# Alhariri v. Blinken

> District Court, E.D. New York · May 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11053517

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that the Tucker Act amended the CDA

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11053517. Public record. Not legal advice.