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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 23-1020 (TSC) 

KATHERINE LORENA HERDOIZA 

GUERRERO,

Plaintiff,

v.

DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Katherine Lorena Herdoiza Guerrero has sued the U.S. Department of State, 

U.S. Customs and Border Protection (“CBP”), and the heads of those agencies (collectively, 

“Defendants”). She contends that the process leading to the denial of her visa application was 

unlawful, and seeks a court order invalidating that process and vacating the denial. See Compl. 

at 21–25, ECF No. 1. Defendants have moved to dismiss the Complaint under Federal Rules of 

Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot. to Dismiss Pl.’s Compl., ECF No. 6 

(“MTD”). For the reasons set forth below, the court will GRANT Defendants’ Motion. 

I. BACKGROUND

The Immigration and Nationality Act (“INA”) governs the issuance of visas to foreign 

nationals who seek to enter the United States on a permanent (“immigrant”) or temporary 

(“nonimmigrant”) basis. 8 U.S.C. § 1101 et seq. Within that framework, the “B-1” and “B-2” 

nonimmigrant visa categories are intended for foreign nationals who reside abroad but intend to 

“visit[] the United States temporarily for business or temporarily for pleasure.” Id.
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§ 1101(a)(15)(B). This case concerns Plaintiff’s efforts to obtain a B-1/B-2 visitor’s visa. At the 

motion to dismiss stage, the court assumes the truth of the following allegations. 

Plaintiff is “a citizen and national of Ecuador who currently resides in Quito.” Compl. 

¶ 43. She “became a permanent resident of the United States in November 1994, based on her 

marriage to a U.S. citizen.” Id. ¶ 46. Starting in 2000, however, she “returned to Ecuador to 

assume an increasingly critical role in her family’s businesses,” and in 2011 she realized that 

“her family and business obligations would prevent her from residing permanently in the United 

States” and so “relinquished her permanent residence” status. Id. ¶¶ 46–48. Between 2011 and 

2016, Plaintiff continued to visit the United States using B-1/B-2 visitor visas and “had no 

issues” doing so. Id. ¶¶ 52–53.

Plaintiff alleges that things changed on February 6, 2016, when she “traveled from Quito 

to the United States with her then-husband and three minor U.S. citizen children.” Id. ¶ 56. Due 

to a “particularly harsh disagreement” before the flight, Plaintiff “did not sit with her husband” 

and “was unaware of what items he might have placed into his own or their children’s baggage.” 

Id. ¶ 57. Upon the family’s arrival in the United States, CBP officials “discovered that he was 

carrying over $28,000 in currency,” which he had not declared. Id. ¶ 58. Ultimately, he 

“pleaded guilty to failing to report and transporting currency in excess of $10,000,” “was 

sentenced to time served (two days)[,] and forfeited the undeclared currency.” Id. ¶ 59. Plaintiff 

“was never charged with any wrongdoing connected with this incident,” but alleges that “[o]n 

information and belief, Defendant CBP acted in bad faith by placing derogatory notes in [her] 

immigration file” that have “undermined all subsequent attempts by Plaintiff to secure another 

visa.” Id. ¶¶ 60–62. Plaintiff divorced her husband in August 2022. Id. ¶ 63.
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Beginning in December 2016, Plaintiff repeatedly sought to obtain new B-1/B-2 visitor’s 

visas. During her first interview, the consular officer said that “her visa could not be issued until 

she provided documents to confirm the disposition of her husband’s case.” Id. ¶ 66. When she 

returned several weeks later, the officer “refused any document Ms. Herdoiza presented, and 

simply informed her that she should no longer apply for any U.S. visa.” Id. ¶ 67. He then 

“refused her pending B-1/B-2 visa request under Section 214(b) of the Immigration and 

Nationality Act.” Id. Section 214(b) provides that every foreign national “shall be presumed to 

be an immigrant until he establishes to the satisfaction of the consular officer, at the time of 

application for a visa, . . . that he is entitled to a nonimmigrant status.” 8 U.S.C. § 1184(b). 

Thus, Plaintiff understood the “stated reason for denial” to be the officer’s conclusion that 

“Plaintiff has the intent to reside in the United States.” Id. ¶ 75. 

Plaintiff “applied for a B-1/B-2 visitor’s visa three more times between January 2017 and 

November 2018” but “each associated interview proceeded in a nearly identical manner.” 

Compl. ¶ 69. 

The officer first inquired about her husband’s business, then their business 

relationship, and finally the status of their marriage. The officer would not accept 

any documents from Plaintiff, including documents from which the consular 

officer could verify that Ms. Herdoiza faced no charges as a result of her exhusband’s activities. The officer would then not permit Ms. Herdoiza to offer any 

testimony on her behalf other than to respond to the officer’s direct questioning. 

Following each interview, the consular officer provided Ms. Herdoiza with a 

notice finding her ineligible for a nonimmigrant visa under INA Section 214(b).

. . . Each time, the officer’s denial notice came with a verbal warning never to 

apply for another U.S. visa in the future. 

Id. ¶¶ 69–71.

In 2022, Plaintiff tried again, but her application was again denied. Before her interview

on October 14, she “retained Guidepost Solutions, a globally recognized investigations firm, to 

look into her business and personal affairs for any clue that might further explain the string of 
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visa denials, since her lack of ties to her husband’s importation of currency did not in her view 

explain those denials.” Id. ¶ 79. The investigative report “uncovered no negative information 

about Ms. Herdoiza or any of her business affairs that might cause the U.S. government to warn 

against reapplying for a tourist visa,” and “was included with counsel’s submission to the 

Consulate,” along with all other “requested information and documents.” Id. ¶¶ 78–81. But 

“[o]n information and belief,” Plaintiff alleges that “the consular officer at the October 14, 2022, 

interview had not reviewed the material provided in advance to the consulate, nor did the officer 

take the time necessary to give consideration to this evidence when it was handed to her after she 

had refused the visa.” Id. ¶ 82.

According to the Complaint, the “stated reason for denial” is “a pretextual reason for 

keeping Plaintiff from reentering the United States.” Id. ¶ 75. “On information and belief, the 

sole basis for the repeated denial of Ms. Herdoiza’s visa requests is Defendant CBP’s 

mishandling of the February 16, 2016, incident, which includes agency notes and flags visible to 

consular staff for the purpose of visa issuance.” Id. ¶ 90. Specifically, “Defendant CBP has 

continuously maintained derogatory information regarding the February 16, 2016, incident 

against Plaintiff since that date.” Id. ¶ 92. Correspondingly, “Defendant Department of State 

has accessed that derogatory information numerous times in the ensuing years” and, along with 

“reviewing officers[,] further acted in bad faith in the course of their consideration of Ms. 

Herdoiza’s visa application by deliberately refusing to review relevant, probative information 

submitted to the consulate” when considering that application. Id. ¶¶ 92–93.

Based on these asserted facts, Plaintiff claims that Defendants violated the INA, the 

Administrative Procedure Act (“APA”), the Due Process Clause, and the State Department’s 

own regulations. Id. ¶¶ 111–115, 116–119, 120–123, 129–32. She asks the court to declare 
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unlawful the State Department’s alleged failure to consider information she submitted in support 

of her 2022 visa application; to “vacate [her] recent visa refusals” and “direct Defendant State 

Department” to “redetermine her eligibility” after considering that information; and “instruct 

Defendant CBP to delete the inaccurate derogatory information in its database that pertains to her 

ex-husband, not to her.” Id. at 25. 

Defendants have moved to dismiss the Complaint on three grounds. First, that the named 

Defendants “either play no role in adjudicating her visa application or have already completed 

their role in the process,” so the court “lacks subject matter jurisdiction over her claims.” MTD 

at 4; see id. at 4–5. Second, that all of Plaintiff’s claims are barred by the doctrine of consular 

nonreviewability. Id. at 5–9. And finally, that she has failed to plausibly plead a cognizable 

claim under the Due Process Clause. Id. at 9–10.1

II. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the 

plaintiff must establish that the court has subject matter jurisdiction over its claim. Moms 

Against Mercury v. Food & Drug Admin., 483 F.3d 824, 828 (D.C. Cir. 2007). In evaluating 

such motions, courts “assume the truth of all material factual allegations in the complaint and 

‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be 

derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 

2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, the court 

1 Plaintiff grounds her constitutional claim in the Due Process Clause of the Fourteenth 

Amendment. See Compl. ¶¶ 120–23. That Clause applies to the states, not the federal 

government. U.S. Const. amend XIV, § 1; see Cutler v. U.S. Dep’t of Health & Hum. Servs., 

797 F.3d 1173, 1178 n.6 (D.C. Cir. 2015). Nonetheless, Defendants’ Motion chooses to treat 

the claim as being properly raised under the Fifth Amendment’s Due Process Clause, see MTD 

at 9 n.4, and the court will do the same, Cutler, 797 F.3d at 1178 n.6. 
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may consider “any documents either attached to or incorporated in the complaint[,] and matters 

of which [courts] may take judicial notice.” Equal Emp. Opportunity Comm’n v. St. Francis 

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a 

complaint for “failure to state a claim upon which relief can be granted.” But, as with a 12(b)(1) 

motion, courts “treat the complaint’s factual allegations as true” and “grant plaintiff the benefit 

of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 

216 F.3d 1111, 1113 (D.C. Cir. 2000) (quotation marks and citation omitted). That said, “a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. And a court need not accept as 

true “a legal conclusion couched as a factual allegation,” nor “inferences . . . unsupported by the 

facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 

2006) (quotation omitted).

III. ANALYSIS

The court acknowledges the difficulties and frustration attendant to Plaintiff’s situation as 

alleged, but it cannot grant the relief she seeks. The INA charges the Secretary of State “with the 

administration and the enforcement of . . . immigration and nationality laws relating to . . . the 

powers, duties, and functions of diplomatic and consular officers of the United States, except 

those powers, duties, and functions conferred upon the consular officers relating to the granting 

or refusal of visas.” 8 U.S.C. § 1104(a). And it expressly delegates to consular officers the 

decision whether to issue immigrant and nonimmigrant visas. Id. § 1201(a). Accordingly, the 

D.C. Circuit has held that “[t]he INA confers upon consular officers exclusive authority to 
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review applications for visas, precluding even the Secretary of State from controlling their 

determinations.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999); see Baan 

Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021). That exclusive authority 

covers “the granting, denying[,] and revoking of immigrant and non-immigrant visas.” Saavedra 

Bruno, 197 F.3d at 1156; see Baan Rao, 985 F.3d at 1024.

The exclusive authority of consular officers to deny visa applications defeats the 

redressability element of Plaintiff’s standing by denying Defendants authority to grant the relief 

she seeks. A complaint must “plausibly allege (1) a ‘concrete,’ ‘particularized,’ and ‘actual or 

imminent’ ‘invasion of a legally protected interest’ that is (2) ‘fairly traceable to the challenged 

action of the defendant’ and (3) ‘likely’ to be ‘redressed by a favorable decision.’” Al-Gharawy 

v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1, 7–8 (D.D.C. 2022) (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560–61 (1992)). Thus, a plaintiff has “standing to proceed against each 

defendant only to the extent that an order from this Court compelling that defendant” to take the 

actions that the Complaint requests “would redress [the plaintiff’s] alleged injur[y].” Id. at 9

(quotation omitted). Plaintiff has not shown that Defendants, as a matter of law, may provide 

that redress here. And no “further factual development,” Mem. in Opp’n to Mot. to Dismiss 

(“Opp’n”), ECF No. 9 at 16, could transfer consular officers’ exclusive legal authority over visa 

adjudication to Defendants.

The heart of Plaintiff’s alleged injury stems from the denial of her visa application, which 

the named Defendants cannot reverse. The Complaint repeatedly emphasizes that her “inability 

to meet with business partners and wholesalers in the United States is causing serious and 

ongoing harms to her business,” as well as impairing other “personal and professional” interests 

in the United States. Compl. ¶¶ 30, 54–55, 107. But Plaintiff has not sued the consular officer 
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who has the “exclusive authority . . . to grant[ or] deny” the visa that would permit her to visit 

the United States. Baan Rao, 985 F.3d at 1024. Instead, she has sued other officials and 

agencies, who are “preclude[ed]” from “controlling the[] determinations” of consular officers, 

id., like the Secretary of State, or who “had no role in adjudicating [her] application,” 

Munyaneza v. Blinken, No. 21-cv-2778 (TSC), 2022 WL 4598629, at *2 (D.D.C. Sept. 30, 

2022), like CBP. In that sense, Defendants are no better positioned to redress Plaintiff’s injury 

than the Secretaries of Transportation or Education would be. Because the law does not permit 

them to “direct[] a particular outcome with respect to Plaintiff[’s] visa adjudication[],” AlGharawy, 617 F. Supp. 3d at 10, Defendants could not lawfully comply with a court order to 

“vacate Ms. Herdoiza’s recent visa refusals” and “redetermine her eligibility,” Compl. at 25 

(third prayer for relief), as that would effectively nullify the consular officers’ denials.

The authorities that Plaintiff cites do not say otherwise. The APA’s general provision for 

suit against agencies and their head officials, 5 U.S.C. § 703, does not make any particular 

agency or official capable of redressing a plaintiff’s asserted injuries, contra Opp’n at 14. The 

INA’s delegation of immigration authority to the Secretary of State specifically excepts the 

denial of visa applications. 8 U.S.C. § 1104(a); contra Opp’n at 14–15. And other courts in this 

district have permitted suits against similar defendants only when they challenged a consular 

officer’s failure to act on or the delay of visa adjudications—not a consular officer’s completed

decision on an application. See, e.g., Vulupala v. Barr, 438 F. Supp. 3d 93, 100–01 (D.D.C. 

2020) (“Granting or refusing a final visa application is a mandatory agency action. . . . Therefore, 

an alleged failure to [‘issue’ or ‘refuse’ a completed visa application] within a reasonable period 

of time is reviewable under the APA.”); Al-Gharawy, 617 F. Supp. 3d at 10 (“No one disputes 

that the INA bars the Secretary of State from directing a particular outcome with respect to 
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Plaintiffs’ visa adjudications. But nothing in Baan Rao or Saavedra Bruno precludes the 

Secretary” of State “from directing consular officers to conclude matters presented to them 

within a reasonable time.” (formatting modified) (quotation omitted)). 

In addition, Plaintiff insists that she only asks “Defendants to comply with their 

Constitutional, statutory, and regulatory obligations” and not for “the Secretary of State [to] readjudicate her visa.” Opp’n at 16. Her Complaint says otherwise: “Plaintiff hereby prays . . . 

[t]hat the Court . . . instruct[] Defendant to . . . redetermine her eligibility.” Compl. at 25. 

Indeed, only a re-adjudication of her application could redress her core injury—the inability to 

visit the United States to pursue personal and professional interests. Compl. ¶¶ 30, 54–55, 107. 

To the extent that she also alleges procedural injuries, see, e.g., id. ¶ 96 (“Defendant’s actions 

injured Ms. Herdoiza by declining to give consideration to evidence she submitted in support of 

her visa application.”), those claims “must be tethered to some concrete interest adversely 

affected by the procedural deprivation: ‘[A] procedural right in vacuo . . . is insufficient to create 

Article III standing.’” WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013) 

(quoting Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). Here, Plaintiff’s concrete 

interest is in visiting the United States. Because none of the Defendants have the authority to 

bring about that result by invalidating the denial of her visa applications, Plaintiff has not 

established that her injury would be redressed by a favorable decision here.

Plaintiff’s resort to the substantive and procedural protections of the Due Process Clause 

do not change that result. “A noncitizen does not have a right to a visa, or ‘a constitutionallyprotected interest in the procedures by which such visas are obtained.’” Khan v. Bitter, No. CV 

23-1576, 2024 WL 756643, at *8 (D.D.C. Feb. 23, 2024) (first citing see Kleindienst v. Mandel, 
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408 U.S. 753, 762 (1972); then quoting Smirnov v. Clinton, 806 F. Supp. 2d 1, 12 (D.D.C. 

2011)). Likewise, the Supreme Court 

long ago held that Congress is entitled to set the conditions for an alien’s lawful 

entry into this country and that, as a result, an alien at the threshold of initial entry 

cannot claim any greater rights under the Due Process Clause. . . . He therefore has 

no entitlement to procedural rights other than those afforded by statute. 

Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020). As discussed above, 

Plaintiff has identified no statutes that would permit Defendants to provide the relief she seeks. 

She has therefore not plausibly alleged a Due Process violation. 

IV. CONCLUSION

For these reasons, the court will GRANT Defendant’s Motion to Dismiss, ECF No. 6. A 

corresponding Order will accompany this Memorandum Opinion. 

Date: March 21, 2024 

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge