Anushka Dubey v. Department of Homeland Security

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1207
A NUSHKA D UBEY, et al.,
Plaintiffs-Appellants,
v.
D EPARTMENT OF HOMELAND SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 24 C 5286 — Matthew F. Kennelly, Judge.
____________________
A RGUED SEPTEMBER 11, 2025 — D ECIDED SEPTEMBER 26, 2025
____________________
Before EASTERBROOK , HAMILTON, and MALDONADO,
Circuit Judges.
EASTERBROOK , Circuit Judge. Five citizens of India, who
came to the United States as students with F-1 visas, returned
home for short periods and sought reentry. Officials at the air-
ports where they arrived revoked their visas. The officials or-
dered expedited removal with respect to four of the five; the
fifth was allowed to withdraw his application for entry. All
five returned to India. From there they filed this suit under

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2 No. 25-1207
the Administrative Procedure Act, 5 U.S.C. §§ 556(d), 702, 704,
seeking to contest decisions that preceded the actions at the
airports.
Plaintiffs completed their courses of studies, but F-1 visa
holders may remain in the United States to participate in “op-
tional practical training” (OPT) programs. Each plaintiff
signed up for such a program, and they depict themselves as
victims of fraud. Plaintiffs allege that the providers with
which they enrolled did not furnish either training or work
and eventually ghosted them. Immigration officials appear to
believe, however, that the plaintiffs were the wrongdoers or
at least should have known that it is improper to pay for
phantom work-study programs. We say “appear” because the
complaint does not attach copies of the administrative deci-
sions, and the suit was dismissed on the pleadings under Fed.
R. Civ. P. 12(b)(1). Plaintiffs imply that they did not receive
copies of the decisions—indeed, that they never received no-
tice that any administrative process was under way and did
not have a chance to explain their positions. Because this suit
did not reach discovery, and the Department did not file the
administrative records, these and other details remain un-
known. We accept plaintiffs’ allegations for current purposes.
Relying on 8 U.S.C. §1252(a)(2)(A)(i), the district court dis-
missed the suit for lack of subject-matter jurisdiction. 2025
U.S. Dist. LEXIS 18685 (N.D. Ill. Feb. 3, 2025). This statute fore-
closes judicial review of almost “any individual determina-
tion or to entertain any other cause or claim arising from or
relating to the implementation or operation of an order of re-
moval pursuant to section 1225(b)(1) of this title”. (We say “al-
most” because §1252(e) provides exceptions, but plaintiffs do
not rely on any of these.) The orders entered at the airports

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No. 25-1207 3
were authorized by §1225(b)(1), which led the district court to
conclude that it lacks jurisdiction.
Plaintiffs insist that they are not challenging expedited re-
moval orders issued under §1225(b)(1). Instead, they say, they
contest the antecedent findings that they misused the “op-
tional practical training” program. Those findings led to the
revocation of their visas, which led to the removal orders.
Plaintiffs contend that, by limiting their challenge to the find-
ings, they avoid the effect of §1252(a)(2)(A)(i).
As the district court observed, this court has already re-
jected a functionally identical argument. See Odei v. Depart-
ment of Homeland Security, 937 F.3d 1092 (7th Cir. 2019). As far
as we can tell, no other circuit has agreed with the sort of ar-
gument that plaintiffs present. The reason is simple. Every or-
der of removal under §1225(b)(1) has a justification. If an alien
could avoid §1252(a)(2)(A)(i) by attacking that justification,
the statute might as well be erased from the United States
Code. On plaintiffs’ understanding, the statute would apply
only to inexplicable removals. Yet plaintiffs do not offer, and
we cannot imagine, any reason why Congress would fore-
close judicial review of high-handed decisions by petty bu-
reaucrats at the border, while allowing judicial review as long
as the orders have reasoned support. That would be perverse.
There is a different way to see this. The APA allows judi-
cial review only of “final” administrative action. 5 U.S.C. §704.
In what sense were the administrative determinations about
plaintiffs’ “optional practical training” programs “final”?
Those decisions did not themselves revoke plaintiffs’ visas.
The determinations were inputs into the revocations, which
occurred at the airports, but the APA distinguishes interim
from final decisions. Section 704 tells us: “A preliminary,

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4 No. 25-1207
procedural, or intermediate agency action or ruling not di-
rectly reviewable is subject to review on the review of the final
agency action.”
“[T]wo conditions … generally must be satisfied for
agency action to be ‘final’ under the APA.” Army Corps of En-
gineers v. Hawkes Co., 578 U.S. 590, 597 (2016). The challenged
action must represent the “consummation” of an agency’s de-
cisionmaking process and must determine “rights or obliga-
tions”. Ibid. (citing Bennett v. Spear, 520 U.S. 154, 177–78
(1997)). In other words, §704 asks whether a “terminal event”
has occurred. Salinas v. Railroad Retirement Board, 592 U.S. 188,
194–95 (2021). The administrative findings about plaintiffs’
“optional practical training” were not the terminal events in
their situations.
Consider: Could an alien obtain review under the APA of
an order denying a request for asylum? Denial of asylum is a
step along the way to removal but not itself a final order. Re-
view of a final order of removal lies exclusively in the court of
appeals. An alien cannot use the APA to transfer review of an
asylum determination to a district court, separating that issue
from review of the order of removal. See Dhakal v. Sessions,
895 F.3d 532 (7th Cir. 2018). Just so with the operation of
§1252(a)(2)(A)(i). Neither the court of appeals nor a district
court can review an expedited order of removal (unless an ex-
ception in §1252(e) applies), and therefore neither court can
review an administrative finding that underlies the order,
given the proviso in 5 U.S.C. §701(a)(1) that the APA does not
authorize judicial review that some other statute forecloses.
This is all we need to say to resolve this appeal, but we add
words of caution. In addition to relying on §1252(a)(2)(A)(i)
the Department of Homeland Security invoked a doctrine

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No. 25-1207 5
often called consular nonreviewability: judges do not review
decisions not to issue visas or to revoke visas previously is-
sued—more precisely, do not look behind the reasons given
for denying or rescinding visas. See Department of State v.
Muñoz, 602 U.S. 899 (2024). The district court deemed this doc-
trine irrelevant because the federal agents who revoked plain-
tiffs’ visas work in the United States for the Department of
Homeland Security rather than abroad for the Department of
State. 2025 U.S. Dist. LEXIS 18685 at *10–13. Yet “consular non-
reviewability” acquired its name when only the Department
of State handled visas, and perhaps the old name should not
determine when (if ever) judges review visa matters today.
Muñoz describes the doctrine as one under which “the action
of an executive officer to admit or exclude an alien” is not sub-
stantively reviewable. 602 U.S. at 908. We applied the doctrine
to a decision by a non-consular officer in Matushkina v. Nielsen,
877 F.3d 289, 295 (7th Cir. 2017). How far the doctrine extends
to visa revocations at a port of entry need not be resolved to-
day; we flag this subject only to ensure that no one thinks that
the doctrine has been confined inadvertently to decisions by
the Department of State at consulates outside our borders.
A FFIRMED

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