UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MEHRNOUSH GHOBADI PASHI,

Plaintiff, Civil Action No. 23-1546 v. Judge Beryl A. Howell U.S. DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Mehrnoush Ghobadi Pasha, a citizen of Iran who “invested $500,000 into an

approved ‘Regional Center,’” Pet. for Writ of Mandamus (“Pet”) at 1, ECF No. 1, brought this

suit against defendants, the U.S. Department of State, Secretary of State Antony J. Blinken, the

U.S. Consul General in Naples, Italy, Tracy Roberts-Pounds, and the Attorney General of the

United States, Merrick B. Garland, seeking a writ of mandamus to compel the U.S. Department

of State to adjudicate her visa application, id. at 2, on claims that defendants have unreasonably

delayed her visa application, in violation of the Administrative Procedure Act (“APA”) and the

Mandamus Act, id. at 4–6. Defendants now move to dismiss the petition as moot because

plaintiff’s visa had already been issued or, in the alternative, to dismiss under Federal Rule of

Civil Procedure 12(b)(6) because the petition “names defendants who have no role in connection

with the adjudication of [plaintiff’s] visa application.” Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at

1, ECF No. 5. For the reasons set forth below, this petition must be dismissed as moot.

I. BACKGROUND

Following a brief review of the statutory and regulatory background, the factual history

underlying the claims and procedural history of this case are summarized below.

1 A. Statutory and Regulatory Background

1. EB-5 Classification Generally

The Immigration and Nationality Act (“INA”),

et seq., authorizes the

issuance of visas to different categories of immigrants, including, under the so-called “EB-5”

program, to immigrants who contribute to “employment creation” by investing in new

commercial enterprises that create full-time jobs for American workers, see Immigration Act of

1990,

(a),

, 4989 (Nov. 29, 1990) (codified at

(b)(5)); see

(2020) (defining the requirements and process for EB-5

“alien entrepreneur” classification). To qualify for a visa under the EB-5 program, an immigrant

must “create[e] full-time employment for not fewer than 10 United States citizens . . . or aliens

lawfully admitted for permanent residence or other immigrants lawfully authorized to be

employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or

daughters).”

(b)(5)(A)(ii). Under the regulations in effect at the time of

adjudication of plaintiff’s I-526 application, the immigrant must have made or be in the process

of making an investment of at least $1,000,000 generally or at least $500,000 into a “targeted

employment area,”

(b)(5)(C). 1

A “targeted employment area” is defined as “a rural area or an area designated by the

Secretary of Homeland Security . . . as a high unemployment area,”

§ 1153(b)(5)(D)(viii).

USCIS permits certain so-called “economic units” to apply for categorization as a “targeted

1 In 2019, then-Acting Homeland Security Secretary McAleenan signed a Final Rule that increased the threshold amounts required for EB-5 investments from $1,000,000 to $1,800,000 generally and from $500,000 to $900,000 for targeted employment areas. See Final Rule, EB-5 Immigrant Investor Program Modernization,

, 35,808 (Jul. 24, 2019). This Final Rule was vacated in June 2021, see Behring Reg’l Ctr. LLC v. Wolf,

(N.D. Cal. 2021), and USCIS has since “appl[ied] the EB-5 regulations that were in effect before the rule was finalized,” EB-5 Immigrant Investor Program, U.S. Citizenship and Immigration Servs., https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program (last visited Feb. 21, 2024). In any event, Plaintiff’s I-526 application was adjudicated under the threshold amounts in place prior to this change.

2 employment area” and designation as a “regional center” through the Immigrant Investor Pilot

Program. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies

Appropriations Act of 1993 (“Appropriations Act”),

(a),

, 1874 (Oct. 6, 1992);

(e), (m). To qualify for designation as a “regional

center,” an economic unit must “promot[e] . . . economic growth,”

§ 204.6(e); see

Appropriations Act § 610(a), and the proposal for such designation must explain, inter alia, how

the economic unit focuses on a geographic region of the United States and will promote

economic growth through “increased export sales, improved regional productivity, job creation,

and increased domestic capital investment,”

(m)(3)(i). Upon designation as a

regional center, a foreign investor may then invest in the center to satisfy, with the requisite

threshold amount of funds, the EB-5 employment-creation requirement by creating jobs

indirectly.

§§ 204.6(j)(4)(iii), 204.6(m)(7)(ii).

2. EB-5 Visa Processing Procedure

Foreign investors seeking EB-5 visas must first file a petition with USCIS, using Form I-

526, to petition for classification as an EB-5 investor. See

(a), (c). The burden

of proof rests on petitioners to establish, by a preponderance of the evidence, that they are

“eligible to receive [the] visa” for which they are petitioning.

; see Matter of

Chawathe,

, 375–76 (2010). USCIS adjudicates I-526 petitions based on the

totality of the evidence presented. See

at 375–76. “Once the petition is processed and [if] a

visa becomes available—which may take years—the immigrant advances to ‘conditional’ lawful

permanent resident status.” Mirror Lake Vill. LLC v. Wolf,

(D.C. Cir. 2020)

(citing 8 U.S.C. § 1186b(a)). Successful adjudication and approval of an I-526 petition makes a

petitioner eligible for a visa, but does not automatically provide a visa. At the same time,

3 approved eligibility status permits foreign investors (and their dependent family members) to

apply for two-year conditional permanent resident status either from within the United States or

overseas from the State Department at the United States consular post in the petitioner’s home

country. See 8 U.S.C. §§ 1186b(a)(1), 1201(a), 1255(i);

;

(e),

42.41, 42.42.

After an I-526 petitioner is successfully adjudicated, approved and eligible for a visa,

issuance of a visa to the petitioner is then subject to various limits generally applicable to visa

availability. The INA imposes annual limits on the total number of immigrant visas issued each

year. See

. For example, the agency first caps the worldwide level of

employment-based immigrants each fiscal year,

(d), then limits the number of

employment-based visas that may be granted to individuals from a single country to 7 percent,

see

§ 1152(a)(2), and further limits the number of EB-5 visas to 7.1 percent of all

employment-based visas granted, see id. § 1153(b)(5)(A). Subject to this allotment framework,

the State Department “allocate[s] immigrant visa numbers,” see

(b), and when

the demand for visas is higher than the supply of visas for a given year in any given category, a

visa queue forms. Visa petitions in that queue are organized by their “priority date,” typically

the date the petition was filed. See

(e);

. A petitioner in the

queue then becomes eligible for a permanent resident visa, barring any other indications of

ineligibility, when the listed priority date for petitioner’s country of origin and category printed

in the most recent monthly Visa Bulletin, published by the State Department, see, e.g., U.S.

Dep’t of State, Visa Bull. for February 2024 4–5 (Feb. 2024),

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-

4 february-2024.html (last visited Feb. 21, 2024), falls on a date later than petitioner’s priority

date,

At that point, a visa is considered available to that petitioner. See

The agency historically managed pending I-526 petitions on a first-in, first-out (“FIFO”)

basis until switching, effective March 31, 2020, to a “visa availability” process, which gives

“priority to petitions where visas are immediately available, or soon available.” See U.S.

Citizenship and Immigr. Servs., USCIS Adjusts Process for Managing EB-5 Visa Petition

Inventory (Jan. 29, 2020) (“EB-5 Processing Announcement”),

https://www.uscis.gov/news/news-releases/uscis-adjusts-process-for-managing-eb-5-visa-

petition-inventory (last visited Feb. 21, 2024). Once an I-526 petition is designated for priority,

however, USCIS’s Immigrant Investor Program Office resumes ordering its adjudicative priority

list “in FIFO order.” See U.S. Citizenship and Immigr. Servs., Questions and Answers

(“Questions and Answers”), https://www.uscis.gov/working-united-states/permanent-

workers/employment-based-immigration-fifth-preference-eb-5/questions-and-answers-eb-5-

immigrant-investor-program-visa-availability-approach (last visited Feb. 21, 2024).

After a petition is designated for priority and rises to the top of the FIFO list, it may be

approved and proceed to the National Visa Center for pre-processing. See U.S. Dep’t of State,

Immigrant Visa Process, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-

immigrant-visa-process/step-1-submit-a-petition.html (last visited Jan 17, 2024). According to

the government, this process is an improvement over the previously used “first-in, first-out”

approach and better aligns with congressional intent by allowing petitioners from countries

where visas are immediately available to be processed for EB-5 visas allotted by Congress

without waiting behind petitioners from oversubscribed countries without visas currently

available. See Questions and Answers.

5 B. Factual Background and Procedural History

Plaintiff, a citizen of Iran, is “the beneficiary of an approved I-526 Petition for Alien

Entrepreneur.” Pet. ¶ 1. After filing an application for an immigrant visa with the U.S.

Consulate in Naples, Italy, on or around December 2020,

, plaintiff’s visa was placed into

“administrative processing” in March 2022,

. 2 At the time of filing of plaintiff’s petition,

her visa application “remain[ed] neither approved nor denied.”

.

Defendants filed a motion to dismiss plaintiff’s petition under Federal Rule of Civil

Procedure 12(b)(1), on the grounds that her petition is moot and there is no outstanding case or

controversy to sustain this action. Defs.’ Mot. at 1, 4. 3 As described in defendants’ motion to

dismiss, a consular officer at the Department of State issued plaintiff’s visa after the filing of this

lawsuit. See Defs.’ Mot. at 2;

Att. 2, Decl. of Joseph F. Carilli, Jr. (“Carilli Decl.”) ¶ 4, ECF

No. 5-2. Plaintiff concedes that the U.S. Consulate in Naples issued visas to her and her son in

July 2023, but states that when she and her son attempted to use the visas to travel to the United

States on August 4, 2023, they were denied entry. Pl.’s Opp’n to Def. Mot. Dismiss (“Pl.’s

Opp’n”) at 1–2, ECF No. 6. According to plaintiff, “[w]hen she arrived at the Miami

International Airport, [she] was detained, questioned, and harassed for four hours by Customs

and Border Protection officers,” and that “[e]ventually, she was forced to withdraw her

application for admission to the United States.”

Plaintiff further contends that her visa was

“cancelled” during this incident, and that she “will have to apply for a new Visa.”

.

2 According to defendants, plaintiff’s visa application was initially rejected when she applied before a consular officer on March 2, 2022, rather than placed into administrative processing. Defs.’ Reply Mot. Dismiss (“Defs.’ Reply”) at 2, ECF No. 7. 3 Defendants also moved for dismissal under Rule (12)(b)(6) as to certain defendants “who have no role in connection with the adjudication of the visa application,” Defs.’ Mot. at 1, but this ground for dismissal need not be considered given the granting of defendants’ motion and dismissal of this entire case under Rule 12(b)(1).

6 In response to plaintiff’s new factual representations in her opposition to defendant’s

motion to dismiss, defendants were directed to submit “a more complete explanation of why

plaintiff’s visa was ‘cancelled’ and she was denied entry to the United States on August 4,

2023,” in addition to defendants’ “position on whether plaintiff should be allowed to amend her

complaint given this factual development,” and clarification of “what assurance the government

can provide that the allegations plaintiff asserts, including the cancellation of her visa and the

denial of entry into the United States, are not capable of repetition, yet evading review.” Minute

Order (Sept. 26, 2023). In response to this Court’s order, defendants submitted declarations from

the Customs and Border Protection (“CBP”) Watch Commander at the Miami Field Office,

Moises Pacheco, and from an attorney-advisor in the State Department Office of the Assistant

Legal Adviser for Consular Affairs, Samuel W. McDonald. See Defs.’ Supp. Mem. Supp. Mot.

Dismiss (Defs.’ Supp.”), Att. 1, Decl. of Moises Pacheco (“Pacheco Decl.”), ECF No. 9-1;

Att. 2, Decl. of Samuel W. McDonald (“McDonald Decl.”), ECF No. 9-2.

Commander Pacheco explains that plaintiff’s visa was cancelled by CBP as she was

undergoing the statutorily required inspection upon her arrival at the Miami International

Airport. Pacheco Decl. ¶ 4–6, 10–11. 4 After plaintiff was referred to “secondary inspection”

upon arrival and initial inspection at the Miami airport, “the inspecting CBP Officer determined

that the Plaintiff was likely to be inadmissible to the United States and Plaintiff was informed as

such by the CBP Officer.”

. At that time, the CBP officer allowed plaintiff the

opportunity to withdraw her application for admission to the United States.

. Commander

Pacheco’s declaration states that plaintiff then chose to withdraw her application for admission to

4 All non-citizens arriving in the United States are required to undergo inspection by immigration officers prior to entering the United States.

.

7 the United States, and the inspecting CBP officer cancelled her visa, which was “reflected by the

handwritten lines made by the CBP inspecting officer on the visa.”

¶ 9–10.

Plaintiff’s response to the defendants’ supplemental submission to this Court again

objects to dismissal of her petition, and includes a declaration describing her account of what

transpired when she arrived at the Miami International Airport with her son on August 4, 2023.

See generally Pl.’s Opp’n to Defs.’ Supp. Mem. (“Pl.’s Supp.”), ECF No. 11. 5 Plaintiff

describes that she was questioned “for about 8 hours, encompassing various aspects such as our

immigration history, my husband’s military service, and the circumstances surrounding our visa

issuance.”

. During this questioning, the CBP officer “asserted that the visa in [her]

passport was invalid,” and warned that she “may face imprisonment or acquire a criminal record

for attempting to enter with an invalid visa.”

Plaintiff describes that another CBP officer

later advised her that her and her son’s visas were “fake and invalid,” and that she should “return

to Italy on the earliest available flight, which was scheduled for the following evening.”

Plaintiff asserts that during this whole ordeal, “CBP officers refused to provide my 5-

year-old son with blankets, leaving us confined in a freezing room for over 8-hours,” and that

officers “made fun of my name and ridiculed its pronunciation as though I wasn’t even there.”

Plaintiff claims that she did not desire to withdraw her application for admission, but that she

was rather “forced to do so after having been subjected to an inhumane set of circumstances,

leaving me no choice but to leave but for fear for my own and that of my son’s safety and

wellbeing.”

5 Plaintiff’s supplemental response notes that she “respectfully request[s] to amend her complaint,” Pl.’s Supp. at 3, but given that plaintiff is not proceeding pro se and has counsel in this case, the request to amend her petition will not be considered without a motion to amend and amended petition filed in this Court, in accordance with Federal Rule of Civil Procedure 15(a)(2).

8 After the submission of plaintiff’s opposition to the defendants’ supplemental

memorandum, including plaintiff’s declaration describing her experience at the Miami airport,

defendants filed a notice explaining that the State Department issued a replacement visa to

plaintiff on November 21, 2023. See Defs.’ Not. at 1, ECF No. 12. In this filing, defendants

further assert that, if plaintiff is to again attempt to enter the United States, “speculation about the

outcome of that distinct inspection process by a non-party to this litigation does not preclude

dismissal of this lawsuit on mootness grounds as the State Department has concluded its

activities with respect to the allegations in the Complaint.”

.

II. LEGAL STANDARD

While the “initial burden of proving mootness lies with the party claiming it,” Planned

Parenthood of Wis., Inc. v. Azar,

(D.C. Cir. 2019) (citing Honeywell Int’l, Inc.

v. Nuclear Regulatory Comm’n,

(D.C. Cir. 2010)), the Court must “address

the issue [of mootness] sua sponte because [it] goes to the jurisdiction of this [C]ourt,” Fund for

Animals, Inc. v. United States Bureau of Land Mgmt.,

(D.C. Cir. 2006) (quoting

Mine Reclamation Corp. v. FERC,

(D.C. Cir. 1994)); see also Fort Bend Cty.

v. Davis,

, 1849 (2019) (finding that a court “must consider” its subject-matter

jurisdiction sua sponte “at any point in the litigation”) (internal quotation marks and citation

omitted); North Carolina v. Rice,

(1971) (“Mootness is a jurisdictional

question because the Court ‘is not empowered to decide moot questions or abstract

propositions’” (quoting United States v. Alaska S. S. Co.,

(1920))).

As the Supreme Court has explained “Article III of the Constitution limits federal subject

matter jurisdiction to ‘cases’” and ‘controversies,’” Campbell-Ewald Co. v. Gomez,

, 160–61 (2016) (quoting U.S. CONST. art. III. §2), a requirement interpreted “to demand that

9 ‘an actual controversy . . . be extant at all stages of review, not merely at the time

the complaint is filed,’” id. (quoting Arizonans for Official English v. Arizona,

(1997) (quoting Preiser v. Newkirk,

(1975))). “[A] case becomes moot when

the issues presented are no longer live’ or the parties lack a legally cognizable interest in the

outcome.” Porzecanski v. Azar,

(D.C. Cir. 2019) (quoting Conservation

Force, Inc. v. Jewell,

(D.C. Cir. 2013)). “[A] case is moot if intervening

events make it impossible to grant any effectual relief or if a party has already obtained all the

relief that it has sought.”

(internal quotation marks and citations omitted). Thus, “the

mootness doctrine prohibits [courts] from deciding a case if ‘events have so transpired that the

decision will neither presently affect the parties’ rights nor have a more-than-speculative chance

of affecting them in the future.’” J.T. v. D.C.,

(D.C. Cir. 2020) (quoting

Clarke v. United States,

(D.C. Cir. 1990) (en banc) (internal quotation marks

omitted)).

III. DISCUSSION

Defendants move to dismiss, under Federal Rule of Civil Procedure 12(b)(1), arguing that

in light of the issuance of plaintiff’s visa, the case should be dismissed as moot. See generally

Defs.’ Mot.; Defs.’ Supp. For the reasons outlined below, the Court agrees that this action is now

moot.

Defendants contend that this case should be dismissed as moot because at the time of

filing, the only issue in plaintiff’s case was “whether a consular officer had unreasonably delayed

the re-adjudication of Plaintiff’s visa application,” and that “there is no longer any live case or

controversy” because plaintiff’s visa has been issued. Defs.’ Mot. at 4. Plaintiff counters that

her case is not moot because of both the voluntary cessation doctrine and her assertions that

10 defendants’ conduct—of unreasonably delaying adjudication of her visa application—is capable

of repetition, yet evading review. Pl.’s Opp’n at 2–4.

Defendants are correct that plaintiff’s claim of unreasonable delay is now moot.

Plaintiff’s cause of action alleges that the “U.S. Consulate in Naples has simply refused to

adjudicate [her] immigrant Visa application,” and that the “failure of the U.S. Consulate in

Naples to make a final determination on [her] immigrant Visa application is arbitrary, capricious,

and not in accordance with federal law.” Pet. ¶ 13–14. The limited scope of plaintiff’s claim is

confirmed by the scope of the predominant relief she seeks, namely: to compel “the U.S.

Embassy in Naples to adjudicate [her] immigrant Visa application within a reasonable time.”

Pet. at 6. By issuing her visa not once, but now twice, defendants have afforded plaintiff all the

relief she demanded in her petition for a writ of mandamus. Plaintiff has not moved to amend

her petition to add any additional request for relief from this Court, and thus no outstanding

controversy has been presented to this Court in this case.

To evade the conclusion that her case is moot, plaintiff first attempts to invoke the

voluntary cessation doctrine. Pl.’s Opp’n at 2–4. She argues that, because defendants

adjudicated her visa application only after she filed this lawsuit, they “could simply defeat this

lawsuit by temporarily ceasing their unlawful behavior,” with “nothing to stop them from

engaging in the same unlawful behavior once the lawsuit is dismissed.” Id. at 3. According to

plaintiff, a court may only find mootness if the defendants prove that it is “absolutely clear” that

the alleged wrongful behavior of arbitrarily delaying her visa application will not recur after the

case is dismissed, and plaintiff further argues that defendants have failed to make this showing.

Id. at 3–4.

11 Under the voluntary cessation exception to mootness, “a defendant cannot automatically

moot a case simply by ending its unlawful conduct once sued,” because it may be “free to return

to [its] old ways.” Already, LLC v. Nike, Inc.,

, 91–92 (2013) (quoting Deakins v.

Monaghan,

, 201 n.4 (1988)). Instead, “a defendant’s voluntary cessation of

allegedly unlawful conduct can moot a case only if (i) ‘there is no reasonable expectation . . . that

the alleged violation will recur,’ and (ii) ‘interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation.’” Aref v. Lynch,

(D.C. Cir. 2016) (quoting Am. Bar Ass’n v. Fed. Trade Comm’n,

(D.C. Cir.

2011)) (alteration in original). Defendants bear the “formidable burden of showing that it is

absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

Already,

(quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

(2000)); see also West Virginia v. Env’t Prot. Agency,

, 719

(2022) (describing the burden of establishing mootness as “heavy” where “[t]he only conceivable

basis for a finding of mootness in th[e] case is [the respondent’s] voluntary conduct” (quoting

Friends of the Earth,

)); People for the Ethical Treatment of Animals v. U.S.

Dep’t of Agric.,

(D.C. Cir. 2019) (holding that “[i]f a defendant can

demonstrate that there is no reasonable expectation that the allegedly unlawful conduct will

recur, the claim may be moot”).

Although plaintiff’s visa has now been issued not once, but twice, her position seems to

be that her case is not moot because defendants have a policy or practice of unreasonably

delaying adjudication of visa applications, that she may challenge pursuant to Payne Enterprises,

Inc. v. United States,

(D.C. Cir. 1988). The D.C. Circuit in Payne applied the

voluntary cessation doctrine to render a FOIA request not moot, even though the government

12 provided the documents in dispute, because the plaintiff presented a ripe challenge to the

government’s practice of delaying the release of documents without justification.

. The

appellate panel held that “even though a party may have obtained relief as to a specific request

under the FOIA, this will not moot a claim that an agency policy or practice will impair the

party’s lawful access to information in the future.”

at 491 (citing Better Gov’t Ass’n v. Dep’t

of State,

, 90–92 (D.C. Cir. 1986)) (emphases in original).

Assuming, arguendo, that plaintiff could assert a “policy or practice” claim in the visa

mandamus sphere, plaintiff fails to allege sufficient facts that defendants have a policy or

practice of delaying adjudication of visa applications. Plaintiff is “solely complaining about the

time it took for her specific visa case to be processed without reference to any unlawful policy or

specific allegation of arbitrary conduct by the [State] Department.” Defs.’ Reply at 2. In fact, as

described by defendants, even the delay that plaintiff experienced before the issuance of her first

visa was not unreasonable as a matter of law.

at 3–4; see Da Costa v. Immigr. Inv’r. Program

Office,

(D.C. Cir. 2023) (holding that a visa processing wait time of four and a

half years was not unreasonable given the “serious practical challenges posed by a global

pandemic” and “competing demands on the [issuing] agency”). Considering plaintiff’s failure to

allege an unreasonable policy or practice on behalf of the defendants, and the fact that even the

delay in adjudication of her visa specifically does not demonstrate an unreasonable policy or

practice in visa adjudication, plaintiff cannot invoke the voluntary cessation doctrine.

Moreover, in light of the fact that plaintiff and her son are now in possession of reissued

visas that were fairly promptly and voluntarily reissued by defendants, this record does not

support any reasonable expectation that the alleged violation will recur. See Defs.’ Not. at 1.

Put another way, this record does not support a reasonable likelihood that defendants’ alleged

13 unlawful conduct of unreasonably delaying consideration of plaintiff’s visa application could

recur at this time. Consequently, the voluntary cessation doctrine is inapplicable here and does

not bar dismissal of this case on mootness grounds. 6

Plaintiff next argues against dismissal of her case on the basis that defendants’ conduct is

capable of repetition, yet evading review. This exception to mootness applies where (1) the

duration of the action is too short to be “fully litigated prior to cessation or expiration,” and (2)

“there is a reasonable expectation that the same complaining party will be subject to the same

action again.” United States v. Juvenile Male,

(2011). Here, plaintiff argues

that “it seems obvious that Defendants are likely to delay any future Visa application of Ms.

Ghobadi,” and that without this exception to mootness, her visa applications “would become

effectively unreviewable by the courts.” Pl.’s Opp’n at 5. As an initial matter, these conclusory

statements made by plaintiff are wholly unsupported by the factual allegations in her petition and

the record in this case.

The exception to mootness for action that is capable of repetition, yet evading review,

does not apply in this case. As to the first prong to be considered when evaluating applicability

of this doctrine—the duration of the action—the alleged unreasonable delay in adjudicating a

visa case is, as described by the defendants, “by definition not of such limited duration as to

evade review.” See Defs.’ Reply at 5 (citing Hall v. CIA,

(D.C. Cir. 2006)).

Indeed, the entire basis of plaintiff’s claim is that the period of time that her visa was pending

was unreasonably long. This claim makes contradictory plaintiff’s assertion now that the alleged

6 Plaintiff argues in her supplemental response that “even if the visa is to be issued again it may be followed by another validity question regarding the visa itself,” and that her case should not be dismissed unless defendants “can make assurances as to the issued Visa being honored at a point of entry, or until Plaintiff has been admitted under said Visa.” Pl.’s Supp. at 6. Plaintiff has not, however, amended her petition to request any relief corresponding to these arguments she brings against dismissal. Thus, any argument or request from the plaintiff that defendants should be required to ensure that she is granted entry to the United States cannot prevent dismissal of this case, in which the relief she has requested is issuance of her visa.

14 harm committed by defendants is too limited in duration to be fully litigated. To be sure, the

claim brought by plaintiff did not outlive the pendency of this litigation, but that is only because

she was granted the complete relief that she requested in her petition. The granting of her

requested relief does not make plaintiff eligible for the exception to mootness provided by this

doctrine, which is instead typically aimed at circumstances in which the alleged harm creates a

permanent or irreparable effect after a short period of time and before litigation may be resolved.

Plaintiff also fails to satisfy the second prong for application of this exception to

mootness—that there is a reasonable expectation that she will be subject to the same action

again. See United States v. Juvenile Male,

(2011). As described in the

defendant’s November 28, 2023, notice to the Court, defendants have already reissued visas to

plaintiff and her son. Defs.’ Not. at 1. Plaintiff has not offered any reason to believe that she

will be subject to the same unlawful conduct alleged in this case—unreasonable delay of a visa

adjudication—now that her visa has already been reissued. The exception to mootness for

actions that are capable of repetition, yet evading review thus does not apply in this case.

Accordingly, plaintiff’s claim of unreasonable delay in the adjudication of her visa

application is now moot and her petition must be dismissed.

IV. CONCLUSION

For the foregoing reasons, plaintiff’s claim of unreasonable agency delay in rendering a

final decision on her visa is now moot. Accordingly, the case is dismissed and defendants’

motion to dismiss is GRANTED. An Order consistent with this Memorandum Opinion will be

filed contemporaneously.

Date: February 21, 2024 ____________________________ BERYL A. HOWELL United States District Judge

15