UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

OMID RASHIDI, et al.,

Plaintiffs, v. Civil Action No. 23-1569 (JEB)

UNITED STATES DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are Iranian nationals who applied for non-immigrant visas to attend post-

graduate programs at various U.S. academic institutions this fall. In this suit, they contend that

the six to eight months each of them has waited for a final decision (as of the filing of the

Complaint) constitutes an “unreasonable delay” in violation of the Administrative Procedure Act.

The Government now moves to dismiss, which Plaintiffs oppose; they also move for limited

discovery. At the outset, the Court will dismiss the three Plaintiffs who have since received final

decisions on their visa applications and two Defendants with respect to whom Plaintiffs lack

standing. As to the parties remaining, the Court will grant the Motion to Dismiss on the merits

and deny the Motion for Discovery.

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).

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

1 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.

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

2 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. Plaintiffs are six Iranian F- and J-

visa applicants who seek to attend post-graduate research programs (or accompany an attending

spouse) at universities across the United States. See ECF No. 1 (Compl.), ¶¶ 1, 8–13. All of

them interviewed with consular officers at the U.S. Embassy in Yerevan, Armenia, between

October and November 2022, id., ¶¶ 37, 53, 71, 86, 102, and all were told that their applications

were refused pending further administrative processing. Id., ¶¶ 38, 54, 72, 87, 103. The

Embassy, in each case, followed up with a sheet of supplemental questions or an email

requesting additional background information and documentation, which Plaintiffs, by all

accounts, “prompt[ly]” furnished. Id., ¶¶ 38–39, 55–58, 73–74, 88–89, 104–05.

The specific circumstances of Plaintiffs’ visa-processing delays are as follows: Dr. Omid

Rashidi was offered a position as a research scholar at Washington University in St. Louis, where

he hoped to perform cardiovascular research. Id., ¶ 35. He interviewed on November 22, 2022,

but never received a final decision. Id., ¶¶ 37, 44. His wife, who had separately applied for a J-1

visa to perform research in the same lab at WashU, by contrast, was issued a visa “immediately.”

Id., ¶ 40. Parisa Haghi Cheraghtapeh was admitted to a PhD program in Mechanical Engineering

at Johns Hopkins University. Id., ¶ 51. She and her husband, Amir Hossein Mirzaei, applied for

3 visas and interviewed jointly on November 29, 2022, but were similarly left in limbo. Id., ¶¶ 50–

53, 62. The couple feared that Cheraghtapeh would lose her offer of admission, waiver of

tuition, and other benefits if she was unable to enter the United States in time for the Fall 2023

semester. Id., ¶ 64.

The other Plaintiffs tell a similar story: Mehran Saedi looked forward to attending a PhD

program in Chemical Engineering at the University of Houston and interviewed on October 18,

2022. Id., ¶¶ 69, 71. Mohammadamin Motaharinia and Ehsan Naderi likewise wished to pursue

PhDs in Electrical Engineering at the University of California, Los Angeles, and New Mexico

State University, respectively, and interviewed on separate days in November. Id., ¶¶ 84, 86,

100, 102.

In the ensuing months, Plaintiffs emailed the Embassy at various times requesting an

update on the status of their applications and warning that they might lose their offers of

admission. Id., ¶¶ 42–43, 60–61, 75–76, 90–92, 106–08. These entreaties, however, were met

with silence. Id. Frustrated by the delay, on June 1, 2023, Plaintiffs sued the State Department,

the Department of Homeland Security, their respective heads (Secretaries Antony Blinken and

Alejandro Mayorkas), Consul Stephanie Zakhem of the U.S. Embassy in Yerevan, and several

other unnamed consular officers stationed there. They point to emails by U.S. Embassies in

other countries indicating that administrative processing of F and J visas typically takes place

within 60 to 90 days, id., ¶¶ 46, 65, 80, 96, 112, and argue that the delays at issue here —

roughly six to eight months — are unreasonable in violation of the Administrative Procedure

Act,

(b), 706(1).

¶¶ 115–65.

Since this action was filed, Cheraghtapeh, Mirzaei, and Saedi all received final decisions

on their visa applications. See ECF No. 11 (Def. MTD) at 14; ECF No. 12 (Pl. Opp. & Mot.) at

4 1 n.1. Defendants now move to dismiss the Complaint in its entirety, and Plaintiffs, in

opposition, move for limited discovery into the visa-application process at Yerevan.

II. Legal Standard

Defendants’ 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

As a threshold matter, the parties agree that Saedi, Cheraghtapeh, and Mirzaei’s claims

are now moot because their respective visa applications have been finally adjudicated. See Pl.

Opp. & Mot. at 1 n.1; ECF No. 14 (Def. Reply & Opp.) at 1. The Court will, accordingly,

dismiss these Plaintiffs. The Government raises a number of other preliminary arguments for

dismissal that are by now quite familiar to the Court. After addressing those briefly, the Court

will turn to the merits of Plaintiffs’ unreasonable-delay claims and then their request for

discovery.

A. Preliminary Arguments

The Government contends that the remaining Plaintiffs: (1) lack standing because they

have no right to a visa, their applications have already been refused pursuant to Section 1735,

and they name officials as defendants who cannot provide the requested relief, see Def. MTD at

8–14, 24–26; (2) raise claims that are all non-justiciable, in part because they are barred by the

consular non-reviewability doctrine,

at 21–24, 26–30; and (3) fail to adequately allege

unreasonable delay because there is no discrete action that Defendants were required to take.

at 15–21. The Court just last month dealt with these precise issues in Khazaei v. Blinken,

(D.D.C. Sept. 18, 2023), where the Government had raised the same arguments

nearly verbatim. So as not to spill unnecessary ink, the Court here adopts its analysis from that

Opinion.

at *3–5. All three of those arguments founder for the reasons stated in Khazaei.

There is, however, a minor wrinkle with respect to standing that did not arise in that case.

Defendants here suggest that Plaintiffs lack standing to bring claims against DHS and Secretary

Mayorkas because they do not show that either was “involved in the refusal of their visa

applications or are playing any ongoing role in Plaintiffs’ requests for visas.” Def. MTD at 24.

6 The Court agrees. To establish constitutional standing, a plaintiff must show, among other

things, that his injury is “causal[ly] connect[ed]” to the defendant’s conduct and can “likely” be

“redressed by a favorable decision.” Lujan v. Defs. of Wildlife,

, 560–61 (1992).

Plaintiffs have alleged that DHS “is responsible for . . . security and background checks of visa

applicants worldwide,” and that Mayorkas “oversees DHS operations . . . [and] has ultimate

responsibility for ensuring completion of certain security and background checks conducted on

Plaintiffs.” Compl., ¶¶ 17–18. They also cite a 2002 agreement between DHS and State

showing that DHS must be consulted in connection with the Section 1735 security determination

that Plaintiffs (as citizens of Iran) would need to receive a visa. See Pl. Opp. & Mot. at 16.

Absent, however, are facts suggesting that the delays at issue here are caused by such security

screening or that there is any action DHS could take to hasten review of their applications.

Plaintiffs’ insinuation that the agency might be responsible for, and able to remedy, such delays is

simply too speculative a basis for this Court’s jurisdiction. See Defs. of Wildlife,

(ruling that it “must be ‘likely,’ as opposed to merely ‘speculative,’” that the injury can be

redressed); see also Khoshrou v. Blinken,

, at *3 (D.D.C. Aug. 2, 2023)

(dismissing claims against DHS because “the ‘sheer possibility’ that a defendant played a role in

the delayed processing of a visa is not adequate to establish standing”) (citation omitted);

Siddiqui v. Blinken,

, at *3 (D.D.C. Dec. 14, 2022) (similar).

DHS and Secretary Mayorkas, consequently, shall be dismissed, and the Court may now

turn to the substance of the unreasonable-delay claims against the remaining Defendants.

B. TRAC Factors

When a plaintiff asserts a claim for unreasonable delay under §§ 555(b) and 706(1), the

central inquiry is “whether the agency’s delay is so egregious as to warrant mandamus.”

7 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 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 v. Blinken,

, at *4 (D.D.C. Jan.

17, 2023) (cleaned up).

The first two factors clearly favor Defendants. There is, of course, no statutory timeline

for adjudicating non-immigrant F and J visa applications — a point that Plaintiffs concede. See

Pl. Opp. & Mot. at 30 n.10. “Absent a congressionally supplied yardstick, caselaw guides the

Court’s interpretation.” Whitlock v. U.S. Dep’t of Homeland Sec.,

, at *6

(D.D.C. Feb. 11, 2022) (cleaned up). Plaintiffs cite no comparable case in which a delay of six

to seven months — the delays the remaining three Plaintiffs experienced (as of the filing of the

Complaint) — was found unreasonable. On the contrary, the courts of this district have

8 dismissed claims, over and over, challenging delays in processing non-immigrant visa requests

substantially longer than that. See, e.g., Sawahreh v. United States Dep’t of State,

(D.D.C. 2022) (finding 15-month delay in processing J-1 visa application reasonable);

Penn v. Blinken,

(D.D.C. Mar. 29, 2022) (same as to 22-month delay for non-

immigrant K-1 visa applications); Yacoub v. Blinken,

(D.D.C. Sept. 30, 2022)

(same as to one-and-a-half- to three-and-a-half-year delay).

Nor is the Court persuaded by the notion that State’s asserted policy of prioritizing

student and exchange-visitor visas — or that the 60- to 90-day timeframe that various embassies

have represented is the typical administrative-processing time — operates as a rule of reason that

State has violated in this case. Contra Pl. Opp. & Mot. at 29–30 & n.10. As in Milligan v.

Blinken,

(D.D.C. Sept. 2, 2021), Plaintiffs “put forth no compelling reason

why the ‘public facing announcements’ of an agency,” let alone of other embassies, “should be

understood to supply the granular substance of a rule of reason.”

. Further, even if the

Court regarded State’s policy and the timeframe announcements in question as constituting such

a rule, Plaintiffs allege nothing to suggest that State has failed to prioritize J and F visas at a

systemic level, or that the 60-to-90-day wait time has become atypical. The guidance on which

they rely, after all, consistently adds that processing time “is difficult to predict” and “can take

significantly longer” in “some instances.” ECF No. 1-1 (Compl. Exhibits) at 4, 16, 19 (Emails

from U.S. Embassy Islamabad);

(Emails from U.S. Embassy Kuala Lumpur).

This is not to imply, of course, that there are no possible circumstances under which a

delay of six to eight months would be unreasonable. See Mashpee Wampanoag Trib. Council,

Inc. v. Norton,

(D.C. Cir. 2003) (noting that whether a delay is unreasonable

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

9 which agency inaction is presumed to be unlawful”). At the very least, however, the remaining

factors would need to weigh decisively in Plaintiffs’ favor. Here they do not.

Factors three and five favor Plaintiffs, but only to a modest degree. While the Court

acknowledges the substantial disruption to their academic and career plans and the associated

financial benefits at stake in this matter, see Pl. Opp. & Mot. at 34, they fail to plead the kind of

personal hardship that bears significant weight in a TRAC factor analysis. Cf. Da Costa v.

Immigr. Inv. Program Off.,

, at *9 (D.C. Cir. Aug. 18, 2023) (“The financial

harms [Plaintiff] alleges, along with the uncertainty that results any time an individual must

continue to wait to secure a benefit, are insufficient to tip TRAC factors three and five in his

favor.”); see also Sawahreh, 630 F. Supp. 3d at 163–64 (dismissing unreasonable-delay claim,

even though delay “jeopardiz[ed]” plaintiff’s career trajectory, among other harms).

Factor four, which is dispositive in some cases, see Norton,

,

straightforwardly favors Defendants. Plaintiffs seek an order requiring the Government to

“render a decision on [their] J-1, F-1, and F-2 visa applications without further delay.” Compl. at

30. Such an order would necessarily require State to prioritize Plaintiffs’ applications “at the

expense of other similarly situated applicants.” Da Costa,

, at *8 (citation

omitted). The Court may have reached a different conclusion had Plaintiffs plausibly alleged

that they were “singled out for slower adjudication,” but they have not.

Indeed, the deluge of

unreasonable-delay suits filed in this district in recent years, and involving F and J visa

applications, would strongly suggest otherwise. See, e.g., Rahman,

; Sawahreh,

; Khazaei,

; Khan v. Blome,

(D.D.C.

Nov. 29, 2022); Rezaei v. Garland,

(D.D.C. Aug. 16, 2023).

10 As to factor six, an allegation of bad faith is altogether absent from Plaintiffs’ Complaint.

They suggest that the fact that Defendants have exceeded the standard 60-to-90-day processing

time and have processed some later-interviewed visa applications before Plaintiffs’ creates an

“appearance of impropriety.” Pl. Opp. & Mot. at 34. But as Plaintiffs do not argue — let alone

allege facts suggesting — that this is the result of wrongdoing and not legitimate processing

issues associated with Plaintiffs’ individual applications, this factor does not move the needle.

In short, because Plaintiffs failed to adequately plead that a final decision on their visa

applications has been unreasonably delayed, their Complaint shall be dismissed.

C. Discovery

In a last-ditch effort to stave off dismissal, Plaintiffs suggest that the above analysis is

premature because limited discovery into the Yerevan Embassy’s visa-application-review process

is necessary to assess whether the delay is in fact unreasonable under TRAC. Although

discovery is typically not available in APA cases, see Air Transp. Ass’n of Am., Inc. v. Nat’l

Mediation Bd.,

(D.C. Cir. 2011), Plaintiffs urge the Court to permit it here.

They seek to learn, among other things, how Defendants’ policies prioritizing student and

exchange-visitor visas are “carried out” at Yerevan and other consular posts; “statistics and

explanation as to how long [a Section 1735 determination] typically takes,” the steps involved,

and the determination’s effect on the “length and complexity in processing nonimmigrant F-1

and J-1 visa applications”; the “existence and extent of any ‘processing limitations’”; the

existence of a “visa-processing ‘queue’ in Yerevan”; “[a]nomalies” at Yerevan that have “resulted

in later-interviewed applicants” receiving decisions before Plaintiffs; “specific burdens”

Defendants would shoulder if ordered to adjudicate Plaintiffs’ applications; and the “existence or

absence of ‘good faith.’” Pl. Opp. & Mot. at 35–36.

11 The Court acknowledges that these inquiries bear on TRAC factors one, four, and six, but

it need not wait for discovery to assess whether Plaintiffs have plausibly alleged that any of those

factors militate in their favor. See Iqbal,

(Where plaintiff’s “complaint is

deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”); see also Khan,

, at *4 (concluding that “[i]t is appropriate to [evaluate the TRAC factors] at

the motion-to-dismiss stage”); Sawahreh, 630 F. Supp. 3d at 161 (same); Skalka v. Kelly,

(D.D.C. 2017) (same).

As to factor one, as explained earlier, Plaintiffs have not plausibly alleged that State

violated its own policy of prioritizing F and J visa applications or that it is no longer true that

processing typically takes up to 60 to 90 days — that is, on the dubious assumption that such

statements even constitute a rule of reason. They cite no case, furthermore, in which a court held

that a visa-processing delay of roughly six to seven months was unreasonable. Given these

deficiencies and the sheer brevity of the delays at issue, discovery is unwarranted.

As to factor four, one need not unearth the details of the visa-adjudication process at

Yerevan and elsewhere to surmise that the relief Plaintiffs seek would reorder State’s priorities.

That outcome is obvious “[w]here the agency action sought is one of many similar adjudications

that the agency must complete.” Skalka,

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

Khoshrou,

, at *7 (noting that “prompt adjudication of [the plaintiff’s] visa

application . . . would mean that others waiting for adjudication would be displaced”). Finally,

as to factor six, as previously noted, Plaintiffs allege no facts supporting an inference of bad

faith. Nor have they offered more than rank speculation in their briefs. That too does not suffice

for discovery.

12 Nor do the out-of-circuit cases on which Plaintiffs rely meaningfully advance their

argument. See Pl. Opp. & Mot. at 36–37; ECF No. 16 (Pl. Reply) at 2–3. Barrios Garcia v. U.S.

Department of Homeland Security,

(6th Cir. 2022), and Gonzalez v. Cuccinelli,

(4th Cir. 2021), indeed support the proposition that the TRAC analysis is fact intensive

and “thus sits uncomfortably at the motion to dismiss stage.” Gonzalez,

. Both

courts still found, nevertheless, that the plaintiffs had sufficiently alleged an unreasonable delay

in their Complaint before permitting discovery — and based on facts more compelling than those

asserted here. In each case, the plaintiffs were victims of serious crimes who cooperated with

U.S. law enforcement and, based on that assistance, applied for non-immigrant U-visas. See

Barrios Garcia, 25 F.4th at 435; Gonzalez,

; see also

(a)(15)(U).

They had all waited more than three years for a decision on their visa applications and alleged

sufficient harm to their health and wellness. See Barrios Garcia, 25 F.4th at 452 (plaintiffs’ risk

of being deported, inability to reunite with family living abroad or to obtain ID cards,

employment, and healthcare, inter alia, sufficed to state claim that three-to-five-year delay was

unreasonable); Gonzalez,

(“Plaintiffs have pled sufficient facts to show that

their interests are weighty, implicate health and welfare, and are harmed by the [more than four-

year] wait.”). The delays at issue here, which lasted roughly six to seven months and risk only

educational and professional opportunities, while serious in their own right, are simply not

comparable.

A final point is worth bearing in mind: Plaintiffs’ requested discovery is rather broad and

arrives in a type of suit in which discovery typically does not occur. Given the surfeit of lawsuits

challenging delays in processing visa applications that is currently swamping our courts,

13 discovery in every such case would lead to a substantial imposition on the Government. The

Court will therefore decline to order discovery without a sturdier basis for doing so.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss and deny

Plaintiffs’ Motion for Discovery. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: October 4, 2023

14