Alhariri v. Blinken

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MARYAM ALHARIRI, a/k/a MARYAM MEMORANDUM & ORDER

ALHARIR, and ABDULLA HUSSEIN 22-CV-1036 (NGG) (TAM)

ALHARIRI, a/k/a ABDULLA HUSSEIN

ALHARIR,

Plaintiffs,

-against-

ANTONY BLINKEN, U.S. Secretary of State,

U.S. DEPARTMENT OF STATE, SHAN SHI,

Foreign Service Officer, RENA BITTER,

Assistant Secretary for Consular Affairs, JULIE

M. STUFFIT, Deputy Assistant Secretary for

Visa Services, ALEJANDRO MAYORKAS,

Secretary of the Department of Homeland

Security, UR JADDOU, Director of the United

States Immigration and Citizenship Service,

U.S. EMBASSY IN DJIBOUTI, CONSULAR

CHIEF, U.S. Embassy in Djibouti,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs Maryam Alhariri a/k/a/ Maryam Alharir (“Maryam”)

and Abdulla Hussein Alhariri a/k/a/ Abdulla Hussein Alharir

(“Abdulla”) bring this action against U.S. Secretary of State An-

tony Blinken, the U.S. Department of State, Foreign Service

Officer Shan Shi, Assistant Secretary for Consular Affairs Rena

Bitter, Deputy Assistant Secretary for Visa Services Julie M.

Stufft, Secretary of the U.S. Department of Homeland Security —

(“DHS”) Alejandro Mayorkas, Director of U.S. Citizenship and

Immigration Services (“USCIS”) Ur Jaddou, the U.S. Embassy in

Djibouti, and the Consular Chief of the U.S. Embassy in Djibouti

(collectively, “Defendants”), alleging violations of federal and

state laws in connection with the denial of Abdulla’s visa appli-

cation. (Third Amended Complaint (“TAC”) (Dkt. 52).) Pending

before the court is Defendants’ motion to dismiss the TAC pursu-

ant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

(Defs.’ Mot. (Dkt. 59).) For the reasons that follow, Defendants’

motion to dismiss is GRANTED. Because Plaintiffs have not re-

quested leave to amend, such dismissal is WITH PREJUDICE.

I. BACKGROUND

A. Statutory and Regulatory Framework

“Congress establishes the terms of noncitizen entry into the

. United States, and the Department of State implements those re-

quirements at its embassies and consulates in foreign countries.”

Chen v. Blinken, No. 23-CV-2279 (NGG), 2025 WL 606221, at *1

(E.D.N.Y. Feb. 25, 2025).! Typically, noncitizens residing outside

of the United States must obtain a visa to be admitted to the

United States. Id. Congress enacted a “streamlined” visa applica-

tion process for noncitizens with immediate relatives in the

United States, whereby the citizen (or permanent resident) files

a petition with USCIS to classify the noncitizen as an immediate

relative, and, if USCIS approves the petition, then the noncitizen-

relative may apply for an immigrant visa. See Dep’t of State v.

Munoz, 602 U.S. 899, 904 (2024); 8 U.S.C. §§ 1151(b) (2) (A) @),

1154(a)(1) (A), 1201(a), 1202(b). A United States consular of-

ficer located in the consular district in which the noncitizen

resides then reviews the noncitizen’s visa application, interviews

the applicant, and decides whether to issue the noncitizen a visa

to enter the United States. See 8 U.S.C. §§ 1201(a)(1), 1202; 22

C.F.R. §§ 42.61, 42.62. If the consular officer determines that the

noncitizen is ineligible for admission into the United States, the

officer must provide the noncitizen with a timely written notice

1 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

that “(A) states the determination, and (B) lists the specific pro-

vision or provisions of law under which the [noncitizen] is

inadmissible.” 8 U.S.C. § 1182(b)(1).

B. Factual and Procedural Background?

1. Immigrant Visa Application

Plaintiff Maryam Alhariri is a lawful permanent resident of the

United States and resides in Brooklyn, New York. (TAC § 29.) On

July 9, 2009, Maryam filed an I-130 petition? (the “Petition”),

requesting that USCIS classify her son, Plaintiff Abdulla Hussein

Alhariri, as her “unmarried child under 21 [years of age].” (Id..{

44.) Abdulla was born in Yemen on September 3, 1988, and cur-

rently resides in Egypt.* (Id. § 30.)

USCIS approved Maryam’s Petition on February 4, 2011, and

thereafter forwarded the Petition to the U.S. Department of State

National Visa Center (“NVC”). Ud. {{ 46-47.) At some point

thereafter, Abdulla submitted an immigrant visa application. On

April 12, 2016, a consular officer at the United States Embassy in

Kuala Lumpur, Malaysia (the “Kuala Lumpur Embassy”) inter-

viewed Abdulla and requested that Abdulla and Maryam submit

proof of identity and a DNA test to confirm their mother-son re-

lationship. Ud. 14 50-51.) Plaintiffs complied with the request,

2 The following facts are drawn from the TAC and, for purposes of this

motion to dismiss, are assumed to be true. See Ark. Pub. Emps. Ret. Sys. v.

Bristol-Myers Squibb Co., 28 F.4th 343, 349 (2d Cir. 2022).

3 “A citizen or lawful permanent resident of the United States may file

Form 1-130, Petition for Alien Relative, with [USCIS] to establish the exist-

ence of a relationship to certain alien relatives who wish to immigrate to

the United States.” Instructions for Form I-130, Petition for Alien Relative,

and Form I-130A, Supplemental Information for Spouse Beneficiary, Depart-

ment of Homeland Security, U.S. Citizenship and Immigration Services

(Apr. 1, 2024), □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

ment/forms/i-130instr.pdf [https://perma.cc/73PD-FSYL].

4 At the time of his visa application, Abdulla resided in Malaysia. (TAC 4

98.)

and Abdulla had his second interview at the Kuala Lumpur Em-

bassy on August 12, 2016. (id. 99 52, 54.)

On August 16, 2016, the Kuala Lumpur Embassy preliminarily

denied Abdulla’s visa application on the ground that his “appli-

cation requires further administrative review” pursuant to

Immigration and Nationality Act (“INA”) Section 221(g) (codi-

fied at 8 U.S.C. § 1201(g)). (First Kuala Lumpur Denial (Dkt. 52-

1) at ECF p. 51; TAC 4 55.) The denial also directed Abdulla to

“submit any supplemental information requested.” (First Kuala

Lumpur Denial at ECF p. 51.) Thereafter, on September 23,

2016, the Kuala Lumpur Embassy issued a second denial of Ab-

dulla’s visa application on “other” grounds pursuant to INA

Section 221(g). (Second Kuala Lumpur Denial (Dkt.52-1) atECF

p. 57.) The Kuala Lumpur Embassy “[r]eccomend[ed] to USCIS

to revoke [Abdulla’s] petition” and returned the Petition to

USCIS for further review. (Id.; TAC 99 56-57.)

On April 20, 2017, USCIS issued a Notice of Intent to Revoke

(“NOIR”) the Petition on the following grounds: (1) Abdulla sub-

mitted his petition under a false name, Abdulla Hassan Alkatabi

(in contrast to his stated name, Abdulla Hussein Alhariri); (2)

Abdulla was married, not single; and (3) although Maryam

“claimed that [she] divorced [her] first husband,” Hassan Al-

katabi, and subsequently married a different man, “USCIS

records establish that [Maryam] [was] currently living with [her]

divorced spouse” in Brooklyn, New York. (Notice of Intent to Re-

voke (Dkt. 52-2) at ECF p. 60.) USCIS explained: “Because the

identity used in filing this [Petition] is fictitious and the Benefi-

ciary [Abdulla] is already married, he does not qualify for the

(F22) category, INA Section 203(a) (2) (A). Please be advised that

this information was not available to USCIS at the time this [Pe-

tition] was approved on February 4, 2011.” Gd.) Additionally,

USCIS stated that Maryam “failed to provide sufficient evidence

or testimony that a parent/child relationship exists” between her-

self and Abdulla. (Id.) As such, USCIS notified Plaintiffs of its

intent to revoke the Petition, and provided them with 30 days “to

submit evidence in opposition to the grounds stated for this in-

tended revocation.” (Id. at ECF p. 61.)

Plaintiffs, through counsel, responded to the NOIR on May 16,

2017. (Response to NOIR (Dkt. 52-1) at ECF pp. 63-65.) Plain-

tiffs “enclosed a full evidence package to their Response,”

containing:

Abdulla’s birth certificate; Abdulla’s Yemeni passport; Mar-

yam’s certificate of marriage to her second husband;

Maryam’s divorce documents from her previous marriage;

tax return and declaration evidence demonstrating that Mar-

yam resided with her first son, Hussein Alkatabi, [in

Brooklyn]; and affidavit and documentary evidence from

Yemeni authorities proving Abdulla’s true identity is true and

that he is unmarried. .

(TAC { 60.) Subsequently, on June 22, 2017, USCIS revoked its

approval of Maryam’s Petition on the same grounds listed in the

NOIR: (1) Abdulla submitted his petition under a false name; (2)

there was clear and convincing evidence that Abdulla was cur-

rently married; and (3) Maryam currently resided with her

divorced spouse despite her claim that she had remarried. (See

USCIS Decision (Dkt. 52-1) at ECF pp. 67-70.) Plaintiffs appealed

the revocation to the Board of Immigration Appeals (“BIA”),

which remanded the case on July 21, 2020. (TAC {{ 62-63; BIA

Decision (Dkt. 52-1) at ECF pp. 94-95.) Specifically, the BIA ex-

plained that counsel for DHS “requested that the matter be

remanded ... for further consideration,” and Plaintiffs “[had] not

filed an opposition to this request.” (BIA Decision at ECF p. 95.)

As such, the BIA remanded the case “for further consideration

and for the entry of a new decision.” (id.)

On May 4, 2021, Plaintiffs filed a threat of litigation with the U.S.

Attorney’s Office for the Eastern District of New York to request

assistance regarding the adjudication of the Petition. (TAC 4 94.)

On June 29, 2021, Plaintiffs inquired with USCIS regarding the

status of the Petition on remand. (Id. 4 93.)

2. Procedural History

On February 25, 2022, Plaintiffs filed suit against Defendants,

alleging numerous violations of federal and state laws and re-

questing that the court compel Defendants to adjudicate the

Petition. (Compl. (Dkt. 1).) Thereafter, on June 29, 2022, USCIS

notified Plaintiffs that their Petition “ha[d] been approved” and

forwarded the Petition to the NVC. (Id. 96; Second Petition Ap-

proval (Dkt. 52-1) at ECF p. 391.) Because Abdulla no longer

resided in Malaysia, Plaintiffs transferred their case from the U.S.

Embassy in Kuala Lumpur to the U.S. Embassy in Djibouti (the

“Djibouti Embassy”). (TAC 9 97-99, 131.)

Plaintiffs filed their First Amended Complaint on November 14,

2022, again alleging numerous violations of federal and state

laws, but this time requesting that the court compel Defendants

to process Abdulla’s visa application and schedule a visa inter-

view. (First Amended Complaint (Dkt. 20).)

On January 3, 2023, Abdulla appeared alone for an interview

with a consular officer at the Djibouti Embassy. (TAC § 132.)

When the consular officer asked Abdulla if he was married and

Abdulla responded in the negative, the consular officer allegedly .

responded, “I do not trust Yemeni people and I do not believe

that you have not married yet.” (Id. {9 145-47). The consular of-

ficer then provided Abdulla with a notice indicating that his visa

application had been denied pursuant to Section 221(g) of the

INA. (See First Djibouti Denial (Dkt. 52-1) at ECF p. 481.) The

notice provided that Abdulla’s “application requires administra-

tive processing before we are able to determine whether you are

eligible for a visa,” and instructed Abdulla to complete Form DS-

5535 and submit additional documents predating the filing of the

Petition to prove Abdulla’s age, identity, and status as a single

person. (d.; TAC § 152.) Abdulla submitted Form DS-5535

online, and his attorney submitted the remaining documentation

to the Djibouti Embassy on several occasions, attaching Abdulla’s

completed Form DS-5535 to each submission. (Id. 9 157-159.)

The Djibouti Embassy ultimately received Abdulla’s Form DS-

5335 on May 23, 2023. (See Supplemental Declaration of Joseph

F. Carilli, Jr. (Dkt. 42-1) 94 6-7; see also TAC 94 178-80 (incorpo-

rating by reference the Supplemental Declaration of Joseph F.

Carilli, Jr.).)

Plaintiffs filed their Second Amended Complaint on January 19,

2024. (Second Amended Complaint (Dkt. 46).) Soon thereafter,

on February 12, 2024, the consular officer in Djibouti notified

Abdulla that his visa application had been denied pursuant to

Section 212(a)(6)(C)(i) of the INA, which provides that “any

[person] who, by fraud of willfully misrepresenting a material

fact, seeks to procure ...a visa... is inadmissible.” 8 U.S.C.

§1182(a)(6)(C) Gi). (Second Djibouti Denial (Dkt. 52-1) at ECF

p. 619.) The Embassy acknowledged receipt of certain docu-

ments submitted by Plaintiffs in response to the Embassy’s

request for “documentation to . . . confirm your identity .. . that

predate[s] the filing of [Maryam’s] IRS petition,” including:

(1) a copy of a Yemeni identity card issued 2007 bearing the

name Abdulla Hussein Saleh al-Hariri; (2) a copy of a Yem-

eni passport issued 2011 bearing the name Abdullah Hussein

Saleh al-Hariri; (3) a copy of a Yemeni passport issued 2013

bearing the name Abdullh [sic] Hussein Saleh al-Harir [sic];

(4) a copy of a Yemeni passport issued in 2015 bearing the

name Abdullah Hussein Saleh al-Hariri; (5) a copy of a Yem-

eni passport stamped canceled issued 2015 bearing the

name Abdullah Hussein Saleh al-Hariri; (6) a copy of a Yem-

eni identity card issued in 2012; and (7) an employment

identification card issued in 2022.

(id. (emphasis omitted).) However, the Embassy “determined

that these [documents] [did] not meet the requirements for es-

tablishing [Abdulla’s] identity.” id.) The Embassy explained:

Although the documents bear the name Abdulla Hussein

Saleh al-Hariri, there is still reason to believe that you are

not the individual named on the visa petition because our

investigation revealed that you are applying for an immigra-

tion benefit under a false identity. If you can produce

additional evidence that would overcome the basis for this

ineligibility finding, then consistent with State Department

regulations at 22 C.F.R. section 42.81(e) you may produce

that evidence within one year and a consular officer will re-

consider your ineligibility finding.

(Id. at ECF p. 620.) Accordingly, the Embassy “refused” Abdulla’s

application for an immigrant visa on the basis of his ineligibility.

(Id. at ECF p. 619.)

Plaintiffs filed the operative Third Amended Complaint on July

26, 2024, alleging five causes of action: (1) “Consular Officers

Determination Made in Bad Faith”; (2) “Violation of INA’s Non-

discrimination Clause,” 8 U.S.C. § 1152(a); (3) “Violation of

Statutory Right to Counsel,” 5 U.S.C. § 555(b); (4) “Violation of

Fifth Amendment Equal Protection”; and (5) “Breach of Con-

tract.” (TAC {{ 544-610.) In their prayer for relief, Plaintiffs

request that the court, among other things, “[d]eclare” the fore-

going violations and “[m]Jandate” that the Defendants:

adjudicate Plaintiffs’ visa application “in compliance with Depart-

ment of State regulations, rules and procedures” and “adopt

policies, procedures, and practices for the processing and adjudi-

cation of all visa applications and the conducting of visa

interviews” that comply with the “statutory right to counsel” and

the Fifth Amendment right to equal protection. (Id. {{ 611-21.)

Defendants filed their fully briefed motion to dismiss the TAC on

January 10, 2025. (See Defs.’ Mot.; Pls.’ Opp. (Dkt. 60); Defs.’

Reply (Dkt. 61).)

II. LEGAL STANDARDS

A. Rules 12(b)(1) and 12(b)(6)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal

of a claim when the federal court “lacks jurisdiction over the sub-

ject matter.” Fed. R. Civ. P. 12(b)(1). “The standard for reviewing

a 12(b)(1) motion to dismiss is essentially identical to the

12(b) (6) standard,” Allstate Ins. Co. v. Elzanaty, 916 F. Supp. 2d

273, 286 (E.D.N.Y. 2013), except that “[t]he plaintiff bears the

burden of proving subject matter jurisdiction by a preponderance

of the evidence,” Aurecchione v. Schoolman Transp. Sys., Inc., 426

F.3d 635, 638 (2d Cir. 2005). After construing all ambiguities

and drawing all inferences in the plaintiffs favor, a district court

may properly dismiss a case for lack of subject matter jurisdiction

under Rule 12(b)(1) “if it lacks the statutory or constitutional

power to adjudicate it.” Id.

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal

of a claim when the complaint “fail[s] to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b) (6). To survive

a motion to dismiss under Rule 12(b) (6), “a complaint must con-

tain 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 has facial plausibility when the plain- □

tiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the miscon-

duct alleged.” Id. A complaint must contain facts that do more

than present a “sheer possibility that a defendant has acted un-

lawfully.” Id. Dismissal for failure to state a claim is appropriate

if it is clear from the face of the complaint that a claim is barred

as a matter of law. Biocad JSC v. F. Hoffman-La Roche, 942 F.3d

88, 93 (2d Cir. 2019).

In deciding a motion to dismiss, the court accepts all factual alle-

gations in the complaint as true and draws all reasonable

inferences in the plaintiffs favor. See Fink v. Time Warner Cable,

714 F.3d 739, 740-41 (2d Cir. 2013). However, allegations that

“are no more than conclusions [] are not entitled to the assump-

tion of truth.” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.

2010). In addition to the complaint, the court may consider “doc-

uments that are attached to the complaint, incorporated in it by

reference, integral to the complaint, or the proper subject of ju-

dicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir.

2020). A document is integral to the complaint when the com-

plaint “relies heavily upon [the document’s] terms and effect.”

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

When faced with a motion to dismiss pursuant to Rules 12(b) (1)

and 12(b)(6), a court should “decide the jurisdictional question

under Rule 12(b)(1) first because a disposition of a Rule □

12(b)(6) motion is a decision on the merits, and therefore, an

exercise of jurisdiction.” McClain v. New York State Dept. of Tax’n

& Fin., No. 13-CV-3104 (NGG) (RML), 2014 WL 4101517, at *2

(E.D.N.Y. Aug. 18, 2014).

B. The Doctrine of Consular Nonreviewability

It is well-established that the “admission and exclusion of foreign

nationals is a ‘fundamental sovereign attribute exercised by the

Government’s political departments [and is] largely immune

from judicial control.” Mufioz, 602 U.S. at 907 (citing Trump v.

Hawaii, 585 U.S. 667, 702 (2018)). When Congress delegates to

executive officials the discretionary authority to admit nonciti-

zens, an Official’s decision to admit or exclude a noncitizen “is

final and conclusive.” Id. at 907-08. The judiciary has no role to

play “unless expressly authorized by law.” Id. at 908. Because the

10

INA does not authorize judicial review of a consular officer’s de-

nial of a visa, “as a rule, the federal courts cannot review those

decisions.” Id.; Quadar v. Mayorkas, No. 18-CV-6817 (KPF), 2021

WL 1143851 at *5 (S.D.N.Y. Mar. 24, 2021) (“[A] court pre-

sented with a petition challenging the decision of a consular

officer [cannot] review [that] decision, even if its foundation was

erroneous, arbitrary, or contrary to agency regulations.”). This .

known as the doctrine of consular nonreviewability. Murioz, 602

U.S. at 908.

The doctrine of consular nonreviewability is subject to one nar-

row exception: “when the denial of a visa allegedly burdens the

constitutional rights of a U.S. citizen.” Trump, 585 U.S. at 703. If

the denial of a visa burdens the constitutional rights of a U.S.

citizen, the court may consider whether the Executive “gave a

facially legitimate and bona fide reason for denying the visa.”

Munoz, 602 U.S. at 908. “If so, the inquiry is at an end—the Court

has [no] authority to look behind the exercise of that discretion.”

. Id. To demonstrate a facially legitimate and bona fide reason for

denying a visa application, “the Government need only identify

a properly construed statute that provides a ground of exclusion

and provide the consular officer’s assurance that he or she knows

or has reason to believe that the visa applicant has done some-

thing fitting within the proscribed category.” Guy v. Blinken, No.

22-CV-6889 (BMC), 2023 WL 4665764, at *2 (E.D.N.Y. July 20,

2023) (citing Am. Academy of Religion v. Napolitano, 573 F.3d

115, 126 (2d Cir. 2009)). Such an assurance “is bona fide in the

absence of an allegation that the consular officer acted in bad □

faith.” Id.

11

Ill. DISCUSSION

Defendants move to dismiss the TAC pursuant Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure.® (Defs.’

Mot. at 8-10.) Plaintiffs oppose the motion. (See generally Pls.’

Opp.) The court considers each basis for dismissal in turn.

A. Rule 12(b)(1)

The TAC invokes the court’s jurisdiction under 28 U.S.C. §§ 1331

and 2201, and 5 U.S.C. §§ 702-706. (TAC { 26.) Defendants ar-

gue that: (1) the doctrine of consular non-reviewability bars

Plaintiffs’ TAC in its entirety; (2) the U.S. Court of Federal Claims

has exclusive jurisdiction over Count 5, the breach of contract

claim; and (3) sovereign immunity applies to Counts 2 and 4.

(Defs.’ Mot. at 12-18.)

As to consular nonreviewability, the Supreme Court recently held

that “the doctrine of consular nonreviewability is not jurisdic-

tional.” Murioz, 602 U.S. at 908 n.4; see also Esghai v. U.S. Dep’t

5 In support of their motion to dismiss, Defendants submit the Declaration

of Melody A. Brukiewa. (See Brukiewa Decl. (Dkt. 59-1).) Ms. Brukiewa is

a State Department employee who works as an attorney-advisor in the Of-

fice of Assistant Legal Adviser for Consular Affairs. (Id. § 1.) The court will

not consider Ms. Brukiewa’s Declaration in adjudicating Defendants’ mo-

tion to dismiss. Ms. Brukiewa executed her Declaration on November 14,

2024, nearly four months after Plaintiffs filed the TAC on July 26, 2024.

(Compare Brukiewa Decl. with TAC.) Furthermore, in preparing her Dec-

laration, Ms. Brukiewa reviewed the State Department’s electronic

Consular Consolidated Database (“CCD”), which appears to contain docu-

ments and/or information that have not been made available to Plaintiffs.

(See Brukiewa Decl. {4 1-3.) Because the Declaration did not exist prior to

the commencement of this action, it was not—and could not have been—

attached to the TAC or incorporated in it by reference. See Strock, 982 F.3d

at 63. The Declaration also cannot have been integral to the TAC because

the TAC could not have relied upon the “terms and effect” of a declaration

that did not yet exist. See DiFolco, 622 F.3d at 111. Accordingly, the court

will not consider the Declaration in deciding Defendants’ motion to dis-

miss.

12

of State, No. 24-CV-2993 (PAE), 2024 WL 4753799, at *3

_ (S.D.N.Y. Nov. 12, 2024) (citing Mufioz and rejecting defendant’s

argument that the court lacks subject matter jurisdiction); Rashed

v. Blinken, No. 24-CV-964 (PAE),. 2024 WL 4904701, at *3

(S.D.N.Y. Nov. 27, 2024) (same). A court’s dismissal of a claim

“based on consular reviewability is a merits disposition under

Federal Rule of Civil Procedure 12(b)(6).” Esghai, 2024 WL

4753799, at *3 (quoting Baan Rao Thai Rest. v. Pompeo, 985 F.3d

1020, 1027 (D.C. Cir. 2021)). Therefore, Defendants’ argument

that the doctrine of consular nonreviewability deprives the court

of subject matter jurisdiction is without merit.

As to Count 5, Defendants argue that the Contract Disputes Act

(the “CDA”) “provides the only waiver of sovereign immunity for

contract disputes with the government,” and requires that such

claims be filed in the U.S. Court of Federal Claims. (Defs.’ Mot.

at 18.) However, Plaintiffs correctly point out that the CDA, as

amended by the Tucker Act, provides federal district courts and

the Court of Federal Claims with concurrent jurisdiction over

breach of contract claims not exceeding $10,000. (Pls.’ Opp. at

11-12 (citing 28 U.S.C. § 1346(a)(2)).) See Up State Fed. Credit

Union v. Walker, 198 F.3d 372, 374 (2d Cir. 1999) (noting that

the Tucker Act amended the CDA). Indeed, in United States v.

Mitchell, the Supreme Court held that by providing concurrent

jurisdiction in the district courts over claims not exceeding

$10,000, the Tucker Act “constitutes a waiver of sovereign im-

munity with respect to those claims.” 463 U.S. 206, 212 (1983). .

Plaintiffs’ TAC does not allege a damages amount; it simply states

that Defendants “caused [Plaintiffs] damages in the form of pro-

longed separation from their family.” (TAC 9 610.) Nevertheless,

for purposes of the instant motion to dismiss, the court assumes

that the damages amount is less than $10,000, such that the

court has jurisdiction over Plaintiffs’ breach of contract claim.

While the court ultimately dismisses Count 5 on its merits, see

13

infra Section III.B.5, Defendant’s request to dismiss this claim for

lack of subject matter jurisdiction is denied.

Finally, Defendants argue that Counts 2 and 4 must be dismissed

because Plaintiffs have not identified a waiver of sovereign im-

munity as to those claims. (Defs.’ Mot. at 12-18.) Defendants cite

no INA-specific authority on this issue; they simply cite generic

sovereign immunity caselaw. (Id.) Plaintiffs do not address De-

fendants’ sovereign immunity arguments; as such, the court may

consider the issue waived and Counts 2 and 4 abandoned. (See

generally Pls.’ Opp.) Powell v. United States, No. 18-CV-5378

(ERK) (MMH), 2024 WL 4329842, at *7 (E.D.N.Y. Aug. 20,

2024) (“It is well-settled that the failure to oppose an argument

raised in a motion to dismiss is deemed a concession of the argu-

ment and abandonment of the claims.”); Wilkov v. Ameriprise Fin.

Servs., Inc., 753 F. App’x 44, 46 n.1 (2d Cir. 2018) (affirming dis-

missal of claims “on the ground that they were ‘abandoned’ by

[plaintiff] when she failed to oppose them in her opposition to

[defendant’s] motion to dismiss”). Nevertheless, because Counts

2 and 4 fail on the merits, it is not necessary to reach the sover-

eign immunity issue, or Plaintiffs’ waiver thereof. See, e.g., Shan

v. China Constr. Bank Corp., No. 9-CV-8566 (DLC), 2010 WL

2595095, at *5 n.12 (S.D.N.Y. June 28, 2010) (declining to ad-

dress issue of sovereign immunity where plaintiffs claims failed

on the merits); AFSCME Loc. 818 v. City of Waterbury, 389 F.

Supp. 2d 431, 438 n.4 (D. Conn. 2005) (same). Defendants’ re-

quest to dismiss Counts 2 and 4 on the basis of sovereign

immunity is therefore denied.

In sum, Defendants’ motion to dismiss the TAC pursuant to Rule

12(b) (1) is denied.

B. Rule 12(b)(6)

Defendants also move to dismiss the TAC under Rule 12(b) (6)

for failure to state a claim upon which relief may be granted. (See

generally Defs.’ Mot.) For reasons that will become clear in the

14

ensuing analysis, the court considers Count 4 first before consid-

ering the remaining counts in turn.

1. Count 4: Fifth Amendment Equal Protection

In Count 4, Plaintiffs allege that Defendants “applied otherwise

facially neutral policies, procedures, guidance, and adjudication

standards in a discriminatory manner . . . for the purpose of de-

laying and denying visa petitions and immigrant visa applications

filed on behalf of beneficiaries of Yemeni. . . origin.” (TAC 4

583.) Specifically, Plaintiffs claim that Defendants violated Mar-

yam’s Fifth Amendment right to equal protection® when they

delayed and attempted to revoke her J-130 Petition, and delayed

and denied Abdulla’s visa application, on the basis of their Yem-

eni heritage. (Id. 14 583-95.)

Defendants argue that Count 4 should be dismissed because Mar-

yam has no constitutional interest in Abdulla’s visa application,

and, in any event, Plaintiffs fail to state an equal protection claim.

(Mot. at 17.) Plaintiffs contend that that they plausibly allege an

equal protection violation because Defendants “erected barriers”

to immigration benefits, including “policies and practices applied

only to the immigration benefits applications of Yemeni-Ameri-

cans and their family members.” (Opp. at 18-19.) Plaintiffs do

not address Defendants’ argument that Maryam has no constitu-

tional interest in Abdulla’s visa application. (See generally id.)

The court concludes that the doctrine of consular nonreviewabil-

ity bars consideration of Count 4.

As an initial matter, visa applicants like Abdulla “have no equal

protection rights under the Fifth Amendment.” Algazali v.

Blinken, No. 23-CV-6038 (LGS), 2025 WL 357721, at *5

6 The Fifth Amendment does not contain an equal protection clause, but

there is an equal protection “guarantee implicit in the Fifth Amendment's

Due Process Clause,” Sessions v. Morales-Santana, 582 U.S. 47, 52 n.1

(2017).

15

(S.D.N.Y. Jan. 31, 2025); Mufioz, 602 U.S. at 908. Thus, to the

extent Count 4 alleges a Fifth Amendment equal protection vio-

lation on behalf of Abdulla, such claim is without merit. □

Additionally, to the extent Count 4 alleges an equal protection

violation on behalf of Maryam, such claim “falls squarely within

the doctrine of consular nonreviewability.” Abdo v. Tillerson, No.

17-CV-7519 (PGG), 2019 WL 464819, at *4 (S.D.N.Y. Feb. 5,

2019). Plaintiffs allege that Defendants “delayed and attempted

to revoke” Maryam’s I-130 Petition in accordance with discrimi-

natory policies. (TAC %{ 583, 591.) However, it is well-

established that Plaintiffs cannot “circumvent [the doctrine of

consular nonreviewability] by contending that the doctrine does

not apply to a request that a visa be adjudicated (as opposed to

granted) within a reasonable period of time.” Li v. Chertoff, No.

6-CV-13679 (LAP), 2007 WL 541974, at *1 (S.D.N.Y. Feb. 16,

2007). Indeed, an assessment of the merits of Maryam’s Fifth

Amendment claim would necessarily “thrust this Court into the

forbidden realm of reviewing consular visa decisions,” including

whether the Executive did, in fact, apply the contested policies

and procedures in a discriminatory manner. Al Makaaseb Gen.

Trading Co. v. Christopher, No. 94-CV-1179 (CSH), 1995 WL

110117, at *4 (S.D.N.Y. Mar. 13, 1995); see also Coniglio v. Gar-

land, 556 F. Supp. 3d 187, 201 (E.D.N.Y. 2021) (“[J]udicial

scrutiny of the predicate for the consular decision necessarily

causes the court to interfere with the process of the decision

which it has been precluded from reviewing.”). Thus, because

Plaintiffs ask the court to review the reasoning behind the consu-

lar’s alleged delay and attempted revocation of Maryam’s

Petition, their Fifth Amendment claim is barred by the doctrine

of consular nonreviewability.

Nor does the exception to the doctrine of consular nonreviewa-

bility apply in these circumstances. First, it is unclear whether

Maryam can invoke the exception as a legal permanent resident,

16

rather than a U.S. citizen. See Abdo, 2019 WL 464819, at *4 (con-

cluding that a legal permanent resident cannot invoke the

exception to the doctrine of consular nonreviewability). Second,

assuming Maryam can invoke the exception, the TAC alleges no

independent violation of her constitutional rights. See Murioz,

602 U.S. at 908. Therefore, the exception does not apply, and the

doctrine of consular nonreviewability bars consideration of

Count 4.

Finally, even if the doctrine of consular nonreviewability did not

apply—and it does—the court would nonetheless conclude that

Count 4 fails to state a claim upon which relief may be granted.

Although USCIS revoked its approval of Maryam’s Petition on

June 22, 2017, it ultimately approved her Petition on June 29,

2022. (USCIS Decision at ECF pp. 67-70; TAC § 96.) Plaintiffs

then transferred their case from the Kuala Lumpur Embassy to

the Djibouti Embassy so that the Djibouti Embassy could process

Abdulla’s visa application. (TAC {{ 97-99, 131.) The TAC does

not plausibly allege that Maryam’s I-130 Petition—as opposed to

Abdulla’s visa application—was subjected to any discriminatory

conduct or treatment. Rather, it simply claims that Defendants

“delayed and attempted to revoke” Maryam’s I-130 Petition in

accordance with “policies, procedures, guidance, and adjudica-

tion standards” applied in a discriminatory manner against

Yemeni people. (TAC § 583, 591.) The court is not required to

accept as true such “conclusory allegations or legal conclusions

masquerading as factual conclusions.” Rolon v. Henneman, 517

F.3d 140, 149 (2d Cir. 2008); see also Algazali, 2025 WL 357721,

at *5 (rejecting similar claim where the complaint “does not al-

lege that [the U.S.-citizen husband] suffered any adverse

treatment with respect to his ability to petition as a spouse on

behalf of his [noncitizen] wife,” and noting that “[w]hatever

rights remain for [the wife] to obtain a visa belong to her, and

[the husband] cannot assert those rights on her behalf”).

17

The only factual support for Plaintiffs’ claim of discrimination is

a WikiLeaks article, appended to the TAC, which purports to con-

tain a September 29, 2009, USCIS policy that all Yemeni I-130

petitions be considered “fraudulent until proven otherwise.”

(WikiLeaks Exhibit (Dkt. 552-1) at ECF p. 307.) Putting aside the

obvious authenticity issues, the TAC contains no plausible allega-

tion that USCIS applied this alleged policy to Maryam’s I-130

Petition, which was ultimately approved. Additionally, even if

USCIS maintained this policy toward Yemeni applicants, it is un-

clear whether the court has the authority to question it, given the

wide discretion afforded to the Executive in immigration-related

matters. See Mufioz, 602 U.S. at 907 (noting that the “admission

and exclusion of foreign nationals is a fundamental sovereign at-

tribute exercised by the Government’s political departments [and

is] largely immune from judicial control”); Trump, 585 U.S. at

711 (Kennedy, J., concurring) (acknowledging that “[w]hether

judicial proceedings may properly continue in [a case alleging

religious animus], in light of the substantial deference that is and

must be accorded to the Executive in the conduct of foreign af-

fairs, . . . is a matter to be addressed in the first instance on

remand”); Alharbi v. Miller, 368 F. Supp. 3d 527, 562 n.12

(E.D.N.Y. 2019) (commenting, “it appears that no court has...

determine[d] definitively when, if ever, and to what extent a

court can review policies concerning immigration and national

security when faced with constitutional challenges to those poli-

cies”). Thus, even if the doctrine of consular nonreviewability did

not apply, the court would conclude that Count 4 fails to state a

claim upon which relief may be granted. Count 4 is dismissed.

2. Count 1: Bad Faith

In Count 1, Plaintiffs allege that “[the] consular officer[’]s deter-

mination [was] made in bad faith.” (TAC 4 545-52

(capitalizations omitted).) Specifically, Plaintiffs assert that

18

“[DHS], through USCIS, established the identity of Plaintiff Ab-

dulla through the DNA testing that the Department of State

requested”; as such, “the consular officer could not have possibly

in good faith believed that Plaintiff Abdulla was anyone other

than who he claimed to be through both his documentation and

DNA testing.” (Ud. □□ 545-46.) Thus, Plaintiffs contend that the

consular officer’s decision to deny Abdulla’s visa application was

“necessarily made in bad faith.” (Id. ¢ 550.) Additionally, Plain-

tiffs claim that the “timing of the finding of alleged

inadmissibility is also suspect, given that there was no follow

[up] interview,” and USCIS denied Abdulla’s application after

Plaintiffs filed the Second Amended Complaint. (Id, 4551.) Thus,

Plaintiff asserts that “[t]he actions of the Defendants were clearly

retaliatory in nature and should not be viewed as a valid exercise

of its discretion to issue or refuse a visa.” (Id. 4 552.)

The doctrine of consular nonreviewability bars consideration of

Count 1. Plaintiffs challenge the consular officer’s decision to

deny Abdulla’s visa application; therefore, the doctrine of consu-

lar nonreviewability applies unless Plaintiffs qualify for the

exception. Abdulla cannot invoke the exception to the doctrine

of consular nonreviewability “because he has no constitutional

right of entry to this country as a nonimmigrant or otherwise.”

Munoz, 602 U.S. at 908. Thus, “so far as [Abdulla] is concerned,

the doctrine of consular nonreviewability applies.” Id. Moreover,

even assuming that Maryam can invoke the exception as a lawful

permanent resident, not a U.S. citizen, the TAC does not plausi- —

bly allege a violation of Maryam’s constitutional rights. (See TAC

94 545-52, 571-95; Pls.’ Opp. at 8-9.)

Count 4 of the TAC—the only count containing an alleged viola-

tion of Maryam’s constitutional rights—alleges that Defendants

violated Maryam’s Fifth Amendment right to equal protection.

(TAC 94 571-95.) However, as explained above, Count 4 is itself

barred by the doctrine of consular nonreviewability. (See supra

19

Section III.B.1.) Thus, because the TAC alleges no other violation

of Maryam’s constitutional rights,’ the doctrine of consular non-

reviewability bars consideration of Count 1. Trump, 585 U.S. at

703.

Even if Count 4 were not independently barred by the doctrine

of consular nonreviewability, it is unclear whether the Supreme

Court would recognize the right asserted by Maryam in this con-

text: the right of a legal permanent resident to have an I-130

petition filed on behalf of her noncitizen son processed without

regard to her race, national origin, or ethnicity. The exception to

the doctrine of consular nonreviewability has been recognized in

only one context: where plaintiffs assert a First Amendment right

to have a visa applicant present their ideas in the United States.

See Napolitano, 573 F.3d at 125. Neither the Second Circuit nor

the Supreme Court has extended this “narrow exception” to other

constitutional claims. Khan v. U.S. Dep’t of State, 722 F. Supp. 3d

92, 101 (D. Conn. 2024); see also Murioz, 602 U.S. at 908 (hold-

ing that a U.S. citizen “does not have a fundamental liberty

interest in her noncitizen spouse being admitted to the country”);

Chen, 2025 WL 606221, at *7 (concluding that a U.S. citizen

“does not have a fundamental liberty interest in living in the

United States with his [noncitizen] mother”). Plaintiffs cite no

authority in which a court has embraced their asserted Fifth

Amendment right. Thus, even if Count 4 were not itself barred

by the doctrine of consular nonreviewability, in light of the ex-

ception’s narrow construction by both the Supreme Court and

7 Although the TAC contains no such allegation, to the extent Maryam may

allege that the denial of Abdulla’s visa application violates her fundamental

right to live with Abdulla in the United States, that claim would be merit-

less. See Murioz II, 602 U.S. at 908 (holding that a U.S. citizen “does not

have a fundamental liberty interest in her noncitizen spouse being admit-

ted to the country”); Chen, 2025 WL 606221, at *7 (concluding that a US.

citizen “does not have a fundamental liberty interest in living in the United

States with his [noncitizen] mother’).

20

the Second Circuit, the court would decline to apply the excep-

tion to this context. See Algazali, 2025 WL 357721, at *5

(“Initial admission to the United States is a privilege, and the

application for it entails no constitutional rights because the

power to admit or exclude visa applications is a sovereign pre-

rogative.”). Count 1 is dismissed. .

3. Count 2: Immigration and Nationality Act, 8 U.S.C.

§ 1152(a)

In Count 2, Plaintiffs allege that Defendants “subjected [them] to

separate, distinct visa adjudication procedures based on the

Plaintiff Maryam’s Yemeni race, ethnicity, [or] national origin, as

well as Plaintiff Abdulla’s Yemeni race, nationality, place of birth,

or place of residence,” in violation of their rights under the INA

to be free from discrimination based on their ethnicity and na-

tional origin. (TAC {4 553-61 (citing 8 U.S.C. § 1152(a)).) These

“distinct visa adjudication procedures” included:

[T]he requirement that Plaintiff submitted Form DS-5535;

the Djibouti Embassy’s illusory evidence submission process

which deliberately fails to receive, process, and catalog all

evidence submitted to the Embassy in support of visa appli-

cations; and the [State Department] visa reciprocity

schedule which declares unreliable per se all civil records is-

sued by Yemeni civil authorities; and the use of USCIS □

discriminatory 1-130 adjudication and revocations proce-

dures.

(Id. { 557.) Defendants argue that Count 2 should be dismissed

because Section 1152(a)’s non-discrimination prohibition ap-

plies only to the issuance of immigrant visas, not to the

determination of admissibility, which Plaintiffs challenge here.

(Mot. at 13-14.) Plaintiffs do not defend Count 2 in their memo-

randum in opposition. (See generally Pls.’ Opp.)

21

Count 2 implicates two distinct provisions of the INA: Section

1182 and Section 1152. Section 1182 “defines the pool of indi-

viduals who are admissible to the United States.” Trump, 585

U.S. at 695 (citing 8 U.S.C. § 1182). “Its restrictions come into

play at two points in the process of gaining entry (or admission)

into the United States”: first, in the determination of admissibility

by a consular officer, and second, upon arrival in the United

States, where an immigration officer may determine that a per-

son is inadmissible notwithstanding the consular officer’s initial

determination. Id. Relevant here is the first stage of this process:

the consular officer’s determination of inadmissibility. Section

1182 lists the various bases for an inadmissibility determination,

including the basis provided by the consular officer in Abdulla’s

case: “Any [person] who, by fraud or willfully misrepresenting a

material fact, seeks to procure (or has sought to procure or has

procured) a visa, other documentation, or admission into the

United States or other benefit provided under this chapter is in-

admissible.” 8 U.S.C. § 1182(a)(6)(C) (i). (See Second Djibouti

Denial at ECF p. 619-20.) Section 1182 does not contain an an-

tidiscrimination provision. See generally 8 U.S.C. § 1182.

Sections 1182 and 1152 “operate in different spheres”: while

Section 1182 “defines the universe of [people] who are admissi-

ble into the United States (and therefore eligible to receive a

visa),” Section 1152(a)(1) (A) “prohibits discrimination in the al-

location of immigrant visas based on nationality and other traits.”

Trump, 585 U.S. at 695 (emphases added); see also 8 U.S.C. §

1152(a)(1) (A) C[N]o person shall receive any preference or pri-

ority or be discriminated against in the issuance of an immigrant

visa because of the person’s race, sex, nationality, place of birth,

or place of residence.” (emphasis added)). In other words, Sec-

tion 1552 prohibits discrimination in the issuance of an

immigrant visa, it does not prohibit discrimination in the consu-

lar officer’s determination of admissibility under Section 1182.

Trump, 585 U.S. at 695 (“The distinction between admissibility—

22

to which § 1152(a)(1)(A) does not apply—and visa issuance—

to which it does—is apparent from the text of the provision,

which specifies only that its protections apply to the ‘issuance’ of

‘immigrant visas,’ without mentioning admissibility or entry.”).

To the extent Count 2 challenges the procedures and policies re-

lating to the consular officer’s determination of admissibility, it is

foreclosed by Trump v. Hawaii. Each of the challenged proce-

dures listed above relate to the consular officer’s determination

of admissibility, not to the ultimate visa issuance decision. (See

TAC 4 557.) Because Section 1152(a)(1)(A) does not apply to

admissibility determinations, Plaintiffs’ discrimination claim fails

as a matter of law. See Alharbi, 368 F. Supp. 3d at 561 (rejecting

a similar claim).

To the extent Count 2 challenges “visa adjudication procedures”

more broadly, such a claim is “outside the purview of [Section

1152].” Algazali v. Blinken, No. 23-CV-6038 (LGS), 2025 WL

357721, at *5 (S.D.N.Y. Jan. 31, 2025). While Section

1152(a)(1)(A) prohibits discrimination in the issuance of a

visa, “[t]his anti-discrimination guarantee . . . is subject to one

overriding limitation, that ‘[n]othing in this paragraph shall be

construed to limit the authority of the Secretary of State to

determine the procedures for the processing of immigrant visa

applications.” Id. (quoting 8 U.S.C. § 1152(a)(1)(B)). Thus,

insofar as Count 2 challenges the “procedures for the pro-

cessing of immigrant visa applications,” it is barred by Section

1152(a)(1)(B). Count 2 is dismissed.

4. Count 3: Right to Counsel

In Count 3, Plaintiffs allege that Defendants violated Abdulla’s

“statutory right to counsel” during his visa interviews at the Kuala

Lumpur Embassy. (TAC {{ 562-70.) Specifically, Plaintiffs con-

tend that the Administrative Procedures Act (the “APA”), 5 U.S.C.

§ 555(b), guarantees visa applicants the right to counsel at their

visa interviews, and Defendants violated this right when the

23

Kuala Lumpur Embassy “refused to allow Plaintiffs to be repre-

sented or accompanied by counsel at previous visa interviews.”®

(Id. {4 562, 566.) Defendants argue that Count 3 should be dis-

missed because Abdulla’s visa application is governed by the INA,

not the APA, and the INA does not provide a right to counsel at

visa application interviews. (Mot. at 14-16; Opp. at 9 (agreeing

that the INA does not provide a right to counsel in these circum-

stances).)

Plaintiffs’ invocation of the right to counsel under the APA is un-

availing. In Ardestani, the Supreme Court reaffirmed. its prior

holding “that Congress intended the provisions of the [INA]...

to supplant the APA in immigration proceedings.” Ardestani v.

ILN.S., 502 U.S. 129, 133 (1991) (citing Marcello v. Bonds, 349

U.S. 302, 310 (1955)). Although Ardestani and Marcello “as-

sessed the applicability of the APA to traditional removal

proceedings,” the reasoning of those cases “is not limited to pro-

ceedings in the traditional removal process.” Las Americas

Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 29 (D.D.C.

2020). Instead, Ardestani explained that “immigration proceed-

ings ... are not governed by the APA.” 502 U.S. at 133; see also

Patel v. Holder, 406 F. App’x 502, 504 (2d Cir. 2010) (“[Plain-

tiffs] argument that the agency violated the notice requirements □

of the APA is frivolous because the Supreme Court has held that

the APA does not apply to immigration proceedings.”). Because

the APA does not apply in these circumstances, Plaintiffs’ right to

counsel claim is meritless. Count 3 is dismissed.

5. Count 5: Breach of Contract

Count 5 alleges breach of contract based on Defendants’ alleged

violation of the duty of good faith and fair dealing. (TAC 9 596-

610.) Specifically, Plaintiffs claim that by collecting filing fees for

8 The court presumes that Plaintiffs refer to Abdulla’s April and August

2016 interviews at the Kuala Lumpur Embassy. (TAC 9 50-54.)

24

visa applications, Defendants “created a contract of sale with the

Plaintiffs for the proper adjudication of their visas.” (id. 4 597.)

Plaintiffs contend that Defendants violated the covenant of good

faith and fair dealing implicit in all contracts when they denied

Abdulla’s visa application in the face of DNA evidence confirming

his identity. Ud. 606-08.) In other words, the Defendants

“acted in bad faith to refuse Plaintiff Abdulla’s visa on a ground

which they knew did not apply to him.” (Id. { 608.) Defendants

assert that Plaintiffs’ breach of contract claim is meritless. (Mot.

at 18.)

The doctrine of consular nonreviewability bars consideration of

Count 5. Although Plaintiffs package Count 5 as a breach of con-

tract claim, in reality, Count 5 is merely duplicative of their bad

faith claim. (See TAC | 608 (alleging breach of contract based on

Defendants’ “bad faith . . . refus[al] [of] Plaintiff Abdulla’s visa

on a ground which they knew did not apply to him”).) Because

Count 5 seeks review of the consular officer’s decision to deny

Abdulla’s visa application, it is barred by the doctrine of consular

nonreviewability unless the exception applies. Murioz, 602 U.S.

at 908. However, as noted above, the TAC does not plausibly al-

lege that the denial of Abdulla’s visa burdens the constitutional

rights of a U.S. citizen. Therefore, the exception does not apply,

and the doctrine of consular nonreviewability bars consideration

of Count 5.

Even if the doctrine of consular nonreviewability did not apply—

and it does—the court would nonetheless conclude that Count 5

fails to state a claim upon which relief may be granted. Plaintiffs

' cite no authority—and the court is aware of none—to support

their claim that the acceptance of filing fees creates a binding

contract between the Executive and Plaintiffs, such that the court

may inquire into the bases for the denial of Abdulla’s visa appli-

cation. (See TAC §{ 596-610; Opp. at 12-13.) Indeed, such a

25

holding would fly in the face of the doctrine of consular nonre-

viewability. Thus, even if the doctrine of consular

nonreviewability did not apply, the court would conclude that

Count 5 fails to state a claim upon which relief may be granted.

Count 5 is dismissed.

In sum, Defendants’ motion to dismiss the TAC pursuant to Rule

12(b)(6) is granted. Because Plaintiffs have not requested leave

to amend, (see generally Opp.), and because the court has already

allowed Plaintiffs multiple opportunities to replead, the TAC is

dismissed with prejudice. See Faulkner v. Verizon Commc'ns, Inc.,

189 F. Supp. 2d 161, 174 (S.D.N.Y. 2002) (adopting same ap-

proach); see also Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.

2011) (“While leave to amend under the Federal Rules of Civil

Procedure is freely granted,” the court need not “grant a request

that was not made.”); Horoshko v. Citibank, N.A., 373 F.3d 248,

249 (2d Cir. 2004) (“Because an amendment is not warranted

absent some indication as to what [Plaintiffs] might add to their

complaint in order to make it viable, the District Court [i]s under

no obligation to provide [Plaintiffs] with leave to amend their

complaint, much less provide such leave sua sponte.”).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is

GRANTED. Because Plaintiffs have not requested leave to

amend, such dismissal is WITH PREJUDICE.

SO ORDERED.

Dated: Brooklyn, New York

May |9§, 2025

. s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS

United States District Judge

26