UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

OSMAN GUNDAS, : : Plaintiff, : Civil Action No.: 24-1064 (RC) : v. : Re Document No.: 11 : ANTONY J. BLINKEN, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Osman Gundas, a citizen of Turkey, brings this suit to compel Antony Blinken,

in his official capacity as Secretary of State, Conor McGuire, in his official capacity as Acting

Consular Chief, and other officials (collectively, the “Government”)—to adjudicate his visa

application, which has now been in administrative processing for approximately eighteen

months. Generally speaking, Mr. Gundas alleges that the Government has improperly withheld

and unreasonably delayed action on his visa application in violation of the Mandamus Act and

the Administrative Procedure Act (“APA”). The Government has moved to dismiss Mr.

Gundas’s complaint. For the reasons set forth below, the motion to dismiss is granted.

II. BACKGROUND

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”),

et seq., provides for the

temporary admission of nonimmigrant visa applicants into the United States “to perform services

. . . in a specialty occupation” through the H-1B visa program.

(a)(15)(H)(i)(b). The H-1B visa allows these specialized workers to work at a United States company for up to a

three-year period with the ability to extend the visa for additional lengths of time. See U.S.

Dep’t of State, H-1B Specialty Occupations, DOD Coop. Rsch. and Dev. Project Workers, and

Fashion Models, https://perma.cc/63T8-88PU. An H-1B visa requires the applicant to complete

numerous steps. See

Applicants must receive both an approved labor certification and an

approved visa petition from their employers and fill out various forms.

The applicant bears

the burden of showing that they are eligible for the visa.

.

Typically, an applicant for an H-1B visa must undergo an in-person interview with a

consular officer.

§ 1202(h). At the end of the interview, State Department regulations

require that the consular officer either issue the visa, refuse the visa, or discontinue granting the

visa.

(a); see Ameer v. Schofer, No. 23-cv-3066,

, at *4

(D.D.C. June 4, 2024). “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

determines that he needs further information, he may “refuse” the visa pending further

administrative processing pursuant to Section 221(g) of the INA, which typically consists of

additional information-gathering. See U.S. Dep’t of State, Admin. Processing Info.,

https://perma.cc/44NK-RVZE; see

(g); Giliana v. Blinken,

,

18 (D.D.C. 2022).

2 B. Factual Background

Plaintiff Osman Gundas is a citizen of Turkey and currently lives in Iraq with his wife

and son. Am. Compl. ¶¶ 1, 18, ECF No. 10. In April 2012, Mr. Gundas was issued a B-2 tourist

visa and traveled to the U.S. “for a number of visits in 2012 and again in 2018, none of them

lasting longer than two weeks.”

. In July 2019, Mr. Gundas’s visa was revoked on the

basis that “subsequent to the visa’s issuance, information [came] to light indicating that [Mr.

Gundas] may be inadmissible to the United States and therefore ineligible for a visa.”

.

In 2022, Mr. Gundas was sponsored for an H-1 visa to teach science in a school in Ohio.

. The visa was approved by U.S. Citizenship and Immigration Services (“USCIS”) for a

one-year period from April 2022 to March 2023.

After attending an interview at the U.S.

Consulate in Iraq in May 2023, Mr. Gundas was informed that his case was in “administrative

processing.”

There were no further updates or responses, and the petition eventually expired

in March 2023.

Several months later, in May 2023, Mr. Gundas was sponsored for a second H-1 visa by

another school in Florida.

. This petition was approved by USCIS, with a validity date

from August 2023 to June 2026.

The following month, Mr. Gundas filed a DS-160

application for a non-immigrant visa and his wife and son applied for H-4 visas.

H-4 visas

are issued to spouses and children of H-1 visa holders. U.S. Citizenship & Immigrat. Servs.,

Employment Authorization for Certain H-4 Dependent Spouses, USCIS,

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-

occupations/employment-authorization-for-certain-h-4-dependent-spouses. In June 2023, Mr.

Gundas and his family were interviewed at the U.S. Consulate in Iraq. Am. Compl. ¶ 22. After

the interview, Mr. Gundas was given a written notice stating, “a visa could not be issued because

3 the case was undergoing further administrative processing.”

. Mr. Gundas sought

congressional intervention from Florida Senator Marcio Rubio “to obtain a decision, or at least

an explanation for why his case was in administrative processing.”

. In October 2023, a

consular officer responded to Senator Rubio, stating they could not provide any information

regarding the reason for the administrative processing or when a decision may be issued in Mr.

Gundas’s case.

However, the consular officer confirmed that Mr. Gundas’s application was

“still undergoing administrative processing in order to verify [his] qualifications for this visa.”

C. Procedural Background

On April 14, 2024, Mr. Gundas filed this suit against the Government,

, claiming

that it has unreasonably delayed action on his visa application under the Mandamus Act and

APA,

¶¶ 30–46. Mr. Gundas further requests that the Court order the Government “to

complete their administrative processing and adjudicate [Mr. Gundas’s] visa application within

thirty days.”

. On July 15, 2024, the Government moved to dismiss Mr. Gundas’s initial

Complaint. See Defs.’ First Mot. to Dismiss and Mem. in Support Thereof, ECF No. 9. Shortly

after, Mr. Gundas filed an Amended Complaint, see Am. Compl., and the Government again

moved to dismiss the case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), see

Defs.’ Second Mot. to Dismiss and Mem. in Support Thereof (“Defs.’ Mot.”) at 1, ECF No. 11.

Mr. Gundas then filed an opposition to the Government’s motion. See Pl.’s Mem. of Law in

Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 13. However, Mr. Gundas soon

moved to file an amended opposition to the Government’s motion. See Pl.’s Am. Mem. of Law

in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Am. Opp’n”), ECF No. 14-1. The Government then

4 filed a reply in support of its second motion to dismiss and responding to Mr. Gundas’s amended

opposition. See Reply in Support of Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 15.

III. LEGAL STANDARD

A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action

or claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for

dismissal under Rule 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase

v. Sessions,

(D.C. Cir. 1987). Federal courts are courts of limited jurisdiction,

and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co. of Am.,

(1994). Thus, on a Rule 12(b)(1) motion, the plaintiff

“bears the burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian v.

Pompeo,

, 91–92 (D.D.C. 2020); see also Lujan v. Defs. of Wildlife,

(1992).

In determining whether there is jurisdiction, the Court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground

Expansion v. Mineta,

(D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of

Scis.,

(D.C. Cir. 1992)). Courts must accept as true all factual allegations in

the complaint and must also construe the complaint liberally, granting the plaintiff the benefit of

all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005). However, factual allegations in the complaint “‘will bear

closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to

state a claim.” Grand Lodge of Fraternal Ord. of Police v. Ashcroft,

, 13–14

5 (D.D.C. 2001). Furthermore, “the Court need not accept inferences drawn by a plaintiff if those

inferences are unsupported by facts alleged in the complaint, nor must the Court accept a

plaintiff’s legal conclusions.” Arabzada v. Donis,

, 9 (D.D.C. 2024); see also

Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015).

B. Rule 12(b)(6)

The Federal Rules of Civil Procedure require plaintiffs to properly “state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)

does not test a plaintiff’s ultimate likelihood of success on the merits. See Scheuer v. Rhodes,

(1974), abrogated on other grounds by Harlow v. Fitzgerald,

(1982). Instead, a court considering a Rule 12(b)(6) motion presumes that the complaint’s

factual allegations are true and construes them in the light most favorable to the plaintiff. See,

e.g., United States v. Philip Morris, Inc.,

(D.D.C. 2000). Nevertheless,

“[to] survive a motion to dismiss, a 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)). To that end, a plaintiff’s

factual allegations “must be enough to raise a right to relief above the speculative level on the

assumption that all allegations in the complaint are true (even if doubtful in fact).” Twombly,

(citations omitted). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss.

Iqbal,

. A court need not accept a plaintiff’s legal conclusions as true, see

nor

must a court presume the veracity of legal conclusions that are couched as factual allegations, see

Twombly,

.

6 IV. ANALYSIS

The Government moves to dismiss the Amended Complaint under Rules 12(b)(1) and

12(b)(6). Defs.’ Mot. at 1. As to the former, they argue that (1) Mr. Gundas lacks standing to

seek judicial review; (2) his claims are precluded by the consular non-reviewability doctrine; and

(3) he has not identified a non-discretionary duty that the Government is required to take.

at

5–27. Alternatively, the Government argues that the complaint should be dismissed under Rule

12(b)(6) because Mr. Gundas fails to state a plausible claim of unreasonable delay under the

Mandamus Act or APA.

at 27–35. The Court will address these arguments in turn.

A. Standing

The Government first argues that Mr. Gundas lacks standing to seek judicial review

because he does not satisfy the constitutional requirements for standing, primarily because non-

citizens residing abroad have no legally cognizable interest in a visa. See

at 1–2. To satisfy

the constitutional requirement for standing, Mr. Gundas must show: “(1) an ‘injury in fact’ that is

‘concrete and particularized’ as well as ‘actual or imminent’; (2) a ‘causal connection’ between

the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, ‘that

the injury will be redressed by a favorable decision.’” Ark Initiative v. Tidwell,

(D.C. Cir. 2014) (quoting Lujan, 504 U.S. at 560–61). The Government argues that Mr.

Gundas has not met the first and third requirements. See Defs.’ Mot. at 6. The Court disagrees.

First, as to injury, the Government contends that Mr. Gundas’s suit is based on

procedural harms—alleged delay in adjudicating his visa application and inability to travel to the

United States—that are insufficient absent a connection to “a substantive [harm] protected by the

common law, a statute, or the Constitution.” Id. at 7. That is because Mr. Gundas is an

unadmitted noncitizen who has “no constitutional right to entry.” Id. (citing to Trump v. Hawaii,

7

(2018)). Thus, the Government argues, Mr. Gundas lacks standing to seek

judicial review. See Defs.’ Mot. at 6–12. Courts in this district have consistently rejected this

argument, concluding that a plaintiff suffers an injury in fact when an unreasonable delay in visa

adjudication causes financial or other hardship. See Ameer,

, at *2–3 (finding

that a processing delay on an H-1B visa application resulting in forced unpaid leave and potential

termination constituted an injury in fact); see also, Kahbasi,

, at *3; Rashidian

v. Garland, No. 23-cv-1187,

, at *4 (D.D.C. Mar. 8, 2024); Ahmadi v.

Scharpf, No. 23-cv-953,

, at *3 (D.D.C. Feb. 12, 2024); Khan v. Blome, No. 22-

cv-2422,

, at *3 (D.D.C. Nov. 29, 2022). Here, Mr. Gundas has had to

resign from his job in Iraq, risks losing his current job opportunity if the underlying petition

expires, and has spent “time, effort and money” on this visa application. Am. Compl. ¶¶ 1, 42,

44. Further, Mr. Gundas and his family have been unable to “make long-term plans in terms of

employment or their child’s school.”

. These are sufficiently concrete harms to make

this “a real controversy with real impact on real persons.” TransUnion LLC v. Ramirez,

(2021) (quoting Am. Legion v. Am. Humanist Ass’n,

(2019)).

The Government next points to redressability, arguing that they cannot provide the relief

that Mr. Gundas is requesting because “the orders or writs of mandamus that [Mr. Gundas] seeks

from this Court . . . cannot remedy [his] supposed injuries.” Defs.’ Mot. at 12 (citing Marino v.

Nat’l Oceanic & Atmospheric Admin.,

, 597 (D.C. Cir. 2022)). “Redressability

examines whether the relief sought, assuming that the court chooses to grant it, will likely

alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc’y v. Bentsen,

, 663–64 (D.C. Cir. 1996). As a result, a plaintiff has standing to proceed against a

defendant to the extent that “an order from this Court compelling” the defendant to act on behalf

8 of the plaintiff’s petition would “redress their alleged injur[y].” Abulhawa v. U.S. Dep’t of the

Treasury,

(D.D.C. 2017).

Here, the particularized injury for which Mr. Gundas seeks relief is a delay in

adjudicating his visa petition, and “an order directing [the Government] to issue a final decision

on his application will redress his injury: his visa application will no longer be pending in

administrative processing but instead will be finally decided.” Pl.’s Am. Opp’n at 10. Mr.

Gundas does not ask the Court to invalidate the consular officer’s decision to place his visa

application in administrative processing or compel a different outcome through re-adjudication.

See id. at 8; see also Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful Serv.

to the United States v. Pompeo, No. 18-cv-1388,

, at *8 (D.D.C. Jan. 30, 2019)

(“Plaintiffs seek final adjudication of their applications; not a specific outcome. If Plaintiffs are

granted a visa, their injury will be redressed. If Plaintiffs are finally denied at any of the

intermediary steps, although it is not their desired outcome, their injury—the lack of

adjudication—also will be redressed.”). Thus, Mr. Gundas’s injury—unreasonable delay of his

visa application—would be redressed by a decision regardless of the outcome. The Court finds

that standing exists here. Mr. Gundas thus satisfies the constitutional requirements for standing.

B. Consular Non-Reviewability

The Government next argues that the doctrine of consular non-reviewability bars Mr.

Gundas’s claims. See Defs.’ Mot. at 13–17. As its name suggests, the consular non-

reviewability doctrine “shields a consular official’s decision to issue or withhold a visa from

judicial review.” Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021); see

also Saavedra Bruno v. Albright,

(D.C. Cir. 1999) (“[C]onsular visa

determinations are not subject to judicial review.”); United States ex rel. Knauff v. Shaughnessy,

9

(1950) (explaining that courts cannot “review the determination of the

political branch of the Government to exclude a given alien”). The Government acknowledges

that there are “two narrow exceptions” to this general prohibition, Defs.’ Mot. at 14 (quoting

Colindres v. U.S. Dep’t of State,

(D.C. Cir. 2023)), but argues that neither

exception applies to Mr. Gundas’s claim because a “straightforward application of the consular

non-reviewability doctrine” precludes his claims, id. at 16. More plainly, the Government claims

that Mr. Gundas’s visa refusal under INA Section 221(g) was final, and thus, that decision is not

reviewable by the Court. See id. at 17.

As previously mentioned, and as the Government notes, there has been debate “as to

whether the doctrine applie[s] in cases seeking to compel action on visa applications in post-

refusal administrative processes.” Id. at 15; see supra Section IV.B. More specifically, this

debate “hinged on whether a refusal under INA Section 221(g) was final or not.” Defs.’ Mot. at

15 (citing Janay v. Blinken, No. 23-cv-3737,

, at *8 (D.D.C. July 16, 2024)).

Courts have consistently held that where a visa “application is still undergoing administrative

processing,” the State Department’s “decision is not final” “even where a refusal has been

relayed.” See Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-cv-397,

, at

*5 (D.D.C. Mar. 19, 2020); see also Al-Gharawy v. U.S. Dep’t of Homeland Sec.,

, 17 (D.D.C. 2022) (concluding that the doctrine of consular non-reviewability did not apply

to review of application in “administrative processing” after section 221(g) “refusal”); Vulupala

v. Barr,

, 99 (D.D.C. 2020) (same). However, the Government argues that

two recent cases, Department of State v. Muñoz,

(2024), and Karimova v. Abate,

No. 23-cv-5178,

(D.C. Cir. July 24, 2024), cast doubt on that approach. See

Defs.’ Mot. at 13–15.

10 In Muñoz, the Supreme Court reiterated that “the United States can . . . forbid aliens . . .

from coming within its borders, and no limits can be put by the courts upon that power.” 602

U.S. at 915 (cleaned up) (quoting Wong Wing v. United States,

(1896)).

However, Muñoz involved a visa application denied on appeal by the State Department, not an

application that remained in administrative processing after a consular official’s initial refusal.

See id. at 906. At least one court in this district has held that Muñoz has no effect on the

reviewability of visa applications subject to ongoing administrative processing. See Janay,

, at *8. 1

The Circuit’s recent unpublished decision in Karimova strongly suggests that the

consular non-reviewability doctrine prevents review of claims like Mr. Gundas’s. See

. In Karimova, the court explained that once a consular official refuses a visa

application, the visa has been “officially refused.”

. That is so even if the consular

officer simultaneously chooses to place the application in administrative processing: a “visa

application remains officially refused” “[u]nless and until” a consular officer decides to “re-open

and re-adjudicate the applicant’s case.”

Applied here, Karimova thus suggests that once “[a]

consular officer reviewed [Mr. Gundas’s] application, interviewed [him], and ruled that no visa

would be granted,” Mr. Gundas’s visa application was “officially refused” notwithstanding its

later placement in administrative processing.

. Thus, the Government argues, the

1 The plaintiff in Janay, like Plaintiff here, was placed in “administrative processing” and filed a complaint to have his application adjudicated without “further unreasonable delay.” Janay,

, at *1–2. The plaintiff in Janay did not “ask to look behind the consular officer’s discretion to grant or deny Plaintiff[’s] visa application” like the plaintiff in Muñoz.

. Instead, he “merely [sought] a decision—one way or the other.”

The court in Janay found that “Muñoz does not speak to the Court’s authority to grant that relief” and that there was a “plausible basis to conclude that the consular officer ha[d] yet to decide whether to grant or to deny [the plaintiff’s] visa application,” so the decision was non-final.

at. *8–9.

11 consular officer’s decision to withhold issuing Mr. Gundas a visa is an “official refusal,” and the

doctrine of consular non-reviewability precludes his claims. See Defs.’ Mot. at 16.

This Court acknowledged Karimova in its recent decision in Asadi v. U.S. Dep’t of State,

No. 23-cv-1953,

(D.D.C. Aug. 15, 2024). There, the same question arose as

to whether “the consular officer’s refusal of [p]laintiff’s visa application was a final decision.”

Asadi,

, at *4. This Court, in Asadi, found that it did not need to

“conclusively determine” the extent to which Karimova disrupted prior decisions in similar cases

because the plaintiff’s claims failed on their merits. See

(citing Karimova and declining to

“decide whether th[e] principle of [consular] non-reviewability applies in this case, which

purports to challenge the timing rather than content of a consular visa decision”). Similarly, the

Court finds here that it does not need to determine the extent to which Karimova disrupts prior

decisions rejecting the Government’s reliance on the consular non-reviewability doctrine, see

as Mr. Gundas’s claims fail on their merits.

C. Clear and Non-Discretionary Duty

The Government’s third argument is that Mr. Gundas’s claims are not reviewable

because he has not identified a “a clear, non-discretionary duty requiring a consular officer to

adjudicate, let alone re-adjudicate, any specific visa application.” Defs.’ Mot. at 17. To show

entitlement to a writ of mandamus, the Government states that Mr. Gundas must demonstrate “a

clear and indisputable right to relief,” that the Government or consular officer violated a “clear

duty to act,” and that there is “no adequate alternative remedy.”

at 18 (citing Am. Hosp.

Ass’n v. Burwell,

(D.C. Cir. 2016)). By a similar token, the Government

states that “to bring a claim of unreasonable delay under the APA, the central question . . . is

‘whether the agency’s delay is so egregious as to warrant mandamus.’”

(quoting In re Core

12 Commc’ns, Inc.,

(D.C. Cir. 2008)). These claims “can proceed only where a

plaintiff asserts than an agency failed to take a discrete agency action that it is required to take.”

(quoting Norton v. S. Utah Wilderness All.,

(2004)). As the Government

seems to suggest, there is a common theme under both claims that Mr. Gundas must meet. See

“To proceed under either the APA or the Mandamus Act based on a claim of “an agency’s

unreasonable delay . . . a plaintiff must allege that an agency has a clear non-discretionary duty

to take a specific action and that the agency failed to take that action.” Asadi,

, at *5 (citing Arabzada,

, at *11); see also Vietnam Veterans of Am.

v. Shinseki,

, 659 n.6 (D.C. Cir. 2010) (stating that “standards for obtaining relief”

under the Mandamus Act and the APA “are essentially the same”); Babamuradova v. Blinken,

, 19 (D.D.C. 2022) (“What plaintiffs must show to establish a mandamus claim

is similar to what they must show . . . under the APA, as in both instances plaintiffs must

establish that the government has a clear, nondiscretionary duty.”).

Here, the Government claims that there is no law, regulation, or congressional intent for

Mr. Gundas to point to that would provide him with a “clear duty” to adjudicate, or re-

adjudicate, his visa application. See Defs.’ Mot. at 19–26. This includes

(b),

which Mr. Gundas relies on, see Am. Compl. ¶ 36, as it “imposes no such clear duty,” Defs.’

Mot. at 19. To support this, the Government again cites to Karimova, stating that the D.C.

Circuit ruled that the Government had “no clear, non-discretionary duty, under

(b)

or elsewhere, to further process or adjudicate a visa application once it ha[d] been refused by a

consular officer under Section 221(g).” Defs.’ Mot. at 19. There, the Government notes that

“[t]he court examined the statutory and regulatory commands applicable to consular visa

processing to assess whether the State Department had a clear duty to act on a visa application

13 after a consular officer had refused it,” and “[i]t found none.”

. In his opposition, Mr.

Gundas argues that this Court should not rely on Karimova because it “is neither controlling nor

persuasive.” Pl.’s Am. Opp’n at 15. He bases this argument on his claim that Karimova is not a

“precedential decision,” and the holding is “inapplicable to cases involving non-immigrant visa

denials such as the instant one.”

at 15–16. Mr. Gundas also points to several cases in this

Circuit where courts have held that the Government is “under a non-discretionary duty to

adjudicate a visa application.” Pl.’s Am. Opp’n at 13 (citing to Vulupala v. Barr,

, 100 (D.D.C. 2020); Skalka v. Kelly,

(D.D.C. 2017)). More

specifically, Mr. Gundas largely relies on Afghan & Iraqi Allies v. Blinken to emphasize that

“review of delayed visa[ ] applications (and not just the delayed visa applications at issue) [is]

permissible under the APA.” Pl.’s Am. Opp’n at 15.

Here, the Court will assume without deciding that Mr. Gundas’s complaint identifies a

clear, non-discretionary duty. Mr. Gundas largely relies on § 555(b) of the APA as the source of

such duty. See Am. Compl. ¶ 36. However, the Court need not scour Mr. Gundas’s complaint

and opposition briefing to determine whether he has satisfied the requirement to identify a clear,

non-discretionary duty at all, as his claims fail on the merits for the reasons discussed below.

D. Unreasonable Delay

Finally, the Court turns to the Government’s argument that Mr. Gundas’s complaint fails

to state a plausible claim of unreasonable delay. See Defs.’ Mot. at 27–35. Simply put, the

Government contends that Mr. Gundas fails to state a plausible claim because the delay here—

roughly eighteen months— “is not unreasonable as a matter of law.” Id. at 28.

Mr. Gundas’s claim of unreasonable delay is governed by the APA which, among other

things, requires an agency to “proceed to conclude a matter presented to it” in a “reasonable

14 time,”

(b), and authorizes federal courts to “compel agency action unlawfully

withheld or unreasonably delayed,”

§ 706(1). “The ‘central question in evaluating a claim of

unreasonable delay is whether the agency’s delay is so egregious as to warrant mandamus.’”

Babaei v. U.S. Dep’t of State,

, 29 (D.D.C. 2024) (quoting In re Core

Commc’ns, Inc.,

). Courts in this circuit consider six factors (the so-called

“TRAC factors”) when evaluating unreasonable-delay claims:

(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.

Telecomms. Rsch. & Action Ctr. v. Fed. Commc’ns Comm’n (“TRAC”),

(D.C.

Cir. 1984) (cleaned up).

Whether a delay is unreasonable “cannot be decided in the abstract, by reference to some

number of months or years beyond which agency inaction is presumed to be unlawful, but will

depend in large part . . . upon the complexity of the task at hand, the significance (and

permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag

Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003). Courts use the TRAC

factors to assess claims of unreasonable delay under both the Mandamus Act and the APA. See

S. Utah Wilderness All., 542 U.S. at 63–64; Am. Hosp. Ass’n v. Burwell,

(D.C.

Cir. 2016). Applying the TRAC factors to the present case, the Court finds that Mr. Gundas’s

complaint fails to state a plausible claim of unreasonable agency delay.

15 1. TRAC Factors 1 and 2

The first and second TRAC factors weigh in the Government’s favor. Generally, the first

TRAC factor is the “most important” and carries the most weight. See In re Core Commc’ns,

. Courts typically consider the first and second factors together, however, as both

analyze whether there is “sufficient rhyme and reason to explain the [g]overnment’s response

time.” Dastagir v. Blinken,

, 166 (D.D.C. 2021) (cleaned up); see also

Milligan v. Pompeo,

, 317 (D.D.C. 2020).

Here, Mr. Gundas’s visa application has been delayed for approximately eighteen

months. 2 “[N]o statutory or regulatory timeline exists within which the State Department or a

consular office must re-adjudicate visa applications.” Barazandeh v. U.S. Dep’t of State, No. 23-

cv-1581,

, at *8 (D.D.C. Jan. 30, 2024) (quoting Isse v. Whitman, No. 22-cv-

3114,

, at *7 (D.D.C. June 26, 2023)). That being so, the Court “turn[s] to

case law as a guide’ to determine the reasonableness” of Defendants’ delay in processing Mr.

Gundas’s visa application. See Ahmadi v. Scharpf, No. 23-cv-953,

, at *5

2 Courts calculate delays in visa processing using the period between “the last [g]overnment action” and the issuance of the opinion. See, e.g., Brzezinski v. U.S. Dep’t of Homeland Sec., No. 21-cv-376,

, at *1, *4 n.3 (D.D.C. Sept. 15, 2021) (analyzing a seventeen-month delay between “the last [g]overnment action” and the opinion’s issuance); Eljalabi v. Blinken, No. 21-cv-1730,

, at *5 (D.D.C. July 14, 2022) (analyzing a twenty-two-month delay between NVC’s last action and the opinion’s issuance). The last government action in this case is unclear, as Mr. Gundas alleges that he received the initial notice that a visa could not be issued and was undergoing further administrative processing in June 2023, see Am. Compl. ¶ 41, Pl.’s Am. Opp’n at 3, but also received a letter from the U.S. Consulate General in Erbil, Iraq on May 20, 2024, stating that Mr. Gundas’s visa application was being denied and additional security screening was being conducted, see Am. Compl. ¶ 26. For consistency purposes, the Court will use the first notice in June 2023, following Mr. Gundas’s interview, to calculate the period of delay. Therefore, the period the Court will use to analyze the delay in the instant case is the roughly eighteen-month span between the consular officer’s refusal and the issuance of this Opinion.

16 (D.D.C. Feb. 12, 2024) (quoting Sarlak v. Pompeo, No. 20-cv-35,

, at *6

(D.D.C. June 10, 2020)).

“District courts have generally found that immigration delays in excess of five, six, seven

years are unreasonable.”

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

, at

*4 (D.D.C. Jan. 17, 2023)). Conversely, courts in this jurisdiction have typically concluded that

delays of two or three years are not unreasonable. See Barazandeh,

, at *8

(collecting cases). And indeed, recently, the D.C. Circuit found that a delay of four-and-one-half

years was not unreasonable. See Da Costa v. Immigr. Inv. Program Off.,

(D.C. Cir. 2023). Here, given the circumstances, Mr. Gundas’s delay of approximately eighteen

months is not unreasonable.

2. TRAC Factor 4

The fourth TRAC factor carries substantial weight. See Da Costa,

.

The fourth factor “consider[s] the effect of expediting delayed action on agency activities of a

higher or competing priority.”

at 343 (quoting TRAC,

). Courts are generally

hesitant to direct agencies as to 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 and

produce[ ] no net gain.” In re Barr Lab’ys, Inc.,

(D.C. Cir. 1991). In fact, the

D.C. 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 produce no net gain.” Milligan, 502 F. Supp. 3d at 319

(quoting Mashpee Wampanoag Tribal Council,

) (alterations and quotations

omitted).

17 The Circuit’s recent decision in Da Costa aptly illustrates these principles. There, the

plaintiffs sought an order compelling USCIS to adjudicate their visa applications within fourteen

days, to process any additional requested information within seven days, and to forward any

approved applications to the NVC for processing within three days. See Da Costa,

. In finding that the fourth TRAC factor weighed against the plaintiffs, the Circuit explained

that the relief the plaintiffs sought was, at bottom, an order that would move their visa petitions

“ahead of longer-pending petitions.”

. The court looked unfavorably on such a request

in large part because “moving [the] [p]laintiffs’ petitions to the front of the line would disrupt

competing agency priorities with no overall improvement in the USCIS backlog.”

The court

also emphasized that, although “judicial intervention could assist [the plaintiffs], it would likely

impose offsetting burdens on equally worthy” applicants that were “equally wronged by the

agency’s delay.”

at 344 (quoting In re Barr Lab’ys,

). The judges concluded,

therefore, that “the effect that [the plaintiffs’] requested relief would have on the queue of

petitioners waiting ahead of the [p]laintiffs, weighs against judicial intervention to expedite

adjudication of [p]laintiffs’ petitions.”

The same is true here. While Mr. Gundas may not be seeking “to be prioritized ahead of

any other applications” and is “merely asking for his visa application to be adjudicated,” Am.

Compl. ¶ 43, compelling agency action on Mr. Gundas’s visa application would “impose

offsetting burdens on equally worthy” applicants by effectively putting Mr. Gundas “at the head

of the queue,” thereby “mov[ing] all others back one space and produc[ing] no net gain.” In re

Barr Lab’ys,

. Mr. Gundas further argues that “this TRAC factor cannot be

decided without discovery,” as it is unclear the order or manner in which similar cases are

adjudicated, see Pl.’s Am. Opp’n at 20, but this claim does not grapple with the fact that granting

18 Mr. Gundas’s requested relief would “necessarily come at the expense of” applicants who, like

Mr. Gundas, have likely also been waiting for months or years for their visas to be adjudicated.

See Da Costa,

(internal quotation marks omitted) (quoting Am. Hosp. Ass’n,

). Moreover, granting Mr. Gundas his requested relief would require the State

Department to “reorder[ ] [its] priorities” in a case where the “agency is in a unique—and

authoritative—position to . . . allocate its resources in the optimal way.” In re Barr Lab’ys,

. This, the D.C. Circuit has admonished, is something that courts should not do. See

For all of these reasons, the Court finds that the fourth TRAC factor weighs in the

Government’s favor.

3. TRAC Factors 3 and 5

The third and fifth TRAC factors also tilt in the Government’s favor. These factors

evaluate whether human health and welfare are at stake and if there are interests that would be

prejudiced by the visa processing delay. See TRAC,

. On this front, Mr. Gundas

alleges that the harm of delay in adjudicating his application is “immense” as he faces the risk of

losing his teaching position, the “time, effort and money” spent would go to waste if the

underlying petition expires, and it would make it more difficult for his family to plan for their

children’s education. Am. Comp. ¶¶ 42, 44, 46; Pl.’s Am. Opp’n at 20–21.

Although the Court is sympathetic to Mr. Gundas and his family’s situation, it agrees

with the Government that his “position is not unique.” See Defs.’ Mot. at 34. Seeking

employment-based admission to the United States necessarily entails some amount of career,

economic, and educational uncertainty. Unlike in some other cases where prolonged family

separation or underlying health concerns tied specifically to the delay at issue drove courts to

find that TRAC factors three and five weighed in plaintiffs’ favor, the Gundas family lives

19 together in Iraq and does not face separation or injury to health because of further delay. See,

e.g., Didban v. Pompeo,

, 177 (D.D.C. 2020) (finding the third and fifth

TRAC factors weighed in favor of the plaintiffs considering prolonged separation of spouses);

Varghese v. Blinken, No. 21-cv-2597,

, at *7 (D.D.C. July 29, 2022) (similar);

Pourshakouri v. Pompeo,

, at *10 (D.D.C. Aug. 11, 2021) (finding third and

fifth factors weighed in favor of 83-year-old plaintiff living alone and separated indefinitely from

children and grandchildren). The Court thus finds that the harms Mr. Gundas alleges are

insufficient to tip the scales in his favor and, instead, that the third and fifth TRAC factors tilt at

least slightly towards the Government.

4. TRAC Factor 6

The sixth TRAC factor, on the other hand, does not weigh in either party’s favor. This

factor requires courts to “determine whether the agency has acted in bad faith in delaying

action.” Gona v. U.S. Citizenship & Immigr. Servs., No. 20-cv-3680,

, at *5

(D.D.C. Feb. 25, 2021). Mr. Gundas alleges that “to the extent intentional delay can be

considered bad faith,” he has “more than adequately alleged it.” Pl.’s Am. Opp’n at 21. Mr.

Gundas further argues that the Government’s failure to adjudicate his current and previous visas

is a “deliberate and repeated singling out of [Mr. Gundas] for indefinite delay, at the risk of

frustrating his job opportunity.”

.

The Court finds that Mr. Gundas ultimately alleges no facts amounting to bad faith. That

said, “the lack of plausible allegations of impropriety does not weigh against [Mr. Gundas], and

therefore does not alter the Court’s analysis.” See Fakhimi v. Dep’t of State, No. 23-cv-1127,

, at *11 (D.D.C. Oct. 23, 2023); see also Da Costa, 80 F.4th at 345–46

(finding the sixth TRAC factor “neutral” where plaintiffs’ allegations of bad faith were

20 “conclusory and implausible”); Palakuru v. Renaud,

, 53 (D.D.C. 2021)

(considering the sixth TRAC factor “neutral” even though plaintiff alleged that the government

had engaged in “purposeful[ ] delay” and “artificially inflate[d] . . . processing times”).

5. Weighing the TRAC Factors

Taking all six TRAC factors together, the Court concludes that Mr. Gundas has not stated

a claim for unreasonable delay under the Mandamus Act or the APA. The relatively minimal

eighteen-month delay, prior case law, and the fact that granting Mr. Gundas the relief he seeks

would come at the expense of other similarly situated applicants that have waited as long (if not

longer) for their applications to be adjudicated all contribute to the conclusion that the delay Mr.

Gundas has experienced has not been unreasonable.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 11) is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: December 10, 2024 RUDOLPH CONTRERAS United States District Judge

21