
“[n]onimmigrant visa refusals must be based on legal grounds, such as . . . INA 221(g), . . . or
other applicable law.” 22 C.F.R. § 41.121(a).
Under 	INA 	Section 	221(g)—the 	statutory 	provision 	under 	which 	Plaintiffs’ 	visa
applications were 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
4 In rare circumstances, the regulation also permits a consular officer to “discontinue granting the visa” pursuant to
“an outstanding order under INA 243(d).” 22 C.F.R. § 41.121(a); see also 8 U.S.C. § 1253(d). That provision allows
the Secretary of State to order consular officers to discontinue granting visas to nationals from a foreign country which
denies or unreasonably delays accepting its own citizens who are subject to removal from the United States. See 8
U.S.C. § 1253(d). There is no such order at issue in this case.
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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 if the applicant
establishes “that he is not inadmissible under any provision of this chapter.” 8 U.S.C. § 1361; 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 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/us-visas/visa-information-resources/administrative-
processing-information.html [https://perma.cc/44NK-RVZE] (“It is possible that a consular officer
will reconsider a visa application refused under 221(g) at a later date, based on additional
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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
Plaintiffs Mariia Zelenskaia, Grigorii Kutovoi, Mariia Ivonina, Karen Mamian, Aleksandr
Movsisian, Mikhail Goloshchapov, Vladislav Mantsevich, Petr Ivashkov, and Tatiana Oskolkova,
are Russian and Belarusian nationals seeking either F-1 or J-1 nonimmigrant visas. 	ECF No. 1
¶¶ 16-24. 	Each 	Plaintiff 	submitted 	a 	nonimmigrant 	visa 	application 	with 	supporting
documentation and thereafter interviewed with a consular officer in a U.S. Embassy location. Id.
After the interviews, each received notice from the consular officer stating that his or 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, 71, 78, 86, 94, 104, 110, 122, 131, 143.
Plaintiffs’ applications have remained “refused under 221(g)” and subject to “administrative
processing” since the date of their consulate interviews. See id. ¶¶ 61–62, 71–72, 87, 95–96, 105,
113–14, 123, 132–33, 144. 	Plaintiffs have alleged that the delays in completing administrative
processing have caused severe hardship, including “emotional distress, anxiety, and financial
consequences.” Id., ¶¶ 65, 75, 90, 98, 107, 116, 125, 136, 146.
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.
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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
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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
Plaintiffs allege four causes of action arising under the Mandamus Act and the APA
claiming that the delay in processing their visa application is unreasonable and seeking an order
compelling the government to promptly adjudicate the application. 	ECF No. 1 at 38–44.
Defendants move to dismiss on three independent grounds. First, they contend that Plaintiffs have
failed to identify a clear, non-discretionary duty requiring Defendants to further process their visa
applications following their refusal. ECF No. 10 at 12–17. Second, they argue that the doctrine
of consular nonreviewability bars judicial review given that the consular officer has refused
Applicant Plaintiffs’ visa applications. Id. at 17–20. Third, they argue that Plaintiffs’ claims fail
on 	the 	merits, 	as 	any 	delay 	in 	question 	is 	reasonable 	under 	the 	six-factor 	test 	from
Telecommunications 	Research 	& 	Action 	Center 	(“TRAC”) 	v. 	Federal 	Communications
Commission, 750 F.2d 70, 79–80 (D.C. Cir. 1984). ECF No. 10 at 20–27. 	Ultimately, the Court
finds it unnecessary to resolve the latter two arguments because it agrees with the Defendants on
the first. Accordingly, it will grant Defendants’ motion to dismiss on that basis alone.
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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, Plaintiffs
proceed under both, arguing that Defendants have a nondiscretionary duty to adjudicate the subject
visa applications within a reasonable time and that they failed to do so because Applicant Plaintiffs’
application remains in “administrative processing.” 	ECF No. 1, ¶¶ 161, 185, 208. 	Defendants
respond that Plaintiffs’ claims should be dismissed because the visa applications were refused, and
Plaintiffs have not identified a clear, non-discretionary duty requiring the consular officer to take
any action following the refusal. ECF No. 10 at 12–17. Thus, according to Defendants, there is
no action that this Court could compel under either the Mandamus Act or APA, let alone one it
could order to happen faster. 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
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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).”).
Plaintiffs contend that Defendants have a discrete and nondiscretionary duty to adjudicate
the subject visa applications within a reasonable time and that they failed to do so because the
applications remain pending in “administrative processing.” 	ECF No. 12 at 33. 	Defendants
respond that the D.C. Circuit’s recent unpublished decision in Karimova v. Abate is dispositive of
this issue and of Plaintiffs’ claims more generally. ECF No. 10 at 13–17 (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,5 the Court finds—as
5 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. 10 at 13 n.1. But Khaksari is itself an unpublished decision, making reliance on it
questionable for the same reason that Karimova’s precedential value is in doubt.
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other judges have—its reasoning persuasive and adopts it for purposes of this decision.6
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
6 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 non-
binding. 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).
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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
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 Plaintiffs 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 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
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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
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Code of Federal Regulations directs that “[c]onsular officers must ensure that the [visa
application7] 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
“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 Plaintiffs recognize in their 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; see ECF No. 1, ¶ 46. 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[.]”).
7 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).
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That is what the consular officer did here. 	Plaintiffs concede that the subject visa
applications were refused by the consular officer and remain refused to date. ECF No. 1, ¶¶ 60,
71, 86, 94, 104, 113, 122, 131, 143. That is all that the law requires. The consular officer having
“officially refused” those visa applications, the “‘matter’ has . . . been ‘conclude[d],’” at least for
purposes of any claim that may exist under the Mandamus Act or APA, because Plaintiffs have
“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.
Plaintiffs respond 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. 12 at 33–41. 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
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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(a). 	“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
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Plaintiffs have experienced. Their visa applications were refused by a consular officer, and they
have submitted additional information in the hope that it will “overcome the refusal.” 	Id. §
41.121(b)(1); ECF No. 1, ¶¶ 60–62, 71–72, 86–87, 94–96, 104–05, 113–14, 122–23, 132–33, 143–
44. 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 have Plaintiffs
not “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 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 post-refusal administrative processing is distinct from the refusal decision
itself.
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In this case, “[D]efendants already have taken definitive action”—they have refused
Plaintiffs’ visa 	applications—“and 	[Plaintiffs 	are] 	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 Plaintiffs have 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”).
Plaintiffs point to sections of the APA and the INA, and its implementing regulations, as
potential sources of this duty. 	ECF No. 1, ¶¶ 5, 41–55, 155–63. 	None of them suffices.8 Any
8 Plaintiffs also cite various provisions of the FAM as a potential source of the duty they claim. See ECF No. 1, ¶¶
42–47, 52–53. 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
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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 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
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,
Plaintiffs have 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.’”).
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open-ended phrase “within a reasonable time”’” (quoting Pourabdollah v. Blinken, No. 23-cv-
1603, 2024 WL 474523, at *6 n.5 (D.D.C. Feb. 7, 2024)).
Plaintiffs’ 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 [Plaintiffs have] 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. Section 1202(d) provides that “[a]ll
nonimmigrant visa applications shall be reviewed and adjudicated by a consular officer.”9 	8
9 To the extent Plaintiffs also rely 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
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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 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 Plaintiffs’ visa application.10 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
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).
10 Plaintiffs similarly point 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).
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under the [INA] . . . does not make a difference.” 	Ibrahim, 2024 WL 4103702, at *3. 	Both
plaintiffs are 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 *4.11
Finally, Plaintiffs point to 22 C.F.R. § 42.81(e) to establish a duty to issue a final decision
on their refused visa application. ECF No. 1, ¶ 321.12 But that section is, by its terms, inapplicable
to 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 Plaintiffs. 	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
11 Similarly unavailing is Plaintiffs’ reliance on the various fee schedules for visa applicants to source the duty they
claim. ECF No. 12 at 35–36; see also 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).
12 The paragraph numbering of Plaintiff’s complaint is partially out of order; paragraphs 319–326 appear in between
paragraphs 163 and 164.
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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., Ghannad-
Rezaie 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 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
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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
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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
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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. 13
* * * * *
For all these reasons, the Court finds that Plaintiffs have not identified a crystal-clear,
nondiscretionary duty requiring the consular officer to do anything other than what he or she has
already done—refuse their 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] already-
refused visa application.’” Karimova, 2024 WL 3517852, at *4, *6. Rather, any further action the
consular officer may take on their 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—
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
13 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.
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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 Plaintiffs’ claims should be dismissed for the independent
reason that the consular officer’s decision to refuse the visa applications was final and therefore
not subject to judicial review under the consular nonreviewability doctrine. 	See ECF No. 10 at
17–20. 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,
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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). Plaintiffs respond that the doctrine
does not apply because there has not in fact been final adjudication of their applications given that
they are still pending administrative processing. See ECF No. 12 at 41–46.
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
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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, Plaintiffs
challenge only the timing of the consular decision, not the substance of the consular officer’s
refusal of the visa application. Because Plaintiffs do 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.”).
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IV. 	CONCLUSION
For the reasons stated, the Court will grant Defendants’ motion to dismiss. Plaintiffs have
failed to establish that Defendants have a crystal-clear, nondiscretionary duty to take further action
on their visa applications that have been placed in administrative processing following their refusal
under Section 221(g). 	Rather, the only nondiscretionary duty Plaintiffs have identified is for
Defendants to “issue” or “refuse” their visa applications. That duty was fulfilled when their visa
applications were refused by the consular officer. Accordingly, there is nothing for this Court to
compel Defendants to do—let alone to do faster. 	Ramizi, 745 F. Supp. 3d at 264.
A separate Order dismissing the complaint will issue.
Date: 	June 3, 2025
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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