438 F.Supp.3d 93
D.D.C.2020Background
- Plaintiff Prithvi Vulupala, an Indian national, worked in the U.S. on prior visas; his employer filed an I-129 and he applied for an H-1B at the U.S. Consulate in Hyderabad in Sept. 2018.
- After a consular interview, his passport was returned with a section 221(g) notice indicating administrative processing; the consulate later requested supplemental materials and re-interviewed him on multiple occasions.
- Plaintiff alleges unreasonable delay in adjudication (since Sept. 2018), filed suit Feb. 13, 2019 seeking mandamus and APA relief to compel a decision, and does not seek damages.
- Defendants (State, DHS, DOJ officials and consular officers) moved to dismiss for lack of subject-matter jurisdiction, invoking the doctrine of consular nonreviewability.
- The district court denied the motion to dismiss, finding the consular nonreviewability doctrine inapplicable because no final consular decision had been made and plaintiff’s APA/mandamus claim alleging unreasonable delay is reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consular nonreviewability bars federal jurisdiction | Vulupala: doctrine does not apply because no final visa decision; he challenges delay, not merits | Gov: 221(g) notice is a consular "refusal" and doctrine forecloses review of consular visa decisions | Court: doctrine does not apply because application remains in administrative processing and no final decision was made |
| Whether a section 221(g) notice here constitutes a final decision | Vulupala: 221(g) was interim; consulate requested documents and re-interviewed him | Gov: FAM language treats a 221(g) notice as a denial; characterization is dispositive | Court: substance controls over form — in this case 221(g) reflected administrative processing, not final refusal |
| Whether an APA/mandamus claim for unreasonable delay is reviewable despite consular nonreviewability | Vulupala: APA §706 and §555(b) permit courts to compel nondiscretionary agency action (prompt processing) | Gov: consular nonreviewability (and statutes) preclude APA review of visa decisions | Court: APA/mandamus review of alleged unlawful withholding/unreasonable delay is permissible because it targets failure to act, not the merits of visa decisions |
| Whether plaintiff may obtain relief compelling adjudication | Vulupala: seeks writ/injunction compelling adjudication within 15 days | Gov: courts cannot adjudicate or compel consular determinations | Held: Motion to dismiss denied; court retained jurisdiction to hear APA/mandamus claim (no merits ruling yet) |
Key Cases Cited
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (recognizes doctrine of consular nonreviewability for final visa decisions)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA allows courts to compel discrete nondiscretionary agency actions but not to dictate results)
- Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (section 221(g) action held not to be a final decision where matter remained in abeyance)
- Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry, 168 F. Supp. 3d 268 (D.D.C. 2016) (administrative processing and 221(g) do not necessarily constitute final refusals)
- P.K. v. Tillerson, 302 F. Supp. 3d 1 (D.D.C. 2017) (consular nonreviewability does not apply where no final visa decision has been made)
- Kaufman v. Mukasey, 524 F.3d 1334 (D.C. Cir. 2008) (APA/mandamus framework for compelling agency action)
- American Academy of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006) (courts may review alleged unreasonable delay under APA §555(b) in visa context)