UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMIR HOSSEIN KHAZAEI, et al.,

Plaintiffs, v. Civil Action No. 23-1419 (JEB)

ANTONY J. BLINKEN,

Defendant.

MEMORANDUM OPINION

Plaintiffs are Iranian nationals who applied for non-immigrant visas to study or teach at

various U.S. academic institutions this fall, as well as their spouses and minor children. They

contend that the seven to twelve months each of them has waited for a final decision (as of the

filing of the Complaint) violates the Administrative Procedure Act in two ways: first, it

constitutes an “unreasonable delay,” and second, it evinces an “arbitrary” and “capricious”

pattern of discrimination against Iranian student-visa applicants. Defendant Antony Blinken, the

Secretary of State, now moves to dismiss. While the Court finds the Government’s threshold

arguments regarding jurisdiction and justiciability largely without merit, it will nonetheless

dismiss the four Plaintiffs who have since received visas and grant the Motion on the merits as to

those remaining.

I. Background

A. Legal Background

Foreign students who wish to pursue a “full course of study” in a U.S. academic

institution may apply for an “F-1” non-immigrant visa. See

(a)(15)(F).

1 Similarly, “exchange visitors” who have been accepted into an approved program to teach or

study may apply for a non-immigrant visa under the “J-1” classification. See

§ 1101(a)(15)(J). Spouses and minor children can accompany them by applying for a derivative

“F-2” or “J-2” visa. See id. § 1101(a)(15)(F)(ii), (J). Typically, all of these applicants must

appear for an in-person interview with a consular officer to evaluate their eligibility. See id.

§ 1202(h). Absent a visa sanction against the applicant’s country (which may exist under

circumstances not relevant here), the officer must either “issue” or “refuse” the visa. See

(a).

The visa shall be refused “if (1) it appears to the consular officer from statements in the

application, or in the papers submitted therewith, that [the non-citizen] is ineligible to receive a

visa . . . , (2) the application fails to comply with the [Immigration and Nationality Act], or the

regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such

alien is ineligible to receive a visa.”

(g). In cases where the officer requires

additional information to determine the applicant’s eligibility, however, he may refuse the visa

pending further “administrative processing.” U.S. Dep’t of State, Administrative Processing

Information (last visited Sept. 5, 2023), https://bit.ly/2GO3jEg [https://perma.cc/NK8K-9U8H].

The status of each application is published on the State Department’s website. See U.S. Dep’t of

State, Visa Status Check (last visited Sept. 5, 2023), http://tinyurl.com/52px458z

[https://perma.cc/SBV4-AT2N].

In the wake of the September 11 terrorist attacks, Congress enacted the Enhanced Border

Security and Visa Entry Reform Act of 2002. The Act, among other things, imposed new

restrictions on the issuance of visas and more stringent procedures for monitoring the entry and

exit of foreign students and exchange visitors. See, e.g., 8 U.S.C. §§ 1731–32, 1735, 1761–62.

2 It provides, as relevant here, that non-immigrant visas may not be issued to a non-citizen from a

country that has been designated a state sponsor of terrorism “unless the Secretary of State

determines . . . that [the non-citizen] does not pose a threat to the safety or national security of

the United States.” Id. § 1735. Iran has been so designated since 1984. See U.S. Dep’t of State,

State Sponsors of Terrorism (last visited Sept. 5, 2023), http://tinyurl.com/mtd2aasf

[https://perma.cc/CBT2-2C87].

B. Factual Background

With this statutory and regulatory backdrop in mind, the Court proceeds to the facts,

which it draws from the Complaint, as required at this stage; it also takes judicial notice of

Plaintiffs’ visa-application statuses posted on the State Department’s website (as Defendant

presents them in his Motion papers). See, e.g., Markowicz v. Johnson,

, 161

n.2 (D.D.C. 2016) (taking judicial notice of “information posted on official public websites of

government agencies”).

Plaintiffs are fifteen Iranian citizens who applied for F and J visas to participate in

academic programs (or accompany participating family members) at various institutions in the

United States in Fall 2023. See ECF No. 1 (Compl.), ¶¶ 9–23, 72. They comprise four

individual applicants and four families. First, the individuals: Amir Hossein Khazaei applied for

an F-1 visa to study Computer Graphics at Texas A&M University and appeared for an interview

with a consular officer on July 22, 2022.

. Shabnam Salehi also applied for an F-1 visa to

pursue a Master’s in Architectural and Building Sciences and Technology at the University of

California, Los Angeles and interviewed on June 1, 2022.

. Hamidreza Azimy and

Solmaz Pourrahim were each admitted to a doctorate program at the University of New

3 Hampshire and applied for an F-1 visa.

. Azimy appeared for his interview on July

19, 2022, and Pourrahim attended hers eighteen days earlier.

Next, the families: Dr. Iman Shirinbak, who was accepted as a postdoctoral fellow at the

Massachusetts General Hospital and Harvard School of Dental Medicine and Maxillofacial

Surgery Research, along with his wife and child — Samira Basir Shabestari and E.S. — applied

for J visas.

¶¶ 12–13. They all appeared for consular interviews in November 2022.

¶¶

11–13. Parinaz Jalalahmadi sought an F-1 visa to pursue a doctorate in STEM Educational

Methods at the University of Massachusetts, Dartmouth.

. Her husband

Mohammadelyas Rafati and two children applied for derivative F-2 visas.

¶¶ 14–17. They

interviewed on July 8, 2022.

Sara Sarbaz likewise applied for an F-1 visa to pursue a

doctorate in Mechanical Engineering at Ohio State University, and her husband, Mohsen

Razinia, applied for an F-2 visa.

¶¶ 20–21. Both interviewed with a consular officer on June

21 of that year.

Finally, Saeed Haghniazjahromi applied for an F-1 visa for a doctorate

program at Worcester Polytechnic Institute, while his wife, Fatemeh Harasani, applied for an F-2

visa.

¶¶ 18–19. They were interviewed together on July 13, 2022.

Each Plaintiff’s visa application was refused pending further administrative processing.

See ECF No. 4 (Def. MTD) at 2, 5–10. Still awaiting a final decision, on May 18, 2023, they

sued Blinken, alleging two counts: first, that the State Department has unreasonably delayed

adjudicating their visa applications in violation of

(b) and 706(1), and second,

that State has a “pattern and practice” of delaying the issuance of visas to Iranian students that is

“arbitrary” and “capricious” under

(2)(A).

¶¶ 75–96, 97–108. Two weeks

later, on May 31, 2023, Khazaei received his visa. See Def. MTD at 5. Salehi received hers the

4 following week.

. On July 18, the Secretary moved to dismiss. And sometime thereafter,

Haghniazjahromi and Harasani were also issued visas. See ECF No. 7 (Reply) at 6–7.

II. Legal Standard

Defendant’s Motion invokes the legal standards for dismissal under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to

dismiss for lack of subject-matter jurisdiction, “[t]he plaintiff bears the burden of establishing

jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, No. 19-1049,

, at *2 (D.D.C. Feb. 11, 2020) (quoting Didban v. Pompeo,

, 174

(D.D.C. 2020)). The Court “assume[s] the truth of all 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,

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

even if “‘recovery is very remote and unlikely,’” the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56

(quoting Scheuer v. Rhodes,

(1974)).

5 III. Analysis

At the outset, the Court will dismiss the Complaint as to Plaintiffs Khazaei, Salehi,

Haghniazjahromi, and Harasani, whose claims are now moot. Khazaei and Salehi were issued

visas after the Complaint was filed, see Def. MTD at 5, 9, 18, and, as Plaintiffs concede, see ECF

No. 5 (Pl. Opp.) at 2 n.1, they have thus already received the relief they seek. Haghniazjahromi

and Harasani were also subsequently issued visas. See Reply at 6–7. Their claims are moot for

the same reason.

As to the remaining Plaintiffs’ unreasonable-delay claims, State raises several other

threshold arguments for dismissal — namely, that Plaintiffs lack standing, allege claims that are

non-justiciable under the consular non-reviewability doctrine, and have failed to allege a discrete

action that the State Department was required to take (a precondition for unreasonable-delay

claims). It argues, alternatively, that the delays at issue are reasonable under the governing legal

standard. As to the arbitrary-and-capricious claims, Defendant contends only that Plaintiffs have

not sufficiently alleged a discriminatory “pattern and practice,” and that the cause of action raises

non-justiciable questions of foreign policy. The Court addresses each argument in turn.

A. Unreasonable Delay

Standing

First up is standing. To meet its constitutional requirements under Article III, Plaintiffs

must show “(1) an ‘injury in fact’ that is ‘concrete and particularized’ as well as ‘actual or

imminent’; (2) a ‘causal connection’ between the injury and the challenged conduct; and (3) a

likelihood, as opposed to mere speculation, ‘that the injury will be redressed by a favorable

decision.’” Ark Initiative v. Tidwell,

(D.C. Cir. 2014) (quoting Lujan v.

Defs. of Wildlife,

, 560–61 (1992)). The Secretary argues that Plaintiffs have

6 suffered no injury in fact because “delay” is a procedural injury insufficient to confer standing

unless tethered to a concrete interest, and foreign nationals residing outside the United States

have no cognizable interest in a visa. See Def. MTD 12–13 (citing Trump v. Hawaii,

(2018) (holding that “foreign nationals seeking admission have no constitutional

right to entry”)). He suggests, further, that any injury would not be redressable because the

Secretary of State, the only Defendant named in this action, has no means of compelling consular

officers to issue them visas.

at 16–17. Even if he did, moreover, Section 1735(a) would

nonetheless dictate that Plaintiffs would be refused because they are Iranian citizens, Iran is

designated a state sponsor of terrorism, and none has pled that the mandated safety determination

has been made as to her.

Defendant treads familiar ground. There is no daylight of note between these assertions

and those rejected by this Court (and others in this district) in recent cases challenging delays in

processing visa applications. See, e.g., Rahman v. Blinken,

(D.D.C. Jan. 17,

2023), Khan v. Blome,

(D.D.C. Nov. 29, 2022); Al-Gharawy v. U.S. Dep’t

of Homeland Sec.,

(D.D.C. 2022). While the Court notes Defendant’s

“disagree[ment]” with these prior decisions, see Def. MTD at 33; Reply at 4, State has not

adduced any persuasive reason for this Court to deviate from them.

Here, as in those cases, Plaintiffs have sufficiently alleged an injury in fact. They each

enjoy a “procedural right to reasonably expeditious agency action that is tethered to [their]

concrete professional and financial interest in earning an advanced degree” (or completing a

postdoc research program, in Dr. Shirinbak’s case). Rahman,

, at *2. Here, as

there, their injuries are redressable. While the Secretary of State has no legal authority to control

which visa applications consular officers grant or deny, nothing precludes him from directing

7 them to decide pending applications “within a reasonable time,” as the APA requires. See Al-

Gharawy, 617 F. Supp. 3d at 10 (quoting

(b)); Baan Rao Thai Rest. v. Pompeo,

, 1024 (D.C. Cir. 2021) (noting that INA “preclud[es] even the Secretary of State

from controlling [consular officers’ visa] determinations”) (emphasis added; citation omitted).

Neither does Defendant’s argument regarding Section 1735 hit the target. It assumes that

redress could come only in the form of “re-adjudicat[ing]” applications that have already been

adjudicated pursuant to Section 1735(a). See Def. MTD at 16–17. But the remaining Plaintiffs

have pled that their applications are still pending administrative processing, see Compl., ¶¶ 10–

17, 20, 21, 23, 95, and four of them, in fact, have been issued visas since the inception of this

litigation. Plainly, the Department’s review of their applications is not complete. Plaintiffs’

injuries, furthermore, may be redressed with an order to complete that review more

expeditiously. Standing thus exists here.

Non-Justiciability

The Secretary’s other threshold arguments are as familiar as the last and no more

successful. He contends that Plaintiffs’ claims are barred by the doctrine of consular non-

reviewability and are thus non-justiciable. See Def. MTD at 24–27, 32–36. “Consular

nonreviewability shields a consular official’s decision to issue or withhold a visa from judicial

review, at least unless Congress says otherwise.” Baan Rao, 985 F.3d at 1024 (citing Saavedra

Bruno v. Albright,

(D.C. Cir. 1999)); see Trump, 138 S. Ct. at 2418–19).

The doctrine rests on the principle that decisions to exclude non-citizens “may implicate

relations with foreign powers” and, accordingly, are “frequently” judgments “of a character more

appropriate to either the Legislature or the Executive.” Baan Rao, 985 F.3d at 1024 (citation

omitted). It does not, however, apply where “the government has not made a final visa

8 decision.” P.K. v. Tillerson,

(D.D.C. 2017) (emphasis added); see also

Milligan v. Pompeo,

, 317 (D.D.C. 2020); Kinsley v. Blinken,

, at *4–5 (D.D.C. Oct. 5, 2021); Zandieh v. Pompeo,

, at *3 (D.D.C.

July 29, 2020).

State counters that Plaintiffs’ applications have already been refused, as stated on the

Department’s online visa-status checker. See Def. MTD at 5–10, 34–35. It further suggests that

“[w]hile additional documentation or investigation may prompt a consular officer to revisit that

decision,” the visas have still been “withh[e]ld” within the meaning of Baan Rao.

(emphasis added). But the Government, as courts in this district have repeatedly admonished,

“cannot ‘unsubscribe’ from judicial review of cases in administrative processing for

unreasonable delay by simply changing [its] website.” Sawahreh v. U.S. Dep’t of State,

, 160 (D.D.C. 2022) (collecting cases). If Plaintiffs’ applications are still under

consideration, such that their visas may yet issue, then the Department’s obligations under

(b) and 706(1) continue to apply with equal force.

To the extent that the reason for the delay is to allow the Secretary to determine whether

each Plaintiff “does not pose a threat to the safety or national security of the United States,” as

required under Section 1735 before a visa can issue, Plaintiffs’ unreasonable-delay claims are

still justiciable. Contra Def. MTD at 26. That determination closely resembles the delayed

travel-ban-exemption determination at issue in Zandieh,

, and deemed

justiciable by this Court. There, a plaintiff had filed I-130 immigration petitions for her Iranian

parents.

. Iranians, however, were listed among the non-citizens “suspended” from

entering the United States under a proclamation issued by then-President Donald Trump. See

Pres. Proclamation 9645,

, 45,165 (Sept. 24, 2017). They could be granted

9 an exemption, however, if, among other requirements, their entry “would not pose a threat to the

national security or public safety of the United States.”

. When the plaintiffs sued

to expedite the father’s petition following a three-year delay, the Government argued (as it does

here) that his petition was already refused under the Proclamation (notwithstanding the

possibility of waiver), and that the suit was therefore barred by the consular non-reviewability

doctrine. See Zandieh,

, at *2–3.

Citing a number of cases in this district construing a visa “refusal” subject to a waiver

under Proclamation 9645 as non-final, this Court rejected that argument.

(citation omitted).

The Secretary offers no reason why the same outcome is not warranted here. In short, because

the Department’s evaluation of Plaintiffs’ visa applications is ongoing, the consular non-

reviewability doctrine does not apply, and Plaintiffs’ unreasonable-delay claims are subject to

judicial review.

Merits

a. Discrete Required Action

Before moving on to the heart of the merits, the Court addresses a necessary precondition

for unreasonable-delay claims. Such claims invoke

(1), which provides that a

“reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.”

As the Supreme Court has held, “[A] claim under [this provision] can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”

Norton v. S. Utah Wilderness All.,

(2004). “The limitation to discrete agency

action precludes the kind of broad programmatic attack [the Court] rejected in Lujan v. National

Wildlife Federation,

[(1990)].”

(referring to challenge to federal agency’s

management of “land withdrawal review program” at systemic level and encompassing over

10 “1250 or so” individual land-use decisions, see Lujan, 497 U.S. at 890–94). “The limitation to

required agency action rules out judicial direction of even discrete agency action that is not

demanded by law (which includes, of course, agency regulations that have the force of law).” Id.

at 65. Defendant contends that the Complaint flunks this test.

The Court is not convinced. Plaintiffs’ allegation that the Department has failed to grant

or finally refuse their then-fifteen (now-eleven) visa applications is a far cry from the kind of

“broad programmatic attack” that Section 706(1) cannot accommodate. Id. at 64. Granting or

refusing a visa to an applicant who has been interviewed is clearly a discrete agency action. That

action, moreover, is required by both the APA and the Department’s own regulation. See

Mashpee Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003)

(noting that

(b) “imposes a general but nondiscretionary duty upon an

administrative agency to pass upon a matter presented to it ‘within a reasonable time’”);

Vulupala v. Barr,

, 100 (D.D.C. 2020) (concluding that “[g]ranting or refusing

a final visa application is a mandatory agency action” under

).

b. TRAC Factors

The precondition having been met, the central inquiry now is “whether the agency’s delay

is so egregious as to warrant mandamus.” Telecommunications Rsch & Action Ctr. v. FCC

(TRAC),

(D.C. Cir. 1984). The Court considers the six oft-employed TRAC

factors:

(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

11 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.

(cleaned up).

These considerations are often grouped into four basic inquiries. “First, is there any

rhyme or reason — congressionally prescribed or otherwise — 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)? Finally, is the delay intentional or due to any impropriety

on the part of the agency (factor six)?” Rahman,

, at *4 (cleaned up).

The first two factors favor Defendant because processing visas takes a baseline amount of

time. “District 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.”

(citation omitted). Here, Plaintiffs have waited only between seven and twelve months. See,

e.g., Dastagir v. Blinken,

, 165 (D.D.C. 2021) (finding 29-month delay

reasonable); Zandieh,

, at *7 (same). Further, to the extent that the delay is

caused by the need to make safety determinations as to Plaintiffs under Section 1735, “Congress

has supplied no timeline for processing” such determinations. Zandieh,

, at *5

(noting same as to travel-ban exemption). Absent a shorter statutory timeline, a delay of less

than a year is not unreasonable. See

Factors three and five weigh in Plaintiffs’ favor, albeit only slightly. They allege that they

“will lose their eligibility to enter the United States as F-1, J-1, or J-2 nonimmigrants” unless a

decision is rendered. See Compl., ¶ 73. Indeed, some of them have already lost offers of

admission as a result of the delay. See

, 22–23. The Court does not, however, credit the

12 unspecified “threats in Iran from seeking to study abroad” that Plaintiffs raise for the first time in

their Opposition. See Pl. Opp. at 26.

Factor four, which is often the weightiest, tips toward Defendant. As this Court has

previously concluded under similar facts, Plaintiffs’ applications are “delayed because of

‘resource-allocation decisions’ that ‘do not lend themselves to judicial reorderings of agency

priorities.’” Rahman,

, at *4 (cleaned up); see also Khan,

,

at *5. Plaintiffs deny that they are “asking to jump the line” — insisting, instead, that they

request “the entire line [] move more swiftly.” Pl. Opp. at 26. While a clever reframing of the

issue, it does not persuade. The relief they seek is an order compelling a decision on their visas

“within 7 days or prior to the start date[s] of their full course[s] of study.” Compl., ¶ C

(emphasis added). However Plaintiffs style that request, it will inevitably entail a “judicial

reordering” of the Department’s priorities. Cf. Skalka v. Kelly,

(D.D.C.

2017) (noting that courts should exercise caution “[w]here the agency action sought is one of

many similar adjudications that the agency must complete”).

The sixth factor, finally, is neutral at best. Plaintiffs suggest that the Department’s

“disparate treatment of Iranian national students is indicative of bad faith or impropriety.” Pl.

Opp. at 27. This allegation is merely conclusory. To the extent that it depends on processing

delays caused by Section 1735, the Court will not construe the Department’s adherence to its

statutory obligations as evidence of impropriety. In all, the TRAC factors counsel the dismissal

of Plaintiffs’ unreasonable-delay claims.

As the parties agree that the Court may resolve the instant Motion without an

administrative record, it need not address their ancillary dispute over Defendant’s compliance

with Local Rule 7(n)(1). See Def. MTD at 44 n.6; Pl. Opp. at 27 n.7.

13 B. Arbitrary and Capricious

Plaintiffs also bring arbitrary-and-capricious claims. See Compl., ¶¶ 97–108 (citing

(2)(A)). These are apparently “directed to the pattern or practice of disparate

treatment to Iranian applicants for student visas who have only received reinforcement from the

consulate that they remain eligible for a visa, but little substantive information for the lack of

finality.” Pl. Opp. at 3; see Compl., ¶¶ 97–108. While Defendant’s Motion largely fails to

address this count, the Court discerns at least two arguments for dismissal buried within the

section on non-justiciability. There, State maintains that Plaintiffs’ “bare allegations” of a

discriminatory pattern and practice are insufficient at this stage. See Def. MTD at 27 (citing

Compl., ¶¶ 92–102). It states, alternatively, that “because they challenge the terms and conditions

upon which [noncitizens] may come to this country,” the “nonreviewability principles” referenced

earlier would “bar review.”

As the Court agrees with the first contention, it declines to address the second. Plaintiffs

allege no facts in support of the existence of a broader “pattern and practice” by U.S. consulates

against Iranian student-visa applicants beyond their own individual experiences. See Iqbal,

(“conclusory” allegations of discrimination “not entitled to be assumed true”). They

do not, for example, allege that the delays they have experienced are unique to Iranian students.

Much of the caselaw they cite, in fact, suggests the opposite. See, e.g., Rahman,

, at *1 (Bangladeshi student-visa applicant facing eleven-month delay); Khan,

, at *1 (Pakistani J-1 visa applicant facing seven-month delay); Sawahreh, 630 F. Supp.

3d at 156–57 (Jordanian J-1 applicant facing fifteen-month delay); see also Pl. Opp. at 3 (citing

Rahman, Khan, and Sawahreh). Even assuming that the validity of the Department’s

discriminatory “pattern and practice” is a subject fit for judicial review, Plaintiffs have not

sufficiently alleged that such pattern and practice exists. This count does not survive either.

14 IV. Conclusion

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

separate Order will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: September 18, 2023

15