UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) MANSOOR KHAN, ) ) Plaintiff, ) ) v. ) ) Case No. 23-cv-3046 (APM) RENA BITTER, in her official capacity, ) Assistant Secretary, U.S. Department of State, ) et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I.

Plaintiff Mansoor Khan seeks to compel Defendants, who are various federal officials sued

in their official capacities, to adjudicate his immediate-family visa application, which he filed in

February 2022. Plaintiff claims that the length of time he has waited constitutes agency action

unreasonably delayed 1 in violation of the Administrative Procedure Act (“APA”),

(1), and constitutes a breach of contract. Defendants move to dismiss the case for, among

other grounds, failure to state a claim. Defendants’ motion is granted on that basis. 2

II.

A.

The Immigration and Nationality Act (“INA”),

et seq., authorizes the

issuance of immigrant visas to the immediate relatives of U.S. citizens. 8 U.S.C.

1 Plaintiff does not allege that the length of time he has waited constituted agency action unlawfully withheld. 2 Defendant makes a threshold argument for dismissal, claiming the Plaintiff’s unreasonable delay claim is not cognizable because the allocation of consular services is discretionary. Defs.’ Mot. to Dismiss & Mem. in Supp., ECF No. 6 [hereinafter Defs.’ Mot.], at 6. The court does not address this argument, in light of its conclusion that Plaintiff fails to state a claim. § 1151(b)(2)(A)(i). A U.S. citizen seeking to secure such a visa must file a Form I-130, Petition

for Alien Relative, with U.S. Customs and Immigration Services (“USCIS”). Id.

§ 1154(a)(1)(A)(i);

(a)(1). If USCIS approves the petition, it forwards the case to

the National Visa Center (“NVC”), which is the U.S. Department of State’s visa application

processing center.

§ 204.2(a)(3). The noncitizen relative must then submit additional

paperwork, such as Forms DS-230 and 260 and application fees, to NVC. See

(outlining application fees and required documentation). After processing the required materials,

NVC schedules an interview for the applicant with a consular officer at the embassy with

jurisdiction over the applicant’s residence. See

§ 42.62. Following the interview, the consular

officer must either issue or refuse the visa. Id. § 42.81(a).

B.

Plaintiff is a citizen of Pakistan, and he is the spouse of a U.S. citizen. Compl., ECF No. 1,

¶¶ 2, 8, 11 [hereinafter Compl.]. In February 2022, Plaintiff’s wife, Humaira Ansar Khan, filed a

visa application with USCIS on his behalf. Id. ¶ 2. In November 2022, USCIS forwarded

Plaintiff’s approved I-130 petition to the NVC. See id. ¶¶ 19–20. The NVC informed Plaintiff

that his case was documentarily complete in February 2023, and that his “visa application was

pending to be scheduled for an interview.” Id. ¶ 22. Plaintiff has yet to be scheduled for an

interview.

With the fate of his application uncertain, Plaintiff states that he and his family members

are “suffering from significant personal, financial, and emotional hardship due to the delay.” Id.

¶ 7. According to Plaintiff’s Complaint, “it pains [him] to communicate with” his daughter and

wife from abroad while his family endures financial and mental health challenges. Id. ¶¶ 7–8.

2 On October 13, 2023, approximately nine months after his application was deemed

documentarily complete, Plaintiff filed the instant lawsuit, raising a claim of unreasonable delay

under the APA and the Mandamus Act. See id. at 5–6. Plaintiff contends that Defendants have

violated the APA because they have failed to carry out their adjudicative functions by not

processing Plaintiff’s visa application within a reasonable time. Id. ¶ 28. Plaintiff seeks an order

from the court mandating that Defendants process his visa application within 15 calendar days of

issuing judgment or as soon as reasonably possible. Id. ¶ 37. On November 18, 2023, Defendants

moved to dismiss. Defs.’ Mot.

III.

Defendants have moved to dismiss under Rules 12(b)(1) and (b)(6). The court plainly has

subject matter jurisdiction over an APA cause of action, see Califano v. Sanders,

,

106–07 (1977), so the only question is whether Plaintiff has stated a claim.

To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient

factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)).

A facially plausible claim pleads facts that are not “‘merely consistent with’ a defendant’s

liability” but that “allow[ ] the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal,

(quoting Twombly,

); see also

Rudder v. Williams,

(D.C. Cir. 2012). In deciding a motion under Rule 12(b)(6),

the court must consider the whole complaint, accepting all factual allegations as true, “even if

doubtful in fact.” Twombly,

. Courts do not, however, “assume the truth of legal

conclusions . . . nor . . . accept inferences that are unsupported by the facts set out in the complaint.”

Arpaio v. Obama,

(D.C. Cir. 2015) (citation omitted).

3 VI.

A.

To state a claim for unreasonable delay under the APA, a plaintiff must plausibly allege

that (1) “the agency failed to take a discrete action that it is required to take” and (2) “the delay

was unreasonable.” Da Costa v. Immigr. Inv. Program Off.,

, 340 (D.C. Cir. 2023)

(internal quotation marks and citation omitted). Defendants contend that Plaintiff cannot satisfy

either requirement. The court does not consider the first, because it dismisses the claim based on

the second.

When determining whether a delay in agency action is unreasonable, the court is guided

by the familiar six TRAC factors:

(1) [T]he 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.

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

(D.C. Cir. 1984) (internal

citations omitted). The D.C. Circuit recently balanced these factors in the context of an

unreasonable delay claim involving the processing of EB-5 investor visa applications,

see Da Costa, 80 F.4th at 338–39, and it held that a four-and-a-half-year wait for a visa

adjudication was not unreasonable, see id. at 342, 346. Da Costa compels the same result here.

Moreover, Da Costa also refutes Plaintiff’s suggestion that his unreasonable delay claim cannot

4 be decided on a motion to dismiss, Pl.’s Opp’n, ECF No. 7 [hereinafter Pl.’s Opp’n], at 19 (ECF

pagination). See Da Costa, 80 F.4th at 338.

First and Second TRAC Factors. “The first two factors are often considered together[.]”

Pourabdollah v. Blinken, No. 23-cv-1603 (DLF),

, at *7 (D.D.C. Feb. 7, 2024)

(citation omitted). Defendants assert that as Congress has not established a timetable in which

courts must adjudicate visa applications, courts should look to caselaw and the agency is entitled

deference. Defs.’ Mot. at 15–16. In response, Plaintiff argues that the agency has a

nondiscretionary duty to adjudicate visa applications within a reasonable time and the delay must

be evaluated based on a “rule of reason.” Pl.’s Opp’n at 24. To establish a timeline, Plaintiff cites

to 8 U.S.C § 1571(b), which expresses “the sense of Congress” that “immigrant benefit

application[s] should be completed not later than 180 days after the initial filing,” and “a November

2021 cable transmitted to all consular posts” from the State Department noting “that Congress

instructed the Department to process immediate relative immigrant visa cases such as spouses and

or fiancé visa applications within 30 days.” Pl.’s Opp’n at 24–25.

Defendants are correct that Congress has not supplied a timetable for the agency to

adjudicate immediate-relative visa applications. The 180-day period cited by Plaintiff is no more

than an “aspirational statement” that does not establish a firm timetable. Da Costa, 80 F.4th at

344 (recognizing that Congress has made an “aspirational statement” that visas should be

processed within 180 days). As to the “November 2021 cable,” Plaintiff has not submitted it to

the court, but he appears to be referring to the policy statement in § 237 of

Appendix G, which provides that “[i]t shall be the policy of the Department of State to process

visa applications of immediate relatives of United States citizens . . . within 30 days of receipt of

all necessary documents from the applicant and the Immigration and Naturalization Service.” 113

5 Stat. 1501A-430, § 237(a). The problem with this citation is two-fold. First, it addresses the

“process[ing]” of immediate relative visa applications, not their adjudication. Janay v. Blinken,

No. 23-cv-03737 (RDM),

, at *12 (D.D.C. July 16, 2024). Second, § 237(a)

reflects a policy, “not a rule or command.” Id. It therefore does not supply a congressionally

mandated rule of reason against which to measure timeliness.

“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.”

Sarlak v. Pompeo, No. 20-cv-35 (BAH),

, at *6 (D.D.C. June 10, 2020). In this

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.”

(internal

quotation marks and citation omitted). Thus, the approximately 18-month delay between February

2023, when NVC notified Plaintiff that his case was “Documentarily Qualified,” Compl. ¶ 22, and

the date of this opinion is, at best, neutral. See Da Costa, 80 F.4th at 344 (finding that the multi-

year passage of time in that case “has not reached the level of disproportionately [the Circuit had]

previously held sufficient to grant relief”).

Fourth TRAC Factor. In Da Costa, the court concluded that the fourth TRAC factor—the

effect of competing agency priorities—“strongly disfavor[ed]” the plaintiffs because moving their

“petitions to the front of the line would disrupt competing agency priorities with no overall

improvement in the [agency’s] backlog.” Id. at 343. So too here. Granting Plaintiff the relief he

seeks simply would move him “ahead of longer-pending petitions” with no overall gain in

administrative processing. Id. at 343–44.

Plaintiff contends that Defendants fail to present evidence that granting Plaintiff relief

would negatively impact “agency activities of a higher or competing priority.” Pl.’s Opp’n at 21.

But the relief Plaintiff seeks would do just that, as he insists that the agency put aside other

6 applications and finalize his within 15 business days or “as soon as reasonably possible,” Compl.

at 8. See In re Barr Laboratories, Inc.,

(D.C. Cir. 1991). This factor thus “weighs

against judicial intervention to expedite [the] adjudication” he seeks. Da Costa, 80 F.4th at 344.

Third and Fifth TRAC Factors. The overlapping third and fifth TRAC factors consider

whether “human health and welfare are at stake” and the “nature and extent of the interests

prejudiced by delay.” TRAC,

. Plaintiff alleges that, as a result of Defendants’

delay, he has been forced to live apart from his wife and daughter, experiencing a negative impact

on his mental, emotional, and physical health and welfare, and that the court must consider his

individual harm. Pl.’s Opp’n at 22. The court sympathizes with Plaintiff and his family for the

difficulties they have faced. But such harms, “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 Plaintiff’s favor. Da Costa, 80 F.4th at 345.

Sixth TRAC Factor. Finally, “the court need not find any impropriety lurking behind

agency lassitude in order to hold that agency action is unreasonably delayed.” TRAC,

(internal quotation marks and citation omitted). Here, Plaintiff does not present evidence

that the agency acted improperly. See Pl.’s Opp’n at 27.

* * *

After weighing the TRAC factors, the court concludes that Plaintiff has failed to state a

claim that the now 18-month delay in processing his visa application is unreasonable. See, e.g.,

Barazandeh v. U.S. Dep’t of State, No. CV 23-1581 (BAH),

, at *10 (D.D.C. Jan.

30, 2024) (collecting similar cases).

7 B.

The court likewise dismisses Plaintiff’s claims under the Mandamus Act and for breach of

contract. The Mandamus Act claim fails because the APA provides an adequate remedy at law.

See, e.g., Arabzada v. Donis, No. 23-cv-655 (RC),

, at *5 n.1 (D.D.C. Mar. 19,

2024); Rai v. Biden,

, 200 (D.D.C. 2021). Plaintiff concedes the insufficiency

of his breach of contract claim. Pl.’s Opp’n at 28.

V.

For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 6, is granted. A final,

appealable order accompanies this Memorandum Opinion.

Dated: August 20, 2024 Amit P. Mehta United States District Court Judge

8