UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAYEH SHARIFYMOGHADDAM, et al.,

Plaintiffs,

v. Case No. 23-cv-1472-RCL

ANTONY BLINKEN, in his official capacity as Secretary of State, et al.,

Defendants.

MEMORANDUM OPINION

Both plaintiffs, Sayeh Sharifymoghaddam and Seyyed Mahmood Jafari Sadeghi, are dual

Iranian and Canadian nationals. They bring suit under the Administrative Procedure Act,

(b), 706(1), and the Mandamus Act,

, to compel a final decision on their

immigrant visa applications. They contend that the U.S. Secretary of State, the Acting Deputy

Assistant Secretary for Visa Services, and the Consul General of the U.S. Consulate in Montreal,

Canada (collectively, “defendants”), have unreasonably delayed rendering a decision on whether

they can immigrate to the United States. Defendants have moved to dismiss the case for lack of

subject matter jurisdiction and for failure to state a claim on which relief can be granted. Upon

consideration of the parties’ briefing, the record, and the applicable law, the Court will GRANT

defendants’ motion and dismiss plaintiffs’ Complaint for failure to state a claim.

I. BACKGROUND

A. Factual History

The Court draws the following factual allegations from plaintiffs’ Complaint, which the

Court must accept as true when evaluating defendants’ motion to dismiss. Bell Atl. Corp. v.

Twombly,

(2007).

1 Plaintiffs, who are married, are each distinguished artificial intelligence researchers.

Compl. ¶¶ 10, 44–45, ECF No. 1. Both work for startups that would like them to relocate from

Canada to the United States. Compl. ¶ 10. Consequently, on May 24, 2019, Dr. Sharifymoghaddam

filed an I-140 National Interest Waiver EB-2 immigration petition. Compl. ¶ 44. EB-2 visas permit

noncitizens with “extraordinary ability in the sciences, arts, education, business, or athletics which

has been demonstrated by sustained national or international acclaim and whose achievements

have been recognized in the field through extensive documentation . . . to enter the United States

to continue work in the area of extraordinary ability.”

(b)(1)(A). As

Dr. Sharifymoghaddam’s spouse, Dr. Sadeghi is a derivative beneficiary of her immigration

petition. Compl. ¶ 45; see

(d) (“A spouse or child . . . shall . . . be entitled to the

same status . . . if accompanying or following to join, the [petitioning] spouse or parent.”). United

States Citizenship and Immigration Services approved Dr. Sharifymoghaddam’s petition on

April 9, 2020. Compl. ¶¶ 3, 44.

After approving, USCIS forwarded the matter to the U.S. Department of State for further

processing. Compl. ¶ 46. Plaintiffs timely filed their DS-260 visa applications with the National

Visa Center on July 13 and 14, 2020. Compl. ¶ 46. On November 23, 2022, Plaintiffs interviewed

with the U.S. Consulate in Montreal. Compl. ¶ 47. Following the interview, Plaintiffs were

informed that their applications were “refused for administrative processing” and required

supplemental paperwork. Compl. ¶¶ 48, 52; 221(g) Notice, ECF No. 1-2. 1 Plaintiffs were

1 “Courts may take judicial notice of information that is posted on official public websites of government agencies when evaluating a motion to dismiss.” Chowdhury v. Blinken, No. 21-cv-1205 (RCL),

, at *1 n.1 (D.D.C. Jan. 14, 2022) (citing Markowicz v. Johnson,

, 161 n.2 (D.D.C. 2016)). The Court will take judicial notice that the Department of State’s Visa Status Check website lists plaintiffs’ visa applications as “Refused.” See Visa Status Check, U.S. Dep’t of St., https://ceac.state.gov/CEACStatTracker/Status.aspx [https://perma.cc/NS4H-BST9]. This is consistent with plaintiffs’ allegation that their applications have been “refused for administrative processing.” Compl. ¶ 52; see 221(g) Notice.

2 instructed to complete Form DS-5535, Supplemental Questions for Visa Applicants, which

requires applicants to submit detailed residential, employment, and travel history. Compl. ¶ 48.

Plaintiffs timely submitted the requested information. Compl. ¶ 49. Since then they “have not

received any updates” and their applications remain “refused for administrative processing.”

Compl. ¶¶ 50–52. When they filed their Complaint, plaintiffs had been waiting six months without

action by the government; they have now been waiting fifteen months. As a result, plaintiffs face

“lack of mentorship from senior leadership in their respective startups, potential loss of

employment, and hind[rance] to their career progression.” Compl. ¶ 58.

B. Procedural History

On May 23, 2023, plaintiffs filed their Complaint requesting that this Court order Secretary

of State, Antony Blinken; Acting Deputy Assistant Secretary for Visa Services, Julie Stufft; and

Consul General of the U.S. Consulate in Montreal, Canada, Ana Escrogima to adjudicate

Plaintiffs’ immigrant visa applications. Compl. ¶ 14. Plaintiffs seek relief under the Administrative

Procedure Act,

(1), and the Mandamus Act,

. On August 23, 2023,

Defendants filed a motion to dismiss for lack of subject-matter jurisdiction and for failure to state

a claim. Defs.’ Mot. 1, ECF No. 8. After the parties finished briefing defendants’ motion, plaintiffs

filed four successive notices of supplemental authority, all of which were directed to out-of-circuit

district court decisions. ECF Nos. 13, 16, 18, 19. Plaintiffs also filed a self-styled notice of change

in material facts, directing the Court’s attention to a sworn declaration from a Department of State

employee filed by the government in an unrelated case that purportedly undermines defendants’

motion to dismiss. ECF No. 20. Defendants’ motion is now ripe for review.

3 II. LEGAL STANDARDS

A. Motions to Dismiss

A defendant in a civil action may move to dismiss a complaint under Federal Rule of Civil

Procedure 12(b)(1) for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A court

considering such a motion must take all the well-pleaded allegations in the complaint as true and

draw all reasonable inferences in the plaintiff's favor. Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). “However, those factual allegations receive closer scrutiny than they

do in the Rule 12(b)(6) context,” and “a court that is assessing a motion brought under Rule

12(b)(1) may look to documents outside of the complaint in order to evaluate whether or not it has

jurisdiction to entertain a claim,” including to “resolve factual disputes concerning jurisdiction.”

Doe v. Wash. Metro. Area Transit Auth.,

, 361 (D.D.C. 2020) (K.B. Jackson, J.)

(internal quotation marks and citations omitted).

A defendant in a civil action may also move to dismiss a complaint under Federal Rule of

Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual

allegations, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009). A claim is plausible on its face if it “pleads factual content that

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

alleged.”

A court evaluating a Rule 12(b)(6) “motion presumes that the complaint’s factual

allegations are true and construes them liberally in the plaintiff’s favor.” Alemu v. Dep’t of

For-Hire Vehicles,

(D.D.C. 2018). However, “[a] court need not accept a

plaintiff’s legal conclusions as true, nor must a court presume the veracity of legal conclusions that

are couched as factual allegations.”

(citation omitted).

4 B. Unreasonable Delay

Plaintiffs’ APA and mandamus claims rest on the same theory: that the Department of State

unreasonably delayed the adjudication of plaintiffs’ visa applications. Compl. ¶¶ 53–57. The APA

commands that “within a reasonable time, each agency shall proceed to conclude a matter

presented to it” and permits a reviewing court to “compel agency action unlawfully withheld or

unreasonably delayed.”

(b), 706(1). A court evaluating a claim of unreasonable

delay must “consider whether the agency’s failure to respond is ‘so egregious’ as to warrant relief.”

Tate v. Pompeo,

, 147 (D.D.C. 2021) (quoting Telecomms. Rsch. & Action

Ctr. v. FCC (TRAC),

(D.C. Cir. 1984)). The D.C. Circuit has identified six factors

for courts to consider when making this determination:

(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.

TRAC,

(internal quotations and citations omitted). “The standard for undue delay

under the Mandamus Act . . . is identical to the APA standard.” Kangarloo v. Pompeo,

, 142 (D.D.C. 2020) (citing Norton v. S. Utah Wilderness All.,

,

63–64 (2004)).

III. DISCUSSION

Defendants raise four arguments for dismissal: (1) plaintiffs lack Article III standing to sue

the Secretary of State because he has no role in adjudicating plaintiffs’ visa applications and is

unable to redress plaintiffs’ alleged injury; (2) the Court lacks subject matter jurisdiction because

5 the defendants are shielded by the doctrine of consular nonreviewability; (3) the Court lacks

mandamus jurisdiction because defendants are not subject to a discrete, non-discretionary duty;

and (4) plaintiffs fail to state a claim because the alleged delay is not unreasonable under the

six-factor test prescribed in TRAC. Defendants’ first two arguments fail. However, even assuming

defendants are subject to a discrete, non-discretionary duty, plaintiffs’ claims fail under Rule

12(b)(6) because a six (now fifteen) month delay is not unreasonable as a matter of law.

A. Article III Standing

Although defendants do not expressly cast their argument that the Secretary of State has

“no role” in adjudicating plaintiffs’ visa applications in Article III standing terms, Defs.’ Mot. 4,

the Court will construe it as a redressability challenge, see Ark Initiative v. Tidwell,

(D.C. Cir. 2014) (describing the “‘irreducible constitutional minimum of standing” as “(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” (quoting Lujan v. Defs.

of Wildlife,

, 560–61 (1992) (emphasis added) (internal quotation marks omitted))).

So construed, defendants’ argument is wholly unpersuasive. “The Immigration and Nationality

Act,

et seq., grants consular officers ‘exclusive authority to review applications

for visas, precluding even the Secretary of State from controlling their determinations.’” Baan Rao

Thai Restaurant v. Pompeo,

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

Albright,

(D.C. Cir. 1999)). But although “the Secretary of State has no legal

authority to control which visa applications consular officers grant or deny, nothing precludes him

from directing them to decide pending applications ‘within a reasonable time,’ as the APA

requires.” Khazaei v. Blinken, No. 23-cv-1419 (JEB),

, at *4 (D.D.C. Sept. 18,

6 2023); see also Ahmadi v. Scharpf, No. 23-cv-953 (DLF),

, at *4 (D.D.C. Feb. 12,

2024). Accordingly, the Secretary of State could redress the alleged injury to plaintiffs by directing

the timely adjudication of their applications. 2

B. Consular Nonreviewability

“Consular nonreviewability shields a consular official’s decision to issue or withhold a visa

from judicial review, at least unless Congress says otherwise.” Baan Rao,

(citing

Saavedra Bruno,

). Defendants argue that refusing a visa for administrative

processing qualifies as “withhold[ing] a visa” within the meaning of Baan Rao. Defs.’ Mot. 12–16

(citing Baan Rao,

). Courts in this District, including this one, have repeatedly

rejected the view that consular nonreviewability applies to decisions to provisionally reject visa

applications for administrative processing. See, e.g., Joorabi v. Pompeo,

, 100

(D.D.C. 2020) (Lamberth, J.); Pourabdollah v. Blinken, No. 23-cv-1603 (DLF),

,

at *4–5 (D.D.C. Feb. 7, 2024) (Friedrich, J.); Sawahreh v. U.S. Dep’t of State,

, 159–60 (D.D.C. 2022) (Boasberg, J.); Al-Gharawy v. U.S. Dep’t of Homeland Sec.,

, 11 (D.D.C. 2022) (Moss., J.); Meyou v. U.S. Dep’t of State, No. 21-cv-2806

(JDB),

, at *2 (D.D.C. May 17, 2022) (Bates, J.); Giliana v. Blinken,

, 17–18 (D.D.C. 2022) (Cooper, J.). That is what plaintiffs allege happened

here. Plaintiffs’ applications were provisionally refused for administrative processing so that

plaintiffs could provide supplemental information regarding their residential, employment, and

2 Because the Court has a “special obligation to satisfy [itself] of [its] own jurisdiction,” Cicero v. Mnuchin,

(D.C. Cir. 2017) (quoting Steel Co. v. Citizens for a Better Env’t,

(1998)), the Court additionally finds that plaintiffs have adequately alleged the violation of “a procedural right to reasonably expeditious agency action that is tethered to [their] concrete professional and financial interest[s]” in career progression and continued employment, see, e.g., Rahman v. Blinken, No. 22-cv-2732 (JEB),

, at *2 (D.D.C. Jan. 17, 2023). This suffices to establish injury in fact. See Summers v. Earth Island Inst.,

(2009). Altogether, the Court is satisfied that plaintiffs have established Article III standing.

7 travel history. Compl. ¶¶ 48–49. Plaintiffs did so but have not yet received a final decision on their

visa applications. Compl. ¶¶ 50–52. The Court adopts the reasoning of the above decisions and

concludes that consular nonreviewability is inapplicable under these circumstances. Consular

nonreviewability does not entitle defendants to dismissal.

C. Unreasonable Delay

The Court has rejected defendants’ standing and consular nonreviewability arguments.

Nevertheless, the Court concludes that defendants are entitled to dismissal under Rule 12(b)(6)

because plaintiffs have failed to state a claim for unreasonable delay. Courts in this District,

including this one, have repeatedly held that it is appropriate to grant a motion to dismiss based on

the “application of the TRAC factors to the factual allegations of a complaint asserting a claim of

‘unreasonable delay.’” Chowdhury,

, at *3 (quoting Desai v. U.S. Citizenship &

Immigr. Servs., No. 20-cv-1005 (CKK),

, at *5 (D.D.C. Mar. 22, 2021)). 3

Ordinarily, before assessing the unreasonableness of an alleged delay, the Court would undertake

to determine whether plaintiffs assert “a discrete agency action that [the agency] is required to

take.” Norton,

. But the Court need not resolve that question because defendants

would still be entitled to dismissal even if it were answered affirmatively. See, e.g., Pourabdollah,

, at *6 & n.5 (turning to the unreasonableness of the alleged delay after assuming

without deciding the existence of a “discrete, required duty”). Applying the TRAC factors to the

3 Plaintiffs refused to address the TRAC factors in their opposition because their “[u]nreasonable delay claims require fact-based inquiries not suitable for disposition at this stage of litigation.” Pls.’ Opp’n 22, ECF No. 10. But “Courts in this district have routinely decided whether an agency’s delay is unreasonable when processing claims at the motion- to-dismiss-stage.” Ahmadi,

, at *5 n.8 (first citing Palakuru v. Renaud,

, 50 (D.D.C. 2021) (collecting cases); and then citing Khan v. Blome, No. 22-cv-2422 (JEB),

, at *4 (D.D.C. Nov. 29, 2022)). The Court deems defendants’ unreasonable delay arguments conceded and, given plaintiffs’ total failure to engage with defendants’ TRAC factors analysis, declines to consider any substantive arguments later raised in plaintiffs’ notices of supplemental authority. See Brett v. Brennan,

, 59 (D.D.C. 2019) (“It is well-understood that ‘if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.’” (quoting Wannall v. Honeywell, Inc.,

(D.C. Cir. 2014)).

8 allegations in the Complaint and judicially noticeable facts, this Court agrees that plaintiffs have

failed to plausibly allege that the delayed adjudication of their applications was unreasonable.

1. TRAC Factors 1 and 2

The first TRAC factor, which commands that the time agencies take to make decisions must

be governed by a rule of reason, is the “most important.” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008). The second TRAC factor “provides that the content of such a rule [of

reason] may be found in a ‘timetable or other indication . . . in the enabling statute.’” Ctr. for Sci.

in the Pub. Int. v. U.S. Food & Drug Admin.,

(D.D.C. 2014) (quoting

TRAC,

). Put together, these factors “get at whether the agency’s response time

complies with an existing specified schedule and whether it is governed by an identifiable

rationale” and whether there is any “rhyme or reason” for the agency’s delay.

The first and second factors favor defendants. Plaintiffs do not contest that “[t]here is no

statutory or regulatory timeframe within which the State Department or a consular officer must

[adjudicate] . . . the visa applications at issue.” See Defs.’ Mot. 18–19; Pls.’ Opp’n 22–23. Lacking

a statutory timeline, courts “typically turn to case law as a guide.” Sarlak v. Pompeo, No. 20-cv-35

(BAH),

, at *6 (D.D.C. June 10, 2020). “[D]istrict courts have generally found

that immigration delays in excess of five, six, seven years are unreasonable, while those between

three to five years are often not unreasonable.” Rahman,

, at *4 (quoting

Sawahreh,

, at *5). Recall that plaintiffs had been waiting for only six months

before they filed their Complaint; now, they have been waiting for fifteen months. 4 That delay is

4 Plaintiffs argue in one of their notices of supplemental authority that the length of delay should be measured from the date that plaintiffs submitted their initial Form I-140 petition, not the date of plaintiffs’ visa interview. ECF No. 16, at 2. Setting aside that plaintiffs waived this argument, Courts in this District routinely analyze delay claims based on the date of placement in administrative processing, not the date that plaintiffs filed their application. See, e.g., Dastagir v. Blinken,

, 165 (D.D.C. 2021) (measuring from date visa application was refused for administrative processing).

9 reasonable under the circumstances. See, e.g., Mohammad v. Blinken, No. 20-cv-3696 (TNM),

, at *4 (D.D.C. July 8, 2021) (finding a delay of “less than two years . . . ‘not

unreasonable as a matter of law, given the circumstances’” (quoting Bagherian v. Pompeo,

, 95 (D.D.C. 2020)).

2. TRAC Factor 4

The fourth TRAC factor, which asks the Court to consider the effect of expediting delayed

action on agency activities of a higher or competing priority, strongly weighs in defendants’ favor.

“Where the agency action sought is one of many similar adjudications that the agency must

complete, the court should be even more cautious before intervening.” Skalka v. Kelly,

246 F. Supp. 3d. 147, 153 (D.D.C. 2017). That is because “[c]ourts are generally hesitant to direct

agencies 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.’” Pourabdollah,

, at *7 (quoting In re Barr Lab’ys, Inc.,

, 75–76 (D.C. Cir. 1991)). 5

Consequently, this factor “often . . . carries the greatest weight.” Da Costa v. Immigr. Inv.

Program Off.,

, 15 (D.D.C. 2022) (citing Milligan v. Pompeo,

, 319 (D.D.C. 2020)), aff’d,

(D.C. Cir. 2023). Although the government seemingly

acknowledges that the effect of prioritizing two visa applications on agency resources may be

minimal, see Defs.’ Mot. 22, the “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,” Tate,

5 Plaintiffs filed a self-styled notice of change in material facts in which they suggest that the government, by way of a declaration filed in an unrelated case, has acknowledged that “there [is] no queue in national security vetting.” ECF No. 20, at 1. But even if no such “queue” in fact exists, the critical point is that agencies get to prioritize their projects and allocate their resources. See In re Barr,

(“The agency is in a unique—and authoritative—position to views its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way.’). Plaintiffs offer no persuasive reason to reject defendants’ representation that prioritizing these applications would necessarily come at the expense of other similarly situated applicants.

10 513 F. Supp. 3d at 150. And a court order prioritizing plaintiffs’ applications, unaccompanied by

any “net gain” in visa application processing, would necessarily be “to the detriment of other

similarly situated visa applicants.” Id. at 149 (quoting Sarlak,

, at *6); Thakker

v. Renaud, No. 20-cv-1133 (CKK),

, at *7 (D.D.C. Mar. 22, 2021). This Court

takes pause before blithely “reordering agency priorities.” See In re Barr,

.

3. TRAC Factors 3 and 5

“The third and fifth factors are often considered together, and require the Court to consider

plaintiffs’ interests, health, and welfare.” Chowdhury,

, at *4 (alteration brackets

omitted) (quoting Thakker,

, at *7). These factors slightly weigh in favor of

plaintiffs. Plaintiffs contend that they presently face “lack of mentorship from senior leadership in

their respective startups, potential loss of employment, and hind[rance] to their career

progression.” Compl. ¶ 58. Plaintiffs also allege that they have been unable to “fully focus on their

work.” Compl. ¶ 10. “Taking these alleged adverse effects as true, as the Court must at this stage,

the plaintiffs are in a worse position than visa applicants who merely claim that their lives have

been put ‘on hold’ by the visa delay.” Pourabdollah,

, at *8 (internal citation

omitted) (quoting Palakuru, 521 F. Supp. 3d at 53). This factor is only slightly beneficial to

plaintiffs, however, because the alleged adverse effects are relatively minor compared to other

employment visa applicants. See e.g., Da Costa, 643 F. Supp. 3d at 15 (noting that delay forced

plaintiffs to remain in city where they “fear for their lives each time they venture out their front

door” and where “residents’ access to drinking water, electricity, and other public services is

substantially limited” (citations omitted)).

11 4. TRAC Factor 6

The last TRAC factor asks whether the agency has acted in bad faith. Fakhimi v. U.S. Dep 't

of State, No. 23-cv-1127 (CKK),

, at *11 (D.D.C. Oct. 23, 2023). The Circuit

has cautioned that a finding of bad faith or impropriety is not necessary to hold that an agency

action is unreasonably delayed. TRAC,

. In any event, plaintiffs have not alleged bad

faith on the part of defendants. Accordingly, this factor is neutral. See Chowdhury,

, at *5.

***

The Court sympathizes with plaintiffs. They are obviously highly talented individuals, and

the delays in visa processing are interfering with their career progression and ability to contribute

to artificial intelligence research in the United States. However, the TRAC factors on balance favor

defendants. Plaintiffs, therefore, have failed to state a claim for unreasonable delay under the AP A.

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT defendants' motion to dismiss. A

separate Order consistent with this Memorandum Opinion shall issue.

Date: March ~ ' 2024 Royce C. Lamberth United States District Judge

12