UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IDIL DALMAR, et al.,

Plaintiffs,

v. No. 23-cv-3315 (DLF)

ANTONY J. BLINKEN, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs filed this action under the Administrative Procedure Act,

et seq.,

and the Mandamus Act,

, to compel adjudication of their visa applications.

Compl. 38–39, Dkt. 1. Before the Court is the defendants’ motion to dismiss under the Federal

Rules of Civil Procedure 12(b)(1) and (12)(b)(6) and the plaintiffs’ motion for reconsideration.

See Mot. to Dismiss at 2, Dkt. 7; Pl.’s Mot. for Reconsideration, Dkt. 10. For the following reasons,

the Court will grant the defendants’ motion and dismiss the petition. Accordingly, it will deny the

plantiffs’ motion as moot.

I. BACKGROUND

A. Statutory and Regulatory Background

The Immigration and Nationality Act authorizes the issuance of visas to different

categories of immigrants, including noncitizen spouses of U.S. citizens or lawful permanent

residents.

(a). A U.S. citizen or lawful permanent resident initiates this process

by filing a Form I-130, Petition for Alien Relative, with the United States Citizenship and

Immigration Services.

§ 1154. If approved, the beneficiary may apply for a visa with the status of “immediate relative” of petitioner.

(a); see

(a)(1);

.

Part of the application process involves a consular interview.

. Following

the interview, the consular officer must either issue the visa or refuse it under applicable law.

§ 42.81(a). Officers may, however, request additional information from applicants if current

information is “inadequate to determine the alien’s eligibility.” Id. § 42.63(c). As relevant here,

officers may require applicants to provide additional information through Form DS-5535,

Supplemental Questions for Visa Applicants. See 60-Day Notice of Proposed Information

Collection: Supplemental Questions for Visa Applicants,

(Sept. 22, 2023). If

the applicant produces additional evidence “tending to overcome the ground of ineligibility on

which the refusal was based, the case shall be reconsidered.”

(e).

B. Factual Background

Five United States citizens filed Form I-130 Petitions for Alien Relative on behalf of their

Somalian spouses. Compl. ¶¶ 28–37. After those petitions were approved, the beneficiary spouses

completed consular interviews in July to September of 2023.

. Following those interviews,

the spouses were given temporary § 221(g) refusal notices and asked to submit Form DS-5535

responses providing additional background information such as places of employment, travel, and

social media accounts. Id. ¶ 115–116. After submitting the requested information, their

applications remain in administrative processing. Id. ¶ 117, 119.

Plaintiffs filed this action on November 5, 2023, seeking declaratory and injunctive relief

to compel the State Department to adjudicate their cases under the Administrative Procedure Act,

, and the Mandamus Act,

. Compl. at 38–39. The defendants

2 moved to dismiss plaintiffs’ complaint for failure to state a claim and lack of jurisdiction under

Rules 12(b)(1) and 12(b)(6). See Mot. to Dismiss at 2.

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). A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because

“mootness itself deprives the court of jurisdiction.” Indian River Cnty. v. Rogoff,

, 18–19 (D.D.C. 2017). “Federal courts lack jurisdiction to decide moot cases because their

constitutional authority extends only to actual cases or controversies.” Conservation Force, Inc.

v. Jewell,

(D.C. Cir. 2013) (quoting Iron Arrow Honor Soc’y v. Heckler,

(1983)); see also U.S. Const. art. III, § 2. A case or claim is moot “when the issues

presented are no longer live or the parties lack a legally cognizable interest in the outcome.”

Schmidt v. United States,

(D.C. Cir. 2014) (quoting Larsen v. U.S. Navy,

(D.C. Cir. 2008)).

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)

(internal quotation marks and citations omitted). 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.

3 Cir. 2005) (internal quotation marks omitted). A court that lacks jurisdiction because the claim is

moot 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 Atlantic 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 “more than a sheer possibility that a defendant has acted unlawfully.”

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.”

(citations omitted).

III. ANALYSIS

A. Mootness

Defendants argue the plaintiffs lack subject-matter jurisdiction because they already

obtained the relief requested in their petition: a final adjudication of their immigrant visa

applications. See Mot. to Dismiss at 5–8. That is incorrect.

The complaint plainly alleges the plaintiffs received “temporary 221(g) refusal notices”

and their visa applications remain in administrative processing without a final decision. Compl. ¶¶

115, 119, 9. At the motion-to-dismiss stage, the Court must “assum[e] that all the allegations in

the complaint are true (even if doubtful in fact).” Twombly,

. Although the

defendants emphasize that plaintiffs’ applications have been “refused,” “[w]hile a visa application

must be either granted or refused at an initial interview, that refusal is often not final. Instead, a

4 refusal may be entered for ‘administrative processing,’ and applicants may have an opportunity to

provide additional information to establish eligibility.” Ramirez v. Blinken,

, 87

(D.D.C. 2022) (quoting 9 FAM 306.2-2(A)(a)(2)(a); Administrative Processing Information, U.S.

Dep’t of State Bureau of Consular Affs., https://travel.state.gov/content/travel/en/us-visas/visa-

information-resources/administrative-processing-information.html). Courts in this circuit have

consistently held as much. See, e.g., id.; Carter v. DHS, No. 21-cv-422 (RCL),

,

at *3 n.3 (D.D.C. Dec. 22, 2021); Joorabi v. Pompeo,

, 100 (D.D.C. 2020);

Vulupala v. Barr,

, 98–99 (D.D.C. 2020). The Court likewise concludes that

visa application refusals for further administrative processing are not final agency actions.

B. Doctrine of Consular Nonreviewability

The Court also rejects the defendants’ argument that the doctrine of consular

nonreviewability bars the plaintiffs’ suit. See Mot. to Dismiss at 9–10. The doctrine of consular

reviewability has no application here. “[T]he consular nonreviewability doctrine applies only to

final decisions and thus does not bar judicial review of a consular officer’s delay when a visa

application has been provisionally refused pending a final decision.” Al-Gharawy v. DHS,

, 11 (D.D.C. 2022); see also Akrayi v. U.S. Dep’t of State, 22-cv-1289 (CRC),

, at *2 (D.D.C. Mar. 9, 2023). As discussed supra in § III.A, temporary refusals for

further administrative processing are not final agency action.

Moreover, the Court does not share the defendants’ view that the D.C. Circuit’s decision

in Baan Rao Thai Restaurant v. Pompeo,

(D.C. Cir. 2021), expanded the doctrine

of consular nonreviewability to administrative-processing claims. See Pourabdollah v. Blinken,

No. 23-cv-1603,

at *5 (D.D.C. Feb. 7, 2024); Ahmadi v. Scharpf, No. 23-cv-

953,

, at *4 n.5 (D.D.C. Feb. 12, 2024). Joining “[o]ther judges in this district,”

5 the Court noted in Pourabdollah that “Baan Rao’s use of the word ‘withhold’” did not sweep “in

consular decisions to delay final adjudication on a visa application” and it occurred in the context

of “a challenge to final visa denials and not to processing delays.” Pourabdollah,

, at *5 (cleaned up). The Court incorporates that discussion here. The doctrine of consular

nonreviewability thus does not bar this suit.

C. Unreasonable-Delay Claims

Although the Court rejects the defendants’ threshold arguments, it concludes that the

plaintiffs’ APA and mandamus claims for unreasonable delay fail to state a claim. 1 The Court will

assume without deciding that the plaintiffs have alleged that the defendants are subject to a

discrete, required duty. 2 But the defendants have not suffered an unreasonable delay “so egregious

as to warrant mandamus.” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008) (cleaned

up).

To evaluate whether an agency’s delay is unreasonable, courts in this district apply the six-

factor test set forth in Telecommunications Research & Action Center (“TRAC”) v. FCC,

(D.C. Cir. 1984). The TRAC factors are as follows:

1 Courts review claims of unreasonable delay in processing immigration petitions according to “the same [standard] under both § 706(1) of the APA and the Mandamus Act,

.” Skalka v. Kelly,

(D.D.C. 2017). 2 As the Court previously held in Pourabdollah, a delay in deciding whether to grant or refuse a visa to a specific applicant “is clearly a discrete agency action” rather than a “broad programmatic attack.” Pourabdollah,

, at *6 n.5 (quoting Khazaei v. Blinken, No. 23-cv-1419 (JEB),

, at *6 (D.D.C. Sept. 18, 2023)). Further, the Court is bound to follow the D.C. Circuit's holding that the APA “imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time’ and authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed.’” Mashpee Wampanoag Tribal Council, Inc. v. Norton,

, 1099–1100 (D.C. Cir. 2003) (emphasis added) (quoting

(b), 706(1)).

6 (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.

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

(D.C. Cir. 1999) (internal

quotation marks omitted) (quoting TRAC,

). The TRAC factors “are not ‘ironclad,’

but rather are intended to provide ‘useful guidance in assessing claims of agency delay.’” Core

Commc’ns,

(quoting TRAC,

). Here, the balance of the factors

favors defendants. 3

3 Contrary to the plaintiffs’ assertions, it is not premature to adjudicate their unreasonable-delay claim at the motion-to-dismiss stage. See Opp’n at 31–33, Dkt. 8. Courts in this district routinely decide whether an agency’s delay is unreasonable when processing claims at the motion-to-dismiss stage. See Palakuru v. Renaud,

, 50 (D.D.C. 2021) (collecting cases), appeal dismissed, No. 21-5048,

(D.C. Cir. Apr. 15, 2021); Khan v. Blome, No. 22-cv-2422 (JEB),

, at *4 (D.D.C. Nov. 29, 2022). So long as a “record contains enough facts to evaluate the TRAC factors” at the motion-to-dismiss stage, “then a Court may appropriately decide to do just that.” Da Costa v. Immigr. Inv. Program Off.,

, 12 (D.D.C. 2022), aff’d,

(D.C. Cir. 2023) (quoting Sarlak v. Pompeo, No. 20-cv-35 (BAH),

, at *5 (D.D.C. June 10, 2020)). This record—including the plaintiffs’ 39-page complaint and 10 attachments to the complaint— satisfies that standard.

7 1. TRAC Factors 1 and 2

The first two TRAC factors concern the length of the delay. The factors are often

considered together, see, e.g., Tate v. Pompeo,

, 148 (D.D.C. 2021), appeal

dismissed, No. 21-5068,

(D.C. Cir. July 22, 2021), and the first TRAC factor is

considered the “most important” of the six, Core Commc’ns,

. 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). Both of these factors favor defendants.

“Congress has given the agencies wide discretion in the area of immigration processing,”

Skalka, 246 F. Supp. 3d at 153–54, 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,

, at *6. Courts have permitted delays of over two years in other I-130

cases. See, e.g., Tahavori v. Blinken, No. 23-cv-1460 (JDB),

, at *5 (D.D.C.

March 28, 2024) (two year and three month delay); Khan v. Bitter, 23-cv-1576 (BAH),

, at *5 (D.D.C. Feb. 23, 2024) (29-month delay); Eljalabi v. Blinken, No. 21-cv-1730 (RC),

, at *5 (D.D.C. July 14, 2022) (nearly two year delay). Indeed, courts generally

conclude that immigration delays “between three to five years are often not unreasonable.”

Rahman v. Blinken, No. 22-2732 (JEB),

, at *4 (D.D.C. 2023) (cleaned up).

The plaintiffs point out that 28 to 33 months have elapsed since they filed their I-130

petitions. See Opp’n at 35. But that is well within the time frame courts have permitted. See

Rahman,

, at *4. In any event, the plaintiffs calculate the length of elapsed time

incorrectly. Instead of the initial petition, the clock starts with the “the last agency action”—in

this case, the temporary refusals. See Barazandeh v. U.S. Dep’t of State, No. 23-1581 (BAH),

8

, at *7 n.7 (D.D.C. Jan. 30, 2024) (“The proper method for calculating delay

. . . is the length of time between the last action the government took on a visa application and the

filing of plaintiff’s complaint.”). The plaintiffs’ claims were refused between September and

October of 2023—only 2 months before they filed this suit. Compl., Ex. E, CEAC Online Case

Statuses, Dkt. 1-5. Even if the Court considers the ensuing time, the plaintiffs have waited for less

than a year. An eleven-month delay does not warrant judicial intervention.

The plaintiffs’ arguments to the contrary are unpersuasive. They point to two statutory

provisions—the District of Columbia Appropriations Act and

(b)—that purport to

provide a “congressionally supplied yardstick.” Sarlak,

, at *6. This Court has

previously rejected identical arguments in Lee v. Blinken, No. 23-cv-1783 (DLF),

, at *6 (D.D.C. Feb. 15, 2024). Neither statute creates a mandatory deadline for the State

Department. See

As previously explained, even if the District of Columbia Appropriations

Act and § 1571(b) “add some weight in a plaintiff’s favor for the second TRAC factor,” that weight

does not overwhelm the other circumstances weighing in favor of the defendants under the first

two TRAC factors. Arab v. Blinken,

, 70 (D.D.C. 2022).

2. TRAC Factor 4

The fourth factor also favors defendants. This factor considers the effect of prioritizing

one agency action over others. See TRAC,

. Like the first factor, the fourth TRAC

factor also weighs heavily in the analysis. Cf. Da Costa, 643 F. Supp. 3d at 15 (citing Milligan v.

Pompeo,

, 319 (D.D.C. 2020)). In fact, “[t]his Circuit has refused to grant

relief, even [when] all the other factors considered in TRAC favored it, where a judicial order

putting the petitioner at the head of the queue would simply move all others back one space and

9 produce no net gain.” Milligan, 502 F. Supp. 3d at 319 (quoting Mashpee,

)

(cleaned up).

In directing agencies which tasks to prioritize, courts should be reticent to intervene,

particularly if such intervention would move the petitioner to “the head of the queue” and “simply

move[] all others back one space.” In re Barr Labs., Inc.,

, 75–76 (D.C. Cir. 1991)

(“In short, we have no basis for reordering agency priorities. The agency is in a unique—and

authoritative—position to view its projects as a whole, estimate the prospects for each, and allocate

its resources in the optimal way. Such budget flexibility as Congress has allowed the agency is not

for us to hijack.”). Such is the case here.

To grant the plaintiffs’ request for relief “would simply reorder a queue of applicants

seeking adjudication.” Tate, 513 F. Supp. 3d at 149 (internal quotation marks omitted). As then-

Judge Boasberg found, visa “[p]rocessing capacity is presently a zero-sum game, and granting the

plaintiff’s request to expedite would necessarily mean additional delays for other applicants—

many of whom undoubtedly face hardships of their own.” Khan v. Blinken, No. 21-cv-1683 (JEB),

, at *4 (D.D.C. Nov. 17, 2021) (citation omitted).

Although the plaintiffs are correct that the defendants have not alleged significant visa

application backlogs like those that occurred during the COVID-19 pandemic, see Tate, 513 F.

Supp. 3d at 149, judicial restraint is not limited to times of crisis. Indeed, any judicial order that

requires “an agency to expedite the review of a particular visa application results in line-jumping

and ultimately delays the final adjudication of the applications that were skipped.” Janay v.

Blinken, --- F. Supp. 3d ---,

, at *13 (D.D.C. July 16, 2024) (quotation omitted).

The defendants have properly pleaded as much.

Factor four thus adds to the scales already tipped in the defendants’ favor.

10 3. TRAC Factors 3 and 5

TRAC factors three and five concern the “health and welfare . . . at stake” and “the interests

prejudiced by delay.” TRAC,

. These factors, often considered in tandem, see, e.g.,

Didban v. Pompeo,

, 177 (D.D.C. 2020), slightly favor the plaintiffs.

The plaintiffs argue the delay in processing their visa applications has caused them to

“miss[] memories, milestones like the holiday season they are currently spending apart, and the

simple shared joys of daily family life.” Compl. ¶ 176. Additionally, they claim they are

experiencing an “immense amount of financial strain.”

. Financial risks are “inherent in

the application process.” Da Costa, 643 F. Supp. 3d at 15 (alterations and quotation marks

omitted), and these allegations, standing alone, do not suggest the plaintiffs are in a worse position

than a visa applicant who merely claims that his life has been put “on hold” by the visa delay.

Palakuru, 521 F. Supp. 3d at 53. But the plaintiffs also allege the delay is affecting their mental

health and welfare, causing “severe emotional distress and psychological harm to the entire

family.” Compl. ¶ 124. On balance, these factors lean slightly towards plaintiffs, although they

do not counteract the weight of TRAC factors one, two, and four.

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 (CKK),

, at *11 (D.D.C. Oct. 23, 2023). This factor favors neither party. The plaintiffs allege

that the defendants acted in bad faith by claiming there was a “queue” for visa applications, when

visa applications can be prioritized in various ways based on petitioner’s status. Opp’n at 45. But

even if applications are not processed in a strict queue, processing visa applications is still a “zero

sum game.” Khan,

, at *4. Defendants did not act in bad faith in pointing out

11 that reality. The plaintiffs further contend that defendants acted in bad faith by “redefin[ing]”

temporary § 221(g) refusals as final. Compl. ¶ 173. Although this Court rejects the defendants’

characterization of the administrative processing, a losing legal argument is not necessarily one

made in bad faith. On the existing record, the Court cannot draw a plausible inference of bad

faith. Thus, this factor “does not alter the Court’s analysis.” Fakhimi,

, at *11

* * *

Taken together, the TRAC factors heavily favor the defendants. Accordingly, the Court

concludes that the plaintiffs have failed to state a claim for unreasonable delay under the APA and

are not entitled to mandamus relief. The Court will dismiss Counts 2 through 5 of the Petition. 4

D. Remaining APA Claim

The plaintiffs’ final claim challenges the DS 5535 procedure under § 706(2) of the APA.

Compl. ¶ 131, 135. Ordinarily, agency actions are subject to judicial review if they are “arbitrary,

4 The plaintiffs purport to bring Count 2 under § 706(2)(A). On the Court’s reading of the complaint, the plaintiffs’ § 706(2)(A) claim is based on the defendants “unlawfully with[olding] agency action.” Compl. ¶ 141. But a claim for “agency action unlawfully withheld or unreasonably delayed” arises under § 706(1), not § 706(2)(A).

(1). Even assuming the plaintiffs intended to plead a § 706(2)(A) claim, the challenged action must be a final agency action. Am. Anti-Vivisection Soc’y v. USDA,

(D.C. Cir. 2020) (quoting Lujan v. Nat’l Wildlife Fed’n,

(1990)). Here, however, the plaintiffs concede that they “have yet to receive a final adjudication of their immigrant visa application,” Compl. ¶ 9, and they rely heavily on the fact “there has been no final decision” in their opposition brief, Opp’n at 14. As such, they fail to allege a crucial element under § 706(2)(A).

In addition, both Counts 2 and 3 assert a “withholding” claim under § 706(1). See Compl. ¶¶ 136–163. But plaintiffs fail, in any respect, to “distinguish[] between visa adjudications being ‘unlawfully withheld’ as opposed to ‘unreasonably delayed’ under § 706(1).” Tate, 513 F. Supp. 3d at 147 n.6. The Court’s analysis in § III.C “of plaintiffs’ claim that agency action was unlawfully delayed therefore addresses the entirety of plaintiffs’ § 706(1) claims to compel agency action.” Id.

12 capricious, an abuse of discretion, or otherwise not in accordance with law” or fail to follow

mandatory procedure.

(2)(A), (D). The APA precludes judicial review, however,

if the challenged action is “committed to agency discretion by law.”

§ 701(a)(2). Under this

standard, “review is not to be had if the statute is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney,

(1985). That is the case here.

The plaintiffs argue that preventing them from submitting DS-5535 responses until after

their consular interview “sabotages the ability of immigrant visa applicants to furnish all the

information necessary to the consular officer at the visa interview.” Compl. ¶ 134. But the relevant

statutory provision,

, grants the agency broad discretion for determining the “form

and manner” of visa applications.

§1202(a). When considering this very provision, the D.C.

Circuit concluded that “the broad language of the statute suggests that the State Department policy

is unreviewable.” Legal Assistance for Vietnamese Asylum Seekers (“LAVAS”) v. Dep’t of State,

(D.C. Cir. 1997). Although the LAVAS court addressed a different portion

of the statutory language, its conclusion applies with equal weight to this provision. Indeed, “[t]his

section grants to the Secretary discretion to prescribe the [manner in] which aliens apply for

immigrant visas without providing substantive standards against which the Secretary’s

determination could be measured.”

The procedure for adjudicating visa applications—namely

the submission of DS-5535 following consular interviews—is thus nonreviewable.

13 CONCLUSION

For the foregoing reasons, the Court grants the defendant’s Motion to Dismiss, Dkt. 7, and

denies the plaintiffs’ Motion for Reconsideration, Dkt. 10, as moot. A separate order consistent

with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge August 26, 2024

14