govinfo:USCOURTS-dcd-1_25-cv-02646-0

UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA 
 
 
IAN RUDD, 
 
  Plaintiff, 
 
 v. 
 
UNITED STATES OF AMERICA, et al.,  
 
 Defendants. 
 
 Civ. Action No. 25-2646 (RDM) 
 
MEMORANDUM OPINION 
 Proceeding pro se, Plaintiff Ian Rudd brings this action under the Mandamus Act, 28 
U.S.C. § 1361, the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the 
Declaratory Judgment Act, 28 U.S.C. § 2201, against the Consul General for the U.S. Embassy 
in Montreal, Canada, the Department of State, the Secretary of State, and the United States, 
challenging Defendants’ delay in processing his application for an EB-2 visa.  Now before the 
Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).  
Dkt. 10.  For the reasons that follow, the Court will GRANT Defendants’ motion and will 
dismiss Plaintiff’s complaint. 
I. BACKGROUND 
For purposes of resolving Defendants’ motion to dismiss, the Court accepts the following 
allegations from Plaintiff’s complaint as true.  See Janay v. Blinken, 743 F. Supp. 3d 96, 102 
(D.D.C. 2024).  The Court also relies on the administrative materials attached to Plaintiff’s 
complaint.  See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 
Plaintiff is a citizen of Canada, Dkt. 1 at 2 (Compl. ¶ 1), who petitioned for an EB-2 visa, 
id. at 5 (Compl. ¶ 10).  EB-2 visas permit noncitizens with “advanced degrees” or “exceptional 
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abilit[ies]” that serve the national interest to enter the United States to work.  8 U.S.C. 
§ 1153(b)(2)(A), (B).  On December 2, 2022, the United States Citizenship and Immigration 
Services (“USCIS”) approved Plaintiff’s petition.  Dkt. 1 at 5 (Compl. ¶ 11); id. at 12 (Ex. A).  
On September 23, 2024, Plaintiff completed a visa interview with a consular officer at the U.S. 
Consulate Office in Montreal, Canada.  Id. at 5 (Compl. ¶¶ 12–13).  The following day, Plaintiff 
was informed that his application was being refused and placed in administrative processing 
pursuant to Section 221(g) of the Immigration and Nationality Act (“INA”).  Id. (Compl. ¶ 14); 
id. at 32 (Ex. D).  The U.S. Consulate Office also asked Plaintiff to complete a supplemental 
information form and to provide an updated resume “with no time gaps for [] studies and work 
experience” to facilitate the processing of his visa application.  Id. at 32 (Ex. D) (emphasis 
omitted).  Plaintiff promptly supplied this information.  Id. at 32–33 (Ex. D).  Since then, 
Plaintiff and Defendants exchanged several emails about the status of his visa application.  See 
generally id. at 27–36 (Ex. D).  Plaintiff’s application, however, has remained in administrative 
processing since his interview over eighteen months ago.  Id. at 5 (Compl. ¶ 15); Dkt. 14 at 4 
(“As of December 29, 2025, Defendants have not issued a final decision.”); Dkt. 18 at 2 (noting 
“sixteen (16) months of unresolved administrative processing since Plaintiff’s September 2024 
interview”).  
On August 9, 2025, Plaintiff filed this action against the United States, the State 
Department, Secretary of State Marco Rubio, and Consul General Robert Sanders.  See Dkt. 1 at 
3 (Compl. ¶¶ 2–5).  Plaintiff alleges that Defendants’ delay in processing his visa application has 
“caused significant professional, financial, and personal harm” to him.  Id. at 6 (Compl. ¶ 17).  
Plaintiff seeks relief under the Mandamus Act, 28 U.S.C. § 1361, the APA, 5 U.S.C. § 706(1), 
and the Declaratory Judgment Act, 28 U.S.C. § 2201.  Id. at 7–9 (Compl. ¶¶ 25–35).  He requests 
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a court order compelling Defendants to complete the adjudication of his visa application 
“promptly” and “[d]eclare that Defendants’ failure to complete adjudication . . . for over 319 
days . . . constitutes unlawful withholding and unreasonable delay in violation of the 
Administrative Procedure Act.”  Id. at 9–10 (Compl. Prayer).  In his response to Defendants’ 
motion to dismiss, Plaintiff clarifies that he seeks “[a]n order directing Defendants to complete 
adjudication and issue a final decision” within “60 days from entry of the Court’s order,” or, in 
the alternative, an order requiring Defendants to provide “[a] sworn status declaration identifying 
the specific steps remaining for Plaintiff’s case” and a “[s]tatus report[] every 30 days until a 
final decision is issued.”  Dkt. 14 at 7–8.  
Pending before the Court is Defendants’ motion to dismiss Plaintiff’s complaint for 
failure to state a claim pursuant to Rule 12(b)(6).1  Dkt. 10.  The motion is fully briefed and ripe 
for consideration.  See Dkt. 10; Dkt. 14; Dkt. 16; Dkt. 17-1; Dkt. 18.  
II.  LEGAL STANDARD 
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 
sufficiency of a complaint.”  Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see Fed. 
R. Civ. P. 12(b)(6).  In evaluating such a motion, the Court “must first ‘tak[e] note of the 
elements a plaintiff must plead to state [the] claim’ to relief, and then determine whether the 
 
1 Defendants argue that Local Civil Rule 7(n)’s requirement that the agency file a certified list of 
the contents of the administrative record with the filing of a dispositive motion does not apply 
because Plaintiff challenges agency inaction, not final agency action.  Dkt. 10 at 23 n.3.  This 
Court has previously rejected Defendants’ argument that Local Civil Rule 7(n) does not apply to 
unreasonable delay claims.  See Janay, 743 F. Supp. 3d at 104–05.  Nonetheless, because the 
Court “concludes that the administrative record is unnecessary to decide the threshold legal 
questions presented by the pending motion to dismiss,” it will waive compliance with Local 
Civil Rule 7(n).  Id. at 105. 
   
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plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that 
is plausible on its face.’”  Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) 
(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)).  The 
complaint need not include “detailed factual allegations,” and a plaintiff may survive a Rule 
12(b)(6) motion even if “recovery is very remote and unlikely,” so long as the facts alleged in the 
complaint are “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 
Twombly, 550 U.S. 544, 555–56 (2007) (internal quotation marks and citation omitted).  The 
Court may consider only “the facts contained within the four corners of the complaint,” Nat’l 
Postal Pro. Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006), along with “any 
documents attached to or incorporated into the complaint, matters of which the court may take 
judicial notice, and matters of public record,” United States ex rel. Head v. Kane Co., 798 F. 
Supp. 2d 186, 193 (D.D.C. 2011). 
III. ANALYSIS 
After Plaintiff’s visa interview, the consular officer refused his visa application pursuant 
to Section 221(g) of the INA, Dkt. 1 at 5 (Compl. ¶ 14); id. at 32 (Ex. D), which provides that 
“[n]o visa or other documentation shall be issued to an alien if . . . it appears to the consular 
officer . . . that such alien is ineligible to receive a visa,” 8 U.S.C. § 1201(g).  A refusal pursuant 
to Section 221(g) is based on a consular officer’s determination that the applicant has failed to 
carry his burden of establishing that he is eligible for a visa.  But that does not necessarily end 
the matter.  Rather, when an application lacks sufficient support, “a consular officer may 
determine that additional information . . . may help establish an applicant’s eligibility for a visa.”  
U.S. Department of State, Administrative Processing Information, 
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-
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processing-information.html (https://perma.cc/G6GV-A2TN).  If so, the consular officer may 
place a refused application in administrative processing, which enables the officer to “re-open 
and re-adjudicate the applicant’s case” upon the receipt of new information showing that the 
applicant has become eligible for a visa.  Karimova v. Abate, No. 23-5178, 2024 WL 3517852, at 
*2 (D.C. Cir. July 24, 2024) (per curiam).   
That is what happened here.  The consular officer placed Plaintiff’s application into 
administrative processing, where it has remained for over a year and a half.  Plaintiff now seeks 
relief based on Defendants’ alleged “failure . . . to complete adjudication” of his visa application, 
Dkt. 1 at 8 (Compl. ¶ 30); that is, he seeks an order compelling Defendants to complete the 
administrative processing of his application and to issue a final determination.  He brings claims 
under the Mandamus Act and the APA, both of which authorize federal courts to compel an 
agency to act when the agency has violated “a clear duty to act.”  In re Core Commc’ns, Inc., 
531 F.3d 849, 855 (D.C. Cir. 2008) (citation modified).  Defendants urge the Court to dismiss 
Plaintiff’s claims for three reasons.  First, they argue that Plaintiff’s claims fail because he does 
not identify a discrete agency action that a consular officer was required, but failed, to take.  Dkt. 
10 at 9–14.  Second, they argue that Plaintiff’s claims are barred by the consular 
nonreviewability doctrine.  Id. at 14–17.  Finally, they argue that Plaintiff has failed to state a 
plausible claim that the adjudication of his visa application has been unreasonably delayed.  Id. 
at 17–23.  Because the consular nonreviewability doctrine is not a jurisdictional defense, Baan 
Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1028–29 (D.C. Cir. 2021), the Court will begin and 
end with Defendants’ first argument.  
Defendants seek dismissal of Plaintiff’s claims on the ground that Plaintiff “cannot 
identify a clear, non-discretionary duty requiring a consular officer to take any action on the Visa 
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Application now that it has been refused under INA Section 221(g), 8 U.S.C. § 1201(g).”  Dkt. 
10 at 9.  That argument implicates Plaintiff’s claims under both the Mandamus Act and the APA.  
When a visa applicant seeks to compel a decision on his application, “‘the standards for 
obtaining relief’ under the Mandamus Act and the APA are ‘essentially the same.’”  Al-Gharawy 
v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1, 17 (D.D.C. 2022) (quoting Vietnam Veterans 
of Am. v. Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010)). 
The Mandamus Act provides that district courts “shall have original jurisdiction of any 
action in the nature of mandamus to compel an officer or employee of the United States or any 
agency thereof to perform a duty owed to the plaintiff.”  28 U.S.C. § 1361.  “To show 
entitlement to mandamus, [a plaintiff] must demonstrate (1) a clear and indisputable right to 
relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no 
adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 
2016).  Mandamus relief is therefore appropriate only where a defendant owes the plaintiff “a 
clear nondiscretionary duty.”  Pittston Coal Grp. v. Sebben, 488 U.S. 105, 121 (1988) (quoting 
Heckler v. Ringer, 466 U.S. 602, 616 (1984)).  The APA, in turn, authorizes federal courts to 
“compel agency action unlawfully withheld or unreasonably delayed.”  5 U.S.C. § 706(1).  But 
the Supreme Court has clarified that “the only agency action that can be compelled under the 
APA is action legally required.”  Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004) 
(emphasis in original).  Like a claim for mandamus relief, then, “a claim under [5 U.S.C.] 
§ 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.”  Id. at 64 (emphases in original).  One difference between a 
Mandamus Act claim and an APA claim is that a plaintiff’s failure to identify a clear 
nondiscretionary duty poses a jurisdictional hurdle for mandamus relief, see Lovitky v. Trump, 
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949 F.3d 753, 759 (D.C. Cir. 2020), but goes to the merits of an APA claim, see L’Association 
des Americains Accidentels v. United States Dep’t of State, 633 F. Supp. 3d 74, 80 (D.D.C. 
2022).  
Here, Plaintiff relies on 8 U.S.C. § 555(b) and 22 C.F.R. § 42.81 in an effort to show that 
Defendants have a mandatory duty either to issue him a visa or to refuse his application with 
finality.  See Dkt. 18 at 2, 3.  By leaving his application in the limbo of “administrative 
processing,” Plaintiff argues, Defendants have failed to discharge their duty to render a final 
decision—up or down.  See id. at 3.  Defendants respond that neither of these provisions require 
them to re-adjudicate Plaintiff’s already-refused application, nor do they set a specific timeline to 
act.  Dkt. 10 at 10–14; Dkt. 16 at 5–6.  For support, Defendants invoke the D.C. Circuit’s 
unpublished decision in Karimova, which affirmed a district court’s dismissal of a claim that 
was, in all material respects, like the one now before the Court.   
As in this case, the Karimova plaintiff’s visa application had been refused by a consular 
officer pursuant to Section 221(g) of the INA, and the consular officer placed the application in 
administrative processing.  2024 WL 3517852, at *2.  The plaintiff sought a court order 
compelling the consular officer to “re-adjudicate her already-refused application and, this time, 
to do it without subsequently retaining the application.”  Id. at *3.  To establish that the consular 
officer had a duty to re-adjudicate her visa application, the plaintiff exclusively invoked 5 U.S.C. 
§ 555(b), a provision of the APA that requires “each agency [to] proceed to conclude a matter 
presented to it with due regard for the convenience and necessity of the parties or their 
representatives and within a reasonable time.”  Id. (citation modified).  The D.C. Circuit rejected 
the plaintiff’s argument, reasoning that 5 U.S.C. § 555(b) “simply expresses ‘a congressional 
view that agencies should act within reasonable time frames,’” id. (quoting Telecomms. Rsch. & 
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Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“TRAC”)), while “leav[ing] officials 
ample room for judgment based on the circumstances,” id.  The court further explained that the 
“generality and indistinctness” of § 555(b) posed “particularly acute problems” for the plaintiff 
given “our starting point . . . that consular officers have broad discretion when adjudicating visa 
applications” and the “background principle of judicial abstinence” from reviewing consular 
decisions.  Id. at *4, 6.  
Karimova is an unpublished opinion, and decisions of this Court have disagreed about its 
precedential force.  Compare Ibrahim v. Spera, No. 23-3563, 2024 WL 4103702, at *3 (D.D.C. 
Sept. 6, 2024) (treating Karimova as precedential), with Hajizadeh v. Blinken, No. 23-1766, 2024 
WL 3638336, at *3 n.3 (D.D.C. Aug. 2, 2024) (declining to treat Karimova as precedential); see 
also Seifan v. Sweeney, No. 25-261, 2025 WL 2171093, at *3 (D.D.C. July 31, 2025) (collecting 
district court cases splitting on the precedential effect of unpublished circuit decisions).  But 
even if Karimova is non-precedential, the Court finds its essential reasoning persuasive and 
concludes that 5 U.S.C. § 555(b) does not impose a clear legal duty on consular officers to re-
adjudicate a visa application that has been refused and placed in administrative processing.   
Nor is the Court persuaded that any sub-provision of 22 C.F.R. § 42.81 imposes a non-
discretionary duty on consular officers to complete administrative processing within a specified 
time.  Start with 22 C.F.R. § 42.81(a).  22 C.F.R. § 42.81(a) provides that once a visa application 
“has been properly completed and executed before a consular officer,” “the consular officer must 
issue the visa,” “refuse the visa under [Section] 221(g) [of the INA],” or “discontinue granting 
the visa” under circumstances not relevant here.  Plaintiff contends that “the governing 
regulation provides that a consular officer ‘must issue’ or ‘refuse’ a visa.”  Dkt. 18 at 2.  But 
“[i]n Karimova, the D.C. Circuit held that once a noncitizen’s visa is refused, he has ‘received 
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the “refused” decision that the law [(i.e., 22 C.F.R. § 42.81)] expressly authorizes as one of the 
allowed actions on a visa application.’” Seifan, 2025 WL 2171093, at *5 (alteration in original) 
(citing Karimova, 2024 WL 3517852, at *4 (citing 22 C.F.R § 42.81)).  The Court agrees with 
the Karimova panel, and this Court’s Seifan decision, that “22 C.F.R § 42.81(a) does not 
establish any additional action for the government to take after an application is refused” by 
being placed into administrative processing.  Id.  Nothing in 22 C.F.R. § 42.81(a) requires a 
consular officer to reconsider a refused application placed in administrative processing, much 
less requires that the consular office do so within a specified timeframe.  
Plaintiff argues that a nondiscretionary duty emerges from 22 C.F.R. § 42.81 more 
generally because it “also recognizes continued treatment of refused cases, including 
reconsideration upon new evidence and further action following a refusal.”  Dkt. 18 at 2.  The 
rest of 22 C.F.R. § 42.81, however, addresses the procedures by which visa refusals may be 
issued, retained, and reviewed.  Section § 42.81(b) relates to the retention and return of an 
applicant’s documents after a visa refusal; Section 42.81(c) governs the procedures by which 
“the principal consular officer at a post” reviews and approves or disagrees with a consular 
officer’s refusal decision, allowing deferral of “a review of the refusal” if the “grounds of 
ineligibility may be overcome by the presentation of additional evidence and the applicant 
indicates the intention to submit such evidence,” 22 C.F.R. § 42.81(c); Section 42.81(d) allows 
the State Department to request a report regarding specific visa refusals, 22 C.F.R. § 42.81(d); 
and Section 42.81(e) requires reconsideration of a refused visa application if “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,” 22 C.F.R. § 42.81(e).  
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But nothing in 22 C.F.R. § 42.81 recognizes or establishes a “clear and indisputable” duty 
to reconsider an application in administrative processing within a specified timeframe—and 
certainly not a “clear and indisputable” duty to act within the eighteen months that have now 
passed since Plaintiff’s interview and initial rejection.  That is particularly the case given that the 
consular officer sought (and received) additional information, see Dkt. 1 at 32 (Ex. D), to assist 
in further processing Plaintiff’s application.   
As the D.C. Circuit stressed in Karimova, claims challenging the visa adjudication 
process are “not standard administrative fare.”  2024 WL 3517852, at *5.  They arise “within a 
field that is ‘vitally and intricately interwoven with contemporaneous policies in regard to the 
conduct of foreign relations [and] the war power.’”  Id. (alteration in original) (quoting 
Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952)).  For that reason, the “admission and 
exclusion of foreign nationals” is “largely immune from judicial control.”  Trump v. Hawaii, 585 
U.S. 667, 702 (2018) (citation modified).  In this context, the Court cannot find “a crystal-clear 
legal duty,” In re Ctr. for Biological Diversity, 53 F.4th 665, 670 (D.C. Cir. 2022) (citation 
modified), or a “legally required” duty to act on a particular timeframe, Montanans for Multiple 
Use v. Barbouletos, 568 F.3d 225, 227 (D.C. Cir. 2009), where a consular officer has reviewed 
an application, has refused it, and has placed the application in further administrative processing.  
Because the absence of a clear, non-discretionary duty (1) to re-adjudicate Plaintiff’s visa 
application or (2) to do so within a specified timeframe is dispositive for both his Mandamus Act 
and APA claims, the Court need not consider the applicability of the consular nonreviewability 
doctrine or whether Plaintiff can establish undue delay based on the TRAC factors. 2  Moreover,  
 
2 The Court has previously explained that “the consular non[]reviewability doctrine does not bar 
review of undue-delay claims related to visas mired in administrative processing.”  Janay, 743 F. 
 
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because the Court lacks mandamus jurisdiction and because Plaintiff fails to state a claim for 
unreasonable delay under the APA, the action is not “already properly before the Court” for 
purposes of Plaintiff’s request for declaratory relief.  LeBlanc v. U.S. Priv. & C.L. Oversight Bd., 
784 F. Supp. 3d 1, 35 (D.D.C. 2025) (citation omitted).  The Court will, accordingly, grant 
Defendants’ motion to dismiss.   
CONCLUSION 
For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 10, is hereby 
GRANTED, and the Court will DISMISS Plaintiff’s Mandamus Act claim for lack of 
jurisdiction and Plaintiff’s APA and Declaratory Judgment Act claims for failure to state a claim 
upon which relief may be granted. 
A separate order shall issue. 
                                /s/ Randolph D. Moss                  
                        RANDOLPH D. MOSS  
                   United States District Judge  
 
Date:  April 8, 2026 
 
 
Supp. 3d at 110 (citation modified); see also Al-Gharawy, 617 F. Supp. 3d at 11–17.  The 
analysis set forth above has no bearing on that conclusion.  Deciding whether consular officers 
have unfettered discretion over the process for reviewing visa applications requires a 
fundamentally different analysis than determining whether consular officers have a “crystal-clear 
legal duty,” In re Ctr. for Biological Diversity, 53 F.4th at 670 (citation modified), to perform the 
action at issue here.  And contrary to Defendants’ suggestion, Dkt. 10 at 15–16; Dkt. 16 at 7, 
Karimova did not conclusively resolve the applicability of the consular nonreviewability doctrine 
to undue-delay claims.  Karimova explicitly reserved the question whether the doctrine of 
consular nonreviewability “applie[d] in [that] case.”  2024 WL 3517852, at *6. 
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