UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GHOLAMREZA BARAZANDEH,

Plaintiff, Civil Action No. 23-1581 (BAH) v. Judge Beryl A. Howell U.S. DEPARTMENT OF STATE et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Gholamreza Barazandeh, a citizen of Iran, seeks to compel defendants the

United States Department of State (“State Department”) and the Secretary of State in his official

capacity, to adjudicate his immigrant visa application, which has now been in administrative

processing for approximately twenty months. See generally Compl., ECF No. 1. Plaintiff claims

that defendants have unreasonably delayed his visa application, in violation of the

Administrative Procedure Act,

(1), and the Mandamus Act,

. See

Compl. ¶¶ 33–50. Defendants, in turn, have moved to dismiss the claims for lack of standing

and for failure to state a claim. See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 5; Pl.’s

Opp’n Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 6; Defs.’ Reply Supp. Mot. to Dismiss

(“Defs.’ Reply”), ECF No. 9. For the reasons below, defendants’ motion is granted.

I. BACKGROUND

A review of the statutory and regulatory background underlying the claims is below,

followed by a summary of the factual and procedural history of this case.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”),

et seq., allows for the

issuance of immigrant visas, including for relatives of U.S. citizens. See

; 8

(a)(1), (b). A U.S. citizen seeking permanent resident status for a parent or other

family member may fill out a Form I-130, Petition for Alien Relative, with U.S. Customs and

Immigration Services (“USCIS”). See

(a)(1);

; see also

(b)(2)(A)(i) (defining an “immediate relative[]” to include “parents” for purposes of Form

I-130 petitioners). If USCIS approves the petition, the case is forwarded to the National Visa

Center (“NVC”) for processing.

(a)(3). The NVC serves as the visa application

processing center for the State Department.

Following approval of the petition, the foreign parent must submit paperwork and

processing fees to the NVC. See

(outlining application fees and additional

documentation that an applicant must submit to the NVC to complete their application). The

NVC then schedules a consular interview for the applicant at the embassy with jurisdiction over

the applicant’s residence.

§ 42.62. The consular officer must either issue or refuse the visa

following the interview. Id. § 42.81(a).

B. Factual Background

On April 6, 2021, Mohammad Barazandeh, a U.S. citizen, filed an I-130 visa application

with USCIS on behalf of his father, who is the plaintiff in this action and a citizen of Iran.

Compl. ¶¶ 8–9. USCIS received and approved the petition and transferred it to the NVC. Id.

¶ 10; see also Compl., Ex. at 5, ECF No. 1-6 (approval notice). Plaintiff was then granted a

consular interview at the U.S. Embassy in Yerevan, Armenia, where he was interviewed on May

18, 2022. Compl. ¶¶ 12–14; see also

(requiring every U.S. immigrant visa

applicant to submit to an interview by a consular official for “execution of the application”);

Compl., Ex. at 13 (email with interview details). Plaintiff’s wife, who filed a similar application,

2 was also interviewed on May 18, 2022, and was promptly issued an immigrant visa. Compl.

¶¶ 14, 16.

Plaintiff, in contrast to his wife, was informed that his visa application had been “refused

for administrative processing” and was asked for additional information regarding his visa

application, which information plaintiff quickly provided.

, 17–18; Compl., Ex. at 15–

16 (letter from Embassy refusing visa application for administrative processing due to missing

documents, including birth certificate), 20–31 (email exchange between consular officer, who

requested more information, and plaintiff, who provided responses on May 25, 2022). Despite

numerous inquiries, see, e.g., Compl., Ex. at 34–44, plaintiff has received no meaningful

response or a timeline for the processing of his application. Compl. ¶¶ 19–20. As of January

2024, plaintiff’s application for an immigrant visa to the United States appears to have been

refused. See

(identifying plaintiff’s NVC visa application number (YRV2022602005));

Visa Status Check, U.S. Dep’t of State, https://ceac.state.gov/CEACStatTracker/Status.aspx,

though the same page of the State Department’s website suggests that his application remains

subject to additional administrative processing before a final decision is rendered, see Visa Status

Check (“If you were informed by the consular officer that your case was refused for

administrative processing, your case will remain refused while undergoing such processing. You

will receive another adjudication once such processing is complete.”).1

Meanwhile, plaintiff’s delay in receiving a final decision on his visa petition has “caused

him and his family to suffer significant, ongoing harm” due to his “remain[ing] in legal limbo”

and his being “alone in Iran,” while his son and wife reside in the United States. Compl. ¶ 23.

1 Judicial notice is appropriately taken of information on the government’s official public websites. See Cannon v. District of Columbia,

, 205 n.2 (D.C. Cir. 2013).

3 C. Procedural History

On June 2, 2023, just over a year after his visa application was refused, plaintiff filed a

two-count complaint to compel defendants to adjudicate his visa application. Plaintiff maintains

that defendants retain jurisdiction over his visa application and alleges that he “has suffered and

continues to suffer significant ongoing harm from the delay in adjudication of his [a]pplication.”

Id. ¶ 49; see also id. ¶ 36. While plaintiff argues that “consular officials are required to act on

visa applications,” id. ¶ 25, plaintiff does not seek review of any final decision by defendants on

his application and seeks, instead, only adjudication of his visa application under the APA, id.

¶¶ 33–44, and the Mandamus Act, id. ¶¶ 45–50. See id. ¶ 28 (“Plaintiff seeks enforcement of

this duty to adjudicate, not judicial review of the merits of Plaintiff’s Application or control of

Defendants’ discretion and judgment in adjudication.”). In his Prayer for Relief, plaintiff

requests declaratory, injunctive, and mandamus relief and attorneys’ fees and costs.

Defendants, in turn, have moved to dismiss plaintiff’s complaint under Federal Rule of

Civil Procedure 12(b)(1) and 12(b)(6).

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

“Federal courts are courts of limited jurisdiction, possessing only that power authorized

by Constitution and statute.” Gunn v. Minton,

(2013) (citation omitted).

“[F]orbidden . . . from acting beyond [their] authority,” NetworkIP, LLC v. Fed. Commc’n

Comm’n,

(D.C. Cir. 2008), federal courts thus “have an affirmative obligation

to consider whether the constitutional and statutory authority exist for us to hear each dispute,”

James Madison Ltd. by Hecht v. Ludwig,

(D.C. Cir. 1996) (citation omitted).

4 Absent subject-matter jurisdiction, a case must be dismissed. See Arbaugh v. Y&H Corp.,

, 506–07 (2006); see also Fed. R. Civ. P. 12(h)(3).

When considering a motion to dismiss under Rule 12(b)(1), the court “must assume that

[the plaintiff] states a valid legal claim,” Info. Handling Servs., Inc. v. Def. Automated Printing

Servs.,

(D.C. Cir. 2003), and must “accept the well-pleaded factual

allegations as true and draw all reasonable inferences from those allegations in the plaintiff's

favor,” Arpaio v. Obama,

(D.C. Cir. 2015) (citing Ashcroft v. Iqbal,

(2009)). In addition, to assure itself of its jurisdiction over a claim, “the district court

may consider materials outside the pleadings.” Jerome Stevens Pharms., Inc. v. Food & Drug

Admin.,

(D.C. Cir. 2005).

B. Motion to Dismiss for Failure to State a Claim

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

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.

Moss,

, 757–58 (2014) (citation omitted). A claim is facially plausible when the

plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s liability”

and “allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal,

(quoting Bell Atl. Corp. v. Twombly,

(2007)); see also Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015)

(“Plausibility requires more than a sheer possibility that a defendant has acted unlawfully.”

(citation omitted)).

In deciding a motion under Rule 12(b)(6), a court must consider the whole complaint,

accepting all factual allegations in the complaint as true, even if doubtful in fact, and construing

all reasonable inferences in the plaintiff’s favor. Twombly,

; see also Atchley v.

5 AstraZeneca UK Ltd.,

(D.C. Cir. 2022). A court, however, does not “accept

inferences drawn by a plaintiff if such inferences are unsupported by the facts set out in the

complaint.” Nurriddin v. Bolden,

(D.C. Cir. 2016) (alterations in original

accepted and citation omitted); see also Iqbal,

(“While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.”). In

determining whether a complaint fails to state a claim, a court may consider only the facts

alleged in the complaint and “any documents either attached to or incorporated in the complaint

and matters of which the court may take judicial notice.” N. Am. Butterfly Ass’n v. Wolf,

(D.C. Cir. 2020) (alterations in original accepted and citation omitted).

III. DISCUSSION

Defendants advance three main arguments in support of dismissal: that (1) the Secretary

of State has no role in re-adjudicating plaintiff’s visa request, cannot provide the relief requested,

and is thus an improper defendant; (2) the doctrine of consular nonreviewability bars judicial

review; and (3) plaintiff fails to state viable claims of relief for unreasonable delay under the

Mandamus Act and the APA. These arguments will be addressed seriatim.

A. Improper Defendant

The INA “grants consular officers ‘exclusive authority to review applications for visas,

precluding even the Secretary of State from controlling their determinations.” Baan Rao Thai

Rest. v. Pompeo,

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

(D.C. Cir. 1999)). Relying on this language, defendants argue that the

Secretary of State, who has “no role in re-adjudicating the visa request” and “cannot re-

adjudicate [plaintiff’s] application for a visa,” is an improper defendant because he “cannot

provide the relief requested.” Defs.’ Mot. at 4. Courts in this district have repeatedly rejected

6 this argument. See, e.g., Al-Gharawy v. Dep’t of Homeland Sec.,

, 10 (D.D.C.

2022); Fakhimi v. Dep’t of State, No. 23-cv-1127,

, at *6 (D.D.C. Oct. 23,

2023); Filazapovich v. Dep’t of State,

, 233 (D.D.C. 2021); Ramirez v.

Blinken,

, 89–90 (D.D.C. 2022); Khoshrou v. Blinken, No. 22-cv-2859,

, at *4 (D.D.C. Aug. 2, 2023). Defendants, who do not even acknowledge this body

of case law, offer no reason to depart from this uniform conclusion here.

No one disputes that the INA bars the Secretary of State from directing a particular

outcome with respect to a visa application. See Saavedra Bruno,

(“The powers

afforded to consular officers include, in particular, the granting, denying and revoking of

immigrant and non-immigrant visas.”); Baan Rao,

(“A consular officer . . . has

the authority to grant, deny or revoke any visa.”). “Control over a consular officer’s visa

determinations,” however, “is not the same as control over the timing by which the consular

officer considers the applications presented to her.” Al-Gharawy, 617 F. Supp. 3d at 10. Put

differently, “nothing in Baan Rao or Saavedra Bruno precludes the Secretary [of State]—who

oversees the State Department (who [d]efendants have not moved to dismiss [on this basis])—

from directing consular officers ‘to conclude matters presented to them’ ‘within a reasonable

time.’” Id. (alterations in original accepted) (quoting

(b)); see also Ramirez, 594

F. Supp. 3d at 90 (“The provisions and caselaw the government cites stand for a far more limited

proposition: that the INA reserves for consular officials the power to evaluate applications on the

merits.”). Here, plaintiff does not challenge a consular officer’s adjudication of his visa

application and seeks only timely adjudication of his visa application. See Compl. ¶ 28. The

Secretary of State is thus a properly named defendant.

7 B. Consular Nonreviewability

“Deciding who is allowed into the United States and who is not can involve hard policy

choices” that “may ‘implicate’ America’s relationship with ‘foreign powers’ or require

evaluating ‘changing political and economic circumstances.’” Colindres v. Dep’t of State,

(D.C. Cir. 2023) (quoting Trump v. Hawaii,

, 2418–19 (2018)).

“[T]he power to exclude [non-citizens]” is thus “a power to be exercised exclusively by the

political branches.”

(citation omitted). “Reflecting the limited role of the judiciary,” the

doctrine of consular nonreviewability “‘shields a consular official’s decision to issue or withhold

a visa from judicial review,’ with two narrow exceptions.”

(quoting Baan Rao, 985 F.3d at

1024–25). “The first exception applies when ‘a statute expressly authorized judicial review,’”

and “[t]he second exception lets ‘an American citizen challenge the exclusion of a noncitizen if it

burdens the citizen’s constitutional rights.’”

(alteration in original accepted) (quoting Baan

Rao,

).

Defendants argue that “the claim brought here—a suit seeking to compel a further

decision on a visa application that has already been refused”—does not fall into either exception

and thus that the doctrine of consular nonreviewability precludes judicial review of plaintiff’s

claims. Defs.’ Mot. at 6; see also Defs.’ Reply at 2 (“Plaintiff cannot identify a clear, non-

discretionary duty for a consular office to re-adjudicate any specific visa application.”).

Defendants acknowledge that “various judges in this District have held that the doctrine does not

apply in cases where, as here, a consular officer has refused a visa application under

(g), based on a noncitizen’s failure to establish their eligibility subject to further

administrative proceeding.” Defs.’ Mot. at 6. Nonetheless, relying on Abdo v. Tillerson, No. 17-

cv-7519,

(S.D.N.Y. Feb. 5, 2019), a non-binding out-of-Circuit district court

8 case, defendants urge departure from this Circuit’s uniform and binding caselaw.

The Court

is not persuaded.

In Abdo, the district court explained that “[i]n [the Second] Circuit, the doctrine of

consular nonreviewability applies not only when ‘a plaintiff challenges an official’s discretionary

decision to approve or deny a visa application,’ but also ‘where a plaintiff seeks to compel an

official to simply adjudicate a visa application.’” Abdo,

, at *3 (quoting Al

Naham v. Dep’t of State, No. 14-cv-9974,

, at *3 (S.D.N.Y. June 1, 2015)).

The court proceeded to catalogue New York district court cases to support this principle, all of

which ground their conclusion in a broad declaration by the Second Circuit that “the judiciary

will not interfere with the visa-issuing process.”

(quoting Wan Shih Hsieh v. Kiley,

(2d Cir. 1978)). The court further acknowledged that other circuits, such as the

Ninth Circuit, have recognized “a distinction between challenging a decision and compelling

adjudication,” but rejected the distinction, explaining that it “is not one that has a basis in Second

Circuit law.”

(alterations in original accepted and citation omitted) (citing Patel v. Reno,

, 931–32 (9th Cir. 1997)).

As defendants concede and as discussed above, courts in this Circuit, interpreting Baan

Rao and Saavedra Bruno, have recognized the distinction between challenging a decision and

compelling adjudication and have concluded that the doctrine of consular nonreviewability does

not “‘insulate a delay in reaching’ final decisions on visa applications ‘from judicial review.’”

Isse v. Whitman, No. 22-cv-3114,

, at *4 (D.D.C. June 26, 2023) (quoting

Vulupala v. Barr,

, 100 (D.D.C. 2020)).2 This is because “[a]n assessment of

2 The only Court of Appeals decision that appears to have directly addressed this issue is Patel v. Reno,

(9th Cir. 1997), which, like the courts in this Circuit, acknowledged a distinction between suits challenging “the authority of the consul to take or fail to take an action” and suits challenging “a decision taken within the consul’s discretion,”

at 931–32.

9 whether the government has delayed action on a particular visa application is not the type of

political consideration that the consular nonreviewability doctrine aims to avoid, and that

assessment is not ‘an area in which legislative and traditional practice indicate that courts are

unqualified or that issues are inappropriate for judicial determination.’”

(quoting Saavedra

Bruno,

). “‘[T]he doctrine of consular nonreviewability is [thus] not triggered’

when ‘a consular office’ has not rendered a final decision and the visa application remains under

consideration,’” including when an application is listed as “rejected” based on it being “refused

for administrative processing.”

at *4–5 (quoting Nine Iraqi Allies Under Serious Threat

Because of Their Faithful Serv. to the U.S. v. Kerry,

(D.D.C. 2016));

see also Al-Gharawy, 617 F. Supp. 3d at 16 (recognizing “a long line of decisions from this

Court [that] have held that the 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,” and cataloguing cases); Ibrahim v. Dep’t of

State, No. 19-cv-610,

, at *5 (D.D.C. Apr. 8, 2020) (recognizing

overwhelming caselaw in this district supporting proposition that “where the application is still

undergoing administrative processing, even where a refusal has been relayed, the decision is not

final, and thus claims alleging unreasonable delay while a case remains suspended in

administrative processing are not barred by the doctrine of consular nonreviewability,” and

collecting cases (citations omitted)); Patel, 134 F.3d at 931–33 (concluding that mandamus relief

was appropriate to compel action on visa application that had been only “provisionl[ly]

refus[ed]” and a final decision had not been issued).3

3 The relevance of defendants’ argument that “as Judge Moss wrote in Al-Gharawy, no decision from this District before July 2022 attempted to square the diverging views of Nine Iraqi Allies v. Kerry,

(D.D.C. 2016) (Kessler, J.) (the ultimate source of decisions finding the doctrine inapplicable), and the decisions from courts in the Second Circuit cited above” is unclear, Defs.’ Mot. at 7, since the Al-Gharawy decision

10 The facts here are indistinguishable from the facts in Al-Gharawy v. Department of

Homeland Security and Isse v. Whitman, where plaintiffs’ visa applications had similarly been

“refused,” but plaintiffs were told that their applications needed “further administrative

processing.”4 In both cases, the court reasoned that “although the ‘consular nonreviewability

doctrine applies to a consular officer’s substantive decisions to approve or deny a visa

application, that same reasoning does not extend to the procedural considerations at issue.” Isse,

, at *5 (quoting Al-Gharawy, 617 F. Supp. 3d at 12). “Given that the plaintiffs

were not requesting the court ‘to second guess the Executive in exercising the sovereign powers

to exclude aliens,’ but were merely requesting the agency be compelled to take a final action on

their visa applications, the mere fact that the plaintiffs’ visa applications were refused did not

preclude judicial review under the doctrine of consular nonreviewability.” Id. (quoting Al-

Gharawy, 617 F. Supp. 3d at 13, 16–17).

Defendants’ argument that plaintiff’s application was “refused” and “already has been

adjudicated,” Defs.’ Reply at 2, fails to take the allegations in the Complaint as true. See Doe v.

Siddig,

(D.D.C. 2011) (“It is hornbook law that, on a motion to

dismiss, the court must accept as true the well-pleaded factual allegations in the complaint, and

confine its consideration to those allegations.”). As alleged in the Complaint, as in Al-Gharawy

and Isse, plaintiff’s “refused” application here is not a final decision on his application because

he was informed that his visa application is still undergoing “administrative processing.” Compl.

did precisely what defendants criticize “decision[s] from this District before July 2022” for not doing. See Al- Gharawy, 617 F. Supp. 3d at 11–17 (acknowledging the different approaches taken by districts courts in this and the Second Circuits, and offering several reasons, “[a]fter reviewing both lines of authority,” that “the decisions that hold that the consular nonreviewability doctrine does not bar suits that merely seek to compel some agency action— regardless of the substance of that action—have the better view”). 4 Defendants do not attempt to distinguish Al-Gharawy and argue only that it was wrongly decided. Defs.’ Mot. at 7.

11 ¶ 15; see also Giliana v. Blinken,

, 18 (D.D.C. 2022) (explaining that “a

refusal is often not final because the application may be subject to further administrative

processing,” which “means that additional information is needed before a consular officer can

determine whether an applicant is qualified for the visa for which she has applied” (citations

omitted)); Administrative Processing Information, Travel.State.Gov,

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-

processing-information.html (explaining that upon completion of further administrative

processing, the consular will conclude that the applicant either “is now qualified for the visa for

which he or she applied” or “remains ineligible for a visa”). Indeed, after this initial “refusal”

for administrative processing, consular officers continued to correspond with plaintiff about his

application, including requesting more information to supplement his visa application. Compl.

¶ 17. As recently as May 2023, the Embassy confirmed in response to an email from plaintiff’s

son, that plaintiff’s visa application “is still pending under administrative review,” and that “as

soon as the processing is finalized,” plaintiff “will be contacted via email with instructions on []

further steps.” Compl., Ex. at 38 (emphasis added); see also

(Embassy stating, in

December 2022 email, “as soon as the processing is finalized the applicant will be contacted with

instructions on further steps”).

The pending nature of plaintiff’s application is further confirmed by his case status on the

State Department’s website, which expressly provides that if plaintiff was “informed by the

consular office that [his] case was refused for administrative processing, [his] case will remain

refused while undergoing such processing,” and that he “will receive another adjudication once

such processing is complete.” Visa Status Check (emphasis added); see also Compl., Ex. at 46.

The use of “will” in these communications all but guarantees plaintiff another adjudication once

12 administrative processing is complete. As another court in this district has noted, “[t]here is

nothing unusual about this practice, but it means that the initial ‘refusal’ is not the end of the

process.” Giliana, 596 F. Supp. 3d at 18. Given that plaintiff is still awaiting a final decision on

his visa application, the consular nonreviewability doctrine does not bar review since the

“refusal” plaintiff received was “merely provisional, with a final decision yet to come.” Al-

Gharawy, 617 F. Supp. 3d at 16.

C. Unreasonable Delay

Turning to the merits of plaintiff’s claims, in cases challenging agency delay, “the

standards for obtaining relief” under the APA and the Mandamus Act are “essentially the same.”

Vietnam Veterans of Am. v. Shinseki,

, 659 n.6 (D.C. Cir. 2010); see also Bagherian

v. Pompeo,

, 96 (D.D.C. 2020) (“The standard by which a court reviews

agency inaction is the same under both § 706(1) of the APA and the Mandamus Act.” (alteration

in original accepted) (quoting Skalka v. Kelly,

(D.D.C. 2017))). In

each circumstance, “[t]he central question” is “whether the agency’s delay is so egregious as to

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

(D.C. Cir. 2008) (citation

omitted). Plaintiff’s APA and Mandamus Act claims will thus be considered together.

Defendants argue, at the outset, that plaintiff’s claims are not reviewable because plaintiff

has not identified a mandatory non-discretionary agency action. See Defs.’ Mot. at 9–14; see

also In re Bluewater Network,

(D.C. Cir. 2000) (“[I]ssuance of the writ is

an extraordinary remedy, reserved only for the most transparent violations of a clear duty to

act.”); Norton v. S. Utah Wilderness All.,

(2004) (“[A] claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it

is required to take.” (emphasis in original)). The Court assumes, without deciding, that plaintiff

13 has identified a mandatory non-discretionary agency action in the form of the statutory

requirement that “[a]ll immigrant visa applications shall be reviewed and adjudicated by a

consular officer.”

(b); see Khamrabaeva v. Blinken, No. 22-cv-1219,

, at *5 (D.D.C. Sept. 24, 2022) (noting that “[c]ourts in this circuit have taken different

approaches . . . in different contexts” to the question whether Section 1202(b) imposes a

nondiscretionary duty on the government to adjudicate visas, and surveying these different

approaches); see also Sierra Club v. Jackson,

(D.C. Cir. 2011) (“[A]

complaint seeking review of agency action ‘committed to agency discretion by law’ has failed to

state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under

the jurisdictional provision of Rule 12(b)(1).” (quoting

(a)(2))); see, e.g.,

Ghadami v. Dep’t of Homeland Sec., No. 19-cv-397,

, at *7 (D.D.C. Mar. 19,

2020) (assuming plaintiffs’ visa mandamus claims are reviewable under APA and turning

straight to the TRAC factors); Bagherian, 442 F. Supp. 3d at 94 (same); Didban v. Pompeo,

, 175 & n.4 (D.D.C. 2020) (same).5

To determine whether a delay in agency action is unreasonable, six factors, known as the

“TRAC factors,” are considered:

5 In arguing that plaintiff’s claims are not reviewable under the APA, defendants characterize plaintiff’s claim as a request “to reconsider a refused visa application.” Defs.’ Mot. at 10. As explained above, such characterization fails to take the allegations in the Complaint as true. Rather, the Complaint alleges that plaintiff’s “refused” application is not a final decision because he was informed that his visa application is still undergoing “administrative processing.” Compl. ¶ 15. Both caselaw and the State Department’s own website make clear that a refusal based on the need for further administrative processing is not a final refusal. Put differently, plaintiff alleges that his application is still pending, and the “clear duty” that defendants have allegedly breached is not a duty to reconsider a refused visa application, but a consular officer’s duty to review and adjudicate immigrant visa applications as set out in

(b). See Compl. ¶ 2.a (explaining that the “[c]ause of action for this suit arises under . . .

(b), giving Plaintiff the right to apply for an Immigrant Visa and giving Plaintiff the right to have his Application adjudicated”), 39 (“Plaintiff has the statutory right to apply for an Immigrant Visa and to be considered for that relief pursuant to INA § 1202(b).”), 48 (“Plaintiff has a clear right . . . to receive a decision on his Application, pursuant to INA § 1202(b).”); see also Filazapovich, 560 F. Supp. 3d at 235 (relying on the use of “shall” in

(b) to conclude that it “imposes a mandatory duty on consular officers to review and adjudicate immigrant visa applications” and that plaintiffs’ unreasonable delay claims could thus proceed (quoting Gomez v. Biden, No. 20-cv-1419,

, at *20 (D.D.C. Aug. 17, 2021))).

14 (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. Fed. Commc’ns Comm’n (“TRAC”),

(D.C.

Cir. 1984) (citations omitted). 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).6 The TRAC factors are considered below.

1. TRAC Factors 1 and 2

The first and second TRAC weigh in defendants’ favor because the delay in adjudicating

plaintiff’s visa application—just under thirteen months—is not unreasonable.7 These two factors

6 While some decisions issued in this Court “have declined to evaluate claims of ‘unreasonable delay’ before discovery, noting that doing so would be ‘premature’ because the inquiry is ‘fact intensive,’” Desai v. U.S. Citizenship & Immigr. Servs., No. 20-cv-1005,

, at *4 (D.D.C. Mar. 22, 2021) (quoting Thomas v. Pompeo,

, 44 (D.D.C. 2020)), in the majority of cases, the TRAC factors have been applied at the motion to dismiss stage to determine “whether plaintiffs’ complaint has alleged facts sufficient to state a plausible claim for unreasonable administrative delay,” Palakuru v. Renaud,

, 50 (D.D.C. 2021) (citation omitted); see, e.g., Bagherian, 442 F. Supp. 3d at 94–95; Isse,

, at *6. As in those cases, the record here provides enough factual background to evaluate the TRAC factors, and plaintiff does not appear to challenge the timing of the unreasonable day inquiry. See Pl.’s Opp’n at 10–14 (applying the TRAC factors). 7 The Complaint alleges an approximately seventeen-month delay in the adjudication of plaintiff’s visa application, see Compl. ¶ 30, and plaintiff’s opposition alleges a sixteen-month delay for administrative processing, see Pl.’s Opp’n at 1. The proper method for calculating delay, however, is the length of time between the last action the government took on a visa application and the filing of plaintiff’s complaint. See, e.g., Isse,

, at *6 n.4; Arab v. Blinken,

, 68 n.7 (D.D.C. 2022). The last action taken on plaintiff’s visa application was his consular interview in Yerevan in May 2022. The time between that action and June 2023, the date plaintiff filed this suit, is just under thirteen months.

15 are typically considered together, with the first factor being more important. See In re Core

Commc’ns, Inc., 531 F.3d at 855–57; see also Milligan v. Pompeo,

, 317–18

(D.D.C. 2020).

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

consular office must re-adjudicate visa applications.” Isse,

, at *7 (alteration

in original accepted and citation omitted); see also Defs.’ Mot. at 17 (recognizing lack of

congressional mandate); Pl.’s Opp’n at 12 (same). Rather, Congress gives the agency “wide

discretion” in visa processing timelines, Skalka, 246 F. Supp. 3d at 153–54, and “[d]ecisions

regarding the admission of foreign nationals are granted an especially wide degree of deference,

as they frequently implicate ‘relations with foreign powers, or involve classifications defined in

the light of changing political and economic circumstances,’” Didban, 435 F. Supp. 3d at 176

(quoting Trump, 138 S. Ct. at 2418–19).

“Absent a congressionally supplied yardstick, courts typically turn to caselaw as a

guideline.” Sarlak v. Pompeo, No. 20-cv-35,

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

Even though courts have drawn no bright lines to determine reasonableness, district courts have

generally found that immigration delays of two to three years are reasonable. See, e.g., Isse,

, at *6–7 (finding forty-month delay reasonable); see also Ghadami,

, at *8 (“[M]any courts evaluating similar delays have declined to find a two-year period

to be unreasonable as a matter of law.”); Skalka,

(noting that two-year

delays in immigration visa processing “do[] not typically require judicial intervention”); Zandieh

v. Pompeo, No. 20-cv-919,

, at *5–7 (D.D.C. July 29, 2020) (finding 29-

month delay reasonable); Mirbaha v. Pompeo,

, 185–86 (D.D.C. 2021)

16 (noting that “delays between three to five years are often not unreasonable,” and finding 27-

month delay reasonable (citation omitted)).

Here, plaintiff’s visa application was placed in “administrative processing” in May 2022

and was pending for just under thirteen months when plaintiff sued. Compl. ¶ 15. Even if the

clock ran until January 2024 (which it does not), a twenty-month delay would not be

unreasonable. While plaintiff’s application was in “administrative processing,” the government

has taken some action, including requesting additional documentation from plaintiff. Compl.,

Ex. at 15–16, 20–31.

2. TRAC Factors 3 and 5

The related third and fifth TRAC factors consider “the nature and extent of the interests

prejudiced by the delay,” including whether “human health and welfare” might be implicated.

TRAC,

. Plaintiff alleges that delayed adjudication has caused him “significant,

ongoing harm” because he “remain[s] in legal limbo as to whether Plaintiff will be able to join

his wife and son in the United States” and “has been alone in Iran for 11 months.” Compl. ¶ 23.8

Prolonged separation from a spouse or immediate family member may be considered a risk to

human health and welfare. See Didban, 435 F. Supp. 3d at 177 (finding these factors to weigh in

plaintiff’s favor given continued separation of spouses); Isse,

, at *7.

8 In opposition, plaintiff argues that “the Complaint properly alleges that the ‘Petitioners have endured significant financial, emotional, and medical hardships as a result of the unreasonable period of time that Petitioners’ cases have been in administrative processing” and contends that “Defendants concede that this factor weighs in Plaintiff’s favor.” Pl.’s Opp’n at 12 (quoting Compl. ¶ 23). Paragraph 23 of the Complaint does not say what plaintiff contends; in fact, it does not appear to allege financial, emotion, or medical hardship—only hardship due to plaintiff’s separation from his family. See Compl. ¶ 23 (alleging, in its entirety, “[d]elay in adjudicating Plaintiff’s Application has caused him and his family to suffer significant, ongoing harm in that they remain in legal limbo as to whether Plaintiff will be able to join his wife and son in the United States, until such time as Defendants adjudicate the Application. Plaintiff has been alone in Iran for 11 months, awaiting a decision on his Application, while his family is in the United States”). Defendants, in addition, have not conceded that this factor weighs in plaintiff’s favor. See Defs.’ Mot. at 21 (arguing that factors 3 and 5 “weigh in Defendants’ favor”).

17 Defendants acknowledge that the delays have “profoundly impacted the lives of Plaintiff

and Plaintiff’s family” but nonetheless argue that “advancing the application would simply

benefit Plaintiff to the detriment of other noncitizens, who may have experienced the same or

worse impacts from a delay,” because resources would have to be directed away “from the

adjudications that the State Department has identified as more urgent, requiring this Court to

overrule the State Department’s prioritization decisions and place Plaintiff at the front of the

line.” Defs.’ Mot. at 21–22. While perhaps true, these arguments are more appropriate for

TRAC factor 4; the individual health or welfare of a specific plaintiff is frequently taken into

account when evaluating factors 3 and 5. See, e.g., Rahimian v. Blinken, No. 22-cv-785,

, at *8 (D.D.C. Jan. 10, 2023); Sarlak,

, at *6; Da Costa v.

Immigr. Inv. Program Off.,

, 15 (D.D.C. 2022). Plaintiff’s allegations of harm

due to his separation from his family are sufficient for factors 3 and 5 to weigh in his favor.

3. TRAC Factor 4

The fourth TRAC factor, whether “expediting delayed action” will have a harmful effect

on “agency activities of a higher or competing priority,” TRAC,

, carries

significant weight, see Mashpee,

, and weighs heavily in defendants’ favor.

Granting expedited agency action is “viewed as inappropriate” when that relief would

“simply ‘reorder’ a queue of applicants seeking adjudication” and “‘no net gain’ in such

adjudications is achieved.” See Tate v. Pompeo,

, 149 (D.D.C. 2021)

(quoting In re Barr Laby’s., Inc.,

(D.C. Cir. 1991)). In particular, “where

resource allocation is the source of the delay, courts have declined to expedite action because of

the impact on competing priorities.” Liberty Fund, Inc. v. Chao,

(D.D.C. 2005); see also Mashpee,

(explaining that a district court must

18 consider “the importance of there being ‘competing priorities’ for limited resources,” and that a

“first-come” procedure is reasonable); In re Barr Lab’ys,

(“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.”).

Here, if defendants were compelled to act immediately on plaintiff’s application,

plaintiff’s application would move to the head of the queue simply because he sued. Plaintiff

advances no explanation for why other visa applications should be further delayed to expedite his

own. He does not, for example, allege that defendants have stopped processing visa applications,

“‘point to any unique considerations that warrant an expedited review of his’ petition,” or “argue

that the Government has treated him ‘differently than any of the other’ petitioners who are facing

similar circumstances.” Palakuru v. Renaud,

, 52 (D.D.C. 2021) (quoting

Uranga v. U.S. Citizenship & Immigr. Servs.,

, 105 (D.D.C. 2020)). He

argues only that “[d]efendants do not provide any data as to where exactly the Plaintiff fall[s] in

this ‘line.’” Pl.’s Opp’n at 13.9 Plaintiff, however, offers no reason why his exact place in “line”

undercuts defendants’ arguments that expediting review in plaintiff’s case would certainly “pull

government resources” away from other visa adjudications and agency decisions. Bagherian,

442 F. Supp. 3d at 95–96; see also Tate, 513 F. Supp. 3d at 150 (“While 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.”).

9 In opposition, plaintiff argues that defendants “assume without any factual basis” that plaintiff’s visa application is “not already at the ‘front of the line’ or ‘completely ignored’” by defendants, Pl.’s Opp’n at 13, but his Complaint does not allege that his visa was unlawfully withheld, only that it was unlawfully and unreasonably delayed, see generally Compl.

19 4. TRAC Factor 6

The sixth and final TRAC factor, which considers whether “any impropriety lurk[s]

behind agency lassitude,” is neutral. TRAC,

(quoting Pub. Citizen Health Rsch.

Grp. v. Comm’r, Food & Drug Admin.,

(D.C. Cir. 1984)). Plaintiff concedes

that he “has not alleged any impropriety.” Pl.’s Opp’n at 13.

5. TRAC Factors Considered Together

Taking all six TRAC factors together, plaintiff has not stated a claim for unreasonable

delay under the APA or the Mandamus Act. See Rahimian,

, at *9 (reaching

the same conclusion); Logan v. Blinken, No. 21-cv-2275,

, at *7 (D.D.C. Aug.

29, 2022) (same); Arab v. Blinken,

, 72 (D.D.C. 2022); Zaman v. Dep’t of

Homeland Sec., No. 19-cv-3592,

, at *6–8 (Nov. 16, 2021) (same); Sarlak,

, at *6 (same). The relatively minimal thirteen-month delay, prior case law,

and the fact that granting plaintiff relief would merely reorder his application in the queue, all

support the conclusion that the delay in adjudication of plaintiff’s visa is not unreasonable.

While TRAC factors three and five do weigh somewhat in plaintiff’s favor, a holistic review of

the factors does not allow these two factors to eclipse the rest. In this situation, “the

government’s interests in balancing its own priorities” outweighs the individual harm done to

plaintiff and his family as they await a final decision. Milligan, 502 F. Supp. 3d at 320 (quoting

Bagherian, 442 F. Supp. 3d at 95–96).

Plaintiff is understandably frustrated with the visa application process given his long

separation from his son and wife, and the Court has deep sympathy for plaintiff and his family

during their separation. Countless other families, however, are facing similarly difficult

circumstances as they await immigration decisions. See Am. Hosp. Ass’n v. Burwell,

183, 192 (D.C. Cir. 2016) (collecting cases “reject[ing] mandamus claims that would have had

the effect of allowing the plaintiffs to jump the line, functionally solving their delay problem at

the expense of other similarly situated applicants”); Mashpee,

(“refus[ing] to

grant relief, even though 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” (alterations in original accepted) (quoting In re Barr Laby’s,

)).

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is granted. An Order consistent

with this opinion will be filed contemporaneously.

Date: January 30, 2024

__________________________ BERYL A. HOWELL United States District Judge

21