UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALKA RANJAN,
Plaintiff, Civil Action No. 23-2453 (LLA) v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The U.S. Department of Homeland Security (“DHS”) found that Plaintiff Alka Ranjan
obtained a visa “by fraud or willfully misrepresenting a material fact” and therefore labeled her
“inadmissible” to the United States. See 8 U.S.C. § 1182(a)(6)(C)(i); ECF No. 1. Ms. Ranjan sues
DHS and its secretary, Alejandro N. Mayorkas, alleging that the agency failed to afford her
appropriate process in making that determination. ECF No. 1. Defendants move to dismiss. ECF
No. 12. For the reasons explained below, the court will deny Defendants’ motion.
I. Factual Background
In resolving DHS’s motion to dismiss, the court accepts the following factual allegations
as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Alka Ranjan is a citizen of India. ECF No. 1 ¶ 20. She was admitted to the U.S. on an F-1
student visa in December 2015 and earned a Master of Science in Computer Information Systems
from Pace University in August 2017. Id. ¶¶ 23-24; see U.S. Citizenship & Immigr. Servs., Students and Employment.1 After receiving her degree, Ms. Ranjan applied for and received
Optional Practical Training (“OPT”) employment authorization.2 ECF No. 1 ¶¶ 25-26. She began
working for Consultadd Inc. in July 2018. Id. ¶ 27. She later applied for and received a 24-month
OPT extension for graduates of STEM programs. Id. ¶ 29. That authorization was valid through
October 2020. Id.
In June 2020, Consultadd petitioned to change Ms. Ranjan’s status from F-1 to H-1B. Id.
¶ 31. An H-1B visa allows employees in “specialty occupations” to work in the United States for
up to three years (with the potential to extend the visa to a maximum of six years). See U.S.
Citizenship & Immigr. Servs., H-1B Specialty Occupations.3 U.S. Citizenship and Immigration
Services (“USCIS”) approved the petition, granting Ms. Ranjan H-1B status effective from
October 2020 to September 2021. ECF No. 1 ¶ 32. Consultadd filed a subsequent petition to
extend Ms. Ranjan’s H-1B status from September 2021 to September 2022, which was also
approved. Id. ¶¶ 34-35.
On November 21, 2022, Shipt Inc. filed a petition to employ Ms. Ranjan and extend her
H-1B status until November 2024. Id. ¶¶ 36-37. USCIS approved the petition. Id. ¶ 37. But even
after a petition is approved, the H-1B application process is not over: the applicant must undergo
an in-person interview with a consular officer, who decides whether to issue the visa. 8 U.S.C.
§ 1202(h); 22 C.F.R. § 41.121(a). On April 10, 2023, Ms. Ranjan attended an in-person interview
1 Available at https://perma.cc/D5Z3-4C2R. The court may take judicial notice of “information posted on official public websites of government agencies.” Arab v. Blinken, 600 F. Supp. 3d 59, 63 n.1 (D.D.C. 2022). 2 OPT “is temporary employment that is directly related to an F-1 student’s major area of study.” U.S. Citizenship & Immigr. Servs., Optional Practical Training (OPT) for F-1 Students, https://perma.cc/2N42-HLM8. 3 Available at https://perma.cc/E9LX-DUUP. 2 at the Mumbai Consulate. Id. ¶ 40. The consular officer denied her application for an H-1B visa
pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), which provides:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.
ECF No. 1 ¶ 40. Non-citizens deemed inadmissible under this provision are categorically
ineligible to receive a visa or be admitted to the United States. See 8 U.S.C. § 1182(a). Ms. Ranjan
disputes the inadmissibility finding. ECF No. 1 ¶ 1.
“On being refused the H-1B Visa, [Ms. Ranjan] was advised that [DHS] made the 8 U.S.C.
§ 1182(a)(6)(C)(i) finding and to request its resolution . . . through DHS TRIP, i.e., Traveler
Redress Inquiry Program.” Id. ¶ 41. In May 2023, Ms. Ranjan submitted a TRIP request asking
DHS to remove the inadmissibility finding. Id. ¶ 43. DHS responded, stating that she would need
to apply for and obtain a visa in order to reenter the United States. ECF No. 1-3 (Pl. Ex. 4), at 81.
The agency neither confirmed nor denied that it had removed the inadmissibility finding. See id.;
ECF No. 1 ¶ 44.
Ms. Ranjan applied again for an H-1B visa in June 2023 and was again refused because
she had been deemed inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). ECF No. 1 ¶ 45. In
July 2023, she applied for an H-4 visa to join her husband in the United States, where he is
employed on an H-1B visa.4 Id. ¶¶ 47-49. She was refused, again, for the same reason: because
she has been deemed inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Id. ¶ 50.
4 An H-4 visa allows certain spouses of H-1B visa recipients to reside in the United States. See U.S. Citizenship & Immigr. Servs., Employment Authorization for Certain H-4 Dependent Spouses, https://perma.cc/3SUS-B8V6. 3 Because of these events, Ms. Ranjan lost her job and has been forcibly separated from her
husband and child (a U.S. citizen), who both live in the United States. See ECF No. 19, at 2.
Ms. Ranjan does not know which DHS officer or employee made the inadmissibility finding. ECF
No. 1 ¶ 7. She alleges that she “was never served with the requisite notice of the allegations of
fraud or material misrepresentation prior to this finding being made and she was never informed
once the finding was finally made.” Id.
II. Procedural History
Ms. Ranjan sues DHS and Secretary Mayorkas, arguing that the agency failed to provide
her appropriate process in making the 8 U.S.C. § 1182(a)(6)(C)(i) inadmissibility finding, as
required by the Immigration & Nationality Act (“INA”), Administrative Procedure Act (“APA”),
5. U.S.C. § 551, et seq., and the Due Process Clause of the Fifth Amendment. ECF No. 1. She
seeks declaratory and injunctive relief, asking the court to hold that DHS’s inadmissibility finding
(and its failure to adhere to required processes in making that finding) was arbitrary and capricious,
and to vacate it or set it aside. ECF No. 1, at 21-22 (Prayer for Relief). DHS moved to dismiss
for failure to state a claim. ECF No. 12.
Neither party briefed standing in its initial filings. In its motion to dismiss, DHS argued
that Ms. Ranjan’s suit was barred by consular nonreviewability, relying on the logic of Thatikonda
v. Department of Homeland Security, No. 21-CV-1564, 2022 WL 425013 (D.D.C. Feb. 11, 2022).
ECF No. 12, at 10, 12. Ms. Ranjan countered that consular nonreviewability was inapplicable.
ECF No. 13, at 16-21. Because “[t]his court, as a matter of constitutional duty, must assure itself
of its jurisdiction to act in every case,” the court ordered the parties to file supplemental briefs
explaining whether and on what basis Ms. Ranjan has standing. CTS Corp. v. E.P.A., 759 F.3d
52, 57 (D.C. Cir. 2014); see Thatikonda, 2022 WL 425013, at *3 n.5 (explaining that the court
4 must begin with standing before addressing consular nonreviewability, because standing is
jurisdictional and consular nonreviewability is not); Feb. 13, 2024 Minute Order. In her
supplemental brief, Ms. Ranjan argues that she has standing to challenge DHS’s inadmissibility
finding under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021). ECF No. 16, at 4-5. In DHS’s
response, the agency reverses course: rather than ask the court to adopt the logic of Thatikonda, as
it had in its motion to dismiss, DHS now contends that Thatikonda was incorrectly decided and
that Ms. Ranjan lacks standing to bring this suit. See ECF No. 18, at 5.
DHS’s motion to dismiss is now ripe for decision. The court considers all of the parties’
filings in rendering its decision. See ECF Nos. 1, 12, 13, 14, 16, 18, 19.
III. Legal Standards
Before proceeding to the merits, the court must assure itself of jurisdiction. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998). Because Article III of the Constitution
limits the jurisdiction of federal courts to “actual cases or controversies,” a plaintiff “must establish
that [she] [has] standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (first
quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006); then quoting Raines v. Byrd,
521 U.S. 811, 818 (1997)). To meet the constitutional requirements for standing, a plaintiff must
show: “(1) an ‘injury in fact’ that is ‘concrete and particularized’ as well as ‘actual or imminent’;
(2) a ‘causal connection’ between the injury and the challenged conduct; and (3) a likelihood, as
opposed to mere speculation, ‘that the injury will be redressed by a favorable decision.’” Ark
Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992)).
If the court has jurisdiction, it must rule on Defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), the court will dismiss a complaint
5 that does not “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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. In evaluating a motion to dismiss under Rule 12(b)(6), the court will accept the factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Id.
IV. Discussion
A. Standing
DHS disputes only the first element of standing: whether Ms. Ranjan has alleged an injury
in fact. See generally ECF No. 18. DHS offers two reasons why Ms. Ranjan has not experienced
an injury in fact. First, she has no “legally protected interest” at stake because she has no right to
enter the United States. Id. at 3 (quoting Lujan, 504 U.S. at 560). Second, her alleged injury is
not sufficiently concrete to confer standing because it does not share “a close relationship to harms
traditionally recognized as providing a basis for lawsuits in American courts.” See id. (quoting
TransUnion LLC, 594 U.S. at 425). The court addresses each argument in turn.
1. Legally protected interest
An injury in fact requires “an invasion of a legally protected interest.” Lujan, 504 U.S.
at 560. “Logically, a petitioner cannot challenge an action as an invasion of a legally protected
interest” if “the action is of no legal significance.” Weaver’s Cove Energy, LLC v. R.I. Dep’t of
Env’t Mgmt., 524 F.3d 1330, 1333 (D.C. Cir. 2008) (internal quotation marks omitted).
Ms. Ranjan argues that DHS has violated the procedural protections afforded by the INA, APA,
and the Fifth Amendment. See ECF No. 1 ¶¶ 59-128 (statutory claims); id. ¶ 74 (constitutional
claim). DHS counters that Ms. Ranjan has no legally protected interest because, as a noncitizen
located outside the United States, she has no underlying right to enter the country. See ECF No. 18,
6 at 3-4. The court first confronts this general argument and then addresses an additional obstacle
to Ms. Ranjan’s Fifth Amendment claim.
DHS is correct that “foreign nationals seeking admission have no constitutional right to
entry.” Trump v. Hawaii, 585 U.S. 667, 703 (2018); see Polyzopoulos v. Garland, No. 20-CV-804,
2021 WL 1405883, at *7 (D.D.C. Apr. 14, 2021). But “[a] right of entry . . . is not a prerequisite
to standing in the case of someone seeking entry to the United States.” Matushkina v. Nielsen, 877
F.3d 289, 293 (7th Cir. 2017); see Pourabdollah v. Blinken, No. 23-CV-1603, 2024 WL 474523,
at *4 (D.D.C. Feb. 7, 2024) (“[A] visa applicant’s lack of a constitutional right to entry does not
preclude Article III standing.”). In Matushkina, the Seventh Circuit addressed a similar challenge
by a noncitizen who was living outside the United States. 877 F.3d at 291-92. A U.S. Customs
and Border Protection officer had deemed Ms. Matushkina inadmissible under
Section 1182(a)(6)(C)(i) because she had failed to disclose that her daughter was working in the
United States in violation of her student visa. Id. at 291. Several years later, Ms. Matushkina
applied for a visa and was denied because of the earlier inadmissibility determination. Id. She
sued DHS challenging only the inadmissibility determination, not the visa denial. Id. The district
court dismissed for lack of standing, concluding—as DHS argues here—that “as an unadmitted
alien, [Ms.] Matushkina had no legally protected right to enter the United States.” Id. at 292. The
Seventh Circuit rejected that argument, holding that although Ms. Matushkina had no right to be
admitted to the United States, she had a legally cognizable “interest in her admissibility to the
United States, and the injury to that interest [wa]s apparent on the face of the complaint.” Id.
at 293 (emphasis added).
Other courts have come to similar conclusions elsewhere in immigration law. For example,
“‘los[ing] a significant opportunity to receive an immigrant visa’ . . . is itself a concrete injury,”
7 although immigration plaintiffs have no right to the visa itself. Patel v. U.S. Citizenship & Immigr.
Servs., 732 F.3d 633, 638 (6th Cir. 2013) (quoting Abboud v. INS, 140 F.3d 843, 847 (9th
Cir. 1998)); see Rossville Convenience & Gas, Inc. v. Garland, No. 20-CV-2218, 2021 WL
5865446, at *7 (D.D.C. Dec. 10, 2021) (same); Hsiao v. Scalia, 821 F. App’x 680, 683 (9th
Cir. 2020) (same); Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015) (same). And courts in
this district have routinely held that plaintiffs living outside the United States have standing to
challenge unreasonable delays in the adjudication of their visa applications. See, e.g., Iqbal v. U.S.
Dep’t of State, No. 23-CV-2350, 2024 WL 3534665, at *3 (D.D.C. July 25, 2024); Kahbasi v.
Blinken, No. 23-CV-1667, 2024 WL 3202222, at *3 (D.D.C. June 27, 2024); Ameer v. Schofer,
No. 23-CV-3066, 2024 WL 2831464, at *2-3 (D.D.C. June 4, 2024); Rashidian v. Garland,
No. 23-CV-1187, 2024 WL 1076810, at *4 (D.D.C. Mar. 8, 2024); Ahmadi v. Scharpf,
No. 23-CV-953, 2024 WL 551542, at *3 (D.D.C. Feb. 12, 2024); Khan v. Blome,
No. 22-CV-2422, 2022 WL 17262219, at *3 (D.D.C. Nov. 29, 2022). The plaintiffs in these cases
had no underlying right of entry, but they still had some legally protected interest in the
government’s adherence to required procedures. Given the weight of precedent, both in this
district and beyond, the court cannot agree with DHS that a noncitizen, non-resident plaintiff lacks
standing simply because she has no substantive right to enter the United States.
With regard to her Fifth Amendment due process claim, Ms. Ranjan must meet an
additional requirement to establish standing: she must show that the Fifth Amendment in fact
applies to her.5 “The Supreme Court has long held that non-resident aliens who have insufficient
contacts with the United States are not entitled to Fifth Amendment protections.” Jifry v. F.A.A.,
5 Although DHS does not address this requirement in its supplemental brief, see generally ECF No. 18, the court must satisfy itself that it has subject-matter jurisdiction to hear Ms. Ranjan’s constitutional claim, see CTS Corp., 759 F.3d at 57. 8 370 F.3d 1174, 1182 (D.C. Cir. 2004); see People’s Mojahedin Org. of Iran v. U.S. Dep’t of State,
182 F.3d 17, 22 (D.C. Cir. 1999) (holding that “[a] foreign entity without property or presence in
this country” lacks substantial connections and therefore has no constitutional rights). However,
“the Court has recognized that aliens may be accorded protections under the Constitution” where
they “have come within the territory of the United States and established ‘substantial connections’
with this country . . . or ‘accepted some societal obligations.’” Jifry, 370 F.3d at 1182-83 (quoting
United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 273 (1990)).
“The D.C. Circuit has no test to determine what degree of connection to the United States
counts as ‘substantial.’” Bazzi v. Gacki, 468 F. Supp. 3d 70, 77 (D.D.C. 2020); see Nat’l Council
of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 202 (D.C. Cir. 2001) (“[W]e are not
undertaking to determine, as a general matter, how ‘substantial’ an alien’s connections with this
country must be to merit the protections of the Due Process Clause or any other part of the
Constitution.”). In the absence of binding precedent, the court finds López Bello v. Smith, 651 F.
Supp. 3d 20 (D.D.C. 2022), aff’d sub nom. Bello v. Gacki, 94 F.4th 1067 (D.C. Cir. 2024),
instructive, because it presents similar facts. In López Bello, the plaintiff had lived in the United
States and held two visas allowing him to do so. Id. at 28. The plaintiff’s spouse lived in the
United States on a temporary visa, as did several of his children—two of whom were U.S. citizens.
Id. The court held that the plaintiff “ha[d] established the requisite ‘substantial connections’
necessary to assert constitutional claims”—including a Fifth Amendment due process claim. Id.
at 38.
Ms. Ranjan is similarly situated to the plaintiff in López Bello. She lived, studied, and
worked in the United States for more than six years on F-1 and H-1B visas; her husband lives and
works in the United States on an H-1B visa; and her child, who is a U.S. citizen, also lives in the
9 United States. See ECF No. 1 ¶¶ 20, 23-38; ECF No. 19, at 2. In short: Ms. Ranjan has built a life
in the United States, ECF No. 19, at 2, and, like the plaintiff in López Bello, she has established
“substantial connections” with the United States. She is therefore protected by the Fifth
Amendment’s due process clause.
2. Concrete harm
To establish an injury in fact, Ms. Ranjan must also allege a concrete injury—a harm that
is “real, and not abstract.” TransUnion LLC, 594 U.S. at 424 (quoting Spokeo, Inc. v. Robins, 578
U.S. 330, 340 (2016)); see WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013)
(“A procedural injury claim . . . must be tethered to some concrete interest adversely affected by
the procedural deprivation.”). “[T]raditional tangible harms,” like physical injury or monetary
harm, “readily qualify as concrete injuries”—but “intangible harms can also be concrete.”
TransUnion, 594 U.S. at 425. To determine whether an alleged injury is sufficiently concrete to
confer standing, the court “asks whether plaintiffs have identified a close historical or common-law
analogue for their asserted injury.” Id. at 424.
Immigration plaintiffs often ground their claims in traditional harms that are obviously
concrete: lost professional opportunities, forced separation from family members, and difficulty
accessing medical care. See, e.g., Iqbal, 2024 WL 3534665, at *3; Kahbasi, 2024 WL 3202222,
at *3; Rashidian, 2024 WL 1076810, at *4. But Ms. Ranjan advances a different argument. She
posits that, much like the plaintiffs who won the day in TransUnion, she was injured by
Defendants’ dissemination of allegedly inaccurate information—an injury that bears a close
relationship to the common-law tort of defamation. See ECF No. 16, at 5.
To understand this argument, it is useful to begin with the Supreme Court’s decision in
TransUnion. The plaintiff class sued TransUnion, a credit reporting agency, arguing that it had
“failed to use reasonable procedures to ensure the accuracy of their credit files.” 594 U.S. at 417. 10 For about 1,800 class members, TransUnion had disseminated misleading credit reports to
businesses, “label[ing] the class members as potential terrorists, drug traffickers, or serious
criminals.” Id. at 432. The Court analogized that injury to the tort of defamation: “[u]nder
longstanding American law, a person is injured when a defamatory statement ‘that would subject
him to hatred, contempt, or ridicule’ is published to a third party.” Id. (quoting Milkovich v. Lorain
J. Co., 497 U.S. 1, 13 (1990)). Because those class members had “suffered a harm with a ‘close
relationship’ to the harm associated with the tort of defamation,” the Court had “no trouble
concluding” that they had experienced a concrete harm sufficient to confer standing. Id. The
Court clarified, however, that “[t]he mere presence of an inaccuracy in an internal credit file, if it
is not disclosed to a third party, causes no concrete harm.” Id. at 434. Thus, the Court held that
the roughly 6,000 class members whose inaccurate reports had never been disseminated could not
satisfy the concrete-harm requirement. Id. at 434-35.
Like those 1,800 or so TransUnion plaintiffs who had standing, Ms. Ranjan has alleged an
injury that shares a “close relationship” with defamation. She claims that DHS failed to comply
with required procedures in making its Section 1182(a)(6)(C)(i) inadmissibility determination.
See ECF No. 1 ¶¶ 63-73, 92-108; TransUnion, 594 U.S. at 429 (“[P]laintiffs argue that TransUnion
failed to comply with statutory obligations . . . to follow reasonable procedures to ensure the
accuracy of credit files.”). She further claims that DHS “published that finding in a database” to
“a third-party government agency and officers”—namely, consular officers.6 ECF No. 16, at 1, 3;
6 Ms. Ranjan does not expressly allege in her complaint that DHS published its inadmissibility finding to other agencies and their officers. See generally ECF No. 1. However, the court can reasonably infer (as it must at the motion-to-dismiss stage, see Iqbal, 556 U.S. at 678) that such publication occurred. Ms. Ranjan alleges that DHS made the inadmissibility finding, see generally ECF No. 1, and that a consular officer later denied her a visa because of that inadmissibility finding, see id. ¶ 4. It stands to reason that the consular officer could not have relied on DHS’s finding had DHS not disseminated it. 11 see TransUnion, 594 U.S. at 433 (“[C]lass members whose reports were disseminated to third
parties suffered a concrete injury in fact.”). Being improperly labeled as an individual who lied to
or defrauded the government to procure a visa “bears a sufficiently close relationship to the harm
from a false and defamatory statement.” Id. at 433; see Ahmed v. Kable, No. 21-CV-3333, 2023
WL 6215024, at *11 (D.D.C. Sept. 25, 2023) (concluding that the plaintiff’s alleged inclusion on
a terrorism watchlist was “constitutionally concrete because it ‘bears a sufficiently close
relationship to the harm from a false and defamatory statement.’” (quoting TransUnion, 594 U.S.
at 433)). Ms. Ranjan is thus differently situated from the plaintiff in Thatikonda, who grounded
her standing argument in traditional concrete interests like the risk of losing her job and “ma[de]
no effort to tie [her] alleged procedural injury to any other past or future concrete injury.” 2022
WL 425013, at *5 n.6. Ms. Ranjan has based her alleged procedural injury on a constitutionally
concrete harm that is distinct from the general harms stemming from a visa denial: the
defamation-like injury wrought when “Defendants published [an] unlawfully entered
inadmissibility finding to a third-party government agency and officers.”7 ECF No. 16, at 3.
Because Ms. Ranjan has alleged both a legally protected interest and a concrete harm, she
has alleged an injury in fact sufficient for Article III standing. See Ark Initiative, 749 F.3d at 1075.
B. Consular Nonreviewability
Having established that Ms. Ranjan has standing to challenge DHS’s inadmissibility
finding, the court next considers Defendants’ motion to dismiss her complaint as barred by
consular nonreviewability. ECF No. 12. “The doctrine of consular nonreviewability prevents a
federal court from second-guessing a United States consular officer’s decision to issue or withhold
7 Notably, Defendants raise no challenge to this argument. They discuss the concrete-harm requirement only in passing and do not even mention Ms. Ranjan’s TransUnion analogy. See ECF No. 18, at 9-11. The court can only assume that Defendants chose to forfeit any counterargument. 12 a visa.” Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1023 (D.C. Cir. 2021). In its motion to
dismiss, DHS argues that consular nonreviewability bars this suit because “[Ms.] Ranjan’s
challenge to DHS’s purported finding cannot be divorced from her attack on the consular officer’s
decision to deny her visa.” ECF No. 12, at 11 (citing Thatikonda, 2022 WL 425013, at *6-7). But,
as discussed above, that is not the case: Ms. Ranjan has alleged a legal injury that exists regardless
of any past or future visa denial—an injury linked to DHS’s dissemination of its (allegedly
unlawful) inadmissibility finding.
Consider the following hypothetical: on Monday, John Smith defames Jane Doe on a
television show. Jane does not watch the show and is unaware of John’s statement. On Tuesday,
Jane goes to a job interview and is denied the job because her prospective employer heard John’s
defamatory statement. Jane sues John. Had Jane missed the job interview, would she still have
been injured by John? Of course. The Tuesday job interview happened to be the forum in which
Jane learned of the defamation—and the lost job opportunity may go to Jane’s damages—but Jane
was still injured on Monday when John “published” his defamatory statement to a third party. The
publication of the defamatory statement, not the job denial, is the injury; John, not the prospective
employer, is the tortfeasor.
The same is true for Ms. Ranjan. Her interview with the consular officer happened to be
the forum in which she first learned about DHS’s inadmissibility determination, see ECF No. 1
¶ 4, but that is of no moment. The dissemination of the inadmissibility finding, not the visa denial,
is the alleged injury; DHS, not the State Department, has (allegedly) acted unlawfully. Because
Ms. Ranjan’s injury exists independent of any visa denial, her suit cannot be written off as a
“collateral attack,” ECF No. 12, at 6, on a consular officer’s decision.
13 For this reason, Ms. Ranjan’s case is distinguishable from Thatikonda and Matushkina,
where the plaintiffs challenging Section 1182(a)(6)(C)(i) inadmissibility determinations had
standing but could not overcome consular nonreviewability. As discussed above, the plaintiff in
Thatikonda alleged traditional concrete injuries like the risk of losing her job but “ma[de] no effort
to tie [her] alleged procedural injury to any other past or future concrete injury.” 2022 WL 425013,
at *5 n.6. Similarly, the Matushkina court seemed to assume that the plaintiff had a concrete injury
either because she had been denied a visa or because the inadmissibility finding created an obstacle
to her receiving a visa in the future. Compare 877 F.3d at 295 (“[The plaintiff] challenges the
inadmissibility determination that is the basis for the unfavorable visa decision (which in turn
provides standing). We conclude that this indirect attack on the visa denial cannot succeed.”), with
id. (explaining that the plaintiff’s requested relief would “would remove an obstacle for her visa
application, which is why she has standing to assert her claim”). Neither plaintiff clearly alleged
a distinct injury that inheres in the dissemination of the inadmissibility finding itself, analogous to
defamation. Instead, they alleged injuries limited to or entangled with their visa denials—and the
Thatikonda and Matushkina courts therefore saw their suits as indirect challenges to those visa
denials, which are barred by consular nonreviewability. See Thatikonda, 2022 WL 425013, at *6;
Matushkina, 877 F.3d at 295. Because Ms. Ranjan’s concrete injury exists independent of any
visa denial, Thatikonda and Matushkina are inapposite.
The question, therefore, is a narrower one: does the doctrine of consular nonreviewability
shield DHS’s decision to enter a Section 1182(a)(6)(C)(i) inadmissibility finding? DHS has
offered nothing to suggest that the inadmissibility finding was made by a consular officer—and
there is therefore no reason to believe that consular nonreviewability attaches. See Gill v.
Mayorkas, No. 20-CV-939, 2021 WL 3367246, at *8 (W.D. Wash. Aug. 3, 2021) (distinguishing
14 immigration officers from consular officers and holding that an inadmissibility determination
made by an immigration officer is not protected by consular nonreviewability); ECF No. 1 ¶ 7
(explaining that Ms. Ranjan does not know which DHS officer or employee made the
inadmissibility finding, and DHS has proffered no information on this point); see generally ECF
Nos. 12, 14, 18.
Of course, Ms. Ranjan’s claim could well be nonreviewable for another reason. See Dep’t
of State v. Munoz, 144 S. Ct. 1812, 1820 (2024) (“Congress may delegate to executive officials
the discretionary authority to admit noncitizens ‘immune from judicial inquiry or interference.’”
(quoting Harisiades v. Shaughnessy, 342 U.S. 580, 588-91 (1952))); see, e.g., Doshi v. Blinken,
No. 23-CV-3613, 2024 WL 3509486, at *4-6 (D.D.C. July 22, 2024) (holding that the State
Department’s designation of the plaintiff as inadmissible under Section 7031(c), codified in a
statutory note to 8 U.S.C. § 1182, was nonreviewable). For example, if Ms. Ranjan had sought a
waiver of her inadmissibility finding from the Attorney General pursuant to 8 U.S.C. § 1182(i)(1),
and the Attorney General had denied relief, that decision would not be reviewable. See 8 U.S.C.
§ 1182(i)(2). But the court cannot even begin to determine whether nonreviewability attaches,
because it does not know who made the inadmissibility determination and whether that decision
was discretionary. See ECF No. 1 ¶ 7; Gill, 2021 WL 3367246, at *8 (“[A] nondiscretionary
decision . . . is not entitled to protection from judicial review.”). And regardless, DHS has failed
to raise any theory of nonreviewability distinct from the consular nonreviewability afforded to
consular officers. See ECF No. 12. For these reasons, the court must deny Defendants’ motion to
dismiss on the ground of consular nonreviewability. If DHS believes that Ms. Ranjan’s
15 inadmissibility finding is nonreviewable for another reason, it may raise that argument in a
subsequent motion.8
V. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 12, is hereby
DENIED. Defendants shall file an answer to Plaintiff’s complaint on or before August 29, 2024.
SO ORDERED.
/s/ Loren L. AliKhan LOREN L. ALIKHAN United States District Judge
Date: August 15, 2024
8 Because nonreviewability goes to the merits of the case rather than to the court’s jurisdiction to hear the case, the court is not required to resolve the question today. See Munoz, 144 S. Ct. at 1820 n.4 (explaining that “the doctrine of consular nonreviewability is not jurisdictional”); Baan Rao Thai Rest., 985 F.3d at 1028‐29 (same); Doshi, 2024 WL 3509486, at *3 (resolving question of reviewability pursuant to Rule 12(b)(6), rather than Rule 12(b)(1)). 16