UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHUN YING LI,

Plaintiff,

v. No. 23-cv-3025 (DLF) LISA K. HELLER, in her official capacity as Consul General, U.S. Consulate General in Guangzhou, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Shun Ying Li seeks to enter the United States to marry her American fiancé

Maxwell Willis Milligan. Li applied for a K-1 visa, but her application was placed in

administrative processing after an interview at the U.S. consulate in Guangzhou. Compl. ¶¶ 2–4,

21, Dkt. 1. Li filed this suit against State Department officials under the Administrative Procedure

Act (APA),

(b), 706(1), and the Mandamus Act,

, seeking a final

decision on her visa application.

¶¶ 24–36. Li contends that the delay she has experienced has

been unreasonably long.

. Before the Court is the defendants’ Motion to Dismiss under

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. 8. For the reasons

that follow, the Court will grant the motion and dismiss the complaint under Rule 12(b)(6).

I. BACKGROUND

A. Statutory Framework

A noncitizen who “is the fiancée . . . of a citizen of the United States . . . and who seeks to

enter the United States solely to conclude a valid marriage with the petitioner” may apply for a “K-1” nonimmigrant visa.

(a)(15)(K)(i). The process to obtain a K-1 visa,

however, requires multiple steps. See Bagherian v. Pompeo,

, 90 (D.D.C. 2020).

First, the noncitizen’s American fiancé(e) must submit a petition, known as a Form I-129F, to the

Department of Homeland Security (DHS). See

(d)(1); I-129F, Petition for Alien

Fiancé(e), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/i-129f

[https://perma.cc/JN2T-JP3L]. Second, after DHS approves the petition, it is forwarded to the

National Visa Center (NVC). See Visas for Fiancé(e)s of U.S. Citizens, U.S. Citizenship &

Immigr. Servs., https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-

citizens [https://perma.cc/Y9RW-UCNB]. Finally, the NVC forwards the visa application to a

U.S. Embassy or consulate where the noncitizen fiancé(e) intends to apply for a K-1 visa.

A

consular officer is then responsible for interviewing the noncitizen fiancée, reviewing the

application, determining the couple’s “bona fide intent to establish a life together,” and requesting

any appropriate background check.

After a noncitizen has “properly completed and executed” a “visa application” and

interviewed, a “consular officer must issue the visa, refuse the visa, or, pursuant to an outstanding

order . . . discontinue granting the visa.”

. “No visa or other documentation

shall be issued” if (1) “it appears to the consular officer . . . that such alien is ineligible to receive

a visa . . . under section 1182 of this title, or any other provision of law”; (2) “the application fails

to comply with the provisions of this chapter, 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 or such

other documentation under section 1182 of this title, or any other provision of law.”

(g). If the consular officer believes “additional information from sources other than the

applicant may help establish an applicant’s eligibility,” he may refer the application for

2 “administrative processing.” Administrative Processing Information, Bureau of Consular Affs.,

U.S. Dep't of State, https://travel.state.gov/content/travel/en/us-visas/visa-information-

resources/administrative-processing-information.html [https://perma.cc/RNU3-E3FB]. “The

duration of the administrative processing will vary based on the individual circumstances of each

case.”

B. Factual Background

Maxwell Willis Milligan, a United States citizen, is engaged to Shun Ying Li, a Chinese

national. In October 2021, Milligan filed Form I-129F with USCIS, hoping that Li could enter the

United States to get married. Compl. ¶ 17. “In February 2023, USCIS approved [Milligan’s] visa

petition,” at which point the U.S. Consulate General in Guangzhou scheduled a K-1 visa interview

with Li.

. “In May 2023, . . . a consular officer reviewed Shun Ying Li’s case” and

interviewed her; following that interview, the officer decided to place Li’s application in

administrative processing.

¶¶ 20–21. In July 2023, shortly after Li’s interview, Milligan’s

Chinese work visa expired, and he returned to the United States.

.

The separation has caused Li “significant anxiety and depression.”

Li and Milligan

also “used $15,000 of their savings to cover costs” associated with the delay, such as rescheduling

their wedding and airplane tickets.

.

In October 2023, approximately four months after her interview, Li filed suit against the

Consul General in Guangzhou Lisa K. Heller, the Deputy Chief of Mission in China David Meale,

and Secretary of State Antony Blinken. See

. Li contends, see

, that adjudication of

her visa has been “unreasonably delayed” in violation of the Administrative Procedure Act, see

(b), 706(1). She also seeks, in the alternative, relief under the Mandamus Act. See

Compl. ¶¶ 30–35. In terms of remedy, Li asks the Court to “[m]andat[e] that Defendants process

3 Plaintiff’s visa application within fifteen (15) calendar days of this order or as soon as reasonably

possible[.]”

(b).

II. LEGAL STANDARDS

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts

are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). Federal law empowers federal district court judges to hear only certain kinds of cases, and

the party asserting jurisdiction bears the burden of establishing that her case falls within the judge’s

purview.

When deciding a Rule 12(b)(1) motion, the Court must “assume the truth of all

material factual allegations in the complaint and construe the complaint liberally, granting plaintiff

the benefit of all inferences that can be derived from the facts alleged, and upon such facts

determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir.

2011) (cleaned up). A court “may undertake an independent investigation” that examines “facts

developed in the record beyond the complaint” to “assure itself of its own subject matter

jurisdiction.” Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005) (cleaned up).

A court that lacks jurisdiction must dismiss the action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A facially plausible claim is one that “allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). Rule 12(b)(6) does not amount to a specific probability requirement, but it does require

4 “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see Twombly,

(“Factual allegations must be enough to raise a right to relief above the speculative level.”).

The complaint need not make “detailed factual allegations,” but allegations that are merely a

“formulaic recitation of the elements of a cause of action will not do.” Twombly,

(citations omitted).

III. ANALYSIS

A. Article III Standing

Article III standing has three elements: “a plaintiff must show (i) that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused

by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion

LLC v. Ramirez,

(2021). Contrary to the defendants’ suggestions, Reply in

Supp. of Def.’s Mot. to Dismiss at 1–4, Dkt. 10, Li has established each of these elements.

As alleged in her complaint, Li has been separated from her fiancé due to the delay in

processing her visa. See Compl. ¶ 7. This Court has previously held that separation from a loved

one constitutes a concrete harm. See, e.g., Pourabdollah v. Blinken, No. 23-cv-1603,

, at *3 (D.D.C. Feb. 7, 2024); see also Trump v. Hawaii,

(2018) (noting

that “a person's interest in being united with his relatives is sufficiently concrete and particularized

to form the basis of an Article III injury in fact” and recognizing, more generally, the weight of

“bona fide relationship[s]” between Americans and “person[s] seeking to enter the country” for

the purposes of establishing Article III standing). So too here: Li’s separation is sufficient to

establish injury in fact. Li also highlights that the delay has caused past and ongoing financial

hardship, Compl. ¶¶ 8–9, and this “readily qualif[ies]” as a concrete pocketbook harm,

TransUnion,

.

5 The defendants invoke Kleindienst v. Mandel, but this case is inapposite. See Reply in

Supp. of Def.’s Mot. to Dismiss at 1–2 (citing Kleindienst v. Mandel,

(1972)). In

Mandel, the Supreme Court held that “an unadmitted and nonresident alien[] ha[s] no

constitutional right of entry to this country as a nonimmigrant or otherwise.” 408 U.S at 762. As

the Court explained in Pourabdollah, however, Mandel and its lineage do not diminish Li’s alleged

injury. See Pourabdollah,

, at *4. Mandel establishes “an exception to the

doctrine of consular nonreviewability,” but it has nothing to do with Article III standing.

Even

putting aside the defendants’ conflation of standing and consular nonreviewability, Li

satisfactorily alleges nonconstitutional injuries. Along with “[h]arms specified by the Constitution

itself,” “traditional tangible harms” and “[v]arious intangible harms . . . with a close relationship

to harms traditionally recognized” can provide a basis for Article III standing. TransUnion,

. For the above stated reasons, Li has alleged harms sufficient for standing under

Article III.

Li’s injuries also fulfill the second and third elements for standing—“causation

(traceability) and redressability.” Whitlock v. U.S. Dep’t of Homeland Sec., No. 21-cv-807,

, at *3 (D.D.C. Feb. 11, 2022). Considering traceability first, Li’s injuries were, at

least in part, caused by the defendants. The State Department and its consular officers “alone [are]

responsible” for conducting interviews and rendering decisions on visa applications, and the delay

has prolonged the period of separation and dwindled Li’s savings.

True, Li’s “voluntary

decisions” may have exacerbated these injuries. Reply in Supp. of Def.’s Mot. to Dismiss at 18

n.3. But any such contribution was marginal and not alleged on the face of the complaint. Even

assuming wedding and flight costs are not fairly attributable to the delay, surely the prolonged

separation from her fiancé is.

6 And these injuries are redressable. Li alleges that the injuries she faces stem from the State

Department’s unwillingness to provide her with “a final decision on her application[] within a

reasonable time.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 9–10, Dkt. 9. Accordingly, as in

similar cases this Court has considered, the plaintiff’s “injuries may be redressed with an order

[requiring Secretary Blinken and the Guangzhou Consul General Heller] to complete that review

more expeditiously.” Pourabdollah,

, at *4 (cleaned up); see Ahmadi v. Scharpf,

No. 23-cv-953,

, at *3 (D.D.C. Feb. 12, 2024); Babaei v. United States Dep’t of

State, No. 23-1244,

, at *3 (D.D.C. Mar. 19, 2024); Yaghoubnezhad v. Stufft,

No. 23-cv-03094,

, at *5 (D.D.C. May 9, 2024).

The defendants also argue that since “re-adjudicating [Li’s] refused visa application

now . . . will not definitively remedy this alleged injury,” she lacks standing. Reply in Supp. of

Def.’s Mot. to Dismiss at 3–4 (citing Naveed v. Blinken, No. 22-3579,

, at *1

(D.D.C. Jan. 18, 2023)). But this argument is unpersuasive. The Court must assume the truth of

the allegations contained in the Petition, including the allegation that Li has not received a final

decision on her application. See Compl. ¶¶ 22–23. An order for more expeditious review on the

application would redress injuries incurred due to the delay, including, at the very least, Li’s

separation from her fiancé. See Pourabdollah,

, at *4.

The Court will also reject the defendants’ request to “dismiss Defendant Secretary of State

Blinken from this case because he has no role in re-adjudicating the Visa Application.” Mot. to

Dismiss at 5. “While the Secretary of State has no legal authority to control which visa applications

consular officers grant or deny, nothing precludes him from directing them to decide pending

applications within a reasonable time, as the APA requires.” Ahmadi,

, at *4

(cleaned up).

7 The Court thus concludes that Li has satisfied Article III’s standing requirements.

B. Consular Non-Reviewability

The Court also rejects the defendants’ argument that consular non-reviewability doctrine

bars Li’s claims. Mot. to Dismiss at 6–10.

The Court has, time and again, rejected this argument in visa-delay cases. See

Pourabdollah,

, at *4–5 (detailing the Court’s disagreement with the defendants’

reading of Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021)). Here, Li alleges that

her application is stuck in “administrative processing,” which she characterizes not as a “final

decision” but rather as a “temporary measure[] signaling that processing is ongoing.” Compl.

¶¶ 21–22. On a motion to dismiss, the Court accepts this allegation as true. See Pourabdollah,

, at *4–5; Ahmadi,

, at *4; Nine Iraqi Allies Under Serious

Threat Because of Their Faithful Serv. to the United States v. Kerry,

, 283–87

(D.D.C. 2016). “[T]he Court is unable to substitute [Li’s] allegations” that her application is stuck

in administrative processing “with the Secretary's representations that [her] application[] [has]

been ‘refused.’” Pourabdollah,

, at *4 (cleaned up).

“[T]he consular nonreviewability doctrine applies only to final decisions.” Ahmadi,

, at *4 (quoting Al-Gharawy v. DHS,

, 11 (D.D.C. 2022)). The

defendants have made no such final decision on Li’s application. Absent such a final decision,

consular nonreviewability falls out of the picture, and “judicial review of [the] consular officer’s

delay” is appropriate.

C. APA & Mandamus Act Claims

Although Li’s claims survive the defendants’ threshold arguments, her APA and

mandamus claims fail to state a claim under Rule 12(b)(6).

8 Under both § 706(1) of the APA and the Mandamus Act,

, two

requirements define unreasonable-delay claims in visa processing petitions. See Skalka v. Kelly,

(D.D.C. 2017). A “reviewing court shall . . . compel agency action,”

(1), only when: (1) “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); and,

(2) “the agency's delay is so egregious as to warrant mandamus,” In re Core Commc'ns, Inc.,

(D.C. Cir. 2008) (cleaned up).

The Court will assume without deciding that adjudicating Li’s application is a discrete

action the defendants are required to take, see Pourabdollah,

, at *6 n.5,

notwithstanding the defendants’ arguments to the contrary, see Mot. to Dismiss at 10–16. The

Court thus turns to the second prong: namely, whether the defendants’ delay in processing Li’s

visa has been unreasonably long. 1 To determine whether an agency’s delay is unreasonable, the

D.C. Circuit has formulated a six-part test synthesized from prior practice:

(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;

1 Plaintiff also argues that, because of the “the fact-intensive nature of the inquiry into whether a delay is unreasonable, . . . it [is] inappropriate to dismiss undue delay claims at the motion to dismiss stage.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 14. As outlined in Pourabdollah v. Blinken, however, “it is not premature to adjudicate [a petitioner’s] unreasonable-delay claim at the motion-to-dismiss stage. Courts in this district have routinely decided whether an agency's delay is unreasonable when processing claims for immigration benefits at this stage.”

, at *7 n.6.

9 (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.

In re United Mine Workers of Am. Int'l Union,

(D.C. Cir. 1999) (cleaned up).

Considering the so-called “TRAC factors” together, the Court finds that the delay has not been

unreasonable.

1. TRAC Factors 1 and 2

“The first two factors are often considered together” because they both concern timing.

Ahmadi,

, at *5 (cleaned up). In analyzing these factors, the Court must

determine “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. Int. v. FDA,

(D.D.C. 2014).

Factors one and two favor the defendants. “Congress has not imposed deadlines for

fiancé(e) visas,” Whitlock,

, at *6, and “[a]bsent a congressionally supplied

yardstick, courts typically turn to case law as a guide” to determine the reasonableness of a visa-

application delay, Sarlak v. Pompeo, No. 20-cv-35,

, at *6 (D.D.C. June 10,

2020). Such precedent helps establish a governing “rule of reason.”

Specifically in the context

of fiancé visas, the Court has found delays over a year not unreasonable. See, e.g., Whitlock,

, at *6 (finding a delay of eighteen months reasonable); Schwartz v. United States

Department of Homeland Security, No. 21-378,

, at *3 (D.D.C. Sept. 10, 2021)

(finding a nineteen-month delay reasonable); see also Mot. to Dismiss at 20–21 (noting that in

various visa categories even longer delays have been held reasonable).

When the complaint was filed here, Li had waited four months (now closer to thirteen

months). See Compl. ¶ 20; Mot. to Dismiss at 20. Finding an unreasonable delay here, when less

10 time has passed than in any of the above examples, would upset the rule prior cases have

established. Indeed, in a recent case, this Court held that a similar four-month delay in a fiancé

visa case was reasonable. See Lee v. Blinken, No. 23-cv-1783,

, at *5 (D.D.C.

Feb. 15, 2024). Although Li directs the Court to cases finding particular delays were unreasonable,

see Mem. in Opp’n to Defs.’ Mot. to Dismiss at 17–18, all feature far longer delays than that at

issue here. The delay here was thus not “egregious” under the first and second TRAC factors.

2. TRAC Factor 4

TRAC factor four also carries particular weight. Pourabdollah,

, at *7

(citing Da Costa v. Immigr. Inv. Program Off.,

, 15 (D.D.C. 2022), aff'd,

(D.C. Cir. 2023)). “The fourth factor considers the effect of prioritizing one agency action

over others. Courts are generally hesitant to direct agencies which tasks to prioritize, particularly

if such intervention would move the petitioner to the head of the queue and simply move[] all

others back one space.” Ahmadi,

, at *6 (cleaned up).

This factor also weighs strongly in favor of the defendants. Contrary to Li’s suggestion,

the Court cannot exclusively “focus on the impact of the delay on the plaintiff before it.” Mem.

in Opp’n to Defs.’ Mot. to Dismiss at 20. Rather, it must also consider the effects of prioritizing

the plaintiff on “agency activities of . . . competing priority.” In re United Mine Workers of Am.

Int'l Union,

(cleaned up). Here, reordering “the queue of applicants seeking

adjudication would be inappropriate . . . because there would be no demonstrable net gain in visa

processing at large.” Pourabdollah,

, at *8 (cleaned up). Placing Li at the front

of the line would constitute the exact sort of “judicial reordering[] of agency priorities” upon which

precedent frowns.

(quoting Rahman v. Blinken, No. 22-2732,

, at *4 (D.D.C.

2023)). Because expediting the delayed action for Li could simply foist the delay upon other

11 applicants, contrary to the State Department’s priorities, the fourth TRAC factor also weighs in

the defendants’ favor.

3. TRAC Factors 3 and 5

TRAC factors three and five favor Li, but not to so great an extent they outweigh the

remaining factors. Factors three and five concern the “health and welfare . . . at stake” and “the

interests prejudiced by delay.” Telecomms. Rsch. and Action Ctr. v. FCC,

(D.C.

Cir. 1984). Li alleges the delay has had a significant “negative impact . . . on her life” and “has

put [her], her disabled parents, and [her fiancé] in a precarious economic situation.” Mem. in Opp’n

to Defs.’ Mot. to Dismiss at 19. Assuming their truth, these allegations support the conclusion that

the visa delay has affected Li’s and her fiancé’s health and welfare.

4. TRAC Factor 6

The final TRAC factor requires the Court to “determine whether the agency has acted in

bad faith in delaying action.” Fakhimi v. Dep't of State, No. 23-cv-1127,

, at

*11 (D.D.C. Oct. 23, 2023) (cleaned up). Li concedes that “there is no evidence that defendants

have engaged in any improper conduct.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 17. But “the

lack of plausible allegations of impropriety does not weigh against [Li],” so the Court treats this

factor as neutral. Fakhimi,

, at *11; see Ahmadi,

, at *6.

In aggregate, then, the TRAC factors suggest “the agency’s delay is [not] so egregious as

to warrant mandamus,” meaning Li has also failed to state a claim for unreasonable delay under

the APA and Mandamus Act. In re Core Commc’ns, Inc.,

(cleaned up).

12 CONCLUSION

For the foregoing reasons, the Court will grant the defendants’ Motion to Dismiss, Dkt. 8.

A separate order consistent with this decision accompanies this memorandum opinion.

________________________

DABNEY L. FRIEDRICH United States District Judge

July 12, 2024

13