Practice Tip: Opposing a Motion to Dismiss Asserting the Consular Nonreviewability Doctrine in Agency Delay Cases

Practitioners who challenge delays in visa processing often face a motion to dismiss based on the consular nonreviewability doctrine. This practice tip examines the scope of the doctrine. It provides arguments, with supporting documentation, to oppose common situations that the government claims are final, nonreviewable decisions. It also discusses the advantages of an Administrative Procedure Act cause of action and offers considerations for demonstrating unreasonable delay. The practice tip also considers who should be sued and where to file the lawsuit.