Josaihas Apolinar Morales and Alla Tereshchenko v. Marco Rubio, in his official capacity as U.S. Secretary of State, and Robert Jachim, in his official capacity as Acting Director of

• Court: District Court, S.D. California
• Decided: November 4, 2025
• Docket: 3:25-cv-00642
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSAIHAS APOLINAR MORALES ) Case No.: 25-CV-0642-BEN-MSB and ALLA TERESHCHENKO, ) 12 ) GRANTING DEFENDANTS’ Plaintiff, 13 ) MOTION TO DISMISS v. ) 14 ) MARCO RUBIO, in his official 15 ) capacity as U.S. Secretary of State, and ) 16 ROBERT JACHIM, in his official ) capacity as Acting Director of 17 ) Screening, Analysis and Coordination, ) 18 Defendant. ) 19 Plaintiffs, U.S. citizen Josaihas Apolinar Morales and Russian visa applicant Alla 20 Tereshchenko, seek this Court to review an agency’s denial of Tereshchenko's Form I- 21 129F fiancé(e) visa petition on January 25, 2023, with a final decision entered on June 3, 22 2025. 23 LEGAL STANDARD 24 Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be 25 dismissed for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) 26 motion to dismiss tests the sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009). The court accepts material factual allegations as true and draws 28 1 reasonable inferences in plaintiff’s favor. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 2 338 (9th Cir. 1996). The court must “examine whether conclusory allegations follow 3 from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 4 115, 1121 (9th Cir. 1992). Dismissal is warranted when the complaint lacks “enough 5 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 6 550 U.S. 544, 570 (2007). 7 DISCUSSION 8 Following the denial of the visa petition, Plaintiffs invoke the Mandamus Act to 9 compel the agency to take action. The Mandamus Act confers jurisdiction over “any 10 action in the nature of mandamus to compel an officer or employee of the United States 11 or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C § 1361. 12 However, mandamus relief requires an unperformed ministerial duty, not review of 13 completed discretionary actions. 14 Congress explicitly precludes judicial review of visa denials. See 6 U.S.C. § 236(f) 15 (“Nothing in this section shall be construed to create or authorize a private right of action 16 to challenge a decision of a consular officer or other United States official or employee to 17 grant or deny a visa.”) The House Committee report confirms this intent: “our 18 amendment will ensure that denials of visa petitions in our overseas posts will continue to 19 be non-reviewable.” Homeland Security Act of 2002: Hearing and Markup on H.R. 5005 20 Before the House Comm. on International Relations, 107th Cong., 2d Sess. 89 (2002). 1 21 Here, the agency completed its adjudication when it denied Plaintiff’s petition on 22

23 1 Trump v. Hawaii, 585 U.S. 667, 702 (2018) (quoting Fiallo v. Bell, 420 U.S 787, 792 (1977) (“For 24 more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a 25 ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”)); Department of State v. Munoz, 602 U.S. 899, 907-08 (2024) (citing 26 Harisiades v. Shaughnessy, 342 U.S. 580, 588-91 (1952) (“Congress may delegate to executive officials the discretionary authority to admit noncitizens ‘immune from judicial inquiry or interference.’”) 27 Munoz, 602 U.S. at 908 (citing United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (“When it does so, the action of an executive officer ‘to admit or to exclude an alien’ ‘is final and 28 | January 25, 2023, and affirmed that denial on June 3, 2025. Because the agency 2 performed its adjudicative duty, albeit unfavorably to Plaintiffs, no ministerial obligation 3 Il remains to compel under § 1361. Moreover, § 236(f) bars any private action challenging 4 || the substantive visa denial. Plaintiffs cannot circumvent this jurisdictional bar through 5 mandamus, which applies only to compel performance of undischarged duties, not to © review completed discretionary determinations. Accordingly, Plaintiffs’ mandamus 7 claim is moot, and the motion to dismiss is GRANTED. 8 IT IS SO ORDERED. ? || DATED: November 4, 2025 10 HON. ROGER T. BENITEZ United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3.