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