UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOHAMMAD YOUNIS ABDULSALAM SAWAHREH,

Plaintiff, v. Civil Action No. 22-1456 (JEB)

UNITED STATES DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Dr. Mohammad Younis Abdulsalam Sawahreh, a physician, is a Jordanian

citizen who resides in Qatar. He awaits a decision on his application for a J-1 visa, which he

requires to enroll in a pediatric residency program to which he has been accepted in the United

States. He interviewed for the visa on April 27, 2021, at the U.S. Embassy in Doha but has not

yet received his visa nor had his application finally refused. Plaintiff contends that the fifteen

months that he has now waited for a final decision constitutes an unreasonable delay under the

Administrative Procedure Act and asks the Court to order the Government Defendants to act.

Defendants now move to dismiss. Because the Court finds that a decision on Sawahreh’s visa

application has not been unreasonably delayed, it will grant the Motion.

I. Background

The Court begins with an overview of the process for obtaining a J-1 visa and then turns

to the background of Plaintiff’s claims and the procedural history of the case.

1 A. J-1 Visas

The J-1 visa is a nonimmigrant “exchange visitor” visa that allows a foreign citizen to

travel to the United States in order to teach or study. See U.S. Dep’t of Homeland Sec.,

Exchange Visitors (April 22, 2020), https://bit.ly/3d1Nq32 (USCIS J-1 Visa Information);

(a)(15)(J). As the J-1 visa is a nonimmigrant visa, J-1 visitors must return to their

country upon completion of their program.

The Department of State administers the J-1 exchange-visitor program by designating

various public and private organizations as sponsoring entities. See USCIS J-1 Visa

Information. To obtain a J-1 visa, an applicant must first “apply for and be accepted into an

exchange visitor program through a designated sponsoring organization in the United States.”

U.S. Dep’t of State, Exchange Visitor Visa (last visited Sept. 12, 2022), https://bit.ly/2wnrSFl.

Upon acceptance to an approved program, she must then complete Form DS-160 (the Online

Nonimmigrant Visa Application), submit biometric data, and attend an interview with a

Department of State consular officer to determine eligibility for the visa. Id.; see

(a)(1)(B);

, 41.103.

Once an applicant has properly completed each of these components, a consular officer

“must issue, refuse the visa, or,” in circumstances inapplicable here, “discontinue granting the

visa.”

(a). The officer need only make an initial, rather than final,

determination about an applicant’s visa eligibility. In other words, under Section 221(g) of the

Immigration and Nationality Act (INA), an officer can temporarily refuse to issue a visa in order

to allow for further administrative processing of an applicant’s case if the officer needs more

information or time to determine eligibility. See

(g); U.S. Dep’t of State,

Administrative Processing Information (last visited Sept. 12, 2022), https://bit.ly/2GO3jEg. The

2 Department of State publishes visa-application statuses online, but, beginning in March 2020,

changed its website to display the status of applications undergoing further administrative

processing as “refused.” U.S. Dep’t of State, Visas: CEAC Case Status Change (March 5, 2020),

https://bit.ly/3DkqCWP (Status Change Memo). This reporting change in such circumstances

reflects “no change in such applicants’ actual cases.”

B. Plaintiff’s Application

According to the Complaint, which the Court credits at this juncture, Sawahreh is a

Jordanian citizen residing in Qatar and a licensed medical doctor. See ECF No. 1 (Compl.), ¶ 23.

On March 19, 2021, he received an offer to participate in a three-year pediatric residency

program at the Edward M. Sparrow Hospital in Michigan.

. To enter the United States

and enroll in the program, Plaintiff must acquire a J-1 Visa.

.

Sawahreh submitted a Form DS-160 on April 20, 2021.

. He then attended an

interview at the U.S. Embassy in Doha, Qatar, on April 27, after which the consular officer

“refused [Plaintiff’s visa] under Section 221(g)” of the INA because his case “require[d]

administrative processing.”

; see ECF No. 1-1 (Embassy Administrative Processing

Instructions). The Embassy emailed Sawahreh the same day, informing him that he would need

to complete and return a Form DS-5535 — a supplemental questionnaire — as part of his visa-

application process. See Compl., ¶ 28; ECF No. 1-2 (Embassy Request). Plaintiff returned the

form two days later. See Compl., ¶ 29; ECF No. 1-3 (Pl. DS-5535 Email). As requested by the

Embassy, Sawahreh also submitted his passport, but the document was returned to him three

days later without a visa. See Compl., ¶ 30.

Since then, Plaintiff, his sponsoring organization, and others acting on his behalf have

frequently followed up with the Embassy to check the status of his visa application.

¶¶ 31-

3 32, 34-36. In response to Sawahreh’s latest inquiry, the Embassy confirmed that his case

remained in administrative processing, which could “take anywhere from a few weeks up to

several months to complete in some cases.”

; see ECF No. 1-4 (Embassy Inquiry

Reply). As a result of this delayed adjudication, Sawahreh has had to defer enrolling in the

residency program.

. If he cannot secure a visa before the currently deferred start date

(which Plaintiff does not specify in his Complaint), he will lose his spot in the program.

C. Procedural History

Hoping to expedite a result, Plaintiff filed this suit on March 24, 2022, naming the United

States Department of State, Secretary of State Anthony Blinken, the United States Department of

Homeland Security, DHS Secretary Alejandro Mayorkas, U.S. Embassy-Doha Consul Sarita

Glassburner-Moen, and U.S. Embassy-Doha Consular Officers, in their official capacity, as

Defendants. See Compl., ¶¶ 10–15. He contends that they have unreasonably delayed the

processing of his J-1 visa, in violation of the APA. Defendants now move to dismiss, see ECF

No. 11 (Def. MTD); Plaintiff opposes and cross-moves for summary judgment. See ECF No. 13

(Pl. MSJ).

II. Legal Standard

As the Court resolves this case without addressing Plaintiff’s Cross-Motion, it sets out

only the standards for Defendants’ Motion to Dismiss, which invokes Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). When a defendant files a Rule 12(b)(1) motion to dismiss for

lack of subject-matter jurisdiction, the plaintiff generally “bears the burden of establishing

jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo,

, 91–

92 (D.D.C. 2020) (quoting Didban v. Pompeo,

, 172–73 (D.D.C. 2020)); see

Lujan v. Defs. of Wildlife,

(1992). The Court “assume[s] the truth of all

4 material factual allegations in the complaint and ‘construe[s] 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,

(D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)).

To survive a motion to dismiss under Rule 12(b)(6), conversely, a complaint must “state

a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly,

(2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion,

, “a complaint must contain sufficient factual matter, [if] accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009)

(quoting Twombly,

). While a plaintiff may survive a Rule 12(b)(6) motion even

if “‘recovery is very remote and unlikely,’” Twombly,

(quoting Scheuer v.

Rhodes,

(1974)), the facts alleged in the complaint “must be enough to raise a

right to relief above the speculative level.” Id. at 555.

III. Analysis

As a threshold matter, Defendants first contend that the Court lacks subject-matter

jurisdiction over this case given the consular non-reviewability doctrine. After explaining why it

disagrees, the Court will then turn to whether Plaintiff’s unreasonable-delay claim should be

dismissed on the merits. So finding, the Court need not address Defendants’ ancillary assertions

regarding dismissal of certain parties on other grounds.

A. Subject-Matter Jurisdiction

The D.C. Circuit has explained that “[c]onsular nonreviewability shields a consular

official’s decision to issue or withhold a visa from judicial review, at least unless Congress says

otherwise.” Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021) (citing

5 Saavedra Bruno v. Albright,

(D.C. Cir. 1999)). This is so because such

decisions “may implicate relations with foreign powers or involve classifications defined in the

light of changing political and economic circumstances and, accordingly, such judgments are

frequently of a character more appropriate to either the Legislature or the Executive.”

(citing

Trump v. Hawaii,

, 2418–19 (2018)) (internal quotation marks and alterations

omitted). Under the INA, consular officers have “exclusive authority to review applications for

visas, precluding even the Secretary of State from controlling their determinations,” Saavedra

Bruno,

, and they also decide whether “to grant, deny or revoke any visa.” Baan

Rao,

. Judicial review of claims otherwise barred by this doctrine is permissible

only under two exceptions not relevant here. See

at 1024–25.

Defendants argue that consular non-reviewability applies here because Plaintiff’s

application was “withheld” within the meaning of Baan Rao when it was placed in administrative

processing under Section 221(g). They contend that this suit thus asks the Court to “compel a

further decision on a visa application that has already been refused,” Def. MTD at 6, which is

categorically proscribed by Baan Rao.

While this position has some appeal, courts in this district have explained that the

doctrine of consular non-reviewability precludes review only of “final visa determinations” and

“does not apply to challenges regarding decisions that are not yet final.” Joorabi v. Pompeo,

, 100 (D.D.C. 2020); Shen v. Pompeo, No. 20-1263,

, at *3

(D.D.C. Mar. 24, 2021) (“[T]he doctrine of consular non-reviewability does not apply where the

government has not made a final visa decision.”). Cases in administrative processing “have not

been finally refused,” Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to

the United States v. Kerry,

(D.D.C. 2016), and are therefore subject to

6 judicial review for undue delay. Ibrahim v. U.S. Dep’t of State, No. 19-610,

,

at *5 (D.D.C. Apr. 8, 2020); Shen,

, at *4.

Defendants believe that Baan Rao’s mention of “withholding” as the relevant agency

action rebukes the line of cases finding delays in administrative processing to be reviewable.

The Circuit there, though, addressed a challenge to final visa denials and not to processing

delays. See

. Indeed, that decision’s withholding language is merely quoted

from Saavedra Bruno,

, which preceded the line of district-court cases

purportedly overturned by Baan Rao. Other courts in this district have previously rejected as

meritless the same argument by the Government that Baan Rao expanded the consular non-

reviewability doctrine to shield cases in administrative processing from review. See, e.g.,

Giliana v. Blinken, No. 21-1416,

, at *2 (D.D.C. Mar. 29, 2022); Meyou v.

U.S. Dep’t of State, No. 21-2806,

, at *2 (D.D.C. May 17, 2022). This Court

agrees.

Pointing out that State’s website lists Plaintiff’s application status as “refused” rather than

as in “administrative processing,” Defendants further argue that Sawahreh’s claim challenges the

substantive result of the consular officer’s decision on his application rather than the officer’s

delay in adjudicating that application. See Def. MTD at 7. Defendants ask the Court to construe

the listed status as evidence that Plaintiff has in fact been given a final decision. State itself,

however, has acknowledged that applications in administrative processing are listed as “refused”

on the site. See Status Change Memo. Defendants concede, moreover, that “additional

processing might cause a consular officer to revisit or reconsider . . . refusal” of Plaintiff’s visa,

see Def. MTD at 7, and correspondence between the Embassy and Sawahreh indicates that his

application is still undergoing such administrative processing. See Compl., ¶ 33; Embassy

7 Inquiry Response. This Court again joins others in this district in holding that Defendants cannot

“unsubscribe” from judicial review of cases in administrative processing for unreasonable delay

by simply changing their website. See Meyou,

, at *2; Giliana,

, at *2; Ibrahim,

, at *5.

As Sawahreh’s case remains in administrative processing and has not been finally

refused, the doctrine of consular non-reviewability is “inapplicable to this claim, as Plaintiff[]

do[es] not seek review of any decision but instead of ‘the Government's failure to decide.’”

Milligan v. Pompeo (Milligan I),

, 317 (D.D.C. 2020); see Bagherian v.

Pompeo,

, 93 (D.D.C. 2020) (collecting cases). The Court therefore has the

subject-matter jurisdiction necessary to consider the merits of Plaintiff’s claim.

B. Unreasonable Delay

Turning to those merits now, the Court understands that the thrust of Sawahreh’s suit is

his allegation that the State Department has unreasonably delayed the adjudication of his

application for a J-1 visa, which has remained in administrative processing for more than fifteen

months. He contends that such delay violates the APA, which requires agencies to “conclude”

matters presented to them “within a reasonable time,”

(b), and which directs

courts to “compel agency action . . . unreasonably delayed.”

§ 706(1). Defendants rejoin

that any delay in processing Sawahreh’s application is not yet unreasonable. The Court agrees.

To evaluate the reasonableness of agency delay, the Court examines six factors set out in

Telecommunications Research & Action Center v. FCC (TRAC),

(D.C. Cir. 1984):

(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;

8 (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 to hold that agency action is unreasonably delayed.

(internal quotations, citations, and emphasis omitted); see also Mashpee Wampanoag

Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003). These six factors “are not

‘ironclad,’ but rather are intended to provide ‘useful guidance in assessing claims of agency

delay.’” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008) (quoting TRAC,

). “Each case must be analyzed according to its own unique circumstances,” as each

“will present its own slightly different set of factors to consider.” Air Line Pilots Ass’n, Int’l v.

Civil Aeronautics Board,

(D.C. Cir. 1984). Whether a delay is unreasonable

“cannot be decided in the abstract, by reference to some number of months or years beyond

which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the

complexity of the task at hand, the significance (and permanence) of the outcome, and the

resources available to the agency.” Mashpee,

.

It is appropriate to resolve this issue at the motion-to-dismiss stage because “this record

contains enough facts to evaluate the TRAC factors now.” Sarlak v. Pompeo, No. 20-35,

, at *5 (D.D.C. June 10, 2020) (collecting cases and evaluating TRAC factors on

motion to dismiss); see also Dastagir v. Blinken, No. 20-2286,

, at *2 (D.D.C.

July 9, 2021); Zandieh v. Pompeo, No. 20-919,

, at *5 (D.D.C. July 29, 2020).

The considerations contemplated by the TRAC factors can be grouped into four basic

inquiries here. “First, is there any rhyme or reason — congressionally prescribed or otherwise

9 — for [an agency]’s delay (factors one and two)? Second, what are the consequences of delay if

the Court does not compel the [agency] to act (factors three and five)? [Third], how might

forcing the agency to act thwart its ability to address other priorities (factor four)?” Ctr. for Sci.

in the Pub. Int. v. United States Food & Drug Admin.,

(D.D.C. 2014).

Finally, is the delay intentional or due to any impropriety on the part of the agency (factor six)?

1. TRAC Factors 1 and 2

The first two TRAC factors favor Defendants. These appraise “whether the agency’s

response time complies with an existing specified schedule and whether it is governed by an

identifiable rationale.” Ctr. for Sci. in the Pub. Interest,

. Congress has not

supplied a rule of reason by imposing a statutory deadline on J-1 visa processing, so the Court

“turn[s] to case law as a guide” to the content of the rule applicable here. Milligan I, 502 F.

Supp. 3d at 318 (quoting Sarlak,

, at *6). The Court recognizes that

“Congress has given [the State Department and other agencies] wide discretion in the area of

immigration processing.”

(quoting Skalka v. Kelly,

, 153–54 (D.D.C.

2017)) (alteration in original). While “‘[t]here is ‘no per se rule as to how long is too long’ to

wait for agency action,’” In re Am. Rivers & Idaho Rivers United,

(D.C. Cir.

2004) (quoting In re Int’l Chem. Workers Union,

(D.C. Cir. 1992)),

“[d]istrict courts have generally found that immigration delays in excess of five, six, seven years

are unreasonable, while those between three to five years are often not unreasonable.” Sarlak,

, at *6 (citation omitted) (collecting cases). Given that the delay here is of

only fifteen months, it remains on the reasonable side of that line.

For his part, Plaintiff offers two arguments for why a delay of fifteen months is

nevertheless unreasonable in the J-1 context. He first claims that the State Department has

10 established a processing time of between sixty and ninety days as the metric against which to

judge the reasonableness of delay. See Pl. Opp. at 11. Sawahreh supports this contention by

pointing to an email he received from the Doha Embassy advising him that administrative

processing can take anywhere from “a few weeks [up] to several months” in some cases. Id.; see

Embassy Inquiry Response. He further notes that State has “indicated to other J-1 visa

applicants that ‘[m]ost administrative processing is resolved within 60 to 90 days of the visa

interview.’” Pl. Opp. at 11 (quoting ECF No. 13-5 (U.S. Embassy-Islamabad Timeline)). This

Court, however, previously found “no compelling reason why the ‘public facing announcements’

of an agency should be understood to supply the granular substance of a rule of reason.”

Milligan v. Blinken (Milligan II), No. 20-2631,

, at *8 (D.D.C. Sept. 2, 2021).

Even if such announcements could supply that substance, the sixty- to ninety-day timeline

Plaintiff cites was communicated by a different consular post from Doha and is thus of limited

use given potential differences between posts.

Plaintiff next contends that because his application is for a nonimmigrant visa, delays

here should be distinguished from cases countenancing much longer delays in processing

immigrant visas. See ECF No. 16 (Pl. Rep.) at 3. As his J-1 visa is inherently highly time

sensitive — Plaintiff notes that he has now waited longer to receive a visa decision than the visa

period itself — Sawahreh urges the Court to adopt a more stringent standard for unreasonable

delay than that appropriate for “much heftier and consequential immigrant visa” processing.

. Yet, aside from Plaintiff’s own conclusory assessment of the relative urgency of his case,

he offers no legal authority to support applying a stricter rule of reason here. Indeed, courts

considering nonimmigrant visas have, as Plaintiff concedes, declined to find longer delays than

Plaintiff’s unreasonable. See Shen,

, at *8 (finding that first two TRAC

11 factors favored agency in case involving 21-month delay on F-1 student visa). In any event,

whether or not the type or length of Sawahreh’s visa makes his application more time sensitive

than, say, an asylum application is not for Plaintiff or this Court to decide. That is exactly the

kind of question within the purview of the wide discretion in immigration processing that

Congress has given Defendants.

2. TRAC Factors 3 and 5

The third and fifth TRAC factors, which look to the effects of agency delay, tip slightly

in Plaintiff’s favor. These factors weigh “the impact on human health and welfare and economic

harm, and the nature and extent of the interests prejudiced by the delay.” Liberty Fund, Inc. v.

Chao,

(D.D.C. 2005). Defendants’ delay harms not only Sawahreh by

deferring his education and jeopardizing his career trajectory but also those children who would

benefit from Plaintiff’s care, both during and after his residency. Defendants’ primary rebuttal

— namely, that the Court can remedy these harms only at the expense of other applicants, see

Def. MTD at 15 — is an “argument[] about the effects of expediting delayed action on other

priorities,” which “go[es] to the heart of the fourth factor, not the third and fifth.” Milligan II,

, at *8. “[T]he nature of [Plaintiff’s] interests and the prejudice to those

interests from delay in processing” his visa weigh in his favor. Tate v. Pompeo,

, 150 (D.D.C. 2021).

3. TRAC Factor 4

The fourth factor examines “the effect of expediting delayed action on agency activities

of a higher or competing priority,” TRAC, 750 F.2d at 80, and “carries the greatest weight in

many cases.” Milligan I, 502 F. Supp. 3d at 319. It does so here as well and favors Defendants.

Plaintiff’s application is delayed because of “resource-allocation decisions” that “do not lend

12 themselves to judicial reordering[s] [of] agency priorities.” Id. (quoting Bagherian, 442 F. Supp.

3d at 96) (internal quotation marks omitted and alterations in original). “This Circuit has refused

to grant relief, even [though] all the other factors considered in TRAC favored it, where a

judicial order putting [the petitioner] at the head of the queue [would] simply move[] all others

back one space and produce[] no net gain.” Id. (quoting Mashpee,

) (internal

quotation marks omitted and alterations in original).

Plaintiff explicitly asks the Court to do just that. He argues that “Defendants should

complete processing of his J-1 visa application before the later-filed applications they appear to

be prioritizing.” Pl. MSJ at 11. “[T]he very premise of [this] argument is that there is a backlog

of visa applicants and that [Plaintiff] should be prioritized for processing ahead of others,”

Milligan II,

, at *9, undercutting his contention that “no orderly . . . queue” of

applications exists. See Pl. MSJ at 11. “Courts have routinely held that compelling an agency to

reorder a line of applicants without any net gain would impermissibly interfere with the agency’s

unique and authoritative position to view its projects as a whole, estimate the prospects for each,

and allocate its resources in the optimal way. ” Milligan II,

, at *9 (citing

Didban v. Pompeo,

, 176 (D.D.C. 2020)) (internal quotation marks and

alterations omitted); see also Tate, 513 F. Supp. 3d at 150 (“While the effect of an individual

case would be minimal, an accumulation of such individual cases being pushed by judicial fiat to

the front of the line would erode the ability of agencies to determine their priorities.”).

Plaintiff does not avoid a similar outcome here by arguing that “Defendants must take

steps to balance the workload or marshal resources so that individual applicants are not

prejudiced based on where they apply.” Pl. Rep. at 2. “To the extent that Plaintiff[] allege[s]

that the lack of agency resources is an issue for the political branches to solve, [he] fail[s] to

13 account for the reality that the constraints on visa processing of all types arise from extrinsic

pressures caused by the pandemic, which Defendants have taken reasonable steps to address.”

Milligan II,

, at *9 (citation omitted); see Verma v. U.S. Citizenship &

Immigr. Servs., No. 20-3419,

, at *9 (D.D.C. Dec. 18, 2020).

4. TRAC Factor 6

The final TRAC factor considers whether the agency’s bad faith caused the delay.

Plaintiff’s Complaint does not allege that a decision on his application was delayed intentionally

or was the result of any impropriety. See generally Compl. Therefore, “the good faith of the

agency in addressing the delay weighs against equitable relief.” Milligan I, 502 F. Supp. 3d at

319 (internal quotation marks omitted).

The balance of these factors currently tilts against the Court’s intervention in this case.

See Sarlak,

, at *6 (collecting cases where courts, “[t]aking the [TRAC]

factors as a whole,” found no unreasonable-delay claim). This delay has concededly harmed

Sawahreh, but the rule of reason supplied by the caselaw, judicial deference to agency priority-

setting, and the absence of bad faith all suggest that the delay is not yet unreasonable. The Court

nonetheless “recognizes that the delay is substantial and imposes hardship on Plaintiff[], and it

encourages the Government to act on the application as soon as possible.” Didban, 435 F. Supp.

3d at 177.

14 IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A

separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 21, 2022

15