Rohani v. Blinken

• Court: District Court, W.D. Washington
• Decided: May 27, 2025
• Docket: 2:24-cv-00389
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 MINA ROHANI et al., CASE NO. 2:24-cv-00389-LK 11 Plaintiffs, ORDER GRANTING MOTION TO 12 v. DISMISS 13 MARCO RUBIO et al., 14 Defendants.1 15

16 This matter comes before the Court on Defendants’ Second Motion to Dismiss. Dkt. No. 17 46. Plaintiffs seek review of the denial of applications for visas and entry into the United States. 18 Defendants contend that Plaintiffs’ claims are precluded by the doctrine of consular 19 nonreviewability and other threshold legal grounds. Id. at 10. For the reasons set forth below, the 20 Court grants the motion.2 21

1 Pursuant to Federal Rule of Civil Procedure 25(d), Marco Rubio is automatically substituted in his official capacity 22 as United States Secretary of State for former Secretary Antony Blinken. Pamela Bondi is also substituted in her official capacity as Attorney General for former Attorney General Merrick Garland, and Kristi Noem is substituted in 23 her official capacity as Secretary of the Department of Homeland Security for former Secretary Alejandro Mayorkas. 2 Because the Court can decide the matter based on the parties’ submissions, it denies their requests for oral argument. 24 Dkt. No. 46 at 1; Dkt. No. 48 at 1. 1 I. BACKGROUND 2 Plaintiffs are a group of noncitizens who were denied visas or entry into the United States 3 and their relatives. Plaintiffs can be categorized into three groups: (1) individuals who sought entry 4 to the United States from Canada (the “Canadian Applicants”), (2) individuals who sought a visa

5 to enter the United States (the “Visa Applicants”), and (3) relatives of the Visa Applicants (the 6 “Relatives”). Dkt. No. 22 at 6–7. 7 All of the Visa Applicants and the Canadian Applicants served in the Islamic Revolutionary 8 Guard Corps (“IRGC”) before it was designated a Tier I foreign terrorist organization in April 9 2019. Id. All of the Visa Applicants were denied a visa by consular officials based on a finding 10 that they were inadmissible based on terrorism-related inadmissibility grounds (“TRIG”) pursuant 11 to 8 U.S.C. § 1182(a)(3)(B). Id. The Canadian Applicants are citizens of, and reside in, Canada. 12 Id. at 7. All Canadian Applicants except one were denied entry into the United States by Customs 13 and Border Patrol (“CBP”) officers under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for lack of an immigrant 14 visa, after “questioning that was focused on Plaintiffs’ previous IRGC civil service.” Id. at 2. One

15 Canadian Applicant was not provided a reason why the officer found him inadmissible after asking 16 about the “details of [his] daily tasks during [his] time serving in the IRGC.” Dkt. No. 40 at 3; Dkt. 17 No. 22-5 at 38. 18 A. Visa Application and Entry Processes 19 Foreign nationals seeking a visa or entry to the United States carry the burden of 20 establishing eligibility for such visa or entry and of establishing their admissibility to the United 21 States. 8 U.S.C. § 1361. 22 1. Visa Applicants 23 “To be admitted to the United States and reside here permanently, a noncitizen needs a

24 statutorily provided basis, such as an immigrant visa.” Dkt. No. 46 at 14 (citing 8 U.S.C. 1 §§ 1181(a), 1182(a)(7), 1184(a)). For family-based immigrant visas, a U.S. citizen or lawful 2 permanent resident must file a Form I-130, Petition for Alien Relative, with U.S. Citizenship and 3 Immigration Services (“USCIS”) on behalf of the noncitizen, requesting to classify them either as 4 an immediate relative or other family-preference category. See 8 U.S.C. § 1154(a)(1); 8 C.F.R.

5 § 204.2. If approved, the petition is forwarded to the Department of State. 8 U.S.C. § 1154(b). 6 Next, the noncitizen must appear before a consular officer for an interview, 8 U.S.C. §§ 1202(a), 7 (e); 22 C.F.R. §§ 42.62(a), (b), and provide certain background records including “a certified copy 8 of any existing . . . military record,” and “a certified copy of all other records or documents 9 concerning him or his case which may be required by the consular officer,” 8 U.S.C. § 1202(b). 10 At the conclusion of the visa interview, “the consular officer must issue the visa” or “refuse the 11 visa.” 22 C.F.R. § 42.81(a). Consular officers have been delegated the sole authority to issue visas. 12 8 U.S.C. §§ 1101(a)(9), (a)(16); 1104(a); 1201(a)(1); 22 C.F.R. §§ 42.71, 42.81. “No visa . . . shall 13 be issued” if it “appears to the consular officer” that the applicant is inadmissible to the United 14 States or the consular officer “knows or has reason to believe” the applicant is inadmissible. 8

15 U.S.C. § 1201(g). Likewise, “no visa . . . shall be issued” if an applicant “fails to establish to the 16 satisfaction of the consular officer that he is eligible to receive a visa.” Id. § 1361; see also id. 17 § 1201(a)(1) (providing that a consular officer “may” issue a visa to a qualifying applicant). 18 2. Applicants at a Port of Entry 19 A noncitizen arriving at a border port of entry is considered an applicant for admission. 20 8 U.S.C. § 1225(a)(1). Having a visa does not grant a right of entry. 8 U.S.C. § 1201(h). 21 Immigration officers are responsible for determining whether an applicant for admission is 22 admissible. 8 U.S.C. § 1225(a)(3). 23 The INA contains provisions for what is known as “expedited removal,” which permits an

24 immigration officer to order the removal of certain noncitizens: 1 If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the 2 officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a 3 fear of persecution.

4 8 U.S.C. § 1225(b)(1)(A)(i). The two grounds for inadmissibility referenced in this provision are 5 for fraud or misrepresentation in seeking admission, 8 U.S.C. § 1182(a)(6)(C), and lack of a valid 6 entry document, 8 U.S.C. § 1182(a). 7 Thus, if an immigration officer determines a noncitizen is inadmissible for either of the 8 two reasons listed—fraud or misrepresentation or lack of a valid entry document—the officer 9 orders the noncitizen removed unless the noncitizen expresses a fear of persecution or an intent to 10 apply for asylum. However, an immigration officer also has discretion to permit a noncitizen to 11 withdraw their application for admission at any time. A noncitizen applying for admission “may, 12 in the discretion of the Attorney General and at any time, be permitted to withdraw the application 13 for admission and depart immediately from the United States.” 8 U.S.C. § 1225(a)(4). If a 14 noncitizen withdraws their application for admission, it is “in lieu of removal proceedings . . . or 15 expedited removal.” 8 C.F.R. § 235.4. 16 3. Individuals Suspected of Terrorist Activities 17 Noncitizens who have engaged in terrorist activities or who have certain associations with 18 terrorist organizations are ineligible for visas or admission to the United States. See generally 19 8 U.S.C. § 1182(a)(3)(B). A “terrorist organization” is defined as an organization: 20 (I) designated under [8 U.S.C. § 1189]; 21 (II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the 22 Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of 23 clause (iv); or 24 (III) that is a group of two or more individuals, whether organized or not, which 1 engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv) [i.e., terrorism-related activities]. 2 Id. § 1182(a)(3)(B)(vi). The first two categories are designated as Foreign Terrorist Organizations 3 (“FTO”) and sometimes referred to as Tier I and Tier II terrorist organizations. Dkt. No. 46 at 16. 4 Organizations described in the third category are referred to as Tier III terrorist organizations. Id. 5 While Tier I and Tier II terrorist organizations are formally designated, “consular officers 6 determine on a case-by-case basis whether a group meets the definition of an undesignated or Tier 7 III terrorist organization.” Id. (citing 8 U.S.C. § 1182(a)(3)(B)(vi)(III)); see also Terrorism- 8 Related Inadmissibility Grounds (TRIG), available at https://www.uscis.gov/laws-and- 9 policy/other-resources/terrorism-related-inadmissibility-grounds-trig (“the determination of 10 whether a group can be considered a Tier III organization is made on a case-by-case basis, in 11 connection with the review of an application for an immigration benefit. Tier III organizations 12 arise and change over time” (last visited May 19, 2025)). 13 On April 15, 2019, the Secretary of State designated the IRGC—a branch of the Iranian 14 military—as an FTO under 8 U.S.C. § 1189, making it a Tier I foreign terrorist organization from 15 that point forward. Dkt. No. 46 at 17; see also In re Designation of the IRGC (and other Aliases) 16 as a Foreign Terrorist Organization, 84 Fed. Reg. 15278 (Apr. 15, 2019). As a result, individuals 17 who served in the IRGC after its designation as a Tier I FTO in April 2019 are generally 18 inadmissible to the United States under 8 U.S.C. § 1182(a)(3)(B). Dkt. No. 46 at 17. “For 19 individuals who served in the IRGC prior to April 2019, noncitizens are generally inadmissible if 20 a consular officer determines that the IRGC was a Tier III terrorist organization at the time of the 21 applicant’s service.” Id. 22 The Immigration and Nationality Act (“INA”) typically requires immigration and consular 23 officers to list “the specific provision or provisions of law under which the alien is inadmissible[.]” 24 1 8 U.S.C. § 1182(b)(1). However, when they deem an individual inadmissible under TRIG, that 2 obligation “does not apply[.]” Id. § 1182(b)(3). 3 B. Plaintiffs File Suit 4 Plaintiffs filed this action on March 21, 2024, Dkt. No. 1, and after Defendants filed a

5 motion to dismiss for failure to state claim, Plaintiffs filed an amended complaint, Dkt. No. 22. 6 Plaintiffs have named as Defendants the Secretaries of State and the Department of Homeland 7 Security, the Attorney General, the Assistant Secretary of the Bureau of Diplomatic Security, and 8 the Senior Official Performing the Duties of the Commissioner for CBP, all in their official 9 capacities. Id. at 7–8. 10 The Visa Applicants include eight individuals who reside in Iran, Germany, or Canada. Id. 11 at 6–7, 26. The Relatives are family members of the Visa Applicants and include five U.S. citizens 12 (Mina Rohani, Fatemeh Keneshlou, Zahra Hadizadeh Kheirkhan, Fereshteh Farhi, and Ida Naziri), 13 two lawful permanent residents (Masomeh Torabi and Gohar Eslami), and three individuals who 14 are neither U.S. citizens nor lawful permanent residents (Naghmeh Eshghi, Maryam Shamloo, and

15 Parsa Jahanlou). Id. All of the Relatives live in the United States. Id. at 6. 16 In addition, there are seven Canadian Applicant Plaintiffs. Id. at 7. Plaintiff Sobhi is the 17 only Canadian Applicant who has an accompanying Relative Plaintiff, and the only one who is 18 both a Visa Applicant and a Canadian Applicant. Id. at 7, 26–27. In addition, he was the only 19 Canadian Applicant who did not withdraw his application for admission and was removed in 20 expedited removal proceedings. Dkt. No. 46 at 12 n.2; see also Dkt. No. 22-5 at 15. 21 The amended complaint generally alleges that Defendants have implemented “an unlawful 22 policy of blanket denials of visas or entry to the United States to IRGC conscripts, regardless of 23 when they served, and without eliciting the details of their service or any evidence of their

24 knowledge or intent.” Dkt. No. 22 at 11. Based on that overarching theory, the amended complaint 1 includes four counts. First, Plaintiffs allege that Defendants have violated the Accardi doctrine, 2 which requires agencies to follow their own procedures. Id. at 35–36; see also United States ex 3 rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Specifically, they contend that under 22 C.F.R. 4 § 42.81(a), a visa denial “must be in conformance with the provisions of 22 C.F.R. § 40.6,” which

5 provides that a visa can only “be refused upon a ground specifically set out in the law or 6 implementing regulations.” Dkt No. 22 at 36. This “require[s] a determination based upon facts or 7 circumstances which would lead a reasonable person to conclude that the applicant is ineligible to 8 receive a visa as provided in the INA and as implemented by the regulations.” 22 C.F.R. § 40.6. 9 Plaintiffs contend that Defendants violated these regulations and the INA itself by relying on a 10 blanket policy rather than “requiring case-by-case consideration” and providing applicants “the 11 opportunity to sustain an evidentiary burden[.]” Dkt No. 22 at 36. Plaintiffs also allege that under 12 8 C.F.R. § 235.4, when CBP officers use their discretion to allow an applicant to withdraw their 13 application for admission, “[t]he alien’s decision to withdraw his or her application for admission 14 must be made voluntarily,” but the Canadian Applicants did not voluntarily withdraw their

15 applications for admission, id. at 37–38. Instead, they claim that they were coerced into 16 withdrawing their applications. Id. 17 Second, Plaintiffs allege violations of their First and Fifth Amendment rights. Id. at 38. 18 They contend that “Plaintiff Dr. Eshghi’s First Amendment right to practice her Christian faith is 19 implicated by the denial of her husband’s visa, and Plaintiff Dr. Ahmad’s First Amendment right 20 to freedom of speech is implicated by the denial of his entry to the United States to teach and 21 present at conferences[.]” Id. at 38. They argue that these allegations are sufficient to avoid 22 dismissal under the doctrine of consular nonreviewability and require Defendants to provide 23 facially legitimate and bona fide reasons for the denials. Id. Plaintiffs further argue that Defendants

24 acted in bad faith by violating statutory requirements. Id. at 39. Finally, they argue that Defendants 1 violated their substantive and procedural due process rights by instituting a blanket policy instead 2 of case-by-case review. Id. 3 Third, Plaintiffs bring a claim under the Administrative Procedure Act (“APA”), alleging 4 that “Defendants’ policy of issuing blanket denials to all IRGC conscripts violates the APA”

5 because it is arbitrary and capricious, otherwise not in accordance with the law, or conducted 6 without observance of procedure required by law. Id. at 40. Plaintiffs further allege that 7 “Defendants’ policy is to violate the inadmissibility statute, which requires consular officers to 8 give Plaintiffs’ a genuine opportunity to present clear and convincing evidence they lacked 9 knowledge or intent that the Tier III organization to which they belonged or supported was a 10 terrorist organization.” Id. at 41. They also contend that Defendants denied Plaintiffs “their 11 statutorily-guaranteed opportunity to present evidence and cannot have done so as to multiple 12 named plaintiffs” who were interviewed before the IRGC was designated as a Tier I terrorist 13 organization. Id. at 41–42. As for the Canadian Applicants, Plaintiffs allege that “Defendants are 14 circumventing the review processes established by Congress . . . for applicants believed to be

15 inadmissible under security-related grounds by denying them instead for lack of valid 16 documentation,” which constitutes “federal agency action conducted ‘without observance of 17 procedure required by law[.]’” Id. at 42 (quoting 5 U.S.C. § 706(2)(D)). 18 Fourth, Plaintiffs seek a writ of mandamus, contending that “Defendants have a clear, non- 19 discretionary, purely ministerial duty to adjudicate visa applications in accordance with binding 20 law and in good faith” but they “have failed to do so with respect to IRGC conscripts[.]” Id. They 21 seek “a writ of mandamus under 28 U.S.C. § 1361 ordering Defendants to follow the statutory 22 requirements for determining the admissibility of IRGC conscripts and adjudicate such applicants’ 23 visa applications in good faith because there are no other adequate remedies available to

24 Plaintiffs.” Id. at 42–43. 1 II. DISCUSSION 2 Defendants argue that the Visa Applicants and Relatives’ non-constitutional claims and 3 Plaintiffs’ constitutional claims related to visa applications must be dismissed under the doctrine 4 of consular nonreviewability. Dkt. No. 46 at 18, 25. They also contend that dismissal of the

5 constitutional claims of all the non-resident, non-citizen Plaintiffs is warranted because 6 “[n]onresident noncitizens have no constitutionally protected interests because they have no right 7 of entry.” Id. at 24. In the same vein, Defendants assert that the non-spouse Relatives have “no 8 recognized constitutionally protected due process interest in their family members’ visa denials.” 9 Id. As for the Canadian Applicants, Defendants argue that Plaintiffs lack standing because the 10 injuries they allege are not redressable by any named Defendant, and that Canadian Applicants 11 have failed to state a claim “because their factual allegations do not violate any law and because 12 the supporting documents they submit contradict their allegations.” Id. at 11, 31, 33–34. And 13 finally, Defendants aver that Section 1252(a)(2)(A) strips the Court of jurisdiction to review 14 Plaintiff Sobhi’s removal under 8 U.S.C. § 1225(b)(1). Id. at 30. Plaintiffs oppose the motion to

15 dismiss. Dkt. No. 48.3 16 A. Venue 17 Defendants argue that the Court should dismiss this case for improper venue because 18 “Defendants are governmental agencies in the District of Columbia,” consular officers are located 19 abroad, and “CBP officers at various ports of entry in the United States denied entry to the 20 Canadian Applicants.” Dkt. No. 46 at 35. Defendants further argue that venue is improper because 21 “there is no Plaintiff involved in this matter who has stated a claim for relief.” Id. at 36. Plaintiffs 22 3 Roughly three weeks after Defendants filed their reply brief, Plaintiffs filed a notice of supplemental authority to 23 draw the Court’s attention to a 2004 case. Dkt. No. 57. In so doing, Plaintiffs violated Local Civil Rule 7(n), which permits such notices in the event that “relevant authority” is “issued after the date the party’s last brief was filed[.]” 24 (Emphasis added.) The Court STRIKES the notice as an improper surreply, LCR 7(g), and cautions Plaintiffs that future violations of the Local Civil Rules may result in sanctions. 1 respond that Defendants have confused venue with the merits, “Plaintiffs Mina Rohani and 2 Masoumeh Torabi reside in this judicial district,” and “a substantial part of the events or omissions 3 giving rise to the claims occurred at the U.S. ports of entry in Blaine, Washington, where Plaintiffs 4 Amir Abbas Davafara, Michael Wise, and Mohammadjafar Safaie were refused entry into the

5 United States[.]” Dkt. No. 48 at 25. 6 A defendant may move to dismiss a suit for improper venue under Federal Rule of Civil 7 Procedure 12(b)(3). When venue is challenged, the plaintiff bears the burden of showing that venue 8 is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). 9 “Courts may consider facts outside the pleadings and need not accept the pleadings as true, but all 10 reasonable inferences and factual conflicts must be resolved in the nonmoving party’s favor.” 11 Kantharia v. USCIS, 672 F. Supp. 3d 1030, 1032 (C.D. Cal. 2023). Where, as here, plaintiffs sue 12 a U.S. agency or officers or employees of the United States acting in their official capacities, the 13 action may “be brought in any judicial district in which (A) a defendant in the action resides, (B) a 14 substantial part of the events or omissions giving rise to the claim occurred, . . . or (C) the plaintiff

15 resides if no real property is involved in the action.” 28 U.S.C. 1391(e). “Whether venue is ‘wrong’ 16 or ‘improper’ depends exclusively on whether the court in which the case was brought satisfies 17 the requirements of federal venue laws.” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of 18 Tex., 571 U.S. 49, 55 (2013). 19 The Court finds that venue is proper because two of the Plaintiffs reside in this district. 20 Dkt. No. 22 at 6, 8–9; 28 U.S.C. § 1391(e); cf. Zhang v. DeHart, No. C24-0064-KKE, 2024 WL 21 3027739, at *2 (W.D. Wash. June 17, 2024) (finding venue improper where the only plaintiff was 22 a Canadian resident and his U.S. resident wife was not a plaintiff). Although there are numerous 23 Plaintiffs, “the clear weight of federal authority holds that venue is proper in a multi-plaintiff case

24 if any plaintiff resides in the District.” Californians for Renewable Energy v. EPA, No. 15-3292- 1 SBA, 2018 WL 1586211, at *5 (N.D. Cal. Mar. 30, 2018) (reviewing cases). In addition, a 2 substantial part of the events or omissions giving rise to the claims occurred at the U.S. port of 3 entry in Blaine, Washington, where Plaintiffs Amir Abbas Davafara, Michael Wise, and 4 Mohammadjafar Safaie were refused entry into the United States. Dkt. No. 22 at 8. The Court

5 therefore denies Defendants’ request to dismiss for improper venue. 6 B. Legal Standard 7 Rule 12(b)(6) provides for dismissal when a complaint “fail[s] to state a claim upon which 8 relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under this standard, the Court construes the 9 complaint in the light most favorable to the nonmoving party, Livid Holdings Ltd. v. Salomon 10 Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005), and asks whether the complaint contains 11 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 13 570 (2007)). The Court need not, however, accept as true legal conclusions or “formulaic 14 recitations of the elements of a cause of action.” Chavez v. United States, 683 F.3d 1102, 1108

15 (9th Cir. 2012) (cleaned up). “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. 18 “Federal courts are courts of limited jurisdiction” and “possess only that power authorized 19 by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 20 (1994). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must 21 dismiss the action.” Fed. R. Civ. P. 12(h)(3). A challenge to subject matter jurisdiction under Rule 22 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 23 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are

24 insufficient on their face to invoke federal jurisdiction,” whereas “in a factual attack, the challenger 1 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 2 jurisdiction.” Id. District courts resolve facial attacks as they do motions to dismiss under Rule 3 12(b)(6): “[a]ccepting the plaintiff’s allegations as true and drawing all reasonable inferences in 4 the plaintiff’s favor,” and then determining whether they are legally sufficient to invoke

5 jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). With a factual attack, on the 6 other hand, “[t]he plaintiff bears the burden of proving by a preponderance of the evidence that 7 each of the requirements for subject-matter jurisdiction has been met.” Id. In evaluating a factual 8 attack, courts may look to evidence beyond the complaint without converting the motion to dismiss 9 into one for summary judgment. Safe Air for Everyone, 373 F.3d at 1039. 10 C. The Visa Applicants’ Non-Constitutional Claims 11 Defendants argue that the doctrine of consular nonreviewability compels dismissal of the 12 Visa Applicants and Relatives’ non-constitutional claims (counts one, three, and four). Dkt. No. 13 46 at 18. They contend that the doctrine precludes the Court from reviewing decisions to deny 14 visas to noncitizens abroad, and consequently they request that the Court dismiss Plaintiffs’ claims

15 under the Accardi doctrine, the APA, and the mandamus statute for failure to state a claim. Id. at 16 19. Plaintiffs respond that although “Congress may delegate to executive officials the discretionary 17 authority to admit noncitizens immune from judicial inquiry or interference,” it has not done so 18 here. Dkt. No. 48 at 7 (quoting Dep’t of State v. Muñoz, 602 U.S. 899, 907 (2024)). Instead, they 19 argue, neither the doctrine of consular nonreviewability nor its plenary power corollary apply 20 where, as here, an executive branch policy violates a valid act of Congress. Id. 21 Assertions of consular nonreviewability are reviewed under Federal Rule of Civil 22 Procedure 12(b)(6) as a failure to state a claim for which relief can be granted rather than under 23 Rule 12(b)(1) for lack of subject matter jurisdiction. Muñoz, 602 U.S. at 908 n.4 (“[T]he doctrine

24 of consular nonreviewability is not jurisdictional.”). Under the doctrine of consular 1 nonreviewability, courts “have long recognized that ordinarily, a consular official’s decision to 2 deny a visa to a foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104 3 (9th Cir. 2018) (quotation marks omitted); see also Khachatryan v. Blinken, 4 F.4th 841, 849 (9th 4 Cir. 2021); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (explaining that

5 consular nonreviewability is the general rule that decisions “to issue or withhold a visa” are not 6 reviewable in court “unless Congress says otherwise”). The doctrine “is based on the recognition 7 that the power to exclude or expel aliens, as a matter affecting international relations and national 8 security, is vested in the Executive and Legislative branches of government.” Allen, 896 F.3d at 9 1104 (cleaned up). 10 Section 1201(g) of Title 8 provides that no visa shall be issued if “the consular officer 11 knows or has reason to believe that [the applicant] is ineligible to receive a visa or such other 12 documentation under section 1182 of this title, or any other provision of law.” Congress has also 13 delegated to executive officials the ability to exclude noncitizens on terrorism related grounds. See 14 8 U.S.C. § 1182(a)(3)(B). Accordingly, “[t]he APA provides no avenue for review of a consular

15 officer’s adjudication of a visa on the merits,” even when the plaintiff claims legal error. Allen, 16 896 F.3d at 1107–08 (explaining that to hold otherwise would “convert[] consular 17 nonreviewability into consular reviewability”). 18 The Supreme Court recently reaffirmed that the INA “does not authorize judicial review 19 of a consular officer’s denial of a visa; thus, as a rule, the federal courts cannot review those 20 decisions.” Muñoz, 602 U.S. at 908; see also id. (explaining that the judicial branch has no role to 21 play “unless expressly authorized by law,” and the INA does not provide such a source of law 22 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)). Consequently, 23 courts can review the denial of a visa application only (1) when the consular official “has failed to

24 act at all,” or (2) when “a U.S. citizen’s constitutional rights are alleged to have been violated by 1 the denial of a visa to a foreigner without a facially legitimate and bona fide reason for the denial.” 2 Allen, 896 F.3d at 1100 (cleaned up). Plaintiffs do not allege that Defendants have failed to act at 3 all, and their constitutional claims are addressed below. 4 Despite the limitations on courts’ review of visa denials, Plaintiffs argue that this Court

5 can adjudicate their non-constitutional claims because Defendants are ignoring the intent and 6 knowledge requirements in the INA and excluding former members of the IRGC under a blanket 7 policy of inadmissibility. Dkt. No. 48 at 8. To support that claim, Plaintiffs argue that all of the 8 subsections of Section 1182(a)(3)(B) include a requirement that the applicant had knowledge or 9 intent of terrorism related activities to support a Tier III-related denial. Id. at 9. They note that 10 membership in a Tier I or II organization alone can render an individual inadmissible, “regardless 11 of what they knew about that organization or their activity.” Id. at 9–10. In contrast, individuals 12 who belonged to a Tier III organization are admissible if they can “demonstrate by clear and 13 convincing evidence that [they] did not know, and should not reasonably have known, that the 14 organization was a terrorist organization.” Id. at 10 (quoting Section 1182(a)(3)(B)(i)(VI)).

15 While it is true that some subsections require intent for activities related to a Tier III 16 organization, some do not. For example, as Defendants note, Section 1182(a)(3)(B)(i)(VIII) 17 includes no knowledge or intent requirement relating to those who have received military-type 18 training from a terrorist organization. Dkt. No. 56 at 6.4 Moreover, Defendants were not required 19 to notify Plaintiffs of the subsection of Section 1182(a)(3)(B) upon which their application was 20 denied. 8 U.S.C. § 1182(b)(3); see also Muñoz, 602 U.S. at 904. Plaintiffs cannot circumvent that 21 reality by assuming they were denied under a section that requires knowledge or intent. Moreover, 22

4 Again, although the IRGC was not formally designated as a Tier I FTO until April 2019, consular officers may 23 nevertheless determine that the IRGC acted as a Tier III terrorist organization prior to April 2019. Bahiraei v. Blinken, 717 F. Supp. 3d 726, 736 (N.D. Ill. 2024); Yeganeh v. Mayorkas, No. 21-CV-02426-EMC, 2021 WL 5113221, at *4 24 (N.D. Cal. Nov. 3, 2021). 1 even if Defendants erred by failing to apply a knowledge/intent requirement, the doctrine of 2 consular nonreviewability precludes the Court from reviewing such legal errors in the context of 3 a denied visa application. Allen, 896 F.3d at 1107–09. 4 Plaintiffs also contend that a series of cases help them avoid the doctrine of consular

5 nonreviewability, but the plaintiffs in those cases were not collaterally attacking inadmissibility 6 decisions as Plaintiffs are here. Dkt. No. 48 at 17–19. To come within the ambit of their cited 7 cases, Plaintiffs contend that they are not challenging individual visa decisions, but instead are 8 challenging the process they claim Defendants used, i.e., issuing blanket denials without 9 conducting a case-by-case review. Id. at 15. They argue that “[t]he Ninth Circuit has repeatedly 10 applied the doctrine only to an individual ‘consular official’s decision to issue or withhold a visa’” 11 and “not to statutory challenges against a general policy.” Id. (quoting Bustamante v. Mukasey, 12 531 F.3d 1059, 1061 (9th Cir. 2008) and citing Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 13 1997)).5 They also contend that as a consequence of the blanket policy, Defendants deprived them 14 of an “opportunity to present evidence to sustain their statutory and regulatory burden of proving

15 visa eligibility.” Dkt. No. 22 at 4. However, numerous courts have rejected such process 16 challenges, and this Court joins them. See, e.g., Pak v. Biden, 91 F.4th 896, 900–01 (7th Cir. 2024) 17 (holding that “Plaintiffs cannot shield their claims from the doctrine of consular nonreviewability 18 by repackaging their substantive complaints as procedural objections” to defendants’ “systemic 19 practice of depriving visa applicants of the opportunity to establish eligibility for TRIG 20 exemptions” (cleaned up)); Capistrano v. Dep’t of State, 267 F. App'x 593, 594–95 (9th Cir. 2008) 21 (applying the doctrine of consular nonreviewability and affirming dismissal of a claim that a 22 consulate “failed to follow proper protocol in determining that the applicants were inadmiss[i]ble”; 23

5 Patel involved the State Department’s “failure to issue any decision on a visa application at all” rather than a visa 24 denial. Allen, 896 F.3d at 1108. 1 explaining that the fact that appellants “characterize their complaint as one challenging the process 2 followed by the consulate rather than its ultimate decision does not exempt the case from this well- 3 settled doctrine”); Keyhanpoor v. Blinken, 633 F. Supp. 3d 88, 95 (D.D.C. 2022) (“Plaintiffs’ APA 4 claim asks the Court to look behind the consular officers’ refusals of the IRGC Plaintiffs’ visa

5 applications to the merits and policies informing those outcomes. But under the consular 6 nonreviewability doctrine, it cannot.”); Tahmooresi v. Blinken, 629 F. Supp. 3d 6, 10 (D. Mass. 7 2022) (holding that the consular nonreviewability doctrine barred its review of the State 8 Department’s “broader policy of applying TRIG to categorically exclude persons in [plaintiff’s] 9 position [i.e., men who had completed mandatory military service with the IRGC] from the United 10 States”). 11 Plaintiffs also rely on Emami v. Nielsen, Dkt. No. 48 at 17, but the Emami plaintiffs did 12 not challenge “individualized determinations for any specific person,” 365 F. Supp. 3d 1009, 13 1018–19 (N.D. Cal. 2019). Here, although Plaintiffs contend that they are challenging Defendants’ 14 process as in Emami, Dkt. No. 48 at 17, they expressly state that they are seeking review of their

15 visa decisions, Dkt. No. 22 at 43–44 (seeking an order requiring Defendants to reconsider 16 Plaintiffs’ visa applications). The Court cannot assess whether Defendants caused Plaintiffs’ 17 alleged injuries (by applying the alleged blanket policy to the Visa Applicants) without first 18 assessing why those visa decisions were made. Pak, 91 F.4th at 901. Similarly, the Visa 19 Applicants’ injuries are not redressable unless the Court were to require Defendants to revisit their 20 decisions denying the visa applications. Dkt. No. 22 at 43. These realities highlight that while 21 Plaintiffs may say they are challenging Defendants’ process, they are also challenging their visa 22 denials, bringing their claims within the scope of the consular nonreviewability doctrine. 23 Matushkina v. Nielsen, 877 F.3d 289, 295 (7th Cir. 2017) (“Courts are not required to take a

24 plaintiff’s word that she is not challenging the visa denial”); Capistrano, 267 F. App'x at 595 (“At 1 its core, the relief sought by the Appellants would require the Manila consulate to revisit its 2 decision denying the visa applications. Issuing such relief would be exactly what the doctrine of 3 consular nonreviewability prevents [courts] from doing.”); Ventura-Escamilla v. Immigr. and 4 Naturalization Serv., 647 F.2d 28, 30 (9th Cir. 1981) (holding that the doctrine precludes review

5 when “the relief sought is a review of the Consul’s decision denying their application for a visa”). 6 Because “Plaintiffs’ claims cannot be divorced from a substantive challenge to the Executive’s 7 discretionary decisions” regarding the issuance of visas, the Court “must presume that their claims 8 are unreviewable.” Pak, 91 F.4th at 901. The Court therefore dismisses the Visa Applicants and 9 Relatives’ claims under the APA, the Accardi doctrine,6 and for mandamus under the doctrine of 10 consular nonreviewability. 11 D. All Plaintiffs’ Constitutional Claims 12 Plaintiffs assert three constitutional claims. They contend that (1) “Plaintiff Dr. Eshghi’s 13 First Amendment right to practice her Christian faith is implicated by the denial of her husband’s 14 visa,” (2) “Dr. Ahmad’s First Amendment right to freedom of speech is implicated by the denial

15 of his entry to the United States to teach and present at conferences,” and (3) Defendants have 16 violated Plaintiffs’ substantive and procedural due process rights by “fail[ing] to implement the 17 statute’s dictates and have instead instituted a policy of blanket visa denials for all IRGC 18 conscripts.” Dkt. No. 22 at 38–40.7 Defendants argue that these claims should be dismissed for 19 three reasons. First, the constitutional claims of all the non-resident non-citizen Plaintiffs fail, 20

21 6 The Court notes that “[t]he Accardi doctrine is not an independent cause of action[.]” Ajaj v. United States, No. 14- CV-01245-SMY, 2015 WL 14097638, at *2 (S.D. Ill. Dec. 29, 2015). Courts applying the doctrine “considered entities’ adherence to their rules in the context of other, independent causes of action; none of them recognized the 22 Accardi doctrine or any similar principle as providing a freestanding basis for suing government entities.” Am. C.L. Union Found. v. Washington Metro. Area Transit Auth., No. CV 17-1598 (TSC), 2023 WL 4846714, at *3 (D.D.C. 23 July 28, 2023). 7 Plaintiffs’ allegations suggest that only Visa Applicants and their Relatives advance this claim; however, the result 24 would not change if the Canadian Applicants were included. 1 including those of Dr. Ahmad, because “[n]onresident noncitizens have no constitutionally 2 protected interests because they have no right of entry.” Dkt. No. 46 at 24. Second, the doctrine of 3 consular nonreviewability requires dismissal of Plaintiffs’ constitutional claims related to visa 4 applications. Id. at 10, 24–25. Third, after Muñoz, “no constitutional right of a U.S. citizen is

5 implicated by the denial of another’s visa application” so the Relatives “cannot identify a 6 fundamental liberty interest protected by the Constitution at issue in this lawsuit.” Id. at 24. 7 Plaintiffs seem to concede that Muñoz bars their due process claims, Dkt. No. 48 at 21, and 8 that concession is warranted. Noncitizens have no “constitutional right of entry to this country as 9 a nonimmigrant or otherwise.” Muñoz, 602 U.S. at 908 (citation omitted). Nor do the Relative 10 spouses have a liberty interest or other due process right to have their spouses admitted into the 11 country. Id. at 909 (holding that “a citizen does not have a fundamental liberty interest in her 12 noncitizen spouse being admitted to the country”). The Court finds that Muñoz’s reasoning extends 13 to other family members as well: as other courts have observed, “if American citizens do not have 14 a fundamental liberty interest in their spouses being admitted to the United States, it follows from

15 ‘this Nation’s history and tradition’ that citizens also lack a fundamental liberty interest in their 16 parents or siblings being admitted to the United Sates.” Chen v. Blinken, No. 23-CV-2279 (NGG), 17 2025 WL 606221, at *7 (E.D.N.Y. Feb. 25, 2025) (quoting Washington v. Glucksberg, 521 U.S. 18 702, 721 (1997)); see also id. (finding that one plaintiff did not have “a fundamental liberty interest 19 in living in the United States with her sister” and another plaintiff did not have “a fundamental 20 liberty interest in living in the United States with his mother”); Esghai v. United States Dep’t of 21 State, No. 24 CIV. 2993 (PAE), 2024 WL 4753799, at *8 (S.D.N.Y. Nov. 12, 2024) (holding that 22 plaintiff’s asserted liberty interest in his noncitizen mother’s visa application was not “deeply 23 rooted in this Nation’s history and tradition”); Morassaei v. United States Dep’t of State, No.

24 SACV 24-823 PA (DFMX), 2024 WL 5047480, at *4 (C.D. Cal. Sept. 25, 2024) (“If, as the 1 Supreme Court declared in Muñoz, . . . a spouse has no fundamental right protected by the Due 2 Process Clause to bring a noncitizen spouse to the United States, there is no basis to conclude that 3 [plaintiff] has a fundamental right to bring her father to the United States.”); Nasir v. United States 4 Dep’t of State, 749 F. Supp. 3d 938, 944 (N.D. Ill. 2024) (“Plaintiff’s due process claim must fail,

5 as she has no due process right to the prompt adjudication of her father’s visa.”); Almakalani v. 6 McAleenan, 527 F. Supp. 3d 205, 227–28 (E.D.N.Y. 2021) (“Plaintiffs point to no case law at all, 7 let alone case law binding on this court, that recognizes a fundamental constitutional right to 8 cohabitate with one’s family members within the United States.”); cf. Durrani v. Bitter, No. CV 9 24-11313-FDS, 2024 WL 4228927, at *7 (D. Mass. Sept. 18, 2024) (“[P]laintiff has neither a 10 liberty interest in reuniting with his mother nor a liberty interest in receiving an adjudication of his 11 mother’s visa application.”). 12 Plaintiffs argue that even if their Fifth Amendment claims are foreclosed by Muñoz, their 13 First Amendment claims remain viable. Dkt. No. 48 at 19–20. With respect to their claim that “Dr. 14 Ahmad’s First Amendment right to freedom of speech is implicated by the denial of his entry to

15 the United States to teach and present at conferences,” Dkt. No. 22 at 38, Plaintiffs point to 16 Kleindienst v. Mandel, in which the Supreme Court recognized that U.S. citizens had a “right to 17 hear” from a Belgian professor who sought a visa to speak in the Unites States. Dkt. No. 48 at 19 18 (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). With respect to Dr. Eshghi’s First 19 Amendment religious freedom claim, Plaintiffs fail to respond to Defendants altogether; their only 20 mention of religion in their opposition is their conclusory statement that “Plaintiffs here may not 21 be public figures like Prof. Mandel or his American colleagues, but the First Amendment protects 22 their speech and right to practice their religion all the same.” Dkt. No. 48 at 21. 23 There is “a narrow exception” to the doctrine of consular nonreviewability “when the

24 denial of a visa allegedly burdens the constitutional rights of a U. S. citizen.” Muñoz, 602 U.S. at 1 908 (quoting Trump v. Hawaii, 585 U.S. 667, 703 (2018)). In such cases, because of the “plenary 2 congressional power to make policies and rules for exclusion of [non-citizens]” and because 3 “Congress has delegated conditional exercise of this power to the Executive,” courts review the 4 Executive’s exercise of this delegated discretion only to ensure that the decision-maker proffers

5 “a facially legitimate and bona fide reason.” Mandel, 408 U.S. at 769–70. However, “the courts 6 will [not] look behind the exercise of that discretion,” even when the constitutional rights of 7 American citizens are indirectly implicated. Id. And importantly, in the First Amendment freedom 8 of speech context, “the Court has identified a cognizable injury only where the listener has a 9 concrete, specific connection to the speaker.” Murthy v. Missouri, 603 U.S. 43, 46 (2024) (citing 10 Mandel, 408 U.S. at 762). 11 Plaintiffs have not identified any U.S. citizen whose First Amendment rights were 12 abridged. Their amended complaint alleges that the visa denials affected Dr. Ahmad’s right to 13 teach and present at conferences and Dr. Eshghi’s right to practice her Christian faith by being 14 with her husband, but they do not contend that either one is a U.S. citizen, Dkt. No. 22 at 6–7, 38.

15 Nor does the complaint identify any U.S. citizen—let alone one with a concrete, specific 16 connection to Dr. Ahmad—who claims to have a “right to hear” Dr. Ahmad speak. Plaintiffs’ First 17 Amendment speech claim thus does not come within the exception in Mandel. See, e.g., 18 Khachatryan, 4 F.4th at 850 (“[W]here, as here, the denial of a visa to an unadmitted and 19 nonresident alien is at issue, the exception to consular reviewability involving constitutional claims 20 only applies when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.” 21 (quotation marks omitted)). 22 Dr. Eshghi’s First Amendment religion claim fails as well. Again, Dr. Eshghi is not a U.S. 23 citizen, and Plaintiffs fail to identify a U.S. citizen whose free exercise rights are burdened by the

24 1 denial of her husband’s visa.8 2 Even if Plaintiffs’ constitutional rights were implicated and they could pursue their claims 3 despite the limitations of Muñoz and Mandel, the consular officers provided a “facially legitimate 4 and bona fide” reason for rejecting the visa applications by citing to Section 1182(a)(3)(B) in

5 Plaintiffs’ visa refusal notices. Dkt. No. 22 at 16–27. Plaintiffs argue that the citation is not facially 6 legitimate and bona fide because Defendants denied the visas without considering “the statute’s 7 intent/knowledge requirement.” Dkt. No. 48 at 21–22. However, the Supreme Court has not 8 required more than what Defendants have provided here. Mandel, 408 U.S. at 770; see also Kerry 9 v. Din, 576 U.S. 86, 104–06 (2015) (Kennedy, J., concurring) (concluding that a consular official’s 10 citation to Section 1182(a)(3)(B) “indicates it relied upon a bona fide factual basis for denying a 11 visa” and “suffices to show that the denial rested on a determination that Din’s husband did not 12 satisfy the statute’s requirements”);9 see also Bahiraei, 717 F. Supp. 3d at 742 (“[O]n the face of 13 each of the visa refusal decisions, the consular officers cited a proper ground under the statute— 14 TRIG—and the undisputed record includes facts that would support that ground—military service

15 in the IRGC, which consular officers could have concluded in their discretion was a Tier III 16 terrorist organization at the time of service.” (cleaned up)); Keyhanpoor, 633 F. Supp. 3d at 95 17 (rejecting plaintiffs’ argument that exclusion based on service in the IRGC is not facially legitimate 18 or bona fide because “[b]y invoking TRIG, Defendants provided a facially legitimate justification 19 for denying the IRGC Plaintiffs’ visas”).10 20

21 8 In light of Plaintiffs’ failure to meaningfully defend this claim, the Court concludes that it would be futile to allow them to amend this portion of their complaint. Yeganeh, 2021 WL 5113221, at *10. 22 9 See also Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (noting that Justice Kennedy’s concurrence in Din is the controlling opinion). 23 10 Plaintiffs’ allegation that Defendants acted in bad faith, Dkt. No. 22 at 39, is directed to the last component of the three-part test set out in Din. Specifically, in determining whether a United States citizen’s due process rights were violated by the denial of a visa application, the court considers (1) “whether the consular officer denied the visa under 24 1 For these reasons, the Court dismisses Plaintiffs’ constitutional claims. 2 E. The Canadian Applicants’ Non-Constitutional Claims 3 1. Improper Defendants and Standing 4 Defendants contend that the Canadian Applicants’ APA and “Accardi doctrine” claims fail

5 because (1) the Canadian Applicants’ contention that CBP officers deprived them of an 6 opportunity to present rebuttal evidence is not “fairly traceable to conduct of Attorney General 7 Merrick Garland or Secretary Mayorkas”; and (2) Plaintiffs do not allege that either official 8 personally participated in any relevant act. Dkt. No. 46 at 34. Plaintiffs respond that they are not 9 challenging individual determinations but instead challenge “broad agency policies.” Dkt. No. 48 10 at 30. They argue that policy is set by agency heads, not by individual consular or CBP officers. 11 Id. But the complaint never identifies what agency head developed the policy (or has the authority 12 to change it); instead, it broadly references “Defendants’ unlawful blanket policy” without tracing 13 the policy to any particular agency. See, e.g., Dkt. No. 22 at 4–5, 11, 16, 33, 37, 39–41. This failure 14 warrants dismissal. 5 U.S.C. § 551(13) (agency action includes “the whole or part of an agency

15 rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”). 16 17

18 a valid statute of inadmissibility”; (2) “whether, in denying the visa, the consular officer cited an admissibility statute that specifies discrete factual predicates the consular officer must find to exist before denying a visa or whether, 19 alternatively, there is a fact in the record that provides at least a facial connection to the statutory ground of inadmissibility”; and (3) “whether the plaintiff has carried his or her burden of proving that the stated reason was not bona fide by making an affirmative showing of bad faith on the part of the consular officer who denied the visa.” 20 Khachatryan, 4 F.4th at 851 (cleaned up). Defendants argue that absent a showing that Plaintiffs’ constitutional rights were violated, Plaintiffs cannot establish 21 bad faith. Dkt. No. 46 at 27; see also Dkt. No. 56 at 11. In response, Plaintiffs do not specifically address bad faith, but argue that Defendants have not demonstrated a facially legitimate and bona fide reason for the denials. Dkt. No. 22 48 at 21. Again, this challenge fails where, as here, “the consular officer has cited a valid statute of inadmissibility which implies a bona fide factual basis behind the denial.” Cardenas, 826 F.3d at 1171; see also Pak, 91 F.4th at 902 23 (the fact that a visa applicant completed military service in the IRGC supplies “at least a facial connection to terrorist activity,” which “forecloses any contention that the consular officers were imagining things”; that “consular officers never prompted [plaintiffs] to offer evidence (other than their military identification cards) about their service for the 24 IRGC” is insufficient to establish bad faith (cleaned up)). 1 Defendants also argue that the Court must dismiss the Canadian Applicants’ non- 2 constitutional claims because “unadmitted nonresident noncitizens have no right of entry into the 3 United States, and no cause of action to press in furtherance of their claim for admission.” Dkt. 4 No. 46 at 29. They further argue that “[t]he mere fact that an applicant for admission is a Canadian

5 citizen does not preclude them from being found inadmissible”; thus, the Canadian Applicants’ 6 claims “fail at the very threshold.” Id. True enough, the Canadian Applicants do not have a right 7 of entry into the United States, they can be found inadmissible, and the Court cannot order 8 Defendants to admit them into the United States. See, e.g., Gill v. Mayorkas, No. C20-939-MJP, 9 2022 WL 425343, at *2 (W.D. Wash. Feb. 11, 2022) (explaining that “the Court cannot order 10 Defendants to admit Plaintiff to the United States because he has no such right and whether he is 11 admissible is a decision that must be made on the facts available when he presents himself at the 12 border”). But this does not preclude them from having a cognizable claim. See, e.g., Matushkina, 13 877 F.3d at 293 (holding that although plaintiff had no right to be admitted to the United States, 14 she had a legally cognizable “interest in her admissibility to the United States, and the injury to

15 that interest [wa]s apparent on the face of the complaint”); see also Ranjan v. U.S. Dep’t of 16 Homeland Sec., No. 23-2453 (LLA), 2024 WL 3835355, at *4 (D.D.C. Aug. 15, 2024) (rejecting 17 contention that “a noncitizen, non-resident plaintiff lacks standing simply because she has no 18 substantive right to enter the United States”). As explained above and below, however, other 19 deficiencies warrant dismissal of the Canadian Applicants’ claims.11 20 21 22 11 The Canadian Applicants do not seek a writ of mandamus. Plaintiffs’ mandamus claim is alleged only on behalf of 23 the Visa Applicants (and possibly on behalf of the Relatives). Dkt. No. 22 at 42–43 (alleging that Defendants violated their “clear, non-discretionary, purely ministerial duty to adjudicate visa applications in accordance with binding law and in good faith” with respect to IRGC conscripts, and seeking a writ of mandamus requiring Defendants to 24 “adjudicate such applicants’ visa applications in good faith”). 1 2. Plaintiff Sobhi 2 Defendants note that although Plaintiffs argue that the Canadian Applicants were 3 improperly determined to be inadmissible pursuant to Section 1182(a)(7)(A)(i)(I),12 the only 4 Canadian Applicant who was formally found to be inadmissible under that section was Plaintiff

5 Sobhi. Dkt. No. 22 at 26; Dkt. No. 22–5 at 5–6, 15. Defendants aver that Section 1252(a)(2)(A) 6 strips the Court of jurisdiction to review Plaintiff Sobhi’s removal under 8 U.S.C. § 1225(b)(1). 7 Dkt. No. 46 at 30. Plaintiffs respond that Sobhi “does not ask this Court for review of an expedited 8 removal order” and he “is a named plaintiff like any other named plaintiff and serves as a 9 representative of individuals denied admission due to former civil service in the IRGC.” Dkt. No. 10 48 at 22. However, the complaint does not reflect this. Its causes of actions and claims for relief 11 do not differentiate among Plaintiffs (or Defendants, for that matter). And Plaintiffs’ prayer for 12 relief asks the Court to “[o]rder Defendants to reconsider Plaintiffs’ . . . visa applications” and to 13 “remove the unlawful denials of entry into the United States from Plaintiffs’ records.” Dkt. No. 22 14 at 43–44. Plaintiffs cannot amend their complaint via a response brief. Frenzel v. AliphCom, 76 F.

15 Supp. 3d 999, 1009 (N.D. Cal. 2014) (“It is axiomatic that the complaint may not be amended by 16 the briefs in opposition to a motion to dismiss.”). 17 To the extent Sobhi is raising a challenge to his expedited removal order, his claim is 18 dismissed. Immigration officers must presume that “[e]very alien” is “an immigrant until he 19 establishes to the satisfaction of the consular officer, at the time of application for a visa, and the 20 immigration officers, at the time of application for admission, that he is entitled to nonimmigrant 21 status under [8 U.S.C. § 1101(a)(15)].” 8 U.S.C. § 1184(b). “Foreign citizens, including 22

23 12 That Section provides that any “immigrant at the time of application for admission who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document . . . 24 and a valid unexpired passport, or other suitable travel document . . . is inadmissible.” 8 U.S.C. § 1182(a)(7)(A)(i)(I). 1 Canadians, who are deemed to be intending immigrants are subject to documentary requirements 2 under 8 U.S.C. § 1182(a)(7)(A)(i)(I), and are removable under the expedited removal statute, 8 3 U.S.C. § 1225.” Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1021 (9th Cir. 2014). 4 Here, Sobhi told the CBP officer that he and his family “were going to Boston, MA because

5 his wife accepted a job as a J1 at the Harvard University. . . . and they are moving there now.” Dkt. 6 No. 22-5 at 4. The CBP officer found that Sobhi did not establish that he was entitled to 7 nonimmigrant status, and denied him entry under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for lack of proper 8 entry documentation. Id. at 5–7. He then received an expedited order of removal. Id. at 7. Sobhi 9 later applied for a United States visa and was denied under Section 1182(a)(3)(b). Dkt. No. 22 at 10 26–27; Dkt. No. 22-4 at 2. 11 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped courts’ 12 jurisdiction to review expedited removal orders except in narrow circumstances including limited 13 habeas corpus proceedings under section 1225(e)(2) and limited systemic challenges under section 14 1225(e)(3). See 8 U.S.C. §§ 1252(a)(5), 1252(a)(2)(A)(i), 1225(e)(1)–(3).13 The statute provides,

15 in relevant part: 16 Notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to review. . . 17 (i) . . . any individual determination or to entertain any other cause or claim 18 arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) . . . ; [or] 19 (iii) the application of such section to individual aliens, including the 20 determination made under section 1225(b)(1)(B) of this title. 8 U.S.C. § 1252(a)(2)(A). Importantly, the admissibility determination underlying the final order 21 of removal is not reviewable. See id. § 1252(e)(5) (“There shall be no review of whether the alien 22 23 13 Systemic challenges must be instituted in the U.S. District Court for the District of Columbia and brought within 60 24 days of the date the challenged section, regulation issued to implement such section, or written policy directive, guideline, or procedure, is first implemented. 8 U.S.C. § 1252(e)(3)(A), (B). 1 is actually inadmissible.”). Sobhi does not assert any claims that fall within the statutory exceptions 2 to the jurisdiction stripping provision. Thus, insofar as he seeks review of his expedited removal 3 order, that claim is dismissed. To the extent he also advances claims as a Visa Applicant, those 4 claims are dismissed for the reasons laid out above.14 And to the extent he asserts a claim as a

5 Canadian Applicant, his claim is dismissed as explained below. 6 3. Failure to State a Claim 7 Defendants argue that all of the Canadian Applicants have failed to state a claim “because 8 their factual allegations do not violate any law and because the supporting documents they submit 9 contradict their allegations.” Dkt. No. 46 at 31.15 Plaintiffs respond that CBP made “pretextual 10 denials” under § 1182(a)(7)(A)(i)(I), finding the Canadian Applicants inadmissible for lack of 11 immigrant visas even though they were not intending to immigrate and were not questioned about 12 “the issue of immigrant intent.” Dkt. No. 48 at 23.16 The Canadian Applicants argue that despite 13 the inadmissibility grounds cited, they were actually deemed inadmissible on terrorism related 14 grounds without “any inquiry into [their] intent or knowledge of the IRGC being a Tier III

15 organization.” Id.17 Defendants state in their reply that “Plaintiffs’ argument on blanket denials 16 requires Plaintiffs, and the Court, to assume a more specific inadmissibility ground than the 17 consular officers provided in the removal notices.” Dkt. No. 56 at 12. 18 19

20 14 It appears that Mr. Sobhi’s wife, Dr. Maryam Shamloo, is challenging Mr. Sobhi’s visa denial like the rest of the Relatives, but not asserting her own APA claim. Dkt. No. 22 at 7, 26–27, 40–42. 21 15 Other than Mr. Sobhi, the Canadian Applicants were not issued expedited orders of removal or removed, Dkt. No. 22 at 27–33, so the removal issues discussed above are not applicable to them. 22 16 Again, one Canadian Applicant, Michael Wise, was not provided a basis for the CBP’s officer’s inadmissibility finding. Dkt. No. 22-5 at 38. 23 17 Wise attests that he was determined to be inadmissible after CBP officers “delved into specific details of [his] daily tasks during [his] time service in the IRGC” and he provided “comprehensive descriptions” of his role in the IRGC. 24 Dkt. No. 40 at 3. 1 (a) The Canadian Applicants’ APA Claim 2 The APA provides for judicial review of “final agency action for which there is no other 3 adequate remedy in a court.” Cabaccang v. U.S. Citizenship & Immigr. Servs., 627 F.3d 1313, 4 1315 (9th Cir. 2010) (quoting 5 U.S.C. § 704). Again, the Canadian Applicants fail to identify a

5 particular agency responsible for the policy alleged in their complaint, so there is no “agency” 6 action to review. Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1320 (S.D. Cal. 2018) 7 (plaintiffs did not establish a final agency action where their complaint “contain[ed] allegations 8 about the tactics employed by various CBP officials” but did not “connect[] any of that conduct 9 with an unwritten policy created by the Defendants” and did not “even allege that the Defendants 10 were involved in the development of any policy in this case”). In the same vein, Canadian 11 Applicants fail to identify which Defendant(s) can redress their alleged injury. See Herdoiza v. 12 Dep’t of State, No. CV 23-1020 (TSC), 2024 WL 1212952, at *4 (D.D.C. Mar. 21, 2024). 13 Furthermore, as Defendants point out, Plaintiffs’ allegations that the true reason for their 14 denial of entry was 8 U.S.C. § 1182(a)(3)(B)(i)(VI) “are based on unsupported assumptions.” Dkt.

15 No. 46 at 10. Again, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual 16 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 17 678 (quoting Twombly, 550 U.S. at 570). Plaintiffs provide no factual support for their allegation 18 that the basis for CBP officers’ denial of their entry into the United States was because they were 19 “member[s] of a terrorist organization” under Section 1182(a)(3)(B)(i)(VI) at the time of the 20 attempted entry. Plaintiffs allege that they all completed military service with the IRGC “well 21 before” April 2019 when it was designated as a Tier I FTO, Dkt. No. 22 at 1, but Section 22 1182(a)(3)(B)(i)(VI) applies to an applicant who “is” (present tense) a member of a Tier III FTO. 23 Plaintiffs do not explain why this is a plausible basis for the officers’ denials, especially

24 considering that Section 1182(a)(3)(B)(i)(VIII) applies to any applicant who “has received” 1 (present perfect tense, indicating an occurrence in the past) military type training from an FTO of 2 any tier. See Bahiraei, 717 F. Supp. 3d at 742 (observing that consular officers “could have 3 concluded in their discretion” that the IRGC “was a Tier III terrorist organization at the time of 4 service” under Section 1182(a)(3)(B)(i)(VIII) where visa applicants served in the IRGC prior to

5 its Tier I designation).18 6 Even if the Canadian Applicants had advanced a plausible claim and identified an agency 7 action, their APA claim still fails. The APA does not apply where a statute precludes judicial 8 review. 5 U.S.C. § 701(a)(1). Again, under the INA, a foreign national arriving at the United 9 States’ border is considered an “applicant for admission.” 8 U.S.C. § 1225(a)(1). At the border, 10 the CBP officer determines whether the individual is admissible; as relevant here, any immigrant19 11 who is not in possession of a valid entry document such as a passport is inadmissible. Id. 12 § 1182(a)(7)(A)(i)(I). When an immigration officer concludes that a noncitizen is inadmissible 13 under Section 1182(a)(7)(A)(i)(I), the officer “shall order the alien removed from the United States 14 without further hearing or review,” i.e., expedited removal, subject to exceptions not relevant here.

15 Id. § 1225(b)(1)(A)(i). If a CBP officer finds that an applicant for admission is inadmissible, the 16 officer may, in her discretion, permit the applicant to withdraw her application for admission and 17 depart immediately. Id. § 1225(a)(4). Noncitizens who withdraw their applications for admission 18 avoid entry of a final order of removal against them, which can carry serious consequences. For 19 18 A tier III FTO “is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup 20 which engages in” (1) commission, or incitement to commit, “under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity”; (2) preparation or planning of a terrorist activity; (3) gathering 21 information on potential targets for terrorist activity; (4) solicitation of funds or other things of value for a terrorist activity or a terrorist organization; (5) solicitation of any individual to engage in terrorist activity or for membership in a terrorist organization; or (6) commission of an act that affords material support (i) for terrorist activity, (ii) to an 22 individual who has committed or plans to commit terrorist activity, or (iii) to a terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(vi), -(iv)(I)–(VI). 23 19 Again, immigration officers must presume that “[e]very alien” is “an immigrant until he establishes . . . that he is entitled to nonimmigrant status under [8 U.S.C. § 1101(a)(15)],” 8 U.S.C. § 1184(b), and “intending immigrants are 24 subject to documentary requirements under 8 U.S.C. § 1182(a)(7)(A)(i)(I),” Smith, 741 F.3d at 1021. 1 instance, a final order of removal issued pursuant to 8 U.S.C. § 1182(a)(7) carries a five-year bar 2 on admission to the United States. Id. § 1182(a)(9)(A)(i). 3 Rather than challenging only the “blanket policy” that allegedly misapplies Section 4 1182(a)(3)(B)(i)(VI), Plaintiffs ask the Court to order Defendants to “remove the unlawful denials

5 of entry into the United States from Plaintiffs’ records.” Dkt. No. 22 at 44. This request for relief 6 indicates that the heart of their challenge is to the CBP officers’ admissibility determinations. See 7 Bahiraei, 717 F. Supp. 3d at 737 (“Despite the variety of legal theories represented by these claims, 8 each is merely a different route to try to reach the same destination.”). And importantly, Plaintiffs’ 9 arguments presuppose that CBP officers in fact interpreted the statute to require their expedited 10 removal under Section 1225(b)(1)(A)(i) if they chose not to withdraw their applications for entry. 11 Dkt. No. 22 at 14–15; Vidauri v. Garza, No. 7:14-CV-768, 2015 WL 14079691, at *4 (S.D. Tex. 12 June 30, 2015). To the extent this constitutes an “individual determination . . . arising from or 13 relating to the implementation or operation of an order of removal,” 8 U.S.C. § 1252 precludes 14 this Court’s review of any such determination by CBP officers, including the underlying

15 admissibility assessment. Ramos v. Mayorkas, No. EP-21-CV-127-KC, 2022 WL 1931173, at *4 16 (W.D. Tex. Jan. 20, 2022) (finding that Section 1252 barred plaintiff’s claim where plaintiff argued 17 that she had no intent to apply for admission and that Section 1182(a)(7)(A)(i)(I) was not the true 18 basis for her removal); see also Odei v. United States Dep’t of Homeland Sec., 937 F.3d 1092, 19 1094 (7th Cir. 2019); Vivint, Inc. v. Mayorkas, 614 F. Supp. 3d 993, 1002 (D. Utah 2022); Vidauri, 20 2015 WL 14079691, at *5.20 21 22

23 20 Judicial review of all questions of law and fact that underlie a final order of removal must be brought in a petition to review a final order of removal in an appellate court. See 8 U.S.C. § 1252(b)(9); see also Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (“The exclusive means to challenge an order of removal is the petition for review 24 process.”). 1 To the extent the CBP officers’ pre-withdrawal determinations of inadmissibility do not 2 constitute “individual determination[s] . . . arising from or relating to the implementation or 3 operation of an order of removal,” there are two problems with the Canadian Applicants’ claims. 4 First, as Defendants point out, withdrawal of an application for admission “is a form of

5 discretionary relief available in expedited removal proceedings.” Dkt. No. 46 at 32–33 (quoting 6 United States v. Garcia Gonzalez, 791 F.3d 1175, 1177 (9th Cir. 2015)). Section 1252(a)(2)(B) 7 deprives courts of jurisdiction to review decisions committed by statute to the discretion of the 8 Attorney General under Subchapter II. “The decision to allow withdrawal of an application for 9 admission is precisely such a decision: 8 U.S.C. § 1225(a)(4) provides that “[a]n alien applying 10 for admission may, in the discretion of the Attorney General and at any time, be permitted to 11 withdraw the application for admission and depart immediately from the United States.” Juras v. 12 Garland, 21 F.4th 53, 60 (2d Cir. 2021); see also Ahmad v. Noem, No. 2:24-CV-00083, 2025 WL 13 934614, at *9 (D. Utah Mar. 27, 2025) (“Because the ultimate decision regarding waiver is 14 discretionary, the court is deprived of jurisdiction to review any associated ‘decision or action’—

15 even the ‘first step’ nondiscretionary factual determination challenged here.”); Vivint, Inc., 614 F. 16 Supp. 3d at 1003 (“[I]t defies logic that Congress wished to withhold judicial review of 17 inadmissibility determinations from individuals who receive expedited removal orders but permit 18 judicial review of claims by individuals considered inadmissible for the exact same reasons but 19 who withdrew their applications on the threshold of receiving an expedited removal order.”). 20 Second, the withdrawal renders the CBP officers’ admissibility determinations “merely advisory 21 opinions that are not binding in future instances—in which case, the court cannot rule on the 22 propriety of an advisory opinion.” Vivint, 614 F. Supp. 3d at 1005. 23 For all of these reasons, the Canadian Applicants’ APA claim is dismissed.

24 1 (b) The Canadian Applicants’ Accardi “Claim” 2 Under the Accardi doctrine, agencies are bound to follow their own rules and guidelines. 3 Accardi, 347 U.S. at 268. Plaintiffs’ amended complaint alleges one “claim for relief” under 4 Accardi related to the Canadian Applicants: they allege that “when CBP officers use their

5 discretion to allow an applicant to withdraw their application for admission, ‘[t]he alien’s decision 6 to withdraw his or her application for admission must be made voluntarily.’” Dkt. No. 22 at 36– 7 37 (quoting 8 C.F.R. § 235.4). They contend that despite that requirement, their decisions to 8 withdraw their applications for admission were not voluntary. Id.21 9 Again, the Accardi doctrine is not an independent cause of action. Ajaj, 2015 WL 10 14097638, at *2; Am. C.L. Union Found., 2023 WL 4846714, at *3. Regardless, Plaintiffs did not 11 respond to Defendants’ argument that the Canadian Applicants have not been harmed by the 12 opportunity to withdraw their applications for admission, Dkt. No. 46 at 33,22 nor did they allege 13 that they were harmed as a result of the voluntariness issue. This “claim” is therefore dismissed. 14 Because the Accardi doctrine on its own is not a cognizable claim, and because Plaintiffs failed to

15 meaningfully defend this “claim,” it would be futile to allow them to amend this portion of their 16 complaint. Yeganeh, 2021 WL 5113221, at *10. 17 F. Leave to Amend 18 “In dismissing for failure to state a claim, a district court should grant leave to amend even 19 if no request to amend the pleading was made, unless it determines that the pleading could not 20 possibly be cured by the allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th 21 21 The amended complaint also alleges that “Defendants have promulgated internal and public guidance regarding 22 what officers are required to consider, and what procedures are to be followed, when making admissibility determinations on a case-by-case basis.” Dkt. No. 22 at 36. That vague contention does not identify any such internal 23 or public guidance, and is therefore insufficient to state a claim. 22 Again, noncitizens who are permitted to withdraw their applications for admission avoid the consequences of 24 receiving an expedited order of removal, which would trigger a ban on returning to the United States for five years. 8 U.S.C. § 1182(a)(9)(A)(i). 1 Cir. 2016). The Court declines without prejudice (except as stated above with respect to Dr. 2 Eshghi’s First Amendment claim and Plaintiffs’ Accardi doctrine “claim”) to grant leave to amend 3 at this point because Plaintiffs have not sought leave to amend, and the parties’ briefs do not 4 address the issue or the relevant factors. Consequently, if Plaintiffs seek leave to amend, they

5 should file a motion that complies with Local Civil Rule 15(a) within 30 days of the date of this 6 Order. Any proposed second amended complaint must include numbered paragraphs as required 7 by Federal Rule of Civil Procedure 10(b), and must otherwise conform to applicable law regarding 8 the form of pleadings. 9 III. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. Dkt. No. 11 46. 12 Dated this 27th day of May, 2025. 13 A 14 Lauren King United States District Judge 15 16 17 18 19 20 21 22 23