Khodabakhshian v. Rubio

• Court: District Court, District of Columbia
• Decided: November 10, 2025
• Docket: Civil Action No. 2025-1981
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANIA KHODABAKHSHIAN,

Plaintiff, v. Case No. 25-cv-1981-MJS

MARCO RUBIO, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Ania Khodabakhshian brings this suit against U.S. Secretary of State Marco Rubio

and Kenneth Platek, the Acting Director of the U.S. Department of Homeland Security’s (“DHS”)

National Vetting Center (“NVC”) 1—both in their official capacities—to compel a final decision

on Plaintiff’s H-1B nonimmigrant visa application. Her application has been suspended in

“administrative processing” since April 2024. Through this lawsuit, Plaintiff alleges Defendants

have unreasonably delayed and unlawfully withheld a final determination on her application, and

she seeks relief under the Administrative Procedure Act (“APA”), 8 U.S.C. §§ 555(b), 706, and

the Mandamus Act, 28 U.S.C. § 1361. Defendants move to dismiss (ECF No. 8), arguing that

Plaintiff’s claims fail because: (1) she does not identify a clear, non-discretionary duty that

1 The parties contest whether Kenneth Platek, in his capacity as Acting Director of the NVC, is properly named as a defendant. (See ECF No. 8 (“Defs.’ Mem.”) at 10; see also ECF No. 9 (“Pl.’s Opp’n”) at 18–21.) Taking Plaintiff’s allegations as true and drawing all reasonable inferences in her favor, Plaintiff has sufficiently alleged that the NVC Director is involved in the administrative processing of nonimmigrant visa applications, rendering that official a proper defendant, at least at this threshold stage of the case. See, e.g., Ulianov v. Rubio, 2025 WL 1865111, at *4 n.5 (D.D.C. July 7, 2025) (citing Sarshartehran v. Rubio, 2025 WL 1261787, at *1, *3 & n.3 (W.D. Va. May 1, 2025)). Defendants may renew this argument later in the case, with the benefit of a more fully developed record, should they deem it appropriate. Defendants have failed to carry out, and (2) the doctrine of consular non-reviewability bars her

claims. The Court disagrees, so it DENIES the motion.

RELEVANT STATUTORY FRAMEWORK

The Immigration and Nationality Act (“INA”) authorizes the Department of Homeland

Security to admit foreign workers into the United States to perform certain types of labor. See

8 U.S.C. § 1101(a)(15)(H). As relevant here, H-1B visa-holders are admitted “to perform services

… in a specialty occupation” for an initial period of three years, with the prospect of an extension

for another three years. See id.; 8 U.S.C. § 1184(i)(1)–(3) (defining specialty occupation as one

requiring “theoretical and practical application of a body of highly specialized knowledge” and a

“bachelor's or higher degree”); see also Save Jobs USA v. U.S. Dep’t of Homeland Sec., 664 F.

Supp. 3d 143, 146 (D.D.C. 2023) (summarizing overall contours of the H1-B visa).

To start the H-1B visa application process, a sponsoring employer must obtain a

certification from the U.S. Department of Labor confirming that no American workers are “able,

willing, qualified[,] … and available” to perform the job, and that employing the foreign worker

will not negatively impact the wages or working conditions of comparable American employees.

Save Jobs USA, 64 F. Supp. 3d at 146.; see also 8 U.S.C. § 1182(a)(5)(A)(i)(I). If the Labor

Department issues the requested certification, the employer must file a Form I-140 petition with

U.S. Citizenship and Immigration Services (“USCIS”). Id.; 8 U.S.C. § 1154(a)(1)(F), (b); 8 C.F.R.

§ 204.5(a). Once USCIS approves the petition, the individual applicant must then complete and

submit a Form DS-160 (Online Nonimmigrant Visa Application) and attend an interview with a

consular officer at a U.S. Consulate. Datta v. Rubio, 2025 WL 752643, at *1 (D.D.C. Mar. 10,

2025); see also 8 U.S.C. § 1202(h); 22 C.F.R. §§ 42.61(a), 42.62. At the end of that interview,

State Department regulations require that the consular officer either issue or refuse the visa. See

2 22 C.F.R. § 41.121(a); see also Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1,

13 (D.D.C. 2022). If a consular officer believes they need more information to determine the

applicant’s eligibility, they may place the application into “administrative processing” per Section

221(g) of the INA. See 8 U.S.C. § 1201(g); 22 C.F.R. § 42.63(c); see also Giliana v. Blinken, 596

F. Supp. 3d 13, 18 (D.D.C. 2022). This “administrative processing” step is sometimes shorthanded

as a “221(g) notice” or “221(g) refusal.” Arapov v. Rubio, 2025 WL 2732722, at *4–6 (D.D.C.

Sept. 25, 2025) (Sharbaugh, M.J.). As explained next, that is what occurred here.

FACTUAL AND PROCEDURAL BACKGROUND

The Court draws the following facts, accepted as true, from the complaint. Am. Nat’l Ins.

Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970,

972 (D.C. Cir. 2005)).

Plaintiff Ania Khodabakhshian is a dual citizen of Armenia and Iran. (ECF No. 1

(“Compl.”) ¶ 2.) She seeks a nonimmigrant visa under the H-1B category. (Id. ¶ 1.) She graduated

with Honors from the Politecnico di Milano, earning her PhD in Architecture, Built Environment,

and Construction Engineering. (Id. ¶ 58.) The University of California Los Angeles (“UCLA”) has

hired Dr. Khodabakhshian as a Postdoctoral Scholar in the B. John Garrick Institute for the Risk

Sciences, applying to sponsor her for an H-1B visa. 2 (Id. ¶ 3, 27, 59.) UCLA submitted a Form

I-129 petition on Plaintiff’s behalf on March 11, 2024, and USCIS promptly approved the petition

just one week later and forwarded it to NVC for pre-processing. (Id. ¶¶ 3–4, 60–61.)

2 While the briefing does not expound upon Dr. Khodabakhshian’s accomplishments, the record reflects that her Postdoctoral Scholar position at UCLA is a specialty occupation requiring “theoretical and practical application of a body of highly specialized knowledge.” 8 U.S.C. § 1184(i)(1)(A); Compl. ¶¶ 4, 61.

3 Then, a few weeks later, Dr. Khodabakhshian submitted an online Nonimmigrant Visa

Application (“Form DS-160”). (Id. ¶ 62.) She soon attended her visa interview at the U.S. Embassy

in Milan, Italy on April 15, 2024. (Id. ¶¶ 2, 61.) At the end of that interview, the consular officer

advised that her application would require further administrative processing and issued a refusal

under 8 U.S.C. § 1201(g). (Id. ¶¶ 6, 63.) Dr. Khodabakhshian was instructed to submit additional

evidence, including a completed questionnaire (Form DS-5535), along with her UCLA offer letter,

resume, and list of academic publications. (Id. ¶ 63.) The very next day, Dr. Khodabakhshian

submitted the required documents. (Id. ¶ 64.) When she requested an update more than a year later,

the consulate replied: “Once the necessary administrative process is complete, we will immediately

communicate the decision to you.” (Id.; see also ECF No. 1-3 at 2, Pl.’s Ex. C.)

At the time Plaintiff filed this action in June 2025—approximately 14 months after her

interview and the resulting 221(g) refusal—the State Department’s Consular Electronic

Application Center (“CEAC”) Visa Status Check website indicated that Plaintiff’s application

status was still “[r]efused.” (Compl. ¶ 66; see also ECF No. 1-4, Pl.’s Ex. D.) The website advises

“those who were ‘refused for administrative processing [that their] case will remain refused while

undergoing such processing[,]’” but that they “will receive another adjudication once such

processing is complete[,]” and they “will be contacted if additional information is needed.” (Id.)

Plaintiff alleges she has undertaken “all reasonable attempts to understand the nature of the delay,

including congressional inquiries,” but to no avail. (Compl. ¶ 67.)

As of this ruling—now more than 18 months after Plaintiff’s consular interview and the

resulting 221(g) refusal—Plaintiff’s application remains pending with no final decision.

4 LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal on the

basis that the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion brought

under Rule 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase v. Sessions,

835 F.2d 902, 906 (D.C. Cir. 1987). The plaintiff “bears the burden of establishing jurisdiction by

a preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C. 2020)

(citation omitted). But courts must “accept the well-pleaded factual allegations as true and draw

all reasonable inferences from those allegations in the Plaintiff’s favor.” Kareem v. Haspel, 986

F.3d 859, 865 (D.C. Cir. 2021) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)).

Under Federal Rule of Civil Procedure 12(b)(6), courts should dismiss a complaint that

fails to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citation omitted). Under Rule 12(b)(6), a court “assumes the truth of all well-pleaded

factual allegations in the complaint and construes reasonable inferences from those allegations in

the plaintiff’s favor.” Sissel v. U.S. Dep’t of Health & Hum. Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).

That said, “threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” cannot forestall a motion to dismiss. Iqbal, 556 U.S. at 678.

DISCUSSION

Defendants make two arguments for dismissal under Rules 12(b)(1) and 12(b)(6). 3 First,

Defendants argue that Plaintiff’s claims fail because there is no clear and discrete duty that

3 Defendants never really parse out which arguments they bring—or which claims they attack—under Rule 12(b)(1) versus Rule 12(b)(6), leaving that task to the Court. For purposes of the Mandamus Act claim, the “threshold requirements are jurisdictional,” including the need to show “a clear duty to act,” which would implicate Rule 12(b)(1). Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). But the parallel argument as to Plaintiff’s APA claim speaks only to whether she has stated a claim for relief—and not the Court’s jurisdiction to act—meaning that Defendants’ argument is properly analyzed under Rule 12(b)(6).

5 obligates them to further adjudicate Plaintiff’s visa application after it was initially “refused” under

Section 221(g) and placed into administrative processing. (ECF No. 8 (“Defs.’ Mem.”) at 10–14.) 4

Second, Defendants maintain that the doctrine of consular non-reviewability bars judicial review

of Plaintiff’s claims. (Id. at 15–18.) This Court recently considered and rejected both arguments in

a largely analogous case. Arapov, 2025 WL 2732722, at *2. On review, it finds no basis to depart

from its prior analysis.

First, the Court stands by its holding that issuing a “final decision on a visa application is

plainly a discrete agency action” that “is required by both the APA and federal regulations.”

Arapov, 2025 WL 2732722, at *4 (collecting cases). Based on the complaint’s allegations here,

Defendants have not satisfied this requirement. As the Court said before, “a 221(g) refusal—and

the concomitant placement of an application into ‘administrative processing’ limbo”—does not

amount to a final decision. Id. Although Defendants have “certainly made a decision” to place

Plaintiff’s application in administrative processing, they have not made “the all-important yes-or-

no decision” that “puts [her] application[] to rest.” Thein v. Trump, 2025 WL 2418402, at *9

(D.D.C. Aug. 21, 2025) (emphases in original). Defendants’ hook-line-and-sinker reliance on the

D.C. Circuit’s decision in Karimova v. Abate, 2024 WL 3517852 (D.C. Cir. July 24, 2024), is

unavailing. This Court already held that, as an unpublished disposition, Karimova is not

precedential under the D.C. Circuit’s Rules and so is not binding in this case. Further, the Court

again does not find Karimova’s rationale persuasive as applied to the claims alleged here. Arapov,

See Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). Finally, the doctrine of consular non- reviewability is “not a jurisdictional defense,” Janay v. Blinken, 743 F. Supp. 3d 96, 113 (D.D.C. 2024), so that issue is likewise reviewed under Rule 12(b)(6). Ultimately, regardless of which Rule 12 lens the Court uses to scrutinize Defendants’ dismissal arguments, it would reach the same result. 4 Citations to the parties’ briefs are to the page numbers assigned by the electronic case-filing system.

6 2025 WL 2732722, at *5. At bottom, Plaintiff’s case is premised on a clear, discrete, and non-

discretionary duty to act. Defendants’ argument to the contrary fails.

Second, “judges in this District have overwhelmingly agreed that the doctrine of consular

non-reviewability is not implicated on these facts.” Id. at *6 (collecting cases). This is because, as

in other cases, Dr. Khodabakhshian is “not asking for judicial review of the substance of any final

decision to grant or deny a visa” but simply “want[s] a conclusive answer one way or the other.”

Id. Put another way, her lawsuit is one that seeks “to compel an adjudication that has been

unreasonably delayed, rather than one aimed at changing a final decision that has already been

rendered.” Id. (citing Shushkov v. Rubio, 2025 WL 2389939, at *5 (D.D.C. Aug. 18, 2025)).

Otherwise, insofar as Defendants again rely on Karimova for this point, that argument fares no

better this time around. Along with the points already made, the Court of Appeals declined to even

reach the question of consular non-reviewability issue in that case. Karimova, 2024 WL 3517852,

at *6 (“[W]e need not decide whether that principle of nonreviewability applies in this case, which

purports to challenge the timing rather than content of a consular visa decision[.]”). Thus,

Defendants’ invocation of consular non-reviewability fails. See Arapov, 2025 WL 2732722, at *6.

* * *

Because the Court rejects Defendants’ two arguments for dismissal, its analysis ends there.

Defendants did not argue in their motion to dismiss that Plaintiff has not alleged unreasonable

delay under the so-called “TRAC factors,” see Telecomms. Rsch. & Action Ctr.v. F.C.C.

(“TRAC”), 750 F.2d 70, 79–80 (D.C. Cir. 1984), positing that it would be “unnecessary for the

Court to apply the [TRAC] factors … to dispose of this case.” (Defs.’ Mem. at 7.) Instead,

Defendants suggested they would separately argue those points down the road, as needed. (Id. at

7 7, n.1.) Plaintiff agrees that an analysis of the TRAC factors is “not appropriate at this stage” (Pl.’s

Opp’n at 41–42). 5 The Court follows the parties’ lead and leaves that issue for another day.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss. The Court

will issue a separate order so stating.

Dated: November 10, 2025 MATTHEW J. SHARBAUGH United States Magistrate Judge

5 Plaintiffs nevertheless proceeded to engage in a relatively robust analysis of the TRAC factors in their opposition brief. (Pl.’s Opp’n at 48–58.) That approach prompted Defendants to do the same on reply. (ECF No. 11, Reply at 25–31.) The Court is surprised by the amount of unnecessary ink both sides spilled on an issue they agreed did not need to be decided at this juncture. The Court does not consider it.