Thatikonda v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KAVITHA THATIKONDA,
Plaintiff,
v. Case No. 1:21-cv-1564-RCL
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Kavitha Thatikonda is a citizen and resident of India who previously lived and
worked in the United States pursuant to a nonimmigrant program for workers in "specialty
occupations." She sued defendants-various government entities responsible for administering
federal immigration laws-after a State Department consular officer denied her visa pursuant to a
U.S. Citizenship and Immigration Services ("USCIS") finding that she was inadmissible. See
Compl., ECF No. 1. Defendants moved to dismiss, Defs.' Mot. to Dismiss ("Defs.' Mot."), ECF
No. 14, Thatikonda filed an opposition, Pl.'s Opp'n, ECF No. 15, and defendants filed a reply in
support of their motion, Defs.' Reply, ECF No. 18. Thatikonda then moved, over objection, to file
a sur-reply. See ECF Nos. 19 & 19-1.
Upon consideration of the parties' filings, ECF Nos. 14, 15, 18, 19, and 19-1, applicable
law, and the entire record herein, the Court will hereby GRANT defendants' motion to dismiss by
separate order.
1
I. BACKGROUND
A. Statutory and Regulatory Framework
The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., distinguishes
between two categories of foreign nationals seeking admission to the United States:
"nonimmigrants," who plan to stay in the country only temporarily, and "immigrants," who plan
to stay permanently. Save Jobs USA v. Dep't of Homeland Sec., 942 F.3d 504, 506
(D.C. Cir. 2019). The INA specifically authorizes the admission of nonimmigrants to work in
"specialty occupation[s]," 8 U.S.C. § 1101(a)(15)(H)(i)(b), defined as those requiring "theoretical
and practical application of a body of highly specialized knowledge, and ... attainment of a
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into
the occupation in the United States," id. § 1184(i)(l). "Specialty workers admitted under this
provision receive H-1B visas, which permit them to work in the occupation for which they were
admitted." Save Jobs USA, 942 F.3d at 506.
Employers interested in participating in the H-1B program must complete a two-step
process for each foreign worker they seek to hire. First, they submit a Labor Condition Application
("LCA") to the Department of Labor identifying the specialty occupation position at issue and
confirming that they will comply with the program's requirements. 8 U.S.C. § 1182(n)(l). After
the Department of Labor certifies the LCA, the employer may file the LCA and a nonimmigrant
temporary worker petition (known as a Form 1-129) on behalf of a prospective foreign employee.
Id. § l 184(c); see 8 C.F.R. § 214.2(h)(4). Petitions are considered by USCIS, which is part of the
Department of Homeland Security ("DHS"). Sagarwa/a v. Cissna, 387 F. Supp. 3d 56, 60
(D.D.C. 2019).
An alien may not be admitted to the United States without having been issued an immigrant
or nonimmigrant visa. 8 U.S.C. §§ 1181(a), 1182(a)(7). Once an H-1B petition is granted, an
2
alien can apply for a visa at a U.S. Consulate or embassy. See, e.g., L. Off of Azita Mojarad v.
Aguirre, No. 05-cv-38 (CKK), 2006 WL 785415, at *1 (D.D.C. Mar. 27, 2006). There, a State
Department consular officer decides whether to grant or refuse the visa application.
See 8 U.S.C. § 1201(a)(l); 22 C.F.R. §§ 42.71, 42.81. With certain exceptions not relevant here,
no visa "shall be issued to an alien" if "it appears to the consular officer . . . that such alien is
ineligible to receive a visa ... under section 1182 of this title, or any other provision oflaw," or if
''the consular officer knows or has reason to believe" that the alien is ineligible.
8 U.S.C. § 120l(g). Also, State Department regulations require the consular officer to "suspend
action in a petition case and return the petition ... for reconsideration by OHS ... if the officer
knows or has reason to believe that approval of the petition was obtained by fraud,
misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other
reason, to the status approved." 22 C.F.R § 42.43(a).
B. Factual Background and Procedural History
Unless otherwise noted, the relevant facts are drawn from Thatikonda's complaint and are
assumed to be true for purposes of the motion to dismiss. Thatikonda is a citizen and resident of
India. Compl. 115. In September 2014, Thatikonda's prior employer, Green Valley SNF, LLC
OBA Atlantic Shores Rehabilitation and Health Center ("Green Valley"), filed a petition on her
behalf to employ her in H-lB status. Id. 131. USCIS approved the petition for a period between
September 2014 through August 2017. Id. Thatikonda traveled from the United States to India
where she was issued an H-lB visa by the Hyderabad Consulate on or about September 30, 2014.
Id. 132. 1
1Thatikonda was initially admitted into the United States in 2010 to enroll in a Master's Degree Program at Troy
University. Compl. ml 25-26.
3
Before her existing H-1B approval expired, Green Valley filed another H-1B petition to
continue employing Thatikonda. Id. ¶ 34. USCIS approved the requested extension for a period
between August 2017 and August 2020. Id. Thatikonda again traveled back to India to apply at
the Hyderabad Consulate for a visa based on the approved H-1B Petition. Id. ¶ 35. At her visa
interview, the consular officer refused to issue Thatikonda a visa, citing 8 U.S.C.
§ 1182(a)(6)(C)(i). Id. ¶ 36. This provision of the INA provides that “any alien who, by fraud or
willfully misrepresenting a material fact” tries to obtain an immigration benefit “is inadmissible.”
8 U.S.C. § 1182(a)(6)(C)(i); see Compl. ¶ 57. Thatikonda was provided with a written statement
of the refusal citing the statutory provision. Id.; see ECF No. 1-4 at 2. On or about September 29,
2017, Thatikonda attended a second visa application interview at the Hyderabad Consulate.
Compl. ¶ 37. Thatikonda was again refused a visa pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Id.;
see ECF No. 1-4 at 3.
Through the Freedom of Information Act (“FOIA”) process and her counsel’s requests,
Thatikonda discovered that the § 1182(a)(6)(C)(i) “inadmissibility finding” was “originally made
by Department of Homeland Security, U.S. Citizenship and Immigration Services.” Id. ¶ 45; see
ECF No. 1-11 at 2. 2
On June 8, 2021, Thatikonda filed the present lawsuit “seek[ing] judicial review of
[d]efendants’ decision to make a finding of inadmissibility pursuant to 8 U.S.C. § 1182(a)(6)(C)(i),
barring Thatikonda from eligibility for any immigration benefit, particularly issuance of a visa and
2
The Court is puzzled about how to classify this “inadmissibility finding.” Thatikonda’s description of the statutory
and regulatory process suggests that she believes that USCIS formally determined that she is inadmissible. But that
characterization is at least partially belied by the fact that USCIS approved Thatikonda’s H-1B petition. If USCIS
had formally determined that the statements in Thatikonda’s petition “were inaccurate, fraudulent, or [constituted a]
misrepresent[ation of] a material fact,” it presumably would have denied (or revoked) her petition. See 8 C.F.R.
§ 214.2(h)(10)(ii), (h)(11)(iii)(A). As far as the Court knows, this “finding” could be a scribbled notation in her file.
Or USCIS may have failed to act before the consular officer denied the visa. At bottom, Thatikonda’s allegations and
attachments to her complaint provide no clarity on this issue. Nevertheless, the Court will adopt Thatikonda’s term
that USCIS issued an “inadmissibility finding” in its analysis below.
4
admission to the United States, and including filing a Form 1-485, Application to Register
Permanent Residence or Adjust Status." Compl. 151. She contends that defendants' actions are
procedurally and substantively flawed and contrary to the INA, the Administrative Procedure Act
("APA"), and the Fifth Amendment's Due Process Clause. See Id. 11 49-90. She seeks
declaratory and injunctive relief to "set aside the [d]efendants' actions, findings, and conclusions
regarding the finding of inadmissibility," including an order that the § 1182(a)(6)(C)(i) finding be
"purged from all databases utilized by [d]efendants to adjudicate [her] admissibility." Id. at 21.
Defendants moved to dismiss, arguing that the consular officer's decision is foreclosed by
the doctrine of consular nonreviewability and that Thatikonda lacks standing to challenge the visa
refusal. See, e.g., Defs.' Mot. 1, 6-11.3 Thatikonda filed an opposition, arguing that consular
nonreviewability does not apply because she is not challenging the consular officer's decision to
deny her visa application, but instead challenging the inadmissibility finding made by USCIS.
Pl.'s Opp'n 5-6. She also contends that she has standing because of her contacts with the United
States. Id. at 7-8. Defendants filed a reply in which they contend that Thatikonda attempts to
improperly evade the consular nonreviewability doctrine. See Defs.' Reply 7. Thatikonda then
moved, over objection, to file a sur-reply, in which she argues that her complaint is ripe for review.
See ECF Nos. 19 & 19-1.
Defendants' motion to dismiss is ripe for review.
3
Defendants attached a Notice of Intent to Revoke the I-140 Petition-Immigrant Petition for an Alien Worker-
issued by USCIS and based on the same grounds on which the consular officer relied. That action is not at issue in
this case. See ECF No. 14-1.
5
II. LEGAL STANDARDS
A. Rule 12(b)(l)
A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(l) when it
lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may
"consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court's resolution of disputed facts."
Coalition/or Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations
omitted); see Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C.
Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether
to grant a motion to dismiss for lack of jurisdiction.").
While a court must accept the factual allegations contained in the complaint as true when
reviewing a motion to dismiss pursuant to Rule 12(b)(l), Info. Handling Servs., Inc. v. Def
Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003), a plaintiffs factual allegations
in the complaint "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim," Wright v. Foreign Serv. Grievance Bd.,
503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted). The
plaintiff bears the burden of establishing subject matter jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
B. Rule 12(b)(6)
To withstand a Rule 12(b)(6) motion, the complaint (and each challenged count) "must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible when the Court can reasonably infer from
the factual content pleaded that the defendant is liable for the alleged misconduct. Id. When
6
reviewing a motion to dismiss under Rule l 2{b)(6), courts must accept as true all of the plaintiffs
allegations of fact, and must also "grant plaintiff the benefit of all inferences that can be derived
from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).
"However, the court need not accept inferences ... [that] are unsupported by the facts set out in
the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations."
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III. ANALYSIS
Thatikonda recognizes that the decisions of consular officers are ordinarily not reviewable.
So she tries to avoid these justiciability concerns by focusing on the fact that USCIS made the
inadmissibility finding on which the consular officer relied when he denied her visa. As the
analysis below explains, Thatikonda has standing to bring her challenge. But she has standing
because her concrete interests in admissibility were harmed by the consular officer's decision, not
USCIS's finding. Thatikonda's complaint thus returns her right back to the place she hoped to
avoid. Her claims are not reviewable and must be dismissed. 4
A. Thatikonda Has Standing5
To demonstrate standing, Thatikonda must show the existence of a case or controversy,
which requires (1) an "injury in fact" that is (2) "fairly traceable to the challenged action of the
4
The Court will DENY Thatikonda's motion to file a sur-reply. First, the issues addressed in the sur-reply have no
relevance to the Court's holdings here. Second, and more importantly, defendants do not make the argument in reply
that Thatikonda believes them to be making-that the claims in her complaint are not ripe for review. See ECF No.
19-1 at 2. Instead, defendants contend that a challenge to the Notice ofIntent to Revoke the I-140 Petition is not ripe
because USCIS has not yet issued a final decision. Defs.' Reply 4. If defendants did make the argument that
Thatikonda identified for the first time in their reply, the Court would grant Thatikonda leave to file a sur-reply so that
she would have an opportunity to contest these issues. See Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001).
5
The Court begins with subject matter jurisdiction and Article III standing-not consular nonreviewability-because
it is prohibited from exercising "hypothetical jurisdiction." See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
101 ( 1998). The D.C. Circuit recently held that consular nonreviewability goes to the "merits" of a case, rather than a
federal court's subject matter jurisdiction. Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1029 (D.C. Cir. 2021).
While the Court may address certain non-jurisdictional "threshold issues" without assessing jurisdiction, see, e.g.,
7
defendant" and is (3) likely to be "redressed by a favorable decision." Lujan, 504 U.S. at 560-61.
An "injury in fact," in turn, requires (1) an "invasion of a legally protected interest" that is (2)
"concrete and particularized" and (3) "actual or imminent." Id. at 560; see Spokeo, Inc. v. Robins,
578 U.S. 330, 339 (2016). For the reasons set forth below, the Court concludes that Thatikonda
has standing here.
Defendants invoke case law from this district holding that unadmitted, non-resident aliens
lack standing to challenge the determinations associated with their visa decision. See, e.g., Van
Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5 (D.D.C. 2009); Chun v. Powell,
223 F. Supp. 2d 204, 207 (D.D.C. 2002); see also Jaimez-Revolla v. Bell, 598 F.2d 243,246 (D.C.
Cir. 1979); but see Matushkina v. Nielsen, 877 F.3d 289 (7th Cir. 2017) (concluding that an alien's
interest in admissibility is sufficient for Article III standing). "This line of jurisprudence reflects
the fact that 'foreign nationals seeking admission have no constitutional right to entry."'
Polyzopoulos v. Garland, No. 20-cv-804 (CKK), 2021 WL 1405883, at *7 (D.D.C. Apr. 14, 2021)
(quoting Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018)). Without a "legally protected interest,"
plaintiffs lack the "injury in fact" necessary for Article III standing. Spokeo, 578 U.S. at 339; see
Pai v. U.S. Citizenship & Immigr. Servs., 810 F. Supp. 2d 102, 106-07 (D.D.C. 2011).
The Court is not persuaded. "In reviewing the standing question, the court must be careful
not to decide the questions on the merits for or against the plaintiff, and must therefore assume that
on the merits the plaintiffs would be successful in their claims." City of Waukesha v. E.P.A.,
320 F.3d 228, 235 (D.C. Cir. 2003) (citing Warth v. Seldin, 422 U.S. 490, 502 (1975)).
Accordingly, the Court must assume, for purposes of the standing inquiry, that defendants'
Kaplan v. Cent. Bank of the Islamic Republic of Iran, 896 F.3d 501, 513, 516 (D.C. Cir. 2018), the government
defendants have provided no authority that consular nonreviewability qualifies as such a threshold issue and may be
considered before assessing subject matter jurisdiction. Absent briefing on this issue, the Court begins with Article
III standing.
8
inadmissibility finding against Thatikonda was unlawful. Nevertheless, Thatikonda must be able
to identify "a cognizable interest" to demonstrate Article III standing. Parker v. District of
Columbia, 478 F.3d 370,377 (D.C. Cir. 2007), aff'd sub nom. District of Columbia v. Heller, 554
U.S. 570 (2008); Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997). Cognizable interests
are those ''recognized at common law or specifically recognized ... by Congress." Sargeant,
130 F.3d at 1069; see Sprint Commc 'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008)
("We have often said that history and tradition offer a meaningful guide to the types of cases that
Article III empowers federal courts to consider.").
Thatikonda' s claims are cognizable. There are material differences in the rights available
to "alien[s] seeking initial admission"-who "ha[ve] no constitutional rights regarding [their]
application[ s]"-and those who have "gain[ed] admission to our country and begin[] to develop
the ties that go with permanent residence." Landon v. Plasencia, 459 U.S. 21, 32 (1982); accord
Dep 't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1963-64 (2020) (explaining that
Congress "is entitled to set the conditions for an alien's lawful entry into this country," precluding
"any greater rights under the Due Process Clause," but that "aliens who have established
connections in this country have due process rights in deportation proceedings" (emphasis added)).
Indeed, the D.C. Circuit has recognized that denying standing to a "nonresident alien who had
never been within the United States" is "based on jurisprudential considerations that reflect a
policy against affording a [t]ederal forum for a person anywhere in the world challenging denial
of entry or immigration status." Jaimez-Revolla, 598 F.2d at 246. But denying standing to a party
''who had been in this country and voluntarily left to pursue [her] request for readmission . . .
would encourage illegal aliens to remain here illegally rather than return home and seek legal entry
through an application for readmission." Id. at 246. Additionally, other decisions recognize that
9
the loss of "'a significant opportunity to receive an immigrant visa ... is itself a concrete injury'
cognizable by the federal courts." Rossville Convenience & Gas, Inc. v. Garland, No. 20-cv-2218
(JDB), 2021 WL 5865446, at *7 (D.D.C. Dec. 10, 2021) (quoting Patel v. U.S. Citizenship &
Immigration Servs., 732 F.3d 633, 637-38 (6th Cir. 2013)); see Matushldna, 877 F.3d at 293 ("A
right of entry, however, is not a prerequisite to standing in the case of someone seeking entry to
the United States."). Here, Thatikonda worked and lived in the United States for several years
before returning to India, where she applied for a visa. The ''jurisprudential considerations" that
ordinarily mitigate against standing for unadmitted, nonresident aliens challenging consular
decisions in foreign countries are simply not present in this case.
That does not mean that Thatikonda's suit surmounts other threshold doctrines barring
review of her claim. Indeed, the analytical challenge in this case stems from the overlap between
the standing and consular nonreviewability inquiries. Thatikonda recognizes the justiciability
concerns inherent in a challenge to a consular officer's visa determination, so she contends that
she is only challenging DHS and USCIS's allegedly unlawful "inadmissibility funding," and not
her visa denial. See, e.g., Pl. 's Opp'n 5-6. When a plaintiff sues based on a "procedural injury"-
or an agency's failure to act according to an applicable statutory or regulatory framework-that
claim "must be tethered to some concrete interest adversely affected by the procedural deprivation:
'[A] procedural right in vacuo ... is insufficient to create Article III standing." WildEarth
Guardians v. Jewell, 738 F.3d 298,305 (D.C. Cir. 2013) (quoting Summers v. Earth Island Inst.,
555 U.S. 488, 496 (2009)) (alterations in original). The concrete interests to which USCIS's
alleged procedural violation is tethered are Thatikonda's interest in admissibility to the United
States and economic interests related to her American employment. See, e.g., Compl. 110 ("As a
result, [p]laintiff suffers the hardships of unreasonably and unlawfully being deprived of
10
admissibility to the United States, as well as certainly being at risk of losing employment ....").
The injuries that Thatikonda suffered to both concrete interests "actually exist," Spokeo, 578 U.S.
at 340, because the consular officer denied her visa. Up until the consular officer rendered a
decision, the inadmissibility finding itself had no effect on her concrete interests. Indeed, USC IS
had approved her employer's H-1 B petition, which entitled Thatikonda to apply for a visa. 6
Thatikonda's syllogistic journey thus returns her to the decision that she wishes to avoid.
Her claims are, for the reasons discussed in the following section, barred by the doctrine of
consular nonreviewability. But for purposes of Article III standing, Thatikonda has sufficiently
alleged an injury in fact. Article III causation and redressability are straightforward here. The
alleged injury is causally connected to defendants' conduct: USCIS's inadmissibility finding was
the basis ofThatikonda's visa denial. See, e.g., Compl. 147. And in theory, a court order setting
aside the finding would remove an obstacle to a positive visa application. See Ctr. for Biological
Diversity v. Env 't Prot. Agency, 861 F.3d 174, 185 (D.C. Cir. 2017) (explaining that a procedural-
rights plaintiff faces a "relaxed redressability requirement" and need not show that "court-ordered
compliance with the procedure would alter the final agency decision," but only that ''there remains
at least the possibility that it could reach a different conclusion" (cleaned up)).
Thatikonda has standing to bring her claims.
B. Thatikonda's Claims Are Barred By The Doctrine of Consular Nonreviewability
The doctrine of consular nonreviewability recognizes that Congress has empowered
consular officers with the exclusive authority to review a proper application for a visa when made
overseas. See 8 U.S.C. §§ 1104(a); 1201(a), (g). Thus, in practice, "decision[s] to issue or
6Thatikonda makes no effort to tie this alleged procedural injury to any other past or future concrete injury. To the
extent that Thatikonda intended to present a different theory of standing, she has not met her burden to do so. See
Lujan, 504 U.S. at 561.
11
withhold a visa [are] not subject to judicial review, at least unless Congress says otherwise."
Joorabi v. Pompeo, 464 F. Supp. 93, 100 (D.D.C. 2020) (quoting Saavedra Bruno v. Albright,
197 F.3d 1153, 1159 (D.C. Cir. 1999)). "This rule applies even where it is alleged that the consular
officer failed to follow regulations, where the applicant challenges the validity of the regulations
on which the decision was based, or where the decision is alleged to have been based on a factual
error." Van Ravenswaay, 613 F. Supp. 2d at 4 (quoting Chun, 223 F. Supp. 2d at 206).
To the extent that Thatikonda attempts to challenge the consular officer's decision to deny
her visa, such a challenge is squarely foreclosed by the doctrine of consular nonreviewability.
Indeed, Thatikonda does not contend otherwise, or invoke any exception to the doctrine. Pl.' s
Opp 'n 2 ("Plaintiff understands that her visa can be refused at the whim of the Consular Officer
and the Court would decline to review that decision."). Instead, she argues that she is not
challenging a consular officer's decision, but instead, OHS and USCIS's ''unlawful[] . . .
determination of inadmissibility." Pl. 's Opp'n 5. Her attempt to skirt past the consular
nonreviewability bar cannot succeed.
The doctrine of consular nonreviewability applies even ''where a plaintiff attempts to
circumvent the doctrine by claiming the [s]he is not seeking a review of the consular officer's
decision, but is challenging some other, related aspect of the decision." Malyutin v. Rice,
677 F. Supp. 2d 43, 46 (D.D.C. 2009), aff'd, No. 10-5015, 2010 WL 2710451 (D.C. Cir. July 6,
2010); see, e.g., Al Makaaseb Gen. Trading Co. v. Christopher, No. 94-cv-1179 (CSH),
1995 WL 110117, at *3 (S.D.N.Y. Mar. 13, 1995) (rejecting a challenge to the inclusion of a visa
applicant on lookout list because "such a challenge cannot be divorced from an attack of the
decision itself'). This Court is "not required to take ... plaintiff's word that she is not challenging
12
the visa denial." Matushkina, 877 F.3d at 295. Here, Thatikonda's challenge to the USCIS finding
cannot be divorced from her attack on the consular officer's decision to deny her visa.
In a case with similar circumstances, the Seventh Circuit applied the consular
nonreviewability bar. See Matushkina, 877 F.3d at 295. In Matushkina, the plaintiff sued to
challenge an inadmissibility finding entered in the Customs and Border Patrol ("CBP") lookout
system. See id. A U.S. Consulate denied Matushkina's visa application based on that
inadmissibility finding. Id. at 291. Matushkina's requested relief was similar to Thatikonda's:
"[s]he wanted the district court to declare invalid CBP's determination that she misrepresented
something on her earlier visa application and to declare that she did not make a material
misrepresentation." Id. at 295; see Compl. 21 (requesting this Court to "[d]eclare unlawful and
set aside the [d]efendants' actions, findings, and conclusions regarding the finding of
inadmissibility made against Kavitha Thatikonda"). The Seventh Circuit concluded that
Matushkina's requested relief was "telling"-her goal was to "remove an obstacle for her visa
application, which is why she ha[d] standing to assert her claim." Matushkina, 877 F.3d at 295.
This "indirect attack on the visa denial c[ould not] succeed." Id.
For the same reasons, the Court concludes that Thatikonda's suit is barred by the doctrine
of consular nonreviewability. Just as it made no difference that Matushkina challenged the CBP
finding of inadmissibility, it makes no difference here that Thatikonda purports to attack a USC IS
finding. Thatikonda's requested relief is equally "telling"-she admits "[u]pon ... receiving the
requested relief, she will have a visa refused without any basis in law." Pl. 's Opp'n 6. And as
noted previously, it is the consular officer's unfavorable decisions that provide standing because
they injured Thatikonda' s concrete interests. Without the consular officer's decisions, USC IS' s
"inadmissibility finding" was of no moment. USCIS did not move forward with revoking her
13
H-lB status while she was in the United States and, in fact, had approved her employer's H-lB
petition, which was a prerequisite for her to obtain a visa.
The D.C. Circuit recognizes only ''two narrow circumstances" where consular decisions
are subject to review. Neither exception is applicable here. First, "an American citizen can
challenge the exclusion of a noncitizen if it burdens the citizen's constitutional rights." Baan Rao
Thai Rest., 985 F.3d at 1024; see Trump v. Hawaii, 138 S. Ct. at 2416; Kleindienst v. Mandel, 408
U.S. 753, 762 (1972). But Thatikonda is not an American citizen and she has no "constitutional
right to entry." Trump v. Hawaii, 138 S. Ct. at 2419.
The second exception exists only if a statute expressly authorizes judicial review of the
consular officer's action. Baan Rao Thai Rest., 985 F.3d at 1025 (quoting Saavedra Bruno,
197 F.3d at 1159). While Thatikonda does not argue in her opposition that an exception to consular
nonreviewability is applicable here, she does invoke several statutes in her complaint that
purportedly authorize the review she seeks. But neither the AP A, 7 nor the INA, nor the Mandamus
Act, nor the Declaratory Judgment Act provide an exception to consular nonreviewability. See
Saavedra Bruno, 197 F.3d at 1158 (holding that the AP A provides no basis for challenging
consular decisions); Baan Rao Thai Rest., 985 F.3d at 1024 (explaining that the INA "grants
consular officers 'exclusive authority to review applications for visas"' (quoting Saavedra Bruno,
197 F.3d at 1156)); Carter v. US. Dep't of Homeland Sec., No. l:21-cv-422 (RCL),
7
The APA only authorizes judicial review of"[a]gency action made reviewable by statute and fmal agency action for
which there is no other adequate remedy in a court." 5 U.S.C. § 704. A final agency action is one that (1) "mark[s]
the 'consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory
nature," Bennett v. Spear, 520 U.S. 154, 177-78 (1997); and (2) is "one by which 'rights or obligations have been
determined,' or from which 'legal consequences will flow,"' Nat'/ Ass'n ofHome Builders v. Norton, 415 F.3d 8, 13
(D.C. Cir. 2005) (quoting Bennett, 520 U.S. at 178). Here, the inadmissibility fmding is not the "consummation" of
USC IS' s decisionmaking process. Indeed, the agency is still considering whether to revoke Thatikonda' s immigration
petition. Thus, the APA would independently preclude review here even if the decision was not barred by consular
nonreviewability.
14
2021 WL 6062655, at *5 (D.D.C. Dec. 22, 202 1) (collecting cases and explaining that the
Declaratory Judgment Act and Mandamus Act provide no exception to consular nonreviewability).
Thatikonda's claims are ban-ed by the doctrine of consular nonreviewability.
IV. CONCLUSION
Based on the foregoing, the Court will GRANT defendants' motion to dismiss by separate
order.
Date: - - - - - - -- -
~~-~
Royce C. Lamberth
United States District Judge
15