UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARAS SHEIKHI

Plaintiff,

v. Civil Action No. 19-2901 (TJK)

DONALD J. TRUMP et al.,

Defendants.

MEMORANDUM OPINION

Dr. Aras Sheikhi brought this action against various U.S. officials, seeking to compel the

Government under the Administrative Procedure Act (APA) or the Mandamus Act to finish

processing his request for a waiver from Presidential Proclamation 9645, which otherwise bars

him from receiving an employment-based immigration visa. Before the Court is the

Government’s motion to dismiss for lack of subject matter jurisdiction and failure to state a

claim. For the reasons explained below, the Court finds that Dr. Sheikhi has established subject

matter jurisdiction, but he has failed to state a claim. Thus, the Court will grant the motion and

dismiss the case.

Background

The Immigration and Nationality Act (INA),

et seq., governs admission

of aliens into the United States. Admission normally requires a valid immigrant or

nonimmigrant visa. See

, 1182, 1203. Once a visa application is “completed

and executed before a consular officer,” the “consular officer must issue the visa, refuse the visa

. . . [or] discontinue granting the visa.”

(a). Congress has delegated to the

President broad authority to exclude aliens under the INA: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

(f).

On September 24, 2017, President Trump signed Proclamation No. 9645,

, 161 (2017) (“Procl.”) under this authority. ECF No. 1 (“Compl.”) ¶ 41. The Proclamation

placed entry restrictions on Iranian citizens, among others, because the Secretary of Homeland

Security found that country’s identity-management protocols and information-sharing practices

relating to the screening of those seeking admission to the United States inadequate. Procl.

§§ 2(b)(ii). Still, the Proclamation allows for case-by-case waivers for foreign nationals who

show that (i) denying entry would cause undue hardship, (ii) entry would be in the national

interest, and (iii) entry would not threaten the national security or public safety. Id. § 3(c)(i).

Dr. Sheikhi is an Iranian national who holds a bachelor’s degree, master’s degree, and

doctoral degree in electrical engineering from Sharif University in Iran. Compl. ¶ 47. In

October 2017, he began the process of applying for an employment-based immigration visa. Id.

Under

(b)(2)(B)(i), employment-based visas may be issued to advanced degree

holders—and the Attorney General may waive the requirement that that an alien’s services in the

sciences, arts, professions, or business be sought by an employer in the United States—if

admission of the alien would be in the interest of the United States.

. Seeking to avail

himself of this type of visa, Dr. Sheikhi sought classification from U.S. Citizenship and

Immigration Services (USCIS) as an advanced degree holder whose admission as an immigrant

would be in the interest of the United States.

.

2 On February 3, 2018, USCIS granted Dr. Sheikhi the advanced degree holder

classification and ultimately transferred his visa application to the U.S. Embassy in Paris for

processing.

. On January 23, 2019, Dr. Sheikhi attended an immigrant visa interview

at that U.S. Embassy.

. In accordance with the Proclamation, the consular officer

refused the immigrant visa application under INA § 212(f),

(f) because Dr.

Sheikhi is an Iranian national. ECF No. 10-3, Declaration of Chloe Dybdahl (“Dybdahl Decl.”)

¶ 4. But Dr. Sheikhi requested a waiver from the Proclamation and submitted documentation to

support his claim that he met its criteria. Compl. ¶ 49. On January 30, 2019, the consular officer

made a preliminary determination that Dr. Sheikhi met two of the three requirements and

“consulted with the Visa Office for interagency review” to determine whether Dr. Sheikhi’s

entry “could pose a threat to national security or public safety.” Dybdahl Decl. ¶ 5.

Dr. Sheikhi’s request for a waiver is “undergoing consideration” and his application for a

visa “remains refused in accordance with the Proclamation.”

. He filed this action in

September 2019, about eight months after he requested the waiver. He seeks to compel the

Government under the APA or the Mandamus Act to finish processing his waiver, thereby

clearing the way for him to be eligible for the immigration visa. Later that year, the Government

moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. See ECF No.

10-1 (“MTD Mem.”).

Legal Standard

“When reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), the Court ‘assumes the truth of all material factual allegations in the complaint and

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

derived from the facts alleged.” Bagherian v. Pompeo,

, 91 (D.D.C. 2020)

3 (quoting Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011) (alterations

omitted)). The plaintiff bears the burden of establishing subject matter jurisdiction. Lujan v.

Defs. of Wildlife,

(1992).

To “survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), ‘a

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

plausible on its face.’” Bagherian, 442 F. Supp. 3d at 92 (quoting Ashcroft v. Iqbal,

(2009)). “A claim has facial plausibility when the plaintiff pleads factual content that

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

alleged.” Iqbal,

. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

A court need not accept legal

conclusions unsupported by factual allegations.

. In deciding a motion under Rule

12(b)(6), a court may consider the factual allegations in the complaint, documents attached as

exhibits, or documents on which the plaintiff’s complaint necessarily relies, even if the defendant

is the one to produce the document through its motion to dismiss. Ward v. D.C. Dep’t of Youth

Rehab. Servs.,

(D.D.C. 2011) (citations omitted). Courts may also

consider “matters of which we may take judicial notice.” E.E.O.C. v. St. Francis Xavier

Parochial Sch.,

(D.C. Cir. 1997).

Analysis

A. Subject Matter Jurisdiction

In arguing against subject matter jurisdiction here, the Government contends both that

consular nonreviewability applies and that Dr. Sheikhi’s case is moot. Neither argument is

persuasive.

4 1. The Consular Nonreviewability Doctrine

The Government first argues the doctrine of consular nonreviewability bars review of Dr.

Sheikhi’s claims. MTD Mem. at 7. Under that doctrine, “a consular official’s decision to issue

or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.”

Saavedra Bruno v. Albright,

(D.C. Cir. 1999). This jurisdictional bar,

however, “does not apply where the government has not made a final visa decision.” P.K. v.

Tillerson,

(D.D.C. 2017).

The consular officer in this case, relying on the Proclamation, denied Dr. Sheikhi’s visa

application. Dybdahl Decl. ¶ 4. In a typical case, the doctrine prevents judicial review of such a

denial. See Aboutalebi v. Dep’t of State, No. 19-cv-2605,

, at *5 (D.D.C. Dec.

18, 2019) (no subject matter jurisdiction to review denial of visa). But here, the consular officer

then began the process of considering whether to grant a waiver. Dybdahl Decl. ¶¶ 4–6. And for

his part, Dr. Sheikhi represents he is not seeking to “review or overturn” the original denial.

ECF No. 12 (“Opp’n”) at 5. Thus, the question is whether the doctrine bars the court from

reviewing the claims Dr. Sheikhi brings, the gravamen of which is that the Government has

failed to timely process his request for a waiver.

There remains some question about whether, under these circumstances, the original visa

decision is final, and thus subject to the doctrine of consular non-reviewability.1 But “[e]very

judge in this District who has considered the . . . question has held that the consular

1 Compare Zandieh v. Pompeo, No. 20-cv-919,

, at *3 (D.D.C. July 29, 2020) (“where a plaintiff’s visa application has been refused, but he remains under consideration for a waiver from the same Presidential Proclamation, ‘the [visa] decision is not final’ and consular nonreviewability is thus inapplicable”) (collecting cases) with Joorabi v. Pompeo,

, 100 (D.D.C. 2020) (“T]he doctrine of consular nonreviewability prevents this Court from reviewing the government’s denial of the . . . underlying visa applications,” even when “waiver applications are still in ‘administrative processing.’”).

5 nonreviewability doctrine does not apply to the waiver process so long as the government has not

made a final decision whether to grant or deny the waiver.” Kangarloo v. Pompeo, No. 20-cv-

354,

, at *3 (D.D.C. Aug. 7, 2020) (collecting cases). Thus, the consular

nonreviewability doctrine does not bar his claims.

2. Mootness

The Government also argues that Dr. Sheikhi’s claims are moot because his visa has

already been denied. MTD Mem. at 15–17. Once again, this “argument . . . misunderstands [Dr.

Sheikhi’s] claim[s].” Bagherian, 442 F. Supp. 3d at 93. Fundamentally, Dr. Sheikhi does not

seek to challenge the prior decision to deny his visa, he seeks to compel the processing of his

waiver request. And because his request for a waiver is still under consideration, events have not

“so transpired that the decision will neither presently affect the parties’ rights nor have a more-

than-speculative chance of affecting them in the future.” Pharmachemie B.V. v. Barr Labs., Inc.,

(D.C. Cir. 2002). In other words, because an “order from this Court requiring

defendants to process [his] waiver would affect the parties’ rights . . . the case is not moot.”

Ghadami v. United States Dep’t of Homeland Sec., No. 19-cv-397,

, at *5

(D.D.C. Mar. 19, 2020).

B. The Merits

Turning to the merits, the Court agrees with the Government that Dr. Sheikhi has not

stated a claim under the APA or for mandamus, and that the case must be dismissed.

1. APA Claim

Dr. Sheikhi alleges that the Government’s delay in adjudicating his waiver violates the

APA, which requires agencies to “conclude” matters presented to them “within a reasonable

time.”

(b); see Compl. ¶ 67. Moreover, the APA authorizes courts to “compel

agency action unlawfully withheld or unreasonably delayed.”

(1); see Compl.

6 ¶ 68. The Government argues that Dr. Sheikhi has failed to state a claim under the APA for

several reasons. See MTD Mem. at 11-13. First, it argues that the decision to grant or deny a

waiver under the Proclamation is discretionary, so that it “is committed to agency discretion by

law” and thereby immune from judicial review under the APA,

(a)(2). Second, it

contends that waiver program decisions are governed exclusively by the Proclamation, which is

“a presidential action that is not subject to the APA.” MTD Mem. at 11. And third, the

government argues that, even if the APA applies, Dr. Sheikhi cannot show the State Department

has unreasonably delayed its processing of his waiver request.

.

The first two arguments raise the issue of “whether government action or inaction taken

pursuant to a presidential proclamation is reviewable under the APA, given that the President’s

actions are ‘not subject’ to the APA’s requirements . . . a complex legal question for which there

is not clear D.C. Circuit precedent.” Bagherian, 442 F. Supp. 3d at 94 (citations omitted).

Luckily, the Court need not grapple with them here. Whether a claim is reviewable under the

APA implicates a plaintiff’s cause of action but does not affect the Court’s subject matter

jurisdiction under

. Oryszak v. Sullivan,

, 524–25 (D.C. Cir.

2009). Thus, because the question of whether a cause of action exists is not jurisdictional, a

court may “assume[ ] that there is a cause of action available.” Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006). The Court will therefore follow the lead of several other

courts in this District and assume that the decision to grant or deny a waiver is nondiscretionary

and that Dr. Sheikhi’s claim is reviewable under the APA. See, e.g., Bagherian, 442 F. Supp. 3d

at 94; Didban v. Pompeo,

, 175 (D.D.C. 2020); Kangarloo,

, at *5.; cf., e.g., Moghaddam v. Pompeo,

, 120–21 (D.D.C. 2020)

7 (claim reviewable under APA); Thomas v. Pompeo,

, 42–43 (D.D.C. 2020)

(same).

The Government’s remaining argument—the one that carries the day for it—turns on

whether Dr. Sheikhi “has alleged facts sufficient to state a plausible claim for unreasonable

administrative delay.” Ghadami,

, at *7 n.6. The test to determine whether an

agency action has been unreasonably delayed is the six-factor test the D.C. Circuit established in

Telecommunications Research & Action Ctr. v. F.C.C.,

(D.C. Cir. 1984) (“TRAC”).

Under TRAC, courts must consider:

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order that agency action is “unreasonably delayed.”

TRAC, 750 F.2d at 79–80 (cleaned up). “[I]n cases like this one involving claims of

unreasonably delayed waiver determinations, the TRAC factors have been generally employed at

the motion to dismiss stage to determine whether a plaintiff’s “complaint has alleged facts

sufficient to state a plausible claim for unreasonable administrative delay.” Sarlak v. Pompeo,

No. 20-cv-35,

, at *5 (D.D.C. June 10, 2020) (collecting cases).

8 The first factor is the most important, In re Core Comms., Inc.,

(D.C.

Cir. 2008), and it—along with the second factor—favors the Government. As many courts have

recognized, “Congress has supplied no timeline for processing waiver applications,” Didban, 435

F. Supp. 3d at 176, and it “has given the agencies wide discretion in the area of immigration

processing.” Skalka v. Kelly,

, 153–54 (D.D.C. 2017); Sarlak,

, at *5 (citing same). And as discussed more below, courts in this District have found

that it is not unreasonable under the APA for the Government to take between two and three

years to adjudicate waivers to Proclamation 9645. See Sarlak,

, at *6

(“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.”)

(citing Skalka,

).

Dr. Sheikhi argues that when considering these timing factors, the Court should weigh

the “internal operating procedures established by the agency,” which show that it should be

possible to process his waiver much more quickly. Opp’n at 15. He points to a new system

implemented by the State Department in July 2019 that allows it to conduct national security and

public safety inquiries before interviewing a visa applicant. Id.; see also ECF No. 12-2, Opp’n,

Ex. 2, Testimony of Dep. Ass’t Sec’y Edward Ramotowksi to H. Judiciary Comm. Subcomm. on

Immigration & Citizenship and Foreign Affairs Comm. Subcomm. on Oversight &

Investigations (Sep. 24, 2019) at 3(“Ramotowski Test.”).2 And the new system supposedly

allows the Department to issue a waiver “within days of the application” as long the “security

check done prior to the interview not show any concerns.” Ramotowski Test. at 3. This change

2 Courts may take judicial notice of congressional testimony because the testimony is “not subject to reasonable dispute.” Fed. R. Evid. 201(b); see also Didban, 435 F. Supp. 3d at 177 n.5 (taking judicial notice of same congressional testimony).

9 in capability, Dr. Sheikhi argues, shows that the Government is unreasonably delaying Dr.

Sheikhi’s waiver request because it has “identified no reason why they would be unable to apply

this new procedure and complete Dr. Sheikhi’s application in a matter of days.” Opp’n at 15.

But this testimony, standing alone, does little to assist plaintiffs like Dr. Sheikhi, as many

courts in this District have already found. See, e.g., Zandieh v. Pompeo, No. 20-cv-919,

, at *6 (D.D.C. July 29, 2020); Sarlak,

, at *5 (noting this

evidence “suggests that [plaintiff’s] two-year wait may be unusual,” but not that it is

“unreasonable”). The testimony does not suggest that Dr. Sheikhi is being treated differently

than other similarly situated waiver applicants. Indeed, the testimony “support[s] the

Government as [it] show[s] that the new automated vetting process is enabling the Government

to work through the backlog of waiver applications.” Didban, 435 F. Supp. 3d at 177 n.5. In the

end, the testimony does not show that in processing his waiver, the Government is violating any

statutory timetable or agency procedures.

The third factor likewise favors the Government. Unlike cases involving family

separation, see, e.g., Zandieh,

, at *5; Didban, 435 F. Supp. 3d at 177; and

Kangarloo,

, at *6, Dr. Sheikhi’s interest here is purely economic. He

represented to the State Department that he sought to immigrate to the United States because the

“value of his salary as an adjunct professor . . . continue[d] to drop, while the income he could be

earning in the United States is worth at least ten times as much.” ECF No. 2-8, Compl., Ex. E,

(“Waiver Request”) at 76. Moreover, he represented that he had lost “two of his three sources of

income” due “to the re-imposition of sanctions against Iran by the United States government.”

. But he does not allege any other special threat to his health or welfare caused by his

denial of admission to the United States.

at 73–76; Compl. ¶¶ 57–58.

10 The fourth factor, which requires accounting for the effects of expedited action on

“agency activities of equal or greater priority,” also favors the Government. Ghadami,

, at *9. Ordering the Government to process Dr. Sheikhi’s waiver request is “the very

type of agency action . . . that if compelled would presumably delay other adjudications.”

Skalka,

. Thus, delays caused by limited agency resources do not lend

themselves to “judicial ‘reordering[s] [of] agency priorities.’” Bagherian, 442 F. Supp. 3d at 96

(alterations in original) (quoting In re Barr Labs., Inc.,

(D.C. Cir. 1991)); see

also Sarlak,

, at *6 (collecting cases). For these reasons, the D.C. Circuit has

looked with disfavor on courts placing a plaintiff like Dr. Sheikhi “at the head of the queue”

when doing so would “simply move[ ] all others back one space and produce[] no net gain.” In

re Barr Labs.,

; see also Ghadami,

, at *9 (quoting In re Barr

Labs. for same proposition); Bagherian, 442 F. Supp. 3d at 95–96 (same).

The fifth factor supports Dr. Sheikhi. As noted, his interest in coming to the United

States is economic, but it is an important interest all the same. When he submitted his visa

application, he had several job offers that may no longer be available. Compl. ¶ 57; Waiver

Request at 74–76. He alleges that he lost the chance to publish a paper. Compl. ¶ 58. In sum,

his inability to immigrate to the United States has likely materially affected his ability to provide

for himself and his wife. See

; Waiver Request at 73, 76.

The sixth factor does not apply because Dr. Sheikhi makes “no allegations regarding the

Government’s motivations.” Didban, 435 F. Supp. 3d at 177.

Applying these factors, the Court ultimately concludes that Dr. Sheikhi has not stated a

claim for unreasonable delay under the APA. His request for a waiver has been pending since

January 2019, about twenty-two months. Courts in this District have found waiver-adjudication

11 delays of greater length reasonable. Zandieh,

, at *6 (twenty-nine months);

Sarlak,

, at *6–7 (two years); Ghadami,

, at *8, 11 (twenty-

five months); Bagherian, 442 F. Supp. 3d at 95–96 (twenty-five months); Didban, 435 F. Supp.

3d at 176–77 (two years). Indeed, several of this District’s courts have noted that delays between

three to five years are “often not unreasonable.” Sarlak,

, at *6 (quoting

Yavari v. Pompeo, No. 19-cv-2524,

, at *8 (C.D. Cal. Oct. 10, 2019). Even

so, the Court echoes the view that “courts, facing growing delays, may well eventually need to

set a point at which reasonableness ends” and expects the Government to make progress on its

backlog. Zandieh,

, at *6.

2. Mandamus Claim

Dr. Sheikhi’s mandamus claim fails for the same reason as his APA claim. To show

entitlement to mandamus, a plaintiff “must demonstrate (1) a clear and indisputable right to

relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no

adequate alternative remedy exists.” Am. Hosp. Ass’n. v. Burwell,

(D.C. Cir.

2016). The standard for reviewing agency delay is “the same under both § 706(1) of the APA

and the Mandamus Act.” Bagherian, 442 F. Supp. 3d at 96 (quoting Skalka,

). Thus, because the Court has concluded that a twenty-two-month delay is not unreasonable,

it cannot order the Government to take any action via the mandamus route.

Conclusion

For all these reasons, Defendants’ Motion to Dismiss, ECF No. 10, will be GRANTED.

A separate order will issue.

12 /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: November 24, 2020

13