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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

LAURO YBARRA, and BLANCA ORTIZ 

MARTINEZ,

Plaintiffs, 

vs. 

LOREN K. MILLER, Director, Nebraska 

Service Center, U.S. Citizenship and 

Immigration Services, in his official capacity as 

well as his successors and assigns; 

ALEJANDRO MAYORKAS, Secretary, U.S. 

Department of Homeland Security, in his official 

capacity as well as his successors and assigns; 

UR MENDOZA JADDOU, Director, U.S. 

Citizenship and Immigration Services, in her 

official capacity as well as her successor and 

assigns; ANTONY J. BLINKEN, Secretary of 

State, U.S. Department of State, in his official 

capacity as well as his successors and assigns; 

PHILLIP SLATTERY, Director, National Visa 

Center, U.S. Department of State, in his official 

capacity as well as his successors and assigns; 

and RICHARD C. VISEK, Acting Legal 

Adviser, U.S. Department of State, in his official 

capacity as well as his successors and assigns,

Defendants.

4:23CV3082

MEMORANDUM AND ORDER 

REGARDING DEFENDANTS’ MOTION 

TO DISMISS

In this case, Plaintiffs who are husband and wife assert claims pursuant to the 

Administrative Procedures Act (APA) and seek a writ of mandamus under 28 U.S.C. § 1361

based on allegations that government action on the processing of an I-601A Application for 

Provisional Unlawful Presence Waiver (I-601A application), and scheduling and conducting of a 

DS-260 immigrant visa interview for Plaintiff-Wife has been unreasonably delayed. Filing 1 at 1

(¶ 1). Plaintiffs seek an Order directing officials of the U.S Citizenship and Immigration Services 

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(USCIS) and the U.S. Department of State (DOS) to complete all necessary steps to complete the 

adjudication of Plaintiff-Wife’s I-601A Application and to schedule and conduct her DS-260 

immigrant visa interview within twenty-one (21) days from the entry of such Order. Filing 1 at 3

(¶ 9). This case is before the Court on Defendants’ Motion to Dismiss pursuant to Federal Rules 

of Civil Procedure 12(b)(1) and 12(b)(6). Filing 21. This is the third of three cases before the 

undersigned involving essentially identical complaints and motions to dismiss. It should 

therefore come as no surprise that Defendants’ Motion to Dismiss in this case is also granted.

I. INTRODUCTION

On a Rule 12(b)(6) motion to dismiss for failure to state a claim and a Rule 12(b)(1)

“facial” challenge to subject matter jurisdiction, which requires application of Rule 12(b)(6) 

“safeguards,” the factual background is drawn from allegations in the Complaint taken as true. 

Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (explaining that on a Rule 12(b)(6) 

motion, a court must accept facts alleged in the complaint as true); Croyle by & through Croyle 

v. United States, 908 F.3d 377, 380–81 (8th Cir. 2018) (distinguishing between “facial” and 

“factual” challenges under Rule 12(b)(1) on the basis that Rule 12(b)(6) “safeguards” apply to 

the former). Thus, the following summary is drawn from the Complaint.

Plaintiff Lauro Ybarra is apparently lawfully in the United States but plaintiff Blanca 

Ortiz Martinez, his wife, is not. This appears to be so because on May 4, 2020, Ybarra filed an I130 petition with USCIS sponsoring Martinez for lawful permanent residence in the United 

States. Filing 1 at 7 (¶ 26). USCIS approved the I-130 application on December 17, 2020. Filing 

1 at 7 (¶ 26). On March 25, 2021, Martinez filed an I-601A Application for Provisional Unlawful 

Presence Waiver which remains pending at USCIS’s Nebraska Service Center. Filing 1 at 2 (¶¶ 

1, 3), 7 (¶ 27). Martinez needs an approved I-601A application before the National Visa Center 

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will schedule her DS-260 immigrant visa interview at the U.S. Consulate in Ciudad Juarez, 

Mexico. Filing 1 at 2 (¶ 2). At the time the Complaint was filed on April 28, 2023, Martinez’s I601A Application had been pending for approximately twenty-eight months. Filing 1 at 2 (¶ 1), 8 

(¶ 30). Plaintiffs allege that during the period since Martinez filed her I-601A Application they 

“have suffered multiple hardships,” owing to Jose’s inability to become a lawful permanent 

resident and to reside in that status in the United States with her husband. Filing 1 at 3 (¶ 8). 

Slightly more specifically, they allege that the unreasonable delay in adjudicating the I-601A 

Application and the scheduling and conducting of the DS-260 immigrant visa interview “have 

caused, and are causing, Plaintiffs ongoing and substantial injuries personally and emotionally,” 

Filing 1 at 10 (¶ 44), as well as “stress and financial concerns.” Filing 1 at 12 (¶ 57).

Three Defendants named in Plaintiffs’ Complaint are associated with USCIS. They are 

Alejandro Mayorkas, the Secretary of the Department of Homeland Security (DHS) including its

sub-agency USCIS; Ur Mendoza Jaddou, the Director of USCIS; and Loren K. Miller, the 

Director of the USCIS Nebraska Service Center. Filing 1 at 5–6 (¶¶ 16, 18, 19). The Court will 

refer to these Defendants collectively as the USCIS Defendants. Three Defendants named in 

Plaintiffs’ Complaint are associated with the DOS. They are Antony J. Blinken, the Secretary of 

State; Phillip Slattery, an officer of the DOS responsible for the operation of the DOS’s National 

Visa Center; and Richard C. Visek, an officer of the DOS and its Acting Legal Adviser. Filing 1 

at 5–6 (¶¶ 17, 20, 21). The Court will refer to these Defendants collectively as the DOS 

Defendants.

In their Complaint for Declaratory and Injunctive Relief and for Writ of Mandamus, 

Filing 1, Plaintiffs assert two claims for relief. Count I alleges violations by USCIS and the DOS 

of 5 U.S.C. § 555(b) of the APA, which Plaintiffs allege “requires agencies to conclude matters 

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presented to them ‘within a reasonable time.’” Filing 1 at 9 (¶ 36) (quoting 5 U.S.C. § 555(b)). It 

also alleges “[a] court may ‘compel agency action unlawfully withheld or unreasonably 

delayed’” pursuant to 5 U.S.C. § 706(1). Filing 1 at 9 (¶ 37) (quoting 5 U.S.C. § 706(1)). Finally, 

for present purposes, it alleges, “Plaintiffs challenge only the reasonableness of Defendants’

delays or inaction in the adjudication of Plaintiff-wife’s I-601A application and scheduling and 

conducting of Plaintiff-wife’s DS-260 immigrant visa interview, not the grant or denial of this 

filing.” Filing 1 at 9 (¶ 40). Count II seeks a writ of mandamus under 28 U.S.C. § 1361 to 

compel officers of USCIS and the DOS “to perform a duty owed to [Plaintiffs].” Filing 1 at 10

(¶ 46). Specifically, “Plaintiffs ask this Court to compel Defendants to perform their duties and 

complete the background checks for, and adjudication of, Plaintiff-wife’s I-601A application and

schedule and conduct Plaintiff-wife’s DS-260 immigrant visa interview.” Filing 1 at 11–12 

(¶ 55).

Defendants filed their Motion to Dismiss as to both counts. Filing 21. In their Brief in 

Support of Their Motion to Dismiss, Defendants assert that Plaintiffs “seek a judicial fast pass 

and request this Court to allow them to skip the line by compelling USCIS to immediately 

adjudicate the I-601A waiver and, once done, compelling the Department to immediately 

schedule and conduct the consular interview.” Filing 23 at 2. Defendants assert that Plaintiffs do 

not meet their burden of establishing jurisdiction and that even if they had they cannot overcome 

their failure to state a claim. Filing 23 at 2. Plaintiffs dispute Defendants’ characterization of 

their Complaint as an attempt to “skip the line” or “seek a judicial fast pass” because they assert 

that they have followed the procedure required by law and have waited an unreasonable amount 

of time. Filing 25 at 2. They assert that they have a right to protect their individual rights and 

interests. Filing 25 at 2–3. Plaintiffs also assert that the Court has subject matter jurisdiction over 

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their claims and that they have adequately pleaded those claims. Filing 25 at 3–4. Unlike the 

plaintiffs in the two prior similar cases before the Court, Plaintiffs here contend that Defendants 

are “essentially attempting to strip the Plaintiffs of their constitutional due process rights.” Filing 

25 at 3. Plaintiffs argue that Defendants’ attempts to deprive them of their mandamus claim 

based on lack of subject matter jurisdiction is a “gross infringement on their Constitutional right 

to Procedural Due Process.” Filing 25 at 6.

II. LEGAL ANALYSIS

A. Applicable Standards for Dismissal

Defendants seek dismissal pursuant to Rule 12(b)(1) for lack of subject matter 

jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. The Court will set out both 

sets of standards.

1. Lack of Subject Matter Jurisdiction Standards

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a pre-answer motion 

to dismiss for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). The Eighth Circuit 

Court of Appeals has explained that on a Rule 12(b)(1) motion,

The plaintiff bears “the burden of proving the existence of subject matter 

jurisdiction,” and we may look at materials “outside the pleadings” in conducting 

our review. [Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en 

banc)] (quoting Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th 

Cir. 2005)). Because of the “unique nature of the jurisdictional question,” Osborn 

v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted), it is the 

court’s duty to “decide the jurisdictional issue, not simply rule that there is or is 

not enough evidence to have a trial on the issue,” id. at 730. As such, if the court’s 

inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 

summary judgment standards. Id. at 729. Rather, the court may receive evidence 

via “any rational mode of inquiry,” and the parties may “request an evidentiary 

hearing.” Id. at 730 (quoting Crawford v. United States, 796 F.2d 924, 928 (7th 

Cir. 1986)). Ultimately, the court must rule upon “the jurisdictional issue [unless 

it] is ‘so bound up with the merits that a full trial on the merits may be necessary 

to resolve the issue.’” Id. (quoting Crawford, 796 F.2d at 928).

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Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019); Am. Fam. Mut. Ins. Co. v. Vein 

Centers for Excellence, Inc., 912 F.3d 1076, 1081 (8th Cir. 2019) (“[A] motion to dismiss for 

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) raises a factual challenge to the 

court’s jurisdiction, and courts may look to evidence outside the pleadings and make factual 

findings.” (citing Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018)).

The Buckler decision suggests that a challenge to subject matter jurisdiction pursuant to 

Rule 12(b)(1) is always “factual,” but “facial” challenges are also possible:

In deciding a motion under Rule 12(b)(1), the district court must distinguish 

between a facial attack—where it looks only to the face of the pleadings—and a 

factual attack—where it may consider matters outside the pleadings. Osborn v. 

United States, 918 F.2d 724, 729 n.6 (8th Cir.1990). In a factual attack, the “nonmoving party does not have the benefit of 12(b)(6) safeguards.” Id. If the 

jurisdictional issue is “bound up” with the merits of the case, the district court 

may “decide whether to evaluate the evidence under the summary judgment 

standard.” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir.2018). This court 

is bound by the district court’s characterization of the Rule 12(b)(1) motion. 

Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir.2016) (“The method in 

which the district court resolves a Rule 12(b)(1) motion—that is, whether the 

district court treats the motion as a facial attack or a factual attack—obliges us to 

follow the same approach.”).

Croyle by & through Croyle v. United States, 908 F.3d 377, 380–81 (8th Cir. 2018).

The “Rule 12(b)(6) safeguards” applicable in a Rule 12(b)(1) “facial” challenge to 

subject matter jurisdiction necessarily include acceptance of factual allegations in the Complaint 

as true. See Bauer, 25 F.4th at 589 (explaining that on a Rule 12(b)(6) motion, a court must 

accept facts alleged in the complaint as true). The “Rule 12(b)(6) safeguards” do not require a 

court to accept all of a plaintiff’s allegations as true, however. Courts still “giv[e] no effect to 

conclusory allegations of law,” and “[t]he plaintiff must assert facts that affirmatively and 

plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather 

than facts that are merely consistent with such a right.” Stalley v. Cath. Health Initiatives, 509 

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F.3d 517, 521 (8th Cir. 2007). Thus, “[i]n a facial attack, ‘a defendant asserts that the complaint 

fails to allege sufficient facts to support subject matter jurisdiction.’” Davis v. Anthony, Inc., 886 

F.3d 674, 679 (8th Cir. 2018) (quoting Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 

2009)).

In their Motion to Dismiss, Defendants state, “In the present case, USCIS bring[s] a 

facial attack against Plaintiffs’ Complaint, whereas the Department brings a factual attack.” 

Filing 23 at 18. Nevertheless, the Court concludes that both groups of Defendants are entitled to 

dismissal based on a “facial” attack on subject matter jurisdiction because the Complaint 

demonstrates on its face that the facts alleged do not support subject matter jurisdiction. See 

Coyle, 908 F.3d at 380–81 (explaining that the appellate court “is bound by the district court’s 

characterization of the Rule 12(b)(1) motion” as either a factual or facial attack).

2. Failure to State a Claim Standards

The typical grounds for Rule 12(b)(6) motions are the insufficiency of the factual 

allegations offered to state claims. To state a claim, a complaint must contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Nevertheless, “ʻthreadbare recitals of the elements of a cause of action’ cannot survive a [Rule 

12(b)(6)] motion to dismiss.” Du Bois v. Bd. of Regents of Univ. of Minnesota, 987 F.3d 1199, 

1205 (8th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Instead, as the Eighth 

Circuit Court of Appeals has explained, “A claim survives a Rule 12(b)(6) motion to dismiss 

only if the complaint’s nonconclusory allegations, accepted as true, make it not just 

‘conceivable’ but ‘plausible’ that the defendant is liable.” Mitchell v. Kirchmeier, 28 F.4th 888, 

895 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 680-83). To put it another way, a court “must 

determine whether a plaintiff’s complaint ‘contain[s] sufficient factual matter, accepted as true, 

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to state a claim to relief that is plausible on its face.’” Far E. Aluminium Works Co. v. Viracon, 

Inc., 27 F.4th 1361, 1364 (8th Cir. 2022) (quoting Braden v. WalMart Stores, Inc., 588 F.3d 585, 

594 (8th Cir. 2009)). Specifically, “[a] claim is plausible when ‘the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.’” Christopherson v. Bushner, 33 F.4th 495, 499 (8th Cir. 2022) (quoting 

Iqbal, 556 U.S. at 678). In contrast, “ʻ[w]here a complaint pleads facts that are merely consistent 

with a defendant’s liability, it stops short of the line between possibility and plausibility.” Id.

(internal quotation marks and citations omitted). The Eighth Circuit Court of Appeals has 

cautioned that “the complaint should be read as a whole, not parsed piece by piece to determine 

whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594.

As noted above, Rule 12(b)(6) “safeguards” require a court to “accept ‘the facts alleged 

in the complaint as true and draw[ ] all reasonable inferences in favor of the nonmovant.’” 

Bauer, 25 F.4th at 589 (quoting Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 

2021)). On the other hand, “[m]ere conclusory statements and factual allegations lacking enough 

specificity to raise a right to relief above the speculative level are insufficient to support a 

reasonable inference that the defendant is liable.” Richardson v. BNSF Ry. Co., 2 F.4th 1063, 

1068 (8th Cir. 2021) (internal quotation marks and citations omitted). A court also need not 

accept a pleader’s “legal conclusions drawn from the facts.” Knowles v. TD Ameritrade Holding 

Corp., 2 F.4th 751, 755 (8th Cir. 2021).

Rule 12(b)(6) also permits dismissal when a claim is not cognizable under applicable law. 

See, e.g., Couzens v. Donohue, 854 F.3d 508, 517 (8th Cir. 2017) (dismissal was appropriate 

where Missouri did not recognize a claim for false light invasion of privacy); Thomas v. Bd. of 

Regents of Univ. of Nebraska, No. 4:20CV3081, 2022 WL 1491102, at *18 (D. Neb. May 11, 

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2022) (agreeing with defendant that the plaintiffs had failed to state a claim, because a disparateimpact claim is not cognizable under the Equal Protection Clause); Freeney v. Galvin, No. 

8:19CV557, 2020 WL 229996, at *2 (D. Neb. Jan. 15, 2020) (finding the plaintiff failed to state 

a § 1983 claim against the manager of his private place of employment because such a claim is 

not cognizable where a private person is not a state actor or engaged in joint action with the state 

or its agents). In such cases, the plaintiff fails to state a claim that is legally cognizable as 

opposed to factually implausible.

The Court will apply the appropriate standards, either pursuant to Rule 12(b)(1) or Rule 

12(b)(6), in turn to the claims against the USCIS Defendants and the DOS Defendants.

B. The Claims Against the USCIS Defendants

1. The APA Claim

a. The Parties’ Arguments

The USCIS Defendants assert that this Court does not have jurisdiction to review 

Plaintiffs’ claims against USCIS concerning Martinez’s I-601A waiver because Congress has 

specifically precluded judicial review of such waivers in 8 U.S.C. § 1182(a)(9)(B)(v), a 

provision of the Immigration and Nationality Act (INA). Filing 23 at 19. They point out that this 

statute grants the agency “sole discretion to waive” an immigrant’s unlawful presence in the 

United States and also precludes judicial review of “a decision or action” by USCIS regarding a 

waiver of unlawful presence. Filing 23 at 19. The USCIS Defendants then point out that the APA 

in turn precludes judicial review where “statutes preclude judicial review” and where agency 

decisions are “committed to agency discretion.” 5 U.S.C. § 701(a)(1)–(2). Filing 23 at 19–20. 

Plaintiffs assert that Defendants’ reading of § 1182(a)(9)(B)(v) is overbroad. Filing 25 at 3. They 

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argue that § 1182(a)(9)(B)(v) does not preclude jurisdiction over an “unreasonable delay” claim 

because unreasonable delay is not an agency decision or action. Filing 25 at 3–4.

b. The Applicable Statutes

The Court concludes that statutory interpretation is dispositive of Plaintiffs’ APA claim 

against USCIS. Because the language of both the pertinent provisions of the APA and the INA is 

plain and unambiguous, the Court’s analysis begins and ends there. BedRoc Ltd. v. United States, 

541 U.S. 176, 183 (2004) (“The preeminent canon of statutory interpretation requires us to 

presume that [the] legislature says in a statute what it means and means in a statute what it says 

there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is 

unambiguous.” (internal quotation marks and citations omitted)). 

First, the basis for Plaintiffs’ claim under the APA is the following provision in Chapter 7 

providing for judicial review of certain agency actions:

To the extent necessary to decision and when presented, the reviewing court shall 

decide all relevant questions of law, interpret constitutional and statutory 

provisions, and determine the meaning or applicability of the terms of an agency 

action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed[.]

5 U.S.C. § 706(1). In a different chapter of the APA—Chapter 5 concerning “administrative 

procedure”—the APA states, “ʻagency action’ includes the whole or a part of an agency rule, 

order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 

551(13). However, there is an exception to judicial review stated in Chapter 7 of the APA:

(a) This chapter applies, according to the provisions thereof, except to the extent 

that--

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

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5 U.S.C. § 701(a)(1)–(2). As the Supreme Court has explained, the APA “establishes a basic 

presumption of judicial review,” but judicial review is subject to the two exceptions in § 701(a). 

Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1905 (2020)

(quotation marks and citation omitted). “To honor the presumption of review,” the Supreme 

Court has “read the exception in § 701(a)(2) quite narrowly, confining it to those rare 

administrative decisions traditionally left to agency discretion.” Id. (cleaned up). On the other 

hand, the Supreme Court has also observed, 

The presumption of judicial review is, after all, a presumption, and like all 

presumptions used in interpreting statutes, may be overcome by, inter alia, 

specific language or specific legislative history that is a reliable indicator of 

congressional intent, or a specific congressional intent to preclude judicial review 

that is fairly discernible in the detail of the legislative scheme.

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670–73 (1986) (internal 

quotation marks and citations omitted). Thus, “[t]o preclude judicial review [under § 701(a)(1)], 

a statute must be specific in withholding such review [or] must upon its face give clear and 

convincing evidence of an intent to withhold it.” Id. at 671.

Turning to the key provision of the INA, 8 U.S.C. § 1182 states the following:

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under 

the following paragraphs are ineligible to receive visas and ineligible to be 

admitted to the United States:

* * *

(9) Aliens previously removed

* * *

(B) Aliens unlawfully present

(i) In general

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Any alien (other than an alien lawfully admitted for permanent residence) who--

(I) was unlawfully present in the United States for a period of more than 180 days 

but less than 1 year, voluntarily departed the United States (whether or not 

pursuant to section 1254a(e)2 of this title) prior to the commencement of 

proceedings under section 1225(b)(1) of this title or section 1229a of this title, and 

again seeks admission within 3 years of the date of such alien’s departure or 

removal, or

(II) has been unlawfully present in the United States for one year or more, and 

who again seeks admission within 10 years of the date of such alien’s departure or 

removal from the United States,

is inadmissible.

* * *

(v) Waiver

The Attorney General has sole discretion to waive clause (i) in the case of an 

immigrant who is the spouse or son or daughter of a United States citizen or of an 

alien lawfully admitted for permanent residence, if it is established to the 

satisfaction of the Attorney General that the refusal of admission to such 

immigrant alien would result in extreme hardship to the citizen or lawfully 

resident spouse or parent of such alien. No court shall have jurisdiction to review 

a decision or action by the Attorney General regarding a waiver under this clause.

8 U.S.C. § 1182(a)(9)(B)(v).1

c. The “Sole Discretion” Clause of § 1182(a)(9)(B)(v) Does Not 

Preclude Judicial Review of an Unreasonable Delay

The first sentence of § 1182(a)(9)(B)(v) plainly and clearly provides the agency with 

“sole discretion to waive clause (i).” Thus, it precludes judicial review of actions specified 

pursuant to 5 U.S.C. § 701(a)(2) as “agency action . . . committed to agency discretion by law.” 

The language of § 1182(a)(9)(B)(v) itself limits the scope of the agency’s “sole discretion,” 

however. It is only “sole discretion to waive clause (i)” and only “if it is established to the 

1 As Defendants correctly point out, in 2002, Congress transferred enforcement of immigration laws from the 

Attorney General to the Secretary of Homeland Security under the Homeland Security Act of 2002, Pub. L. No. 

107-296, § 402, 116 Stat. 2135, 2178 (2002).

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satisfaction of the [agency] that the refusal of admission to such immigrant alien would result in 

extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” 8 U.S.C. 

§ 1182(a)(9)(B)(v) (first sentence). Thus, by its plain terms, the “sole discretion” clause applies 

only to the agency’s final decision on an application for a waiver. Nothing in the language of this 

sentence of § 1182(a)(9)(B)(v) suggests an intent to bar judicial review of an unreasonable delay 

in making a final decision. 

d. The “Jurisdiction-Stripping” Clause of § 1182(a)(9)(B)(v) 

Does Preclude Judicial Review of an Unreasonable Delay

The effect of the second sentence of § 1182(a)(9)(B)(v) is quite different, however. It is 

plainly a “jurisdiction-stripping” provision within the scope of 5 U.S.C. § 701(a)(1) because it 

expressly states, “No court shall have jurisdiction to review a decision or action by the [agency] 

regarding a waiver under this clause.” 8 U.S.C. § 1182(a)(9)(B)(v) (second sentence); see also 5 

U.S.C. § 701(a)(1) (providing for judicial review “except to the extent that . . . (1) statutes 

preclude judicial review”). The intent to preclude judicial review could not be clearer from this 

sentence of § 1182(a)(9)(B)(v). See Bowen, 476 U.S. at 671 (explaining which statutes fall 

within § 701(a)(1)). To put it another way, the statute is “specific in withholding such review” 

and “upon its face give[s] clear and convincing evidence of an intent to withhold [review].” Id.

The question then becomes the extent of agency decisions or actions for which 

jurisdiction for judicial review is stripped. As both parties point out, 5 U.S.C. § 551(13) defines 

“agency action” as including “failure to act.” Defendants contend that means the jurisdictionstripping language in § 1182(a)(9)(B)(v) necessarily strips jurisdiction to review a claim of 

“unreasonable delay,” which is a “failure to act.” The Court finds reliance on a statutory 

definition of “agency action” in 5 U.S.C. § 551(13), which is in a different chapter of the APA 

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from the provisions concerning judicial review, is an unsatisfactory guide to the meaning of 

“action by the [agency]” in the second sentence of § 1182(a)(9)(B)(v), a statutory provision in a 

different act, the INA. 

Instead, as the Court pointed out above, the language of § 1182(a)(9)(B)(v) is of 

paramount importance. See BedRoc Ltd., 541 U.S. at 183. Again, the part of the provision that is 

jurisdiction-stripping states, “No court shall have jurisdiction to review a decision or action by 

the [agency] regarding a waiver under this clause.” 8 U.S.C. § 1182(a)(9)(B)(v). This sentence 

plainly refers to an “action” as something distinct or different from a “decision,” or there would 

have been no need to include both terms. An “action” does not plainly involve a “decision”; 

rather, its plain meaning here is “a deliberative or authorized proceeding.” Unabridged MerriamWebster Dictionary On-line, https://unabridged.merriam-webster.com/unabridged/action. Also, 

the Supreme Court stated that “regarding” in a different jurisdiction-stripping statute under the 

INA has a “broadening effect.” See Patel v. Garland, 596 U.S. 328, 339 (2022) (interpreting an 

immigrant removal statute, 8 U.S.C. § 1252(a)(2)(B)(i), which states in part, “no court shall have 

jurisdiction to review . . . any judgment regarding the granting of relief under section 1182(h), 

1182(i), 1229b, 1229c, or 1255 of this title,” and observing that “the use of ‘regarding’ in a legal 

context generally has a broadening effect, ensuring that the scope of a provision covers not only 

its subject but also matters relating to that subject.” (quoting Lamar, Archer & Cofrin, LLP v. 

Appling, 138 S.Ct. 1752, 1760 (2018), and also citing Webster’s Third New International 

Dictionary, at 1911, defining “regarding” as “with respect to” or “concerning)). The Court is less 

suspicious of relying on this statement in Patel than my colleague was in Beltran v. Miller, Case 

No. 4:23cv3053, ECF #26 at 9, because the Court notes that the Supreme Court relied on the 

plain meaning of the word “regarding.” Patel, 596 U.S. at 339 (citing the dictionary definition). 

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Consequently, an “action by the [agency] regarding a waiver under this clause,” 8 U.S.C. 

§ 1182(a)(9)(B)(v), encompasses the proceedings concerning a waiver. To put it another way, it 

strips the courts of jurisdiction to review how the agency processes a waiver.

My colleague cogently observed that the issue presented in Beltran, as in this case, 

pertains to how the USCIS prioritizes and adjudicates I-601A applications over time—not 

whether USCIS can fully withhold adjudication of waiver applications. See Beltran, Case No. 

4:23cv3053, ECF #26 at 11. There are no allegations in the Complaint in this case that USCIS is 

failing or refusing to adjudicate any I-601A applications at all or failing or refusing to adjudicate 

Plaintiffs’ application in particular. The allegations are simply that Plaintiffs believe it is taking 

too long to get their I-601A application adjudicated. See, e.g., Filing 1 at 2 (¶ 1, ¶ 3) 

(unreasonably delayed government action has forced Plaintiffs to wait since November 9, 2020), 

7–8 (¶ 28) (reiterating the length of the wait), 8 (¶ 30 (reiterating the delay). At most, such 

allegations are consistent with a failure to act and are conclusory allegations of undue delay but 

even applying “Rule 12(b)(6) safeguards,” that is not enough. See Christopherson, 33 F.4th at 

499 (“Where a complaint pleads facts that are merely consistent with a defendant’s liability, it 

stops short of the line between possibility and plausibility [under Rule 12(b)(6)].” (internal 

quotation marks and citations omitted)); Stalley, 509 F.3d at 521 (explaining that on a Rule 

12(b)(1) facial challenge in which “Rule 12(b)(6) safeguards apply,” courts “giv[e] no effect to 

conclusory allegations of law,” and “[t]he plaintiff must assert facts that affirmatively and 

plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather 

than facts that are merely consistent with such a right.”). In this Court’s view, the jurisdictionstripping language in the second sentence of § 1182(a)(9)(B)(v) expressly strips the Court of 

jurisdiction to review how USCIS is prioritizing its work—whether to do one thing at a 

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particular pace instead of another thing or its choice to consider applications in the order 

submitted—as that is an “action by the [agency] regarding a waiver under this clause.” Cf. 

Beltran, Case No. 4:213cv3053, ECF #16 at 12 (describing this bar as a discretionary decision 

insulated from judicial review).

Plaintiffs also allege that when they filed their Complaint, they had already waited 26 

months instead of the six months that 8 U.S.C. § 1571(b) stated was the “sense of Congress” for 

how long processing an immigration benefit application should take. See, e.g., Filing 1 at 3 (¶ 4) 

(relying on 8 U.S.C. § 1571(b)); Filing 1 at 11 (¶ 51) (same). Plaintiffs cannot assert—and to 

their credit have not asserted—that 8 U.S.C. § 1571(b) sets a deadline of 180 days for 

adjudication of their I-601A Application, despite alleging that § 1571(b) demonstrates that a 

“reasonable time period for Defendants to schedule and complete the adjudications of I-601A 

applications and DS-260 immigrant visa applications is within 180 days of filing.” Filing 1 at 9

(¶ 41) (citing § 1571). Plaintiffs concede, “Defendants are correct that the language of 8 U.S.C. 

§ 1571(b) is not binding.” Filing 25 at 11. A plausible inference from the allegation that the 

hortatory timeframe in § 1571(b) has not been met is that a backlog of such applications—and 

specifically a backlog of I-601A applications—is preventing more prompt adjudications, while 

an inference of failure or refusal to act is no more than consistent with this allegation. See 

Christopherson, 33 F.4th at 499 (“Where a complaint pleads facts that are merely consistent with 

a defendant’s liability, it stops short of the line between possibility and plausibility [under Rule 

12(b)(6)].” (internal quotation marks and citations omitted)); Stalley, 509 F.3d at 521 (explaining 

that on a Rule 12(b)(1) facial challenge, courts “giv[e] no effect to conclusory allegations of 

law,” and “[t]he plaintiff must assert facts that affirmatively and plausibly suggest that the 

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pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely 

consistent with such a right.”).

Thus, the Court lacks jurisdiction over Plaintiff’s APA claim against the USCIS 

Defendants under the jurisdiction-stripping language in § 1182(a)(9)(B)(v). Defendants’ Motion 

is granted as to lack of subject matter jurisdiction over Count I of the Complaint, and Count I is 

dismissed as to the USCIS Defendants.

2. The Mandamus Claim

a. The Parties’ Arguments

As to Plaintiffs’ claim for a writ of mandamus in Count II, the USCIS Defendants assert 

that Plaintiffs’ situation is not extraordinary as required for a writ of mandamus to issue. Filing 

23 at 31. They assert that, even though the APA claim in Count I has no merit, Plaintiffs’

mandamus claim in Count II seeks the same remedy. Filing 23 at 31. The USCIS Defendants 

contend that the existence of this APA remedy makes mandamus relief unavailable, even if the 

APA claim would ultimately be unsuccessful. Filing 23 at 32. Consequently, they assert that 

dismissal of Plaintiffs’ mandamus claim against them is proper pursuant to Rule 12(b)(6). Filing 

23 at 33. 

As mentioned above, what is new to Plaintiffs’ argument here—as compared to the 

arguments of the plaintiffs in the two prior similar cases before the Court—is that Plaintiffs

argue that “Defendants’” attempt to deprive them of their mandamus claim based on lack of 

subject matter jurisdiction is a “gross infringement on their Constitutional right to Procedural 

Due Process.” Filing 25 at 6. Another new argument is that mandamus relief for unreasonably 

delayed action is expressly provided by 5 U.S.C. § 706, so “[t]he failure to harmonize Sections 

701 and 706 to distinguish between examples of statutory obligations versus non-binding agency 

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commitments is contrary to existing precedent and the Plaintiffs are not precluded from seeking 

mandamus to compel unreasonably delayed agency action.” Filing 25 at 8. Plaintiffs counter the 

USCIS Defendants’ arguments that if the APA claim cannot provide a remedy, then they have no 

adequate alternative remedy, and a writ of mandamus is appropriate. Filing 25 at 16. Finally, 

Plaintiffs contend that while a writ of mandamus is an extraordinary remedy, it is appropriate in 

their extraordinary circumstances where they have waited over 27 months with no action. Filing 

25 at 16.

In reply, the USCIS Defendants argue that Plaintiffs’ newly raised “due process” 

argument fails as a matter of law. Filing 26 at 9. First, the USCIS Defendants argue that 

Plaintiffs cannot add a new “due process” cause of action in a brief in opposition to a motion to 

dismiss. Filing 26 at 9. The USCIS Defendants argue further that “[t]here is no asserted process 

that Plaintiffs have been allegedly deprived of.” Filing 26 at 9. Finally, Defendants point out that 

the United States Supreme Court has made clear that non-citizens have no due process right to 

obtain entry into the United States or to challenge the denial of entry. Filing 26 at 10.

b. The Plaintiffs’ New Due Process Argument Is Unavailing

The Court begins its analysis of the claims against USCIS with Plaintiffs new arguments. 

The first new argument is that Defendants’ attempt to deprive Plaintiffs of their mandamus claim 

based on lack of subject matter jurisdiction is a “gross infringement on [Plaintiffs’]

Constitutional right to Procedural Due Process.” Filing 25 at 6–7. The USCIS Defendants do not 

assert lack of subject matter jurisdiction over the mandamus claim against them; rather, they 

assert that Plaintiffs’ mandamus claim against them fails to state a claim on which relief can be 

granted. Filing 23 at 33. Thus, Plaintiffs argument about a challenge to subject matter 

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jurisdiction depriving them of procedural due process is misdirected when aimed at the USCIS 

Defendants.

That is not the only problem with this new argument. Defendants point out that Plaintiffs 

did not plead a claim for violation of procedural due process in their Complaint and that 

Plaintiffs cannot add it now by briefing such a claim. Filing 26 at 9. Defendants are correct. See 

Hawse v. Page, 7 F.4th 685, 691 (8th Cir. 2021) (“But there was no error in the district court’s 

ruling that the appellants could not amend their complaint, or supplement insufficient factual 

allegations, in a brief filed in opposition to a motion to dismiss.” (citing Morgan Distrib. Co. v. 

Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989)). This is sufficient reason why Plaintiffs 

cannot assert that denial of a mandamus claim for lack of subject matter jurisdiction or failure to 

state a claim infringes their procedural due process rights. 

c. Section 706(1) Does Not Insulate Plaintiffs’ Mandamus Claim 

from Dismissal

Another new argument by these Plaintiffs is that mandamus relief for unreasonably 

delayed action is expressly provided by 5 U.S.C. § 706, so that Plaintiffs “are not precluded from 

seeking mandamus to compel unreasonably delayed agency action.” Filing 25 at 8. This 

argument calls for consideration of the relationship between mandamus under 28 U.S.C. § 1361

and mandamus pursuant to 5 U.S.C. § 706(1).

Plaintiffs allege twice in their Complaint that “[a] reviewing court ‘shall compel agency 

action unlawfully withheld or unreasonably delayed,’” citing 5 U.S.C. §706(1). The first time is 

in the “Introduction” section of their Complaint. Filing 1 at 3 (¶ 7). The second time is in Count I 

of their Complaint asserting their APA claim. Filing 1 at 9 (¶ 37). The Court concluded above 

that it lacks subject matter jurisdiction over Plaintiffs’ APA claim, which includes any claim 

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pursuant to 5 U.S.C. § 706(1). In Count II of their Complaint, identified as Plaintiffs’

“Mandamus Action,” Plaintiffs state, “Plaintiffs assert claims for mandamus relief under 28 

U.S.C. §1361 which provides the authority to compel an agency to perform a duty owed to 

them.” Filing 1 at 10 (¶ 46). Nowhere in Count II is there a reference to 5 U.S.C. § 706(1). See 

generally Filing 1 at 10–12.

The general mandamus statute on which Count II is based provides, “The district courts 

shall have original jurisdiction of any action in the nature of mandamus to compel an officer or 

employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 

U.S.C. § 1361. “The issuance of a writ of mandamus is a drastic remedy to be invoked only in 

extraordinary situations.” In re SDDS, Inc., 97 F.3d 1030, 1034 (8th Cir. 1996) (internal 

quotation marks and citation omitted). As the Eighth Circuit Court of Appeals has explained,

Mandamus may issue under § 1361 against an officer of the United States only in 

extraordinary situations and when the plaintiff can establish (1) “a clear and 

indisputable right to the relief sought,” (2) the state officer “has a 

nondiscretionary duty to honor that right,” and (3) there is “no other adequate 

remedy.” Castillo v. Ridge, 445 F.3d 1057, 1060–61 (8th Cir. 2006). “In order for 

mandamus to lie[,] the duty owed to the plaintiff must be ministerial and a 

positive command so plainly prescribed as to be free from doubt.” Keeny v. Sec’y 

of the Army, 437 F.2d 1151, 1152 (8th Cir. 1971) (internal quotation omitted).

Mitchael v. Colvin, 809 F.3d 1050, 1054 (8th Cir. 2016).

Plaintiffs are correct that there is a connection between 5 U.S.C. § 706(1) and mandamus 

relief under 28 U.S.C. § 1361. Indeed, a colleague in the United States District Court for the 

District of North Dakota observed that “the Eighth Circuit Court of Appeals determined a claim 

under Section 706(1) should be reviewed as a petition for a writ of mandamus.” Prima Expl., Inc 

v. LaCounte, No. 1:22-CV-143, 2023 WL 7019928, at *5 (D.N.D. Oct. 25, 2023) (citing Org. for 

Competitive Markets v. U.S. Dep’t of Agric., 912 F.3d 455, 462 (8th Cir. 2018), and adding in 

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footnote 2 that “the Eighth Circuit treats Section 706(1) claims as equivalent to a writ of 

mandamus.”). The Eighth Circuit itself explained,

Of controlling significance is the Supreme Court’s unanimous decision in Norton 

v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 

L.Ed.2d 137 (2004). Without explicitly discussing the APA jurisdictional issue, 

the Court agreed that a claim will lie under § 706(1) to redress an agency’s failure 

to act, but observed that § 706(1) authorizes courts to “carr[y] forward the 

traditional practice prior to its passage, when judicial review was achieved 

through use of the so-called prerogative writs -- principally writs of mandamus 

under the All Writs Act.” Id. at 63, 124 S.Ct. 2373. The Court concluded that “a 

claim under § 706(1) can proceed only where a plaintiff asserts that an agency 

failed to take a discrete agency action that it is required to take.” Id. at 64, 124 

S.Ct. 2373 (emphasis in original). 

Org. for Competitive Markets v. U.S. Dep’t of Agric., 912 F.3d 455, 462 (8th Cir. 2018). In 

Norton, the Supreme Court explained that § 706(1) “empowers a court only to compel an agency 

‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without 

directing how it shall act.’” Norton, 542 U.S. at 64. 

The limitations on a mandamus claim under § 706(1) set out in Organization for 

Competitive Markets and Norton are the same as the limitations on mandamus under 28 U.S.C. 

§ 1361 set out by the Eighth Circuit Court of Appeals in Mitchael. See 809 F.3d at 1054

(explaining that under § 1361, the agency must have “a nondiscretionary duty to honor [the 

claimant’s] right,” and that “[i]n order for mandamus to lie[,] the duty owed to the plaintiff must 

be ministerial and a positive command so plainly prescribed as to be free from doubt.” (citations

omitted)). Indeed, the “traditional practice” for a writ of mandamus prior to passage of § 706(1), 

see Org. for Competitive Markets, 912 F.3d at 462, in 1946, see Kisor v. Wilkie, 139 S. Ct. 2400, 

2418 (2019), was that mandamus was an “extraordinary remedy.” See Ex parte Baldwin, 291 

U.S. 610, 619 (1934) (referring to “the extraordinary remedy of mandamus”). Thus, the Court 

believes that mandamus relief under § 706(1) must also be “extraordinary.” Therefore, whether 

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Plaintiffs’ mandamus claim is under the APA pursuant to 5 U.S.C. § 706(1) or pursuant to 28 

U.S.C. § 1361, failure to state a mandamus claim under one necessarily fails to state a mandamus 

claim under the other. For the reasons stated below, Plaintiffs have failed to state a mandamus 

claim.

d. Plaintiffs’ Mandamus Claim Against the USCIS Defendants Is 

Not Cognizable

Plaintiffs’ mandamus claim is subject to dismissal pursuant to Rule 12(b)(6). First, 

Plaintiffs have not alleged an extraordinary situation that would warrant such a drastic remedy. 

Mitchael, 809 F.3d at 1054; In re SDDS, Inc., 97 F.3d at 1034. Again, there are no allegations in 

the Complaint that USCIS is failing to adjudicate any I-601A applications at all or failing to 

adjudicate Plaintiffs’ application in particular. Rather, like many (potentially tens of thousands) 

of other I-601A applicants, Plaintiffs find themselves waiting a long time for their turn in line—

admittedly through no fault of their own but also with no allegation of a refusal to act by the 

USCIS Defendants. See generally Filing 1.

Furthermore, even assuming—clearly contrary to conclusions earlier in this decision—

that Plaintiffs have “a clear and indisputable right to the relief sought,” where that relief is 

adjudication of their I-601A Application, see Mitchael, 809 F.3d at 1054 (first two numbered 

requirements for a writ of mandamus), Plaintiffs’ mandamus claim would still fail. A duty to 

“adjudicate” is the opposite of a “ministerial” duty, as required for mandamus relief. Id.

(explaining the “nondiscretionary duty” element requires that “the duty owed to the plaintiff 

must be ministerial and a positive command so plainly prescribed as to be free from doubt” 

(internal quotation marks and citation omitted)); Norton, 542 U.S. at 64 (explaining that § 706(1) 

“empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ 

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or ‘to take action upon a matter, without directing how it shall act.’”). “Adjudicate” is defined as 

“To rule on judicially.” Black’s Law Dictionary (11th ed.), 52. In contrast, “ministerial” is 

defined as “Of, relating to, or involving an act that involves obedience to instructions or laws 

instead of discretion, judgment, or skill.” Id. at 1192. 

Furthermore, even if the obligation to adjudicate an I-601A application could somehow 

be construed to be “ministerial,” there is no duty to adjudicate such an application within any 

timeframe that is set out as a “positive command so plainly prescribed as to be free from doubt.” 

Mitchael, 809 F.3d at 1054; Org. for Competitive Markets, 912 F.3d at 462 (explaining that “a 

claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a 

discrete agency action that it is required to take.” (internal quotation marks and citation 

omitted)). Plaintiffs assert that 5 U.S.C. § 555(b) “imposes a non-discretionary duty to adjudicate 

applications in a reasonable time.” Filing 24 at 7. Section 555(b) states in pertinent part, “With 

due regard for the convenience and necessity of the parties or their representatives and within a 

reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. 

§ 555(b). Adjudication “within a reasonable time” is not a “positive command so plainly 

prescribed as to be free from doubt” as to the time to complete the adjudication. See Mitchael, 

809 F.3d at 1054; Org. for Competitive Markets, 912 F.3d at 462. The time is further modified 

by “due regard for the convenience and necessity of the parties or their representatives.” 5 U.S.C. 

§ 555(b). Notably, the statute refers to “the parties” not just to the applicant for specific agency 

action, and reference to “convenience and necessity of the parties” introduces further factors 

taking the time to complete the adjudication out of the realm of a “positive command so plainly 

prescribed as to be free from doubt.” 

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Where there are no allegations of fact plausibly suggesting that the requirements for the 

extraordinary relief of a writ of mandamus are met, Count II fails to state a claim on which relief 

can be granted pursuant to Rule 12(b)(6). 

3. Summary

The USCIS Defendants are entitled to dismissal of both of Plaintiffs’ claims. Count I is 

dismissed as to the USCIS Defendants for lack of subject matter jurisdiction. Count II is 

dismissed as to the USCIS Defendants for failure to state a claim on which relief can be granted.

C. The Claims Against the DOS Defendants

The Court turns to Plaintiffs’ claims against the DOS Defendants. The DOS Defendants 

base their challenge to the claims against them solely on lack of subject matter jurisdiction. 

1. The Parties’ Arguments

The DOS Defendants assert that the claims against them are not ripe. See, e.g., Filing 22 

at 4. They assert that this is so because Plaintiffs admit that the DOS cannot schedule plaintiff 

Martinez’s immigrant visa interview at this time. Filing 23 at 33. The DOS Defendants point out 

that Martinez is not eligible for a consular review because even though her application is 

“documentarily complete” with the DOS, her claims are not ripe because USCIS has yet to finish 

adjudicating her I-601A waiver. Filing 23 at 35. 

Not only do Plaintiffs argue that their claims against the DOS Defendants are ripe, Filing 

25 at 17, they assert their new argument that the DOS Defendants’ attempt to deprive the Court 

of subject matter jurisdiction over those claims would violate their procedural due process rights. 

Filing 25 at 6–7. Although the Court determined that Plaintiffs’ new “due process” argument was 

misplaced against the USCIS Defendants, that argument may have more traction against the 

DOS Defendants where the DOS Defendants challenge only subject matter jurisdiction. Like the 

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plaintiffs in the prior similar case before the Court, Plaintiffs argue that the DOS Defendants 

wrongly imply that the DOS is not already involved in their case. Filing 25 at 17. They argue that 

the DOS became involved in their case in on December 17, 2020, because the DOS implemented 

the requirement that USCIS must approve the I-130 before the case is moved from USCIS to the 

DOS. Filing 25 at 18. Plaintiffs argue that the DOS Defendants have had Plaintiffs’ DS-260 

immigrant visa application and I-130 approval notice but have made the decision to hold off on 

adjudication of the visa application until after plaintiff Martinez’s I-601A Application is 

approved. Filing 25 at 19. Plaintiffs contend further that their claims are manageable, so they are 

ripe. Filing 25 at 18.

In reply to Plaintiffs’ new “due process” argument, the DOS Defendants argue that 

argument fails as a matter of law. Filing 26 at 9. Again, the DOS Defendants argue that Plaintiffs 

cannot add a new “due process” cause of action in a brief in opposition to a motion to dismiss. 

Filing 26 at 9. The DOS Defendants argue further that “[t]here is no asserted process that 

Plaintiffs have been allegedly deprived of.” Filing 26 at 9. Finally, Defendants point out that the 

United States Supreme Court has made clear that non-citizens have no due process right to 

obtain entry into the United States or to challenge the denial of entry. Filing 26 at 10.

2. The Plaintiffs’ New Due Process Argument Is Unavailing

The Court will begin its analysis with Plaintiffs’ new “procedural due process” 

argument. The Court reiterates that Plaintiffs did not plead a claim for violation of procedural 

due process in their Complaint and that they cannot add it now by briefing such a claim. See 

Hawse, 7 F.4th at 691. The failure to plead any such claim is sufficient to resolve Plaintiffs’ 

“procedural due process” argument.

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3. The Ripeness Challenge

a. Ripeness Standards

As the Eighth Circuit Court of Appeals has explained,

Ripeness is a “closely related doctrine” of standing that “originates from 

the same Article III limitation [on subject matter jurisdiction].” Sch. of the 

Ozarks, [Inc. v. Biden], 41 F.4th [992,] 997 [(8th Cir. 2022)] (citing Susan B. 

Anthony List [v. Driehaus], 573 U.S. [149,] 157 n.5, 134 S.Ct. 2334 [(2014)]). 

The ripeness doctrine “prevent[s] the courts, through avoidance of premature 

adjudication, from entangling themselves in abstract disagreements over 

administrative policies, and also to protect the agencies from judicial interference 

until an administrative decision has been formalized and its effects felt in a 

concrete way by the challenging parties.” Id. at 997–98 (quoting Abbott Lab’ys v. 

Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “[T]he 

complainant must show both ‘the fitness of the issues for judicial decision and the 

hardship to the parties of withholding court consideration’” “[t]o demonstrate that 

an alleged dispute is ripe for review.” Id. at 998 (quoting Abbott Lab’ys, 387 U.S. 

at 149, 87 S.Ct. 1507). A case that “would not benefit from further factual 

development and poses a purely legal question not contingent on future 

possibilities ... is fit for judicial decision.” Id.

Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 608 (8th Cir. 2022); Hughes v. City of Cedar 

Rapids, Iowa, 840 F.3d 987, 993 (8th Cir. 2016) (explaining that “[t]he plaintiff ‘must 

necessarily satisfy both [the ‘fitness’ and ‘hardship’] prongs to at least a minimal degree.’” 

(quoting Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1039 (8th Cir. 

2000)). As the Eighth Circuit has also explained,

Fitness depends on whether a case needs further factual development. [Pub.

Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570, 572–73 (8th Cir. 

2003)]. Hardship requires that the plaintiff “has sustained or is immediately in 

danger of sustaining some direct injury as the result of the challenged statute or 

official conduct.” Id.

Hughes, 840 F.3d at 992. Thus, a case is not ripe if it is dependent on “contingent future events 

that may not occur as anticipated, or indeed may not occur at all.” Trump v. New York, 141 S. Ct. 

530, 535 (2020) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).

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b. Plaintiffs’ Claims Against the DOS Defendants Are Not Ripe

On this challenge to subject matter jurisdiction, which the Court determined it would treat 

as “facial” above in § II.A.1., the Court must give Plaintiffs “Rule 12(b)(6) safeguards,” 

including treating factual allegations in the Complaint as true. See Croyle, 908 F.3d at 380–81; 

Stalley, 509 F.3d at 521. Thus, the Court accepts as true Plaintiffs’ allegation that the DOS 

Defendants have been on notice of plaintiff Martinez’s application for a DS-260 immigrant visa 

since December 17, 2020, and that USCIS received her I-601A Application on March 25, 2021. 

See Filing 1 at 7 (¶¶ 26, 28). The Court also accepts as true Plaintiffs’ allegations that they have 

suffered hardships awaiting approval by the DOS of plaintiff Martinez’s DS-260 visa 

application. See Filing 1 at 3 (¶ 8); Filing 1 at 10 (¶ 44); Filing 1 at 12 (¶ 57). Nevertheless, these 

allegations do not plausibly suggest that Plaintiffs’ claims against the DOS Defendants are ripe 

because they are at best only consistent with the possibility that plaintiff Martinez’s DS-260 visa 

application is ready for adjudication. Stalley, 509 F.3d at 521 (explaining that courts still “giv[e] 

no effect to conclusory allegations of law,” and “[t]he plaintiff must assert facts that 

affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to 

jurisdiction), rather than facts that are merely consistent with such a right.”); accord Davis, 886 

F.3d at 679 (explaining that “[i]n a facial attack, ‘a defendant asserts that the complaint fails to 

allege sufficient facts to support subject matter jurisdiction.’” (quoting Kerns, 585 F.3d at 193)).

The primary fallacy in Plaintiffs’ argument is that the DOS Defendants have made the 

decision to hold off on adjudication of plaintiff Martinez’s DS-260 visa application until after her 

I-601A Application for a waiver is approved. Filing 25 at 19. The DOS did not impose that 

requirement; instead, the requirement for approval of an I-601A application before consideration 

of a DS-260 visa application is imposed by statute. Section 1182(a)(9)(B)(i) makes Martinez

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ineligible for a visa and ineligible to be admitted to the United States without a waiver authorized 

in § 1182(a)(9)(B)(v). See 8 U.S.C. § 1182(a)(9)(B). Thus, whatever hardship Plaintiffs have

suffered since the DOS Defendants had notice of Martinez’s DS-260 application was not 

sustained as the result of the challenged official conduct of the DOS Defendants. Hughes, 840 

F.3d at 992 (explaining the “hardship” prong of the ripeness analysis). Plaintiffs have not directly 

challenged § 1182(a)(9)(B) on constitutional or other grounds. To put it another way, this case is 

not ripe because the Court should not interfere until some effect of a decision of the DOS 

Defendants has been felt in a concrete way by Plaintiffs, and there is no such decision and no 

such effect at this time. Religious Sisters of Mercy, 55 F.4th at 608.

This primary fallacy in Plaintiffs’ argument also demonstrates why Plaintiffs cannot 

satisfy the “fitness” prong of the ripeness analysis. See id.; Hughes, 840 F.3d at 992. “Fitness” 

depends on whether a case needs further factual development, Hughes, 840 F.3d at 992, to avoid 

premature adjudication or the courts entangling themselves in abstract disagreements over 

administrative policies. Religious Sisters of Mercy, 55 F.4th at 608. Because § 1182(a)(9)(B) 

requires a waiver of unlawful presence before a visa can be issued, and there has been no such 

waiver, the DOS Defendants cannot adjudicate plaintiff Martinez’s DS-260 visa application. 

Further factual development is required, including whether plaintiff Martinez’s I-601A 

application is approved. Hughes, 840 F.3d at 992. Such approval is entirely contingent. Trump, 

141 S. Ct. at 535 (explaining that a case is not ripe if it is dependent on “contingent future events 

that may not occur as anticipated, or indeed may not occur at all.” (citation omitted)). For the 

Court to direct the DOS Defendants to adjudicate plaintiff Martinez’s DS-260 application at this 

time would be premature and would improperly entangle the Court in abstract disagreements 

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29

over administrative policies not to mention legislative policies on immigration. Religious Sisters 

of Mercy, 55 F.4th at 608. 

The DOS Defendants are entitled to dismissal of Plaintiffs’ claims against them because 

those claims are not ripe.

III. CONCLUSION

Upon the foregoing,

IT IS ORDERED that Defendants’ Motion to Dismiss, Filing 21, is granted, and the 

Complaint in this action is dismissed for lack of subject matter jurisdiction and failure to state a 

claim as set out above.

Dated this 7th of November, 2023.

BY THE COURT:  

_________________________

Brian C. Buescher 

United States District Judge

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