UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEYEDNAVID EMAD et al.,

Plaintiffs,

v. Civil Action No. 23-1789 (TJK)

U.S. DEPARTMENT OF STATE et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are two Iranian citizens residing in that country whose immigrant visa

applications were refused pending further administrative processing. They sue the Department of

State and Secretary of State Antony J. Blinken under the Administrative Procedure Act and the

Mandamus Act, alleging that they have waited too long for an adjudication of their applications.

Defendants move to dismiss for lack of jurisdiction and for failure to state a claim. The Court

lacks subject-matter jurisdiction over the Secretary of State and will dismiss him for that reason.

As for the Department of State, the Court finds that Plaintiffs’ allegations fail to state a claim for

unreasonable delay. Thus, the Court will grant the motion and dismiss the case.

I. Background

United States citizens who wish to bring their foreign national relatives to the United States

must file a Petition for Alien Relative (Form I-130) with the United States Citizenship and

Immigration Services (“USCIS”). See

;

(a)(1). Upon approval of

the petition, USCIS sends the application to the State Department’s processing center. See

(a)(3). The foreign relative then submits another application (Form DS-260) and appears

for an interview at the embassy with jurisdiction over the foreign relative’s residence. See

. After the interview, “the consular office must issue the visa [or] refuse the visa.”

§ 42.81(a).

According to the Complaint, in November 2014, Rezvan Goodarzi, a U.S. permanent

resident, filed an I-130 Petition, listing her son, Plaintiff Seyednavid Emad, as the beneficiary.

ECF No. 1 (“Compl.”) ¶ 10. Emad is an Iranian citizen. Id. ¶ 9. After approval by the USCIS on

October 31, 2019, Emad submitted an immigrant visa application under

(b).

. Emad completed an interview at the United States Embassy in Yerevan, Armenia on

February 13, 2023.

.

In August 2020, U.S. citizen Seyedehdarya Safavinia filed an I-130 listing her husband,

Iranian citizen Mohammadjavad Taghvaeiyazdeli, as the beneficiary. Compl. ¶ 24.

Taghvaeiyazdeli submitted his immigrant visa application on August 9, 2021,

, and

completed an interview at the United States Embassy in Yerevan on January 19, 2023,

.

After their interviews, both Plaintiffs received a notice informing them that their

applications had been refused for administrative processing and that they would receive a

questionnaire requesting more information. Compl. ¶¶ 14, 28. Both Plaintiffs sufficiently

responded to the questionnaires, and their applications are currently “refused for administrative

processing” without further explanation.

¶¶ 16–17, 21, 30–32. Plaintiffs filed suit in June

2023, invoking the Administrative Procedure Act (“APA”),

, and the Mandamus

Act,

. See generally

Defendants now move to dismiss for both lack of subject-

matter jurisdiction and for failure to state a claim.

II. Legal Standard

To survive a Rule 12(b)(1) motion to dismiss, a plaintiff must establish the Court’s subject

matter jurisdiction. Arpaio v. Obama,

(D.C. Cir. 2015). When evaluating a Rule

2 12(b)(1) motion, 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,’ . . . and upon such facts determine[s] jurisdictional questions.”

Am. Nat’l Ins. Co. v. FDIC,

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

(D.C. Cir. 2005)). Without subject-matter jurisdiction over a claim, the Court

must dismiss it. Arbaugh v. Y&H Corp.,

(2006).

“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s complaint; it

does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff has

any evidence to back up what is in the complaint.’” Herron v. Fannie Mae,

(D.C. Cir. 2017) (quoting Browning v. Clinton,

(D.C. Cir. 2002)). “In

evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff,

who must be granted the benefit of all inferences that can be derived from the facts alleged.’”

Hettinga v. United States,

(D.C. Cir. 2012) (quoting Schuler v. United States,

(D.C. Cir. 1979)). But a court is not “bound to accept as true a legal conclusion

couched as a factual allegation.” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)).

III. Analysis

Although the Court finds that it lacks subject-matter jurisdiction over Plaintiffs’ claims of

unreasonable delay against the Secretary of State, it does have jurisdiction over the claims against

the State Department. Even so, Plaintiffs have failed to state a claim for unreasonable delay. So

while Defendants raise several other non-jurisdictional arguments for dismissal in their motion,

the Court need not address them. See, e.g., Dastagir v. Blinken,

, 168 n.6

3 (D.D.C. 2021) (declining to address consular nonreviewability and other arguments in

unreasonable delay case after examining TRAC factors).

A. Plaintiffs Lack Standing to Sue the Secretary of State

Under Article III of the Constitution, federal courts “may only adjudicate actual, ongoing

controversies,” Honig v. Doe,

(1988), of which “the core component of standing

is an essential and unchanging part,” Lujan v. Def. of Wildlife,

(1992). To

establish standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins,

(2016). Standing “is not dispensed

in gross.” Town of Chester v. Laroe Ests., Inc.,

(2017) (internal quotation marks

omitted). That is, standing “must be demonstrated for each claim against each defendant.”

Whitlock v. U.S. Dep’t of Homeland Sec., No. 21-cv-807 (DLF),

, at *4 (D.D.C.

Feb. 11, 2022).

Defendants argue that Plaintiffs lack standing because they “seek to compel action on the

specific Visa Applications, which is the exclusive province of a U.S. consulate.” ECF No. 5 at 12.

The Court agrees with respect to the Secretary of State. As noted above, to establish standing as

to a defendant, Plaintiffs must show that their injuries are “causal[ly] connect[ed]” to each

defendant’s conduct and “likely” can be “redressed by a favorable decision.” Lujan, 504 U.S. at

560–61. Plaintiffs lack standing to sue the Secretary because they have failed to establish the

causation and redressability prongs against him.

The Secretary of State’s role in the visa-adjudication process has been circumscribed by

statute. As the D.C. Circuit has held, the Immigration and Nationality Act (“INA”) “grants

consular officers ‘exclusive authority to review applications for visas, precluding even the

Secretary of State from controlling their determinations.’” Nusrat v. Blinken, No. 21-cv-2801

4 (TJK),

, at *4 (D.D.C. Sept. 8, 2022) (quoting Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021) and Saavedra Bruno v. Albright,

(D.C.

Cir. 1999)). “Because only the consular offices, and not the Department of State, can grant

[Plaintiff’s] application[] . . . [he] cannot show that his injury is redressable by the Department of

State Officials.” Siddiqui v. Blinken,

, 75 (D.D.C. 2022).

Plaintiffs argue that the Secretary can redress their injuries because “[w]hile consular

officers possess exclusive authority over visa adjudications, this authority does not extend to

causing unjustified delays or failing to take action when a duty is clear.” ECF No. 6 at 6. Other

courts in this district have adopted that argument. See, e.g., Al-Gharawy v. Dep’t of Homeland

Sec.,

, 10 (D.D.C. 2022) (finding standing as to the Secretary of State because

the Secretary has “control over the timing by which the consular officer considers the applications

presented to her”); Lee v. Blinken, No. 23-cv-1783 (DLF),

, at *3 (D.D.C. Feb.

15, 2024) (same). Those decisions emphasize that in Baan Rao and Saavedra Bruno, the D.C.

Circuit only said that the Secretary is precluded from controlling the “determinations” of consular

officers, and that controlling the timing of visa adjudications is different from controlling the

determinations of the adjudication. See Al-Gharawy, 617 F. Supp. 3d at 10.

To be sure, neither Baan Rao nor Saavedra Bruno directly held that the Secretary is

precluded from directing consular officers to decide pending applications within a specific time.

But that question was not at issue in those cases. Focusing on the statutory text, however, the

Secretary is expressly precluded from “those powers, duties, and functions . . . relating to the

granting or refusal of visas,” which would include administrative guidance for the pace of

adjudicating visas or completing administrative processing.

(a) (emphasis added).

5 Thus, the Secretary of State’s ability to redress their alleged injuries has been circumscribed by

statute.

Plaintiffs also suggest that the Secretary of State has a general oversight role and is

“responsible for setting policies, procedures, and guidelines for visa processing and adjudication.”

ECF No. 6 at 6. But as Defendants correctly note, Plaintiffs here are not challenging any specific

Department rule, policy, practice, regulation, procedure, or guideline. Instead, they seek

declaratory relief that the Secretary has unreasonably delayed the adjudication of their specific

visa applications, and they request an order requiring the Secretary to complete the adjudication.

The Secretary has no role to play in that process. See Siddiqui, 646 F. Supp. 3d at 75 (D.D.C.

2022) (“[B]ecause [Plaintiff] does not challenge any policy or regulation of the Department,

[Plaintiff] cannot show that his injury is redressable by the Department of State officials.”). Thus,

the authority to redress Plaintiffs’ specific claims in this lawsuit lies exclusively with consular

officials, not the Secretary. Thus, the Court lacks subject-matter jurisdiction over the Secretary of

State and must dismiss him as a defendant.

This analysis, however, does not extend to the State Department. Both APA and

mandamus relief may be sought directly against an agency responsible for carrying out a statutory

duty. See Khoshnevisan v. United States Dep’t of State, No. 23-cv-3580 (TNM),

, at *1 n.1 (D.D.C. June 14, 2024) (citing In re Ctr. for Bio. Div.,

(D.C.

Cir. 2022));

(a) (“The reviewing court shall . . . compel agency action unlawfully

withheld or unreasonably delayed.”).1 Although the statutory authority to review applications is

While the APA contemplates relief against an agency, it also requires “[t]hat any 1

mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.”

. Plaintiffs request both preliminary and permanent injunctive relief. ECF No. 1 at 12. But whether Plaintiffs’ failure to name a specific federal officer who is personally responsible for compliance would

6 exclusively granted to consular officers, those officers are ultimately State Department officials.

See Da Costa v. Immigr. Inv. Program Off.,

(D.C. Cir. 2023) (“[T]he State

Department tracks visa availability, allocates visas, and, for visa-seekers residing outside the

United States, issues visas through its embassies and consulates worldwide to persons USCIS

determines to be eligible.”); see also Sedaghatdoust v. Blinken, No. 23-cv-3218 (TNM),

, at *2 (D.D.C. May 23, 2024) (explaining how Congress delegated to the State

Department the responsibility of defining “consular officers,” and the Department, in turn, defined

it to include the Deputy Assistant Secretary for Visa Services, along with her delegees at the State

Department). Thus, even though Congress has circumscribed the Secretary of State’s role in the

visa adjudication process, it is still carried out by officials within the State Department. Indeed,

other Courts in this jurisdiction have allowed similar suits to proceed against the State Department

as the lone defendant after dismissing other officials—including the Secretary of State—from the

action for lack of standing. See Sadeghi v. Dep’t of State, No. 24-cv-449 (TNM),

, at *1 n.1 (D.D.C. July 9, 2024); Yazdanpanahderav v. Dep’t of State, No. 23-cv-3688

(ACR),

, at *3 (D.D.C. June 14, 2024). Thus, the Court finds that Plaintiffs

have standing to sue the State Department.2

prevent the Court from granting injunctive relief under the APA is a merits question, not a jurisdictional issue. And because the Court finds that Plaintiffs have otherwise failed to state a claim for relief, it need not address whether they would have a right to injunctive relief under the APA. 2 Defendants claim that a suit against the Secretary of State and a suit against the State Department “effectively are one and the same,” suggesting that because there is no subject-matter with respect to the Secretary there should be no subject-matter jurisdiction as to the State Department as well. ECF No. 7 at 6. And it is true that the Supreme Court has held that suing an officer “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham,

(1985). But the Supreme Court there was merely distinguishing a suit against an official in his personal capacity as compared to

7 B. Plaintiffs Have Failed to State a Claim for Unreasonable Delay Under the APA or the Mandamus Act

Plaintiffs bring their unreasonable delay claims under § 706(1) of the APA and the

Mandamus Act. The Court applies the same legal standard to both claims. Skalka v. Kelly,

(D.D.C. 2017). In essence, the Court must determine “whether the agency’s

delay is so egregious as to warrant mandamus.” In re Core Commc’ns, Inc.

(D.C. Cir. 2008) (citation omitted).

To help guide this inquiry, the D.C. Circuit has laid out a six-factor test:

(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 effect of expediting delayed action on agency activities of a higher or competing priority;

(5) 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.

Telecomms. Rsch. and Action Ctr. v. FCC,

(D.C. Cir. 1984) (“TRAC”) (cleaned

up); see also Da Costa,

(“[T]o guide our unreasonable-delay analysis, we ordinarily

look to six non-exclusive TRAC factors.”). These factors “are not ‘ironclad,’ but rather are

intended to provide ‘useful guidance in assessing claims of agency delay.’” In re Core Commc’ns,

(quoting TRAC,

). Courts often address the factors by addressing

an official-capacity suit. Defendants cite no case holding that a suit against an agency is always the functional equivalent of a suit against that agency’s head.

8 them under “four basic inquiries.” Rashidi v. U.S. Dep’t of State, No. 23-cv-1569 (JEB),

, at *4 (D.D.C. Oct. 4, 2023).

“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, No. 22-cv-2732 (JEB),

, at *4 (D.D.C. Jan. 17, 2023)

(cleaned up).

In this case, taken together, the TRAC factors weigh strongly in the State Department’s

favor. Thus, even accepting Plaintiffs’ allegations as true, they do not state a claim for

unreasonable delay under this Circuit’s precedents and the case must be dismissed.

1. TRAC Factors 1 and 2

The first two TRAC factors are typically considered together. Milligan v. Pompeo,

, 317 (D.D.C. 2020). And the first is often considered the “most important.” In re

Core Commc’ns, Inc.,

. 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).

These first two factors, taken together, strongly favor the State Department. Plaintiffs

argue that the State Department’s delay in adjudication is unreasonable and that a clear “rule of

reason” exists under

(b), requiring an agency to conclude a matter “within a

reasonable time.” Compl. ¶ 46. But “[t]here is no congressionally imposed timeline” for the

embassy to adjudicate a visa application. Bagherian v. Pompeo,

, 95 (D.D.C.

2020). “To the contrary, Congress has given the agencies wide discretion in the area of

immigration processing.” Skalka, 246 F. Supp. 3d at 153–54. Thus, lacking a “set timeline, the

9 Court looks to case law for guidance.” Dastagir, 557 F. Supp. 3d at 165. In Da Costa, the D.C.

Circuit found a four-and-a-half-year delay not unreasonable.

. For their part,

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

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

, at *5 (quoting Rahman,

, at *4). Indeed, “[c]ourts in this District

consistently have held that two or three years does not constitute an unreasonable delay.” Tekle v.

Blinken, No. 21-cv-1655 (APM),

, at *3 (D.D.C. Apr. 29, 2022) (collecting

cases).3

Plaintiffs sued in June 2023, about four months after Emad’s visa application was “refused

for administrative processing,” and five months after Taghvaeiyazdeli’s application was refused

for the same. Thus, at this point they have waited about sixteen and fifteen months, respectively.4

Simply put, that delay does not approach “unreasonable” under the relevant case law. See Da

Costa, 80 F.4th at 339–340, 342 (noting that while “undoubtedly maddening,” a four-and-a-half-

3 Plaintiffs in other cases (although not this one) have pointed out that Congress has expressed its sense that “the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”

(b). But “a sense of Congress resolution is not law.” Emergency Coal. to Def. Educ. Travel v. Dep’t of Treasury,

, 14 n.6 (D.C. Cir. 2008). At most, Congress’s “aspirational statement” only slightly tilts the second TRAC factor in Plaintiffs’ favor. Da Costa,

(“This factor somewhat favors Plaintiffs, as they have waited longer than 180 days.”). It does no more than that because the “delay has not reached the level of disproportionality [courts] have previously held sufficient to grant relief.”

4 Plaintiffs note that, as of the time they filed suit, Defendants had received Emad’s visa application over three-and-a-half years earlier and Taghvaeiyazdeli’s almost two years earlier. See Compl. ¶ 40. But “[c]ourts in this District routinely analyze delay claims based on the date of placement in administrative processing, not the date that plaintiffs filed their application.” Sharifymoghaddam v. Blinken, No. 23-cv-1472 (RCL),

, at *5 n.4 (D.D.C. Mar. 5, 2024) (declining to measure delay from the date that plaintiffs submitted their initial I-140 petition); see also Nusrat,

, at *6 n.6 (explaining that courts “measure the period of delay from the last government action to the issuance of the opinion”).

10 year delay was “not sufficient to show that USCIS does not follow a rule of reason in processing”

the visa applications at issue).

2. TRAC Factor 4

The fourth TRAC factor considers the effect of expedition on an agency’s competing

priorities. TRAC,

. This factor often favors the agency and “carries the greatest

weight in many cases.” Milligan, 502 F. Supp. 3d at 319. In fact, so substantial is its weight that

“[t]his Circuit has refused to grant relief” based on the fourth factor “even [when] all the other

factors considered in TRAC favored it.” Id. (cleaned up). That is so because 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.’” Lee,

, at *6 (quoting In re Barr Lab’ys, Inc.,

, 75–76 (D.C. Cir. 1991)). In other

words, granting expedited agency action is inappropriate when that relief “would necessarily come

‘at the expense of other similarly situated applicants’” with “‘no net gain’” in adjudications

achieved. Da Costa, 80 F.4th at 343–44 (quoting Burwell, 812 F.3d at 192, and In re Barr Lab’ys,

Inc.,

).

In this case, Plaintiffs “ask[] for just that.” Dastagir, 557 F. Supp. 3d at 167. They seek

to compel the State Department to “promptly adjudicate” their visa applications. Compl. at 13.

But because consular “processing capacity is presently a zero-sum game,” Murway v. Blinken, No.

21-cv-1618 (RJL),

, at *4 (D.D.C. Feb. 16, 2022) (cleaned up), their requested

relief would amount to a “judicial reordering[] of agency priorities,” Rahman,

,

at *4. In other words, Plaintiffs seek to cut to the front of the line. Cf. Dastagir, 557 F. Supp. 3d

at 169 (“Dastagir offers no basis for judicial line-cutting those also waiting their turn.”). Ordering

the State Department to immediately schedule visa interviews for Plaintiffs and adjudicate their

11 visas is “the very type of agency action . . . that if compelled would presumably delay other

adjudications.” Xiaobing Liu v. Blinken,

, 13 (D.D.C. 2021) (citing Skalka,

). And even though “the effect of an individual case would be minimal, an

accumulation of such individual cases being pushed by judicial fiat to the front of the line would

erode the ability of agencies to determine their priorities.” Tate v. Pompeo,

,

150 (D.D.C. 2021). Thus, the fourth TRAC factor strongly supports the State Department.

3. TRAC Factors 3 and 5

Factors three and five involve “the interests prejudiced by delay,” including possible effects

on “human health and welfare.” TRAC,

; see also Didban v. Pompeo,

, 177 (D.D.C. 2020) (considering the third and fifth factors in tandem). Emad has been

separated from his mother in the United States for about ten years, has no other immediate family

members in Iran, and has been diagnosed with anxiety disorder, major depressive disorder, and

insomnia. Compl. ¶ 18. And the delay has caused both Emad and his mother to “remain in legal

limbo as to whether they are able to start their lives together as a family in the United States.”

. Similarly, Taghvaeiyazdeli and his wife have also suffered “significant, ongoing harm”

because they also remain uncertain as to whether they can start their lives together as husband and

wife in the United States.

. The Court is sympathetic to the unfortunate circumstances of

both Plaintiffs. But “[w]hile the Court does not doubt that [Plaintiffs] ha[ve] an interest in prompt

adjudication, so too do many others facing similar circumstances.” Palakuru v. Renaud,

, 53 (D.D.C. 2021). And to the extent these TRAC factors weigh in Plaintiffs’ favor,

it is clear “[t]hey do not ‘overcome the other factors that weigh strongly in the Government’s

favor.’” Dastagir, 557 F. Supp. 3d at 168 (citation omitted).

4. TRAC Factor 6

12 The sixth TRAC factor, which provides that “the court need not find any impropriety

lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed,’”

TRAC,

, is neutral. Although Plaintiffs allege an unreasonable delay and decry their

lack of information about the reasons for that delay, they cite no specific evidence of bad faith or

impropriety.

* * *

The Court takes notice of the “troubling backlog of petitions waiting for . . . adjudication.”

Da Costa,

. But after weighing the TRAC factors, the Court finds that Plaintiffs

have not stated a claim that the adjudication of their visa application has been unreasonably

delayed. In fact—unfortunately—their wait time “pales in comparison to the longer delays other

applicants have unsuccessfully challenged in this district.” Mohammad v. Blinken,

, 169 (D.D.C. 2021). In the end, delays “stemming from resource-allocation decisions

simply do not lend themselves to judicial reordering of agency priorities.” Milligan, 502 F. Supp.

3d at 319 (cleaned up). And they offer no reason for the Court to bump them to the front of the

line.

IV. Conclusion

For all these reasons, the Court will grant Defendants’ motion and dismiss the case. A

separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: July 23, 2024

13