Case Law Analysis
Eight Notable DOS Mandamus Decisions,
2020 to 2024
The cases below tell the story of how the law in this area has tightened over the past five years — from a permissive D.D.C. environment in 2020 in which § 221(g) refusals were routinely treated as interim, through the D.C. Circuit's hardening on the merits in Baan Rao and on the TRAC analysis in Da Costa, to the post-Khazaei baseline under which delays of less than a year are presumed reasonable, and finally to the post-Muñoz environment in which the government argues consular nonreviewability with renewed force.
Vulupala v. Barr
An H-1B applicant whose visa was refused at a consular post under § 221(g) and placed in extended administrative processing brought a mandamus action seeking to compel adjudication. The government moved to dismiss, arguing that the § 221(g) refusal was a final consular decision that triggered nonreviewability under Saavedra Bruno.
The court rejected that framing. A § 221(g) "refusal subject to further administrative processing," the court reasoned, is not the kind of final adjudicatory decision that the consular nonreviewability doctrine protects. The post had not yet completed the security advisory opinion process and had not committed to a final outcome; the visa had been neither issued nor permanently refused. The mandamus claim was therefore not barred by nonreviewability at the pleading stage, although other grounds for dismissal were addressed separately.
Why It Matters
Vulupala is the foundational D.D.C. authority for the proposition that § 221(g) is interim, not final — the doctrinal premise on which all subsequent consular-delay litigation in the District has been built. Plaintiffs cite it in nearly every opposition to a motion to dismiss in a consular mandamus case.
Bagherian v. Pompeo
A consular post had refused to schedule an interview on a duly filed visa application. The government moved to dismiss on consular nonreviewability and on the absence of a non-discretionary duty.
The court denied the motion as to the mandamus claim. It identified a non-discretionary duty under 22 C.F.R. § 42.81 to take action on a visa application, distinguishing the Mandel/Saavedra Bruno line of authority on the ground that those cases concerned review of a consular decision, while Bagherian concerned the absence of any decision at all. The court held that compelling action where none has issued is doctrinally distinct from compelling a different result on a decision that has issued.
Why It Matters
Bagherian is the early D.D.C. authority for the structural distinction between "compelling action" and "reviewing a decision." It is consistently cited in plaintiff-side complaints alongside Vulupala and pre-dates the harder line that the D.C. Circuit later took in Baan Rao.
Baan Rao Thai Restaurant v. Pompeo
Thai cooks denied E-2 visas at the consular post sued under the APA, arguing that the U.S.–Thailand Treaty of Amity and Economic Relations supplied an express authorization for judicial review. The district court dismissed; the D.C. Circuit affirmed.
The panel reaffirmed Saavedra Bruno and held that no provision of the Treaty of Amity expressly authorized judicial review of consular decisions. Importantly, the court clarified that dismissal under consular nonreviewability is a dismissal on the merits, not a jurisdictional dismissal — meaning Rule 12(b)(6) is the correct vehicle and the dismissal carries preclusive effect.
Why It Matters
Baan Rao is the controlling D.C. Circuit authority for the proposition that, once a consular decision has issued, the case is essentially over. It is the primary case the government cites when urging that a § 221(g) refusal — if the court treats it as final — invokes nonreviewability and ends the litigation.
Al-Gharawy v. U.S. Department of Homeland Security
An immigrant visa applicant whose case had sat in administrative processing for years sued for unreasonable delay. The government invoked consular nonreviewability and, as a fallback, argued that the Secretary of State was an improper defendant because the Secretary lacks operational control over the pace of consular adjudications.
The court rejected the nonreviewability argument under the Vulupala/Bagherian framework — § 221(g) is interim, not final, and consular nonreviewability does not bar a delay claim where no decision has issued. On the proper-defendant question, the court held that the Secretary is a proper defendant for the timing of consular adjudications, even if the Secretary lacks authority over the substantive grant or denial.
Why It Matters
Al-Gharawy is the most-cited recent D.D.C. authority for the propositions that (a) a § 221(g) refusal does not foreclose a delay claim and (b) the Secretary of State is a proper defendant for timing. Plaintiff-side complaints filed in the District today typically cite it within the first two pages.
Da Costa v. Immigration Investor Program Office
EB-5 investors who had waited multiple years for I-526 adjudication sued for unreasonable delay under the APA. The district court dismissed; the D.C. Circuit affirmed.
Although Da Costa was a USCIS case, not a DOS case, it is the controlling D.C. Circuit application of the TRAC factors and is now invoked in nearly every consular delay opinion in the District. The court held that TRAC factors one and four are the "most important" — whether the agency is following a "rule of reason" in its sequencing, and whether expediting one applicant would interfere with agency activities of higher or competing priority. Because USCIS's visa-availability-screened queue was a "rule of reason" and ordering individual expedition would amount to judicial line-jumping, the complaint failed to state a claim.
Why It Matters
Da Costa imported a forceful "no judicial line-jumping" principle into TRAC analysis in the D.C. Circuit. After Da Costa, every D.D.C. court that has dismissed a consular mandamus complaint at the pleading stage has done so by quoting the "factors one and four are most important" framing.
Khazaei v. Blinken
An F-1 student visa applicant whose case had been in administrative processing for several months sued for unreasonable delay. Judge Boasberg, applying the post-Da Costa framework, granted the government's motion to dismiss.
The court accepted the reviewability premise — § 221(g) refusals do not automatically trigger consular nonreviewability for delay claims — but held that the plaintiff failed the TRAC analysis on the face of the complaint. The court articulated what has since become a rule-of-thumb in the District: "absent a shorter statutory timeline, a delay of less than a year is not unreasonable." The court further held that visa-adjudication delays are "generally resource-allocation decisions that do not lend themselves to judicial reorderings of agency priorities" — TRAC factor four reasoning at its most direct.
Why It Matters
Khazaei is the D.D.C. authority most often quoted against new plaintiffs. The "less than a year is not unreasonable" articulation has become a de facto threshold; the resource-allocation framing supplies the doctrinal vocabulary for dismissal under TRAC factor four.
Rashidian v. Garland
A consular delay case dismissed at the pleading stage by direct application of the Khazaei/Da Costa framework. The court held that the complaint did not allege a delay sufficiently prolonged or unreasonable to overcome the resource-allocation reasoning, and that ordering individual expedition would interfere with the consular processing queue.
The dismissal was without prejudice, leaving open the possibility of refiling once the delay reached a length that the court would treat as cognizably unreasonable.
Why It Matters
Rashidian is a representative example — there are now many such opinions — of how the post-Khazaei, post-Da Costa framework operates in practice. It is also a useful illustration of the without-prejudice dismissal pattern: courts will often leave the door open for the same plaintiff to refile after additional delay accrues.
Zadeh v. Blinken
A K-1 fiancé(e) visa case in which the consular post had issued a § 221(g) refusal in May 2023, after which the petitioner-spouse and the K-1 applicant filed a mandamus complaint. The Northern District of Illinois dismissed.
The court held that, because the post had already issued a refusal, the delay claim was moot — there was no further duty for the court to compel — and the consular nonreviewability doctrine barred any judicial review of the refusal itself. The decision is a clean illustration of the "refusal moots the delay claim, then nonreviewability finishes the job" pattern that increasingly defines outcomes outside the D.D.C.
Why It Matters
Zadeh illustrates the strategic risk of filing too late — that is, after a § 221(g) refusal has already issued. It also illustrates the divergence between the D.D.C., where § 221(g) is treated as interim, and other districts that may treat it as a final decision triggering nonreviewability.
Department of State v. Muñoz
Sandra Muñoz, a U.S. citizen whose Salvadoran husband had been refused an immigrant visa, sued contending that her own constitutional liberty interest in her marriage required the consular officer to provide more than the boilerplate denial that had issued. The Ninth Circuit had agreed; the Supreme Court reversed.
In an opinion authored by Justice Barrett, the Court held that a U.S. citizen has no fundamental liberty interest in her noncitizen spouse's admission to the United States. The right to marry, the Court reasoned, does not entail a constitutional right to live in the country with one's spouse, and Congress has not made spousal immigration a matter of right. The Court reaffirmed the consular nonreviewability framework and the Mandel "facially legitimate and bona fide reason" standard.
Critically, Muñoz did not address mandamus over delay, did not hold that all consular decisions are categorically unreviewable, and did not overrule the Vulupala/Al-Gharawy line on § 221(g) interim refusals. But the Department of Justice has used Muñoz to argue, with increasing aggression, that delay-based claims against the State Department implicate the same separation-of-powers concerns the Court invoked in Muñoz — and at least some district courts have been receptive.
Why It Matters
Muñoz is the most consequential development in consular litigation in a generation. It does not formally close off mandamus over delay, but it has plainly chilled the practice and reshaped DOJ briefing. Any consular mandamus complaint filed today is litigated in Muñoz's shadow.