UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SUHAIL TAJ,

Plaintiff,

v. Civil Action No. 22-1087 (RDM) UNITED STATES DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Suhail Taj, a lawful permanent resident of the United States, brings this action

under the Administrative Procedure Act,

(1), and the Mandamus Act,

, to compel Defendants—various departments and officers of the United States—to

adjudicate the immigrant visa application of his wife, Afsheen Arif, who currently lives in

Pakistan. Dkt. 1 (Compl.). Plaintiff argues that Defendants have unreasonably delayed

adjudicating his wife’s application and have thereby violated the APA,

(b), and

the Due Process Clause of the Fifth Amendment. Defendants have moved to dismiss the case for

failure to state a claim. Dkt. 7. For the reasons that follow, the Court will GRANT in part and

DENY in part without prejudice Defendants’ motion.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s complaint, which the Court

accepts as true for the purposes of Defendants’ motion to dismiss. See Harris v. D.C. Water &

Sewer Auth.,

(D.C. Cir. 2015). On September 21, 2018, Suhail Taj, a lawful permanent resident of the United States,

submitted a Form I-130 (an Alien Relative Petition) to U.S. Citizenship and Immigration

Services (“UCSIS”) on behalf of his wife, Afsheen Arif, who is a Pakistani citizen. Dkt. 1 at 3–4

(Compl. ¶¶ 12–13). USCIS approved Plaintiff’s visa petition in December 2019 and forwarded

it to the National Visa Center (“NVC”), a component of the State Department, for additional

processing. Id. at 4 (Compl. ¶¶ 15–16). The NVC assigned a case number to the petition, but

has not, to date, called Ms. Arif to the U.S. Embassy in Islabamad for an interview. Id. (Compl.

¶¶ 16–17). In the intervening years, Plaintiff has made several inquiries with the consulate, to no

avail. Id. (Compl. ¶ 18).

Plaintiff commenced this action on April 19, 2022, naming the State Department, the

Secretary of State, the U.S. Embassy in Islamabad, and the Chargé D’Affaires of the United

States at the U.S. Embassy in Islamabad as Defendants. Dkt. 1 (Compl.). Plaintiff alleges that

Defendants’ “refus[al] to adjudicate Plaintiff’s application and to issue the requested visa”

violates Defendants’ “non-discretionary duty to conclude agency matters” under Section 555(b)

of the Administrative Procedure Act, id. at 4–5 (Compl. ¶¶ 20–22), and violates his Fifth

Amendment right to “fundamental fairness in administrative adjudication,” id. at 6 (Compl.

¶ 35). Moreover, although Plaintiff does not name the Department of Homeland Security

(“DHS”) as a Defendant in the suit, he asserts that Defendants are intentionally delaying his

wife’s visa application pursuant to a DHS policy known as the “Controlled Application Review

and Resolution Program” (or “CARRP”), id. at 5–6 (Compl. ¶¶ 24–29), which he contends

“delays the applications of applicants” from Muslim-majority countries or regions “due to

security concerns,” id. at 5 (Compl. ¶ 24). Plaintiff, accordingly, also requests that this Court

“[e]nter a judgment declaring that [] CARRP violates the INA” and that “Defendants violated the

2 APA by adopting CARRP without promulgating a rule and following the process for notice and

comment.” Id. at 7 (Compl.).

On July 7, 2022, Defendants moved to dismiss Plaintiff’s complaint for failure to state a

claim and for lack of jurisdiction. Dkt. 7. They assert that “any delay here is not unreasonable

as a matter of law,” Dkt. 7 at 5, and that Plaintiff has failed to allege either a procedural or

substantive due process violation, id. at 15.

II. LEGAL STANDARD

A. Rule 12(b)(1)

Because “[f]ederal courts are courts of limited jurisdiction, possessing only that power

authorized by Constitution and statute,” Gunn v. Minton,

(2013) (quotation

marks omitted), they have “an affirmative obligation to consider whether the constitutional and

statutory authority exist for [them] to hear each dispute” brought before them, James Madison

Ltd. ex rel. Hecht v. Ludwig,

(D.C. Cir. 1996) (quotation marks omitted). If

the “court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss

the action.” Fed. R. Civ. P. 12(h)(3).

A challenge to the Court’s jurisdiction “may take one of two forms.” Hale v. United

States, No. 13-cv-1390,

, at *3 (D.D.C. Dec. 2, 2015). First, a Rule 12(b)(1)

motion “may raise a ‘facial’ challenge to the Court’s jurisdiction, which contests the legal

sufficiency of the jurisdictional allegations contained in the complaint.”

In this posture, the

Court must accept the factual allegations of the complaint as true and construe them in the light

most favorable to the non-moving party. Erby v. United States,

(D.D.C. 2006) (collecting cases). “Alternatively, a Rule 12(b)(1) motion may pose a ‘factual’

challenge to the Court’s jurisdiction.” Hale,

, at *3. When a motion to

3 dismiss is framed in this manner, the Court “may not deny the motion . . . merely by assuming

the truth of the facts alleged by the plaintiff and disputed by the defendant” but “must go beyond

the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a

ruling upon the motion to dismiss.” Phoenix Consulting Inc. v. Republic of Angola,

(D.C. Cir. 2000). The Court “has considerable latitude in devising the procedures it will

follow to ferret out the facts pertinent to jurisdiction,” so long as it “afford[s] the nonmoving

party an ample opportunity to secure and present evidence relevant to the existence of

jurisdiction.” Prakash v. Am. Univ.,

, 1179–80 (D.C. Cir. 1984) (internal

quotation marks omitted).

B. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

sufficiency of a complaint.” Browning v. Clinton,

(D.C. Cir. 2002); see Fed.

R. Civ. P. 12(b)(6). In evaluating such a motion, the Court “must first ‘tak[e] note of the

elements a plaintiff must plead to state [the] claim’ to relief, and then determine whether the

plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that

is plausible on its face.’” Blue v. District of Columbia,

(D.C. Cir. 2015)

(alterations in original) (quoting Ashcroft v. Iqbal,

(2009)). The

complaint need not include “detailed factual allegations,” and a plaintiff may survive a Rule

12(b)(6) motion even if “recovery is very remote and unlikely,” so long as the facts alleged in the

complaint are “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly,

, 555–56 (2007) (internal quotation marks omitted). In deciding a Rule

12(b)(6) motion, the Court may consider only “the facts contained within the four corners of the

complaint,” Nat’l Postal Pro. Nurses v. U.S. Postal Serv.,

(D.D.C. 2006),

4 along with “any documents attached to or incorporated into the complaint, matters of which the

court may take judicial notice, and matters of public record,” United States ex rel. Head v. Kane

Co.,

(D.D.C. 2011).

III. ANALYSIS

A. Unreasonable Delay

Although the government styles its motion to dismiss as a motion to dismiss for failure to

state a claim under Fed. R. Civ. P. 12(b)(6) and for lack of jurisdiction under Fed. R. Civ. P.

12(b)(1), Dkt. 7 at 1, neither the government’s opening brief nor its reply identify which, if any,

argument in favor of dismissal is jurisdictional in nature. Rather, the argument section of the

government’s opening brief addresses only whether the delay here is unreasonable “[o]n the

[m]erits,” Dkt. 7 at 5, and whether “Plaintiff’s due process argument lacks merit,” id. at 15.

Notwithstanding the government’s framing, this Court has “an independent obligation to

determine whether subject-matter jurisdiction exists.” Arbaugh v. Y & H Corp.,

(2006). Moreover, in the context of mandamus actions specifically, 1 the D.C. Circuit has

1 The Court notes that, for purposes of the unreasonable-delay claim, it considers Plaintiff’s APA and Mandamus Act claims together. “The central question in evaluating ‘a claim of unreasonable delay’ is ‘whether the agency’s delay is so egregious as to warrant mandamus.’” In re Core Commcn’s, Inc.,

(D.C. Cir. 2008) (quoting Telecomm. Rsch. & Action Ctr. v. FCC (“TRAC”),

(D.C. Cir. 1984)); see also Vietnam Veterans of Am. v. Shineski,

, 659 n.6 (D.C. Cir. 2010) (“[T]he standards for obtaining relief” under the Mandamus Act and the APA are “essentially the same.”). The question of whether the Court has the “power[] to grant mandamus”—which rides most centrally on whether “the petitioner [has] . . . establish[ed] that the agency has violated ‘a crystal-clear legal duty,’” In re Ctr. for Biological Diversity & Ctr. for Food Safety, --- F.4th ---,

, at *3 (D.C. Cir. Nov. 22, 2022) (quoting In re Nat’l Nurses United,

(D.C. Cir. 2022))—is therefore equally relevant in assessing Plaintiff’s APA and Mandamus Act claims. Even if it were possible to bring a claim for declaratory relief that does not implicate the same demanding hurdles applicable to the mandamus petition—a question on which the Court expresses no view—here, the only APA claim that Plaintiff brings with respect to Defendants’ conduct, see infra n.3, sounds in mandamus. See Dkt. 1 at 7–8 (Compl.).

5 cautioned district courts that “the distinction between the jurisdictional inquiry and the equitable

merits inquiry”—i.e., the difference between whether mandamus “could” issue and “whether

mandamus should issue,”—is an important one. Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016). The Court begins, therefore, with the question of jurisdiction.

To establish mandamus jurisdiction, “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.”

. “These three threshold

requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of

jurisdiction.”

In American Hospital Ass’n v. Burwell,

(D.C. Cir. 2016), the

D.C. Circuit for the first time “squarely addressed the interplay of the three threshold mandamus

requirements” with another set of factors that has guided this Court’s assessment of whether

mandamus should issue—the “TRAC factors.”

Those six TRAC factors, which traditionally

guide the Court’s consideration of “whether [an] agency’s delay is so egregious as to warrant

mandamus,” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008) (internal quotation

marks omitted), are as follows:

(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 where 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.

Telecommunications Rsch. & Action Ctr. v. FCC (“TRAC”),

(D.C. Cir. 1984)

(internal quotation marks and citations omitted). The Court explained in American Hospital

Association how these factors interact with the threshold jurisdictional inquiry: 6 Because the[] [TRAC] factors function not as a hard and fast set of required elements, but rather as useful guidance [as to whether mandamus is warranted], their roles may differ depending on the circumstances. For example, in situations where plaintiffs allege that agency delay is unreasonable despite the absence of a specific statutory deadline, the entire TRAC factor analysis may go to the threshold jurisdictional question: does the agency’s delay violate a clear duty? By contrast, in situations where the statute imposes a deadline or other clear duty to act, the bulk of the TRAC factor analysis may go to the equitable question of whether mandamus should issue, rather than the jurisdictional question of whether it could.

Am. Hosp. Ass’n, 812 F.3d at 189–90.

Notwithstanding the D.C. Circuit’s admonition that “the distinction between the

jurisdictional inquiry and the equitable merits inquiry matters,” neither party addresses the

threshold question of whether, in this case, the agency’s delay violates any “clear duty to act;”

nor do they address the extent to which the TRAC factor analysis “go[es] to [that] threshold

jurisdictional question.”

. 2 Most crucially, Plaintiff, who “bear[s] the burden of

establishing jurisdiction . . . on the face of the complaint,” Tavoulareas v. Comnas,

(D.C. Cir. 1983), has alleged neither “a clear and indisputable right to relief” nor the

“violat[ion] [of] a clear duty to act,” see Am. Hosp. Ass’n,

, beyond the sweeping

allegation that “Section 555(b) [of the APA] creates a non-discretionary duty to conclude agency

matters,” Dkt. 1 at 4 (Compl. ¶ 20). Rather than even attempting to identify a clear duty to

schedule a visa interview under the circumstances presented here, Plaintiff cites a Seventh

Circuit case for the proposition that “the question of whether a statute impose[s] a ‘duty’ on the

2 Whether the TRAC-factor analysis speaks to jurisdiction or to the merits not only “affects [the D.C. Circuit’s] standard of review,” as the Court explained in American Hospital Association,

, but also informs this Court’s resolution of the relevant factual disputes, including whether the Court may “assum[e] the truth of the facts alleged by the plaintiff” or must, in resolving a “factual” challenge to the Court’s jurisdiction, “go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting, Inc.,

.

7 government for purposes of mandamus relief [is] not a jurisdictional [one].” Dkt. 8 at 6 (citing

Ahmed v. Dep’t of Homeland Sec.,

, 386–87 (7th Cir. 2003)). But the D.C. Circuit

has expressly rejected that very proposition; it has, instead, admonished that “[a]bsent a violation

of a clear duty, th[e] court is powerless to grant mandamus.” In re Ctr. for Biological Diversity

& Ctr. for Food Safety, --- F.4th ---, No. 21-cv-1270,

, at *3 (D.C. Cir. Nov.

22, 2022) (emphasis added).

Based on the information presently before the Court, the Court is skeptical that Plaintiff

can establish the requisite “violation of a clear duty” in the present controversy.

Decisions of

this Court that have considered mandamus petitions in the diversity-visa context have cast doubt

on the notion that

(b)—which provides that “[a]ll immigrant visa applications

shall be reviewed and adjudicated by a consular officer,” id.—creates, when read in its statutory

context, a nondiscretionary duty to interview a visa applicant. See, e.g., Babamuradova v.

Blinken, --- F. Supp. 3d ---, No. 22-cv-1460,

, at *8 (D.D.C. Sept. 27, 2022);

Zarei v. Blinken, No. 21-cv-2102,

, at *1 (D.D.C. Sept. 30, 2021). The idea

that § 1202(b) creates a nondiscretionary duty to adjudicate Plaintiff’s visa is especially tenuous

where, as here, the applicant has not yet appeared for an interview, given that the relevant

regulations consider an applicant to have actually “ma[d]e or file[d] a[] [visa] application” only

when she “personally appear[s] before a consular officer” for an interview.

(l)(2). But even if Defendants do have a “clear duty” to adjudicate Arif’s visa application,

the Court must still consider whether, in this context, “the entire TRAC factor analysis . . . go[es]

to the threshold jurisdictional question.” Am. Hosp. Ass’n,

. Neither Plaintiff nor

the government, however, have addressed that question in their briefs.

8 Notwithstanding the Court’s doubts as whether Plaintiff has carried his burden of

establishing the prerequisite “clear duty to act” and a “clear and indisputable right to relief,”

the Court will not resolve the jurisdictional question without the benefit of briefing by the

parties. The Court requires, at a minimum, that the parties address any clear duties created by

the relevant statutory and regulatory regime and that they explain how—in light of American

Hospital Association, 812 F.3d 183—the TRAC-factor analysis fits into the Court’s threshold

jurisdictional inquiry. The Court will, accordingly, deny the government’s motion to dismiss

Count One “[o]n the [m]erits,” Dkt. 7 at 6, as premature. That denial will be without prejudice,

however, to allow the government the opportunity to refile a motion to dismiss that addresses the

threshold jurisdictional questions.

B. Due Process

Defendants also move to dismiss Count Two of Plaintiff’s complaint—which asserts that

Defendants’ delay in adjudicating Plaintiff’s visa application violates his Fifth Amendment right

to due process—for failure to state a claim. Dkt. 7 at 15; see Dkt. 1 at 6–7 (Compl. ¶¶ 34–37).

Although Plaintiff’s complaint is not the picture of clarity, he appears to raise both a procedural

and substantive due process claim: Plaintiff alleges that Defendants’ “combined delay and failure

to act” violates both his “right to fundamental fairness in administrative adjudication,” Dkt. 1 at

6–7 (Compl. ¶¶ 35–36), and has deprived him of “consortium between Plaintiff and Afsheen

Arif,” id. at 7 (Compl. ¶ 37). Neither claim survives the motion to dismiss.

The Constitution safeguards two varieties of due process rights. “To violate substantive

due process, governmental action must be ‘so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience.’” Ramsingh v. Transp. Sec. Admin.,

(D.C. Cir. 2022) (quoting County of Sacramento v. Lewis,

, 847 n.8 (1998)). But

9 “[n]ot every unfortunate or regrettable event amounts to a substantive due process violation,”

id.—to succeed on a substantive-due-process claim, a plaintiff must prove “egregious

government misconduct” that deprives him of a liberty or property interest, George Wash. Univ.

v. District of Columbia,

, 209 (D.C. Cir. 2003); see also Meyou v. U.S. Dep’t of

State, No. 21-cv-2806,

, at *5 (D.D.C. May 17, 2022). “A procedural due

process violation occurs when an official deprives an individual of a liberty or property interest

without providing appropriate procedural protections.” Atherton v. Mayor,

(D.C. Cir. 2009). “[B]oth types of due process violations,” accordingly, “require . . . an

allegation that the plaintiff has been deprived of a fundamental right or liberty or property

interest.” Meyou,

, at *5 (omission in original) (internal quotation marks

omitted); see also George Wash. Univ., 318 F.3d at 206 (“Although th[e] doctrine [of substantive

due process] normally imposes only very slight burdens on the government to justify its actions,

it imposes none at all in the absence of a liberty or property interest.”); Am. Mfrs. Mut. Ins. Co. v.

Sullivan,

(1999) (“The first inquiry in every [procedural] due process challenge

is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.’”).

Plaintiff’s claims flounder at this threshold hurdle. “[G]enerally, there is no property

right in an immigrant visa,” Mahmood v. U.S Dep’t of Homeland Sec., No. 21-cv-1262,

, at *9 (D.D.C. Dec. 20, 2021) (internal quotation marks omitted), and noncitizens

typically do not have a “constitutionally[] protected interest in the procedures by which . . . visas

are obtained,” Smirnov v. Clinton,

(D.D.C. 2011). See also Dep’t of

Homeland Sec. v. Thuraissigiam,

(2020) (explaining that noncitizens at the

threshold of entry “ha[ve] only those rights regarding admission that Congress has provided by

statute”).

10 Nor can Plaintiff establish a constitutionally protected property or liberty interest in

marital consortium or family unity. See Dkt. 1 at 7 (Compl. ¶ 37); Dkt. 8 at 13. Although the

Due Process Clause “protects an individual’s right to marry and the marital relationship,” Singh

v. Tillerson,

(D.D.C. 2017), the D.C. Circuit has concluded that a U.S.

citizen’s marital liberty interest is not impaired where deporting a non-citizen spouse would “put

burdens upon the marriage” but “would not . . . destroy the legal union which the marriage

created.” Swartz v. Rogers,

(D.C. Cir. 1958); see Manzoor v. U.S. Citizenship

& Imm. Servs., No. 21-cv-2126,

, at *7 (D.D.C. May 3, 2022) (“Were the

Defendants prohibiting Plaintiff from marrying his spouse, that would be another case. But

where, as here, the government is enforcing a duly enacted statute concerning immigration,

Plaintiff needs to demonstrate that he has a protected fundamental liberty interest to have his

spouse’s visa application approved at a quicker pace.”). Applying Swartz, a number of

decisions of this Court have concluded that there is no fundamental liberty interest implicated in

the delayed adjudication or denial of a spouse’s visa application. See, e.g., Mahmood,

, at *9–10; Dean v. U.S. Dep’t of Homeland Sec., No. 21-cv-2002,

,

at *8 (D.D.C. July 15, 2022); Rohrbaugh v. Pompeo,

, 133 (D.D.C. 2019)

(concluding that “this Court is bound by circuit precedent” on this question). These decisions

comport with a plurality decision of the Supreme Court, which concluded that the denial of a

spouse’s visa application does not deprive an individual of “life, liberty, or property” protected

by the Due Process Clause. Kerry v. Din,

(2015) (plurality opinion); cf.

(Kennedy, J., concurring) (declining to reach the question of “whether Din has a protected

liberty interest”).

11 In support of his due-process claim, Plaintiff invokes Ninth Circuit caselaw establishing

that “the denial of a visa implicates the constitutional rights of American citizens” because a U.S.

citizen “has a protected liberty interest in her marriage that gives rise to a right to constitutionally

adequate procedures in the adjudication of her husband’s visa application.” Ching v. Mayorkas,

(9th Cir. 2013) (quoting Bustamante v. Mukasey,

, 1061–62

(9th Cir. 2008)); cf. Khachatryan v. Blinken,

, 856 (9th Cir. 2021) (declining to

extend Ching’s holding to a parent-child relationship and noting that the decision did not

consider “whether there is a relevant cognizable liberty interest in the visa application of any

family member other than a spouse”). But, “[g]iven Swartz, that is not the law in this Circuit.”

Mahmood,

, at *10 (quoting Rohrbaugh, 394 F. Supp. 3d at 134 n.4). “Bound

by circuit precedent,” and in light of Plaintiff’s failure to establish any protected liberty or

property interest, the Court will dismiss Plaintiff’s due-process claim. Id. (quoting same).

12 CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ motion to dismiss,

Dkt. 7, is GRANTED in part as to Plaintiff’s due-process claim and DENIED in part without

prejudice as to Plaintiff’s unreasonable-delay claim; 3 it is further

ORDERED that the parties shall, on or before January 6, 2023, file a joint status report

with the Court proposing a schedule for further briefing on the jurisdictional questions relevant

to Count One of Plaintiff’s complaint.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: November 28, 2022

3 Although Plaintiff also asks the Court to invalidate DHS’s “Controlled Application Review and Resolution Program” (“CARRP”), Dkt. 1 at 7 (Compl.), DHS is not a party to this suit and there is, accordingly, no basis for the Court to review the CARRP policy on these facts. Cf. Dean v. U.S. Dep’t of Homeland Sec., No. 21-cv-2002,

, at *9 (D.D.C. July 15, 2022) (dismissing the plaintiff’s CARRP claims after the DHS defendants had been dismissed from the suit).

13