UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAHRA ARABZADA, : : Plaintiff, : Civil Action No.: 23-655 (RC) : v. : Re Document No.: 8 : ANTONIO DONIS, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Zahra Arabzada sues Antonio Donis in his official capacity as the Director of the

Arlington Asylum Office of the United States Citizenship and Immigration Services (“USCIS”),

Ur Jaddou in her official capacity as Director of USCIS, Ted Kim in his official capacity as the

Associate Director of the Refugee, Asylum and International Operations Directorate, Alejandro

Mayorkas in his official capacity as Secretary of the Department of Homeland Security, and

Christopher A. Wray in his official capacity as Director of the Federal Bureau of Investigation

(collectively, “Defendants” or “the Government”). Arabzada seeks relief under the

Administrative Procedure Act (“APA”),

, 706, and the Mandamus Act,

, based on allegations that the Government has unreasonably delayed the adjudication of

her I-589 asylum application. The Government moves to dismiss part of Arabzada’s case for

lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and moves to

dismiss the rest of Arabzada’s case for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). For the reasons explained below, the Court grants Defendants’ motion to

dismiss. II. BACKGROUND

1. Statutory Background

The Immigration and Nationality Act (“INA”) permits individuals to apply for asylum in

the United States if they have a “well-founded fear of persecution” in their home country

because of their “race, religion, nationality, membership in a particular social group, or political

opinion.”

(b)(1)(B)(i), 1101(a)(42). “Any alien who is physically present in

the United States or who arrives in the United States . . . irrespective of such alien’s status, may

apply for asylum.”

§ 1158(a)(1). As relevant here, the INA mandates that “in the absence of

exceptional circumstances, the initial interview or hearing on the asylum application shall

commence not later than 45 days after the date an application is filed . . . [and] final

administrative adjudication of the asylum application, not including administrative appeal, shall

be completed within 180 days after the date an application is filed.” Id. § 1158(d)(5)(A)(ii)-(iii).

2. Factual and Procedural Background

Arabzada is a citizen of Afghanistan. See Compl. ¶ 8, ECF No. 1. In December 2020,

Plaintiff filed an I-589 asylum application with USCIS. Id. ¶ 16. Arabzada “completed the

required biometrics processing,” but to date has not been scheduled for an asylum interview. Id.

¶¶ 16–17. After waiting over two years for an interview on her application, Arabzada filed this

action, alleging that the Government violated the INA by not processing her I-589 petition in a

timely manner. See generally id. ¶¶ 23–26. In support of her claim, Arabzada alleges that she

suffers from post-traumatic stress disorder, id. ¶ 19, and that “the delay by Defendants has

caused severe exacerbation of [her] trauma and has prohibited her from receiving the benefits

that are available to asylees and refugees in the United States,” id. ¶ 35.

2 Before the Court is Defendants’ motion to dismiss, Defs.’ Mot. Dismiss (“Mot.”), ECF

No. 8. Arabzada has filed a brief in opposition, Pl.’s Mem. of Law in Opp’n of Defs.’ Mot.

Dismiss (“Opp’n”), ECF No. 12, and Defendants have filed a reply in support of their motion,

Defs.’ Reply, ECF No. 14. Defendants’ motion to dismiss is now ripe for review.

III. LEGAL STANDARDS

A. Rule 12(b)(1)

To survive a Rule 12(b)(1) motion to dismiss, Arabzada bears the burden of establishing

the Court’s subject matter jurisdiction. See M.M.V. v. Barr,

, 209 (D.D.C.

2020). “Because subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s

claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.” See Grand Lodge of Fraternal Ord. of

Police v. Ashcroft,

(D.D.C. 2001). When evaluating a motion to dismiss

under Rule 12(b)(1), the Court must treat the complaint’s factual allegations as true. See

Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015). But the Court need

not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in

the complaint, nor must the Court accept a plaintiff’s legal conclusions. Food & Water Watch,

Inc. v. Vilsack,

(D.C. Cir. 2015).

One component of the Court’s Article III subject matter jurisdiction is standing to sue.

See Lujan v. Defs. of Wildlife,

(1992) (explaining that standing “is an essential

and unchanging part of the case-or-controversy requirement of Article III”); see Fla. Audubon

Soc. v. Bentsen,

(D.C. Cir. 1996) (“[A] showing of standing is an essential and

unchanging predicate to any exercise of [a federal court’s] jurisdiction.” (quotation marks

omitted)). To establish Article III standing, a party must: (1) allege that he or she “suffered an

3 injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized

and (b) actual or imminent, not conjectural or hypothetical”; (2) allege “a causal connection

between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the

challenged action of the defendant, and not . . . the result of the independent action of some third

party not before the court”; and (3) demonstrate that it is “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61

(cleaned up). A “deficiency on any one of the three prongs suffices to defeat standing.” US

Ecology, Inc. v. U.S. Dep’t of Interior,

(D.C. Cir. 2000); see Am. Freedom Def.

Initiative v. Lynch,

(D.D.C. 2016). In short, if a plaintiff lacks standing

the Court must dismiss for lack of jurisdiction.

B. Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must “state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). To that end, a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly,

(citations and footnote omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are insufficient. Iqbal,

. A court need not accept a plaintiff’s legal

conclusions as true, see

nor must a court presume the veracity of legal conclusions that are

couched as factual allegations, see Twombly,

.

4 “In determining whether a complaint fails to state a claim, the [c]ourt may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the Court] may take judicial notice.” Palakuru v. Renaud,

, 49 (D.D.C. 2021) (cleaned up). A court may take judicial notice of information

posted on official public websites of government agencies. Devani v. U.S. Citizenship &

Immigr. Servs., No. 22-cv-1932,

, at *3 n.1 (D.D.C. Apr. 12, 2023).

IV. ANALYSIS

A. Standing

As a threshold jurisdictional matter, the Court addresses the parties’ dispute respecting

whether FBI Director Christopher Wray should be dismissed as a defendant. The Government

contends that Arabzada lacks standing to sue Director Wray. See Mot. at 10. The Court agrees.

As explained above, to establish standing, a plaintiff must allege “a causal connection

between the injury and the conduct complained of.” Lujan,

. In other words, the

plaintiff’s injury must be “trace[able] to the challenged action of the defendant.”

And

“plaintiffs must establish causation separately for each defendant.” Coubaly v. Cargill, Inc.,

, 180 (D.D.C. 2022); Garcia v. Stewart,

, 205 (D.D.C. 2021)

(“[B]ecause standing is not dispensed in gross, a plaintiff must demonstrate standing for each

claim he seeks to press against each defendant . . . .” (cleaned up)); see also DaimlerChrysler

Corp. v. Cuno,

(2006) (stating that a “plaintiff must demonstrate standing for

each claim [s]he seeks to press”); Fla. Audubon Soc.,

(“Causation may . . . be said

to focus on whether a particular party is appropriate . . . .”).

Here, Arabzada alleges (if inferences from the complaint are made in her favor) that the

unreasonable delay in processing her application is fairly traceable to the FBI because, when an

5 applicant submits her I-589 petition and is entered into the Refugee Asylum and Parole System,

an automatic check of the FBI’s name database is initiated as to that applicant. See Compl.

¶¶ 13, 22; Opp’n at 1–2. Arabzada’s complaint, however, does not allege (1) that this automatic

check process has not occurred for her petition, (2) that this “automatic check” is being delayed,

or (3) that any delay is “fairly traceable” to the FBI or Director Wray. See generally Compl.

Indeed, there are no allegations whatsoever that this step in the visa application process has

contributed in any manner to the delay in Arabzada’s petition. Accordingly, Arabzada has failed

to trace any harm that she has suffered to the conduct of the FBI or Director Wray. Because

Arabzada has alleged no facts tracing her injury to Director Wray, the Court concludes that

Arabzada lacks standing to sue Director Wray and dismisses Director Wray as a defendant in this

case. See Logan v. Blinken, No. 21-cv-2275,

, at *3 (D.D.C. Aug. 29, 2022)

(dismissing claim against Director Wray when plaintiff “failed to allege any plausible role” he

played in processing plaintiff’s visa application); see Fla. Audubon Soc., 94 F.3d at 663–64. It

appears from Arabzada’s complaint, however, that the other defendants in this case still have

some part to play in adjudicating her application, and therefore, Arabzada has standing to sue

those defendants.

B. APA & Mandamus Claims

The Court turns to Arabzada’s claims against the remaining Defendants. Arabzada

argues that she is entitled to relief under both the Mandamus Act,

, and the

APA,

(b), 706(1), for Defendants’ alleged unreasonable delay in processing her

I-589 asylum application. See Compl. ¶¶ 23–37.

6 1. Clear and Non-Discretionary Duty

To warrant judicial review of an agency’s unreasonable delay under either the APA or the

Mandamus Act, a plaintiff must allege that an agency has a clear non-discretionary duty to take a

specific action and that the agency failed to take that action. See Da Costa v. Immigr. Inv.

Program Off.,

(D.C. Cir. 2023) (“To state a claim for unreasonable delay

[under the APA], Plaintiffs must first allege that the agency failed to take a discrete agency

action that it is required to take . . . .” (citation omitted)); Babamuradova v. Blinken,

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

what they must show . . . under the APA, as in both instances plaintiffs must establish that the

government has a clear, nondiscretionary duty.”);

(1) (empowering federal courts

to “compel agency action unlawfully withheld or unreasonably delayed”); see also

(a)(2) (exempting “agency action . . . committed to agency discretion” from judicial review

under the APA).

Thus, the APA “allows courts to provide relief for [an agency’s] failure to act,” but only

when an agency has failed to take a discrete action which the agency was required to take.

Babamuradova, 633 F. Supp. 3d at 14 (emphasis omitted). Similarly, mandamus jurisdiction is

only present where “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty

to act; and (3) there is no other adequate remedy available to plaintiff.” Fornaro v. James,

(D.C. Cir. 2005) (quoting Power v. Barnhart,

(D.C. Cir. 2002)).

Arabzada contends that Defendants’ duty to act on her visa application “is not

discretionary but is, by definition, a mandatory duty.” See Compl. ¶¶ 4, 15, 20, 26. Arabzada

argues that the INA and associated regulations impose a “duty to adjudicate the Plaintiff’s I-589”

application that “is not within the Defendants’ discretion.”

¶ 26 (citing

7 (d)(5)(A)(ii)-(iii)). Defendants disagree, arguing that the timeline set by the INA is

discretionary. See Mot. at 11–13.

The Court agrees with Arabzada that

(d)(5)(A)(ii)-(iii) imposes a non-

discretionary duty. Although the ultimate decision whether to grant asylum relief is

“discretionary,” Huisha-Huisha v. Mayorkas,

(D.C. Cir. 2022), the INA

mandates that “in the absence of exceptional circumstances, the initial interview or hearing on

the asylum application shall commence not later than 45 days after the date an application is

filed” and “final administrative adjudication of the asylum application, not including

administrative appeal, shall be completed within 180 days,”

(d)(5)(A)(iii)

(emphases added).

As the D.C. Circuit has explained, the term “shall is mandatory.” Anglers Conservation

Network v. Pritzker,

(D.C. Cir. 2016) (emphasis omitted) (explaining that

“[o]rdinarily, legislation using ‘shall’ indicates a mandatory duty”). The section of the INA that

Arabzada cites here uses the term “may” for some provisions but uses the word “shall” for the

specific requirement that, “absen[t] exceptional circumstances . . . final administrative

adjudication of the asylum application” be completed within a certain time period.

(d)(5)(A)(ii)-(iii). “[W]hen a statutory provision uses both ‘shall’ and ‘may,’ it is a fair

inference that the writers intended” the word “shall” to impose a mandatory duty. Anglers,

. The Court can therefore infer that the word “shall” in this provision of the INA

creates a mandatory and non-discretionary duty. And because “a precise section of the INA . . .

imposes a mandatory duty,” Arabzada may seek to enforce that duty under the APA.

Filazapovich v. Dep’t of State,

, 235 (D.D.C. 2021) (cleaned up) (citing

Meina Xie v. Kerry,

(D.C. Cir. 2015) and Anglers Conservation Network, 809

8 F.3d at 671); see also Dawod v. Garland,

, at *5 (C.D. Cal. Aug. 10, 2023)

(“[A]djudication of the asylum application . . . is not discretionary given the INA’s use of the

word ‘shall.’” (citing

(d)(5)(A)(ii))).

Moreover, even if the INA did not provide a mandatory and nondiscretionary duty, courts

in this district have also concluded that § 555(b) of the “APA imposes a general but

nondiscretionary duty upon an administrative agency” and “creates a duty for the Government to

reach a final decision on [immigration] applications ‘within a reasonable period.’” Nine Iraqi

Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry,

(D.D.C. 2016) (quoting Fort Sill Apache Tribe v. Nat’l Indian Gaming Comm’n,

, 118–19 (D.D.C. 2015)). Even where an agency’s statutory mandate does

not impose a specific, non-discretionary duty, the “general” duty of the APA is sufficient

grounds for judicial review of an agency action, “authoriz[ing] a reviewing court to ‘compel

agency action unlawfully withheld or unreasonably delayed.’” Mashpee Wampanoag Tribal

Council, Inc. v. Norton,

(D.C. Cir. 2003) (quoting

(1)).

Hence, the APA, which directs reviewing courts to grant relief when agency action is

“unreasonably delayed,”

(1), authorizes judicial review of the Government’s

failure to adjudicate Arabzada’s petition.

Here, Arabzada identifies both the specific asylum provision of the INA and the more

general unreasonable delay provision of the APA to demonstrate that Defendants had a non-

discretionary duty. See Compl. ¶ 37. Accordingly, the Court holds that Arabzada has identified

9 a clear non-discretionary duty and next addresses whether the Government’s conduct constitutes

unreasonable delay. 1

2. Unreasonable Delay

The APA authorizes courts to “compel agency action unlawfully withheld or

unreasonably delayed.”

(1). Here, the Court finds that Arabzada has failed to

state a claim for relief because the duration she has waited for adjudication of her asylum visa

application is not unreasonable under this Circuit’s precedents.

There is no bright-line guidance to dictate when an agency’s adjudication timeline

crosses into unreasonableness. See In re Am. Rivers & Idaho Rivers United,

(D.C. Cir. 2004). “Resolution of a claim of unreasonable delay is ordinarily a complicated and

nuanced task requiring consideration of the particular facts and circumstances before the court.”

Mashpee Wampanoag Tribal Council,

. Courts in this Circuit, however, have

adopted the following six factors as a guide to determine whether an agency’s delay is

“unreasonable”:

(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

1 Because the APA provides an “adequate remedy,” mandamus relief is not available here. See Fornaro,

(quoting Power,

); Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016) (explaining that the threshold mandamus requirements are jurisdictional). The fact that mandamus is not available here, however, is ultimately immaterial because “the governing standards under § 706(1) of the APA and the Mandamus Act are essentially the same.” Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-cv-01136,

, at *4 (D.D.C. May 11, 2020) (internal quotation marks omitted) (citing Vietnam Veterans of Am. v. Shinseki,

, 659 n.6 (D.C. Cir. 2010); see also Ramirez v. Blinken,

, 90 (D.D.C. 2022) (“The standards for challenging agency inaction under the APA and the Mandamus Act are the same.”).

10 into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

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

(D.D.C. 1999) (internal

quotation marks omitted) (citing Telecomms. Rsch. and Action Ctr. v. F.C.C. (“TRAC”),

, 80 (D.D.C. 1984)); see also Da Costa,

(applying TRAC factors to “guide

. . . unreasonable-delay analysis” in immigration case); Punt v. U.S. Citizenship & Immigr.

Servs., No. 22-cv-1218 (RC),

, at *3 (D.D.C. Jan. 11, 2023) (“If the record

contains enough facts to evaluate the TRAC factors, courts apply the TRAC factors at the motion

to dismiss phase of cases involving claims of unreasonable delay.” (internal quotation marks

omitted)).

When applying TRAC’s guidance, no single factor is dispositive—however, the first and

fourth factors generally carry the most weight. See Da Costa,

; In re Core

Communications, Inc.,

(D.C. Cir. 2008) (“The first and most important factor

is that the time agencies take to make decisions must be governed by a ‘rule of reason’” (internal

quotation marks omitted) (quoting TRAC, 750 F.2d at 80)); Zaman v. U.S. Dep’t of Homeland

Sec., No. 19-cv-3592,

at *7 (D.D.C. Nov. 16, 2021) (“The fourth

factor . . . carries the greatest weight in many cases.” (internal quotation marks omitted)).

a. First Factor

The first TRAC factor favors Defendants. 2 This factor requires the Court to “inquir[e]

into whether there is any rhyme or reason for the Government’s delay.” Palakuru, 521 F. Supp.

3d at 50–51 (internal quotation marks omitted). “[T]he Court must determine ‘whether the

2 Although the “first two factors are often considered together,” Ahmadi v. Scharpf, No. 23-cv-953,

, at *5 (D.D.C. Feb. 12, 2024), in this action, it is analytically cleaner to analyze them separately.

11 agency’s response time complies with an existing specified schedule and whether it is governed

by an identifiable rationale.’” Devani,

, at *3 (quoting Ctr. for Sci. in the Pub.

Int. v. FDA,

(D.D.C. 2014)).

The government argues that the delay in adjudicating Arabzada’s I-589 asylum petition is

attributable to a rule of reason. See Mot. at 15–16. Specifically, USCIS has explained that it

implemented a “Last-In-First-Out” (“LIFO”) policy, see id. at 5, 15–16, which it predicted would

help decrease the backlog of pending asylum applications, see 2020 USCIS Ombudsman Ann.

Rep. 43, fig. 4.3, https://www.dhs.gov/sites/default/files/publications/20_0630_cisomb-2020-

annual-report-to-congress.pdf (last visited February 14, 2024). USCIS employs this policy to

“deter individuals from using asylum backlogs solely to obtain employment authorization by

filing frivolous, fraudulent or otherwise non-meritorious asylum applications.” USCIS,

Affirmative Asylum Interview Scheduling, https://www.uscis.gov/humanitarian/refugees-and-

asylum/asylum/affirmative-asylum-interview-scheduling (last visited Mar. 18, 2024). “Giving

priority to recent filings allows USCIS to promptly place such individuals into removal

proceedings, which reduces the incentive to file for asylum solely to obtain employment

authorization.” Id. USCIS concluded that the LIFO approach would help it “to decide qualified

applications in a more efficient manner.” Id. Thus, Defendants say, the asylum visa

adjudication process follows a “rule of reason” and the first TRAC factor supports the

Government’s conduct. See Mot. at 15–16.

Arabzada counters that the “LIFO [policy] is not reducing the number of backlogged

cases.” Opp’n at 5. She contends that the backlog of pending cases in the Arlington Field Office

increased by roughly 21% between March 31, 2022 and September 30, 2022, and that the

national asylum application backlog also grew roughly 11% from December 2022 to March 31,

12 2023. Id.; Reply at 6 (Government repeating these numbers without disputing their accuracy). 3

Arabzada argues that “[w]ith the consistently increasing backlog of cases, USCIS may never get

to the back of the line.” Opp’n at 5.

While Arabzada may question the efficacy of the Government’s method of efficiently

adjudicating asylum applications, the factual question does not control the Court’s analysis when

the first factor merely requires the Court to identify whether Defendants have given a “rhyme or

reason” for the delay. See Ctr. for Sci.,

; Da Costa,

(explaining that the “length of the wait alone is not sufficient to show that USCIS does not

follow a rule of reason” and “[c]onsidering [the obstacles faced by the government] together with

the competing demands on the agency, [the court] cannot say as a matter of law that the

processing time itself establishes that USCIS lacks a rule of reason”). “In general, courts in this

jurisdiction have regularly found that the Government applies a ‘rule of reason’ to the review of

visa petitions by adjudicating applications in the order they were filed.” Mottahedan v. Oudkirk,

No. 23-cv-3486,

, at *4 (D.D.C. Jan. 11, 2024). LIFO flips the chronological

order in which the Government adjudicates applications, but it is ultimately similar as an orderly

chronological approach with a clearly identifiable rationale. Many courts in other jurisdictions

have agreed that LIFO constitutes a rule of reason. See, e.g., Varol v. Radel,

, 1097 (S.D. Cal. 2019) (determining that the LIFO policy followed a rule of reason); Lajin

v. Radel,

, at *3 (S.D. Cal. July 26, 2019) (same); Zhang v. Wolf,

, at *5 (E.D.N.Y. Sept. 30, 2020) (same); Liu v. Wolf,

, at *8

(S.D.N.Y. May 30, 2020) (same); Xu v. Cissna,

, 53 (S.D.N.Y. 2020) (same);

3 The Court observes that it arrived at different percentage values when calculating the percentage of pending cases and the increase in the Government’s backlog, but the difference in value does not change the result here.

13 Dawod v. Garland,

, at *4 (C.D. Cal. Oct. 12, 2023) (same). Other than

arguing about LIFO’s efficacy and hypothesizing about its future consequences, Arabzada does

not offer arguments to dispute that the Government has offered a rationale for its actions and that

the Government is following the policy it has put in place. See generally Opp’n.

Accordingly, the Court joins other jurisdictions that have held that the Government’s

LIFO policy for I-589 asylum applications constitutes a rule of reason. The Court concludes that

the first TRAC factor weighs in favor of Defendants.

b. Second Factor

The second factor—which requires the Court to examine the Government’s delay in light

of statutory timelines—favors Arabzada because “Congress has provided a timetable or other

indication of the speed with which it expects the agency to proceed” when processing asylum

applications, and Defendants have moved slower than Congress’s anticipated timeline. TRAC,

750 F.2d at 80; Muwekma Tribe v. Babbitt,

(D.D.C. 2000) (“If a specific

deadline for final agency action is provided by Congress, the reasonableness of the delay can be

measured in relation to this deadline.”).

Arabzada says that Congress has provided a timetable for I-589 asylum applications. The

INA provides that “in the absence of exceptional circumstances, the initial interview or hearing

on the asylum application shall commence not later than 45 days after the date an application is

filed.”

(d)(5)(A)(ii). Further, “in the absence of exceptional circumstances, final

administrative adjudication of the asylum application, not including administrative appeal, shall

be completed within 180 days after the date an application is filed.”

§ 1158(d)(5)(A)(iii).

However, as the Government rushes to point out, see Mot. at 15, the statute permits a longer

adjudication process in exceptional circumstances, see

(d)(5)(A)(ii)-(iii). And,

14 generally speaking, “Congress has given the agencies wide discretion in the area of immigration

processing.” Skalka v. Kelly,

, 153–54 (D.D.C. 2017). Consequently, courts

sometimes refer to previous decisions on similar actions to gauge what a “reasonable” delay may

look like. See Sarlak v. Pompeo, No. 20-cv-35,

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

2020).

Here, USCIS has exceeded the statutory timeline for adjudication of an I-589 asylum

application: over three years have elapsed without Arabzada receiving an interview—let alone an

adjudication of her application. See Compl. ¶¶ 1, 5, 19, 21, 24, 37. Defendants argue that

USCIS’s LIFO policy constitutes an “exceptional circumstance” because USCIS has determined

it is the best way to address a significant backlog in applications as well as fraud and abuse by

asylum applicants. See Mot. at 15–16. That may be so, “but the question posed in TRAC is not

whether Congress has established a binding timetable; it asks only whether Congress has

‘provided . . . [an] indication of the speed with which it expects the agency to proceed.’” Uranga

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

, 103 (D.D.C. 2020) (quoting TRAC,

750 F.2d at 80). While the Government’s LIFO policy may be a reasonable policy and

permissible under the statute, USCIS’s three-year delay on Arabzada’s application exceeds

Congress’s envisioned timeline. Id. (finding that second factor favored plaintiff when statute

expressed the “sense of Congress” that visa applications should be processed within 180 days,

and plaintiff’s application was pending for over four years). Although long delays are often

expected in asylum visa adjudications, the delay here has been significantly longer than Congress

intended and, accordingly, the second TRAC factor weighs in favor of Arabzada.

15 c. Third and Fifth Factors

Courts analyze TRAC factors three and five together, looking to the possible effects a

delay has had on a plaintiff’s health and welfare and to the “nature and extent of the interests

prejudiced by delay.” See TRAC, 750 F.2d at 80; see also, e.g., Mahmood v. U.S. Dep’t of

Homeland Sec., No. 21-cv-1262,

, at *8 (D.D.C. Dec. 20, 2021). Factors three

and five slightly favor Arabzada.

Arabzada alleges that the delay of her application has severely exacerbated her post-

traumatic stress symptoms, but her complaint provides no details about these symptoms. See

Compl. ¶ 35. Arabzada also contends that the delay “has prohibited her from receiving the

benefits that are available to asylees and refugees in the United States.”

Defendants argue in

opposition that “many others face similarly difficult circumstances as they await adjudication of

their visa applications,” Mot. at 17 (quoting Geiger v. U.S. Dep’t of State, No. 22-cv-02986,

, at *9 (D.D.C. Mar. 31, 2023)). While some courts in this district have

factored whether other applicants face similar circumstances into the TRAC factor three and five

analysis, see Geiger,

, at *4; Palakuru, 521 F. Supp. 3d at 53 (“While the

Court does not doubt that [plaintiff] has an interest in prompt adjudication, so too do many others

facing similar circumstances.”), other courts in this district have contrarily concluded that

arguments comparing the plaintiff to other visa applicants are “better considered under the fourth

TRAC factor,” Chowdhury v. Blinken, No. 21-cv-1205,

, at *4 (D.D.C. Jan. 14,

2022); Varghese v. Blinken, No. 21-cv-2597,

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

(comparison “considerations are accounted for in other parts of the [TRAC] analysis—either in

other TRAC factors or as part of the Court’s ultimate balancing”). The Court ultimately

concludes here that, taking Arabzada’s allegations as true, Arabzada’s allegations about her

16 PTSD are sufficient to tilt the third and fifth TRAC factors slightly in her favor. See

Pourabdollah v. Blinken, No. 23-cv-1603,

, at *8 (D.D.C. Feb. 7, 2024)

(finding that third and fifth factors “slightly favor[ed]” group of plaintiffs who claimed, among

other issues, that they suffered “stress[ ] and anxiety” due to their visa delay).

d. Fourth Factor

The fourth TRAC factor concerns the “effect of expediting delayed action on agency

activities of a higher or competing priority.” TRAC, 750 F.2d at 80. This factor is so important

that the D.C. Circuit has “refused 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.” Mashpee Wampanoag Tribal

Council,

(cleaned up); see also Tate v. Pompeo,

, 150

(D.D.C. 2021) (“Relief that would simply ‘reorder’ a queue of applicants seeking adjudication is

generally viewed as inappropriate when ‘no net gain’ in such adjudications is achieved.” (citing

In re Barr Lab’ys, Inc.,

(D.C. Cir. 1991))); see Didban v. Pompeo,

, 176 (D.D.C. 2020) (noting that reordering applications “would impermissibly interfere

with the agency’s ‘unique’ and ‘authoritative position to view its projects as a whole, estimate

the prospects for each, and allocate its resources in the optimal way’” (internal alterations

omitted) (quoting In re Barr Lab’ys,

)).

When Arabzada filed her complaint, her I-589 petition had been pending for a little over

two years. See Compl. ¶ 16. Arabzada’s complaint, however, does not acknowledge that

ordering the Government to adjudicate her petition would simply “reshuffle the queue to put

h[er] first.” See Telles v. Mayorkas, No. 21-cv-395,

, at *4 (D.D.C. July 13,

2022) (internal quotations omitted); accord Punt,

, at *4. Indeed, Arabzada

17 “does not allege that USCIS treated h[er] differently from anyone else similarly situated.” See

Punt,

, at *4. If this Court were to grant Arabzada the relief she requests, it

would “necessarily come ‘at the expense of other similarly situated applicants.’” Da Costa,

(quoting Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016)). The

fourth factor, therefore, heavily favors Defendants.

The Court acknowledges Arabzada’s argument that because USCIS utilizes a LIFO

approach when adjudicating asylum visa applications, the line that Arabzada is “waiting in, is

being jumped every day with every new application that USCIS does not interview or

adjudicate.” Opp’n at 6. While it is concerning that USCIS’s approach could keep Arabzada

and others in a similar situation waiting in perpetuity, this does not undermine the fact that

granting Arabzada’s requested relief would simply reshuffle the deck of applicants at the

expense of other asylum applicants. Because Arabzada “seek[s] individual, not systemic, relief,”

Da Costa,

, ordering an interview and adjudication would only help her at the

expense of another applicant who is currently in a similar spot in line. And, as explained above,

granting relief is inappropriate where such relief would not “do anything more than expedite [a

plaintiff’s] case at the expense of similarly waiting applicants.” Mahmood,

,

at *8. While the overall impact of granting relief in Arabzada’s 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.” Tate, 513 F. Supp. 3d

at 150. Here, Arabzada has not pleaded any facts showing that granting her requested relief

would result in a “net gain” beyond bringing her application to the front of the line.

Accordingly, the Court concludes that the fourth factor “weighs heavily in favor of Defendants.”

18 Albrecht v. Blinken, No. 22-cv-1318,

, at *4 (D.D.C. June 16, 2023), aff’d,

No. 23-5157,

(D.C. Cir. Jan. 8, 2024).

e. Sixth Factor

The sixth TRAC factor requires the Court to assess any allegations of bad faith or

unfairness on the part of the agency. See, e.g., Sarlak,

, at *6; Zaman,

, at *8; Arab v. Blinken,

, 72 (D.D.C. 2022). Where a plaintiff

does not allege bad faith, the sixth factor reminds the Court not to impute impropriety to agency

delay. See TRAC, 750 F.2d at 80. Arabzada does not allege disparate treatment, bad faith, or

unfairness, and the sixth factor does not weigh in her favor. See Arab, 600 F. Supp. 3d at 72;

Zaman,

, at *8. While some courts have concluded that the absence of

allegations of impropriety supports the agency, other courts have found a lack of such allegations

makes the final factor “inapplicable.” Compare Tate, 513 F. Supp. 3d at 150 (finding that the

absence of unfairness allegations tilts the sixth factor in favor of the agency), with Didban, 435

F. Supp. 3d at 177 (finding the sixth factor to be “inapplicable because Plaintiffs make no

allegations regarding the Government’s motivations”); Punt,

, at *5 (where

plaintiff did not allege “specific facts sufficient to permit a reasonable inference of bad faith,” the

sixth factor “does not alter the Court’s analysis one way or the other” (cleaned up)). The Court

need not resolve whether the sixth factor favors the Government or is inapplicable because,

either way, the Government comes out ahead. Zaman,

, at *8 (stating that

because “the sixth factor would not weigh heavily in the analysis in either event,” the court need

not determine if a lack of allegations of agency impropriety weighs against the plaintiffs).

* * *

19 Taken together, the Court’s review of the six TRAC factors—and especially factors one

and four—leads it to conclude that Arabzada has not stated a claim for unreasonable delay.

While some factors modestly favor Arabzada, they are outweighed by the Government’s reason

for processing asylum claims in the manner that it does and the absence of any justification for

prioritizing Arabzada’s application over the applications of other asylum applicants. The Court

does not take lightly the difficulties Arabzada has faced from the delayed adjudication of her I-

589 asylum application; all told, Arabzada has now waited over three years since filing her

petition. Nevertheless, even the “troubling backlog of petitions” and the “increasingly sluggish

pace of adjudication” are not sufficient to justify judicial relief in this case. Da Costa,

. Accordingly, the Court grants Defendants’ motion.

C. Arbitrary and Capricious and Constitutional Claims

Arabzada also alleges that “the Defendants’ unreasonable delay is arbitrary and

capricious [under the APA] and an unconstitutional violation of [her] right to due process under

the Fifth Amendment.” Compl. ¶ 38. Both arguments are unpersuasive.

1. Arbitrary and Capricious Claim

With respect to her arbitrary and capricious claim, Arabzada has not identified a final

agency action that can be challenged as arbitrary and capricious under

(2)(A).

The “Court’s authority to review the conduct of an administrative agency is limited to cases

challenging ‘final agency action.’” Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety

Comm’n,

(D.C. Cir. 2003) (quoting

). “Final agency action

‘mark[s] the consummation of the agency’s decisionmaking process’ and is ‘one by which rights

or obligations have been determined, or from which legal consequences will flow.’”

(quoting

Bennett v. Spear,

(1997)). To state a claim, Arabzada must point to final

20 agency action. See

Arabzada has not done so. See generally Compl. Rather, she points to

the lack of final agency action, which essentially overlaps with her unreasonable delay claim.

See, e.g., Tate, 513 F. Supp. 3d at 148 n.8 (“Plaintiffs’ challenges to the prioritization of visa

processing . . . are best viewed through the lens of unreasonable delay.”). Accordingly,

Arabzada has failed to state an “arbitrary and capricious” claim under

(2). See

Ramirez v. Blinken,

, 86, 89 (D.D.C. 2022) (granting in part government’s

motion to dismiss visa case where plaintiffs “identified no final agency action amenable to such

an APA claim”).

2. Due Process Claim

Arabzada’s Fifth Amendment due process claim also fails. To succeed on a procedural

due process claim, “a plaintiff must [first] show that there was a cognizable liberty or property

interest at stake.” Smirnov v. Clinton,

(D.D.C. 2011) (citing Mathews v.

Eldridge,

(1976)). Then, “[i]f a cognizable liberty or property interest is at

stake, due process requires only ‘a meaningful opportunity to present’ a case.” Hamal v. U.S.

Dep’t of Homeland Sec., No. 19-cv-2534,

, at *4 (D.D.C. June 3, 2020)

(quoting Mathews,

). In other words, a plaintiff must show that “the procedures

the government provided were constitutionally inadequate.” Ghadami v. U.S. Dep’t of

Homeland Sec., No. 19-cv-397,

, at *10 (D.D.C. March 19, 2020) (citing

Swarthout v.

US. 216, 219 (2011) (per curiam)); Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (“Parties claiming denial of due process in immigration cases must,

in order to prevail, ‘allege some cognizable prejudice fairly attributable to the challenged

process.’” (citation omitted)).

21 Arabzada cannot meet the first requirement because “[t]here is no constitutional right to

political asylum itself.” Maldonado-Perez v. I.N.S.,

(D.C. Cir. 1989); see also

Hamal,

, at *4 n.4 (“Generally, there is no property right in an immigrant

visa.”). Indeed, the plain language of

(d)(7) expressly disclaims any substantive

or procedural rights under the statute. See

(d)(7) (“Nothing in this subsection

shall be construed to create any substantive or procedural right or benefit that is legally

enforceable by any party against the United States or its agencies or officers or any other

person.”).

Moreover, even if Arabzada had a cognizable liberty or property interest, the procedures

in place here are sufficient. In the asylum context, there are only “minimal procedural due

process” protections and all that is required is an eventual opportunity for a “meaningful or fair

evidentiary hearing with a reasonable opportunity to be present” before the Government decides

the outcome of the application. Maldonado-Perez,

. Arabzada will have an

opportunity for a hearing when the Government schedules her interview. And courts have held

that “the government’s delay in scheduling or conducting immigration proceedings does not

violate due process.” Vang v. Gonzales,

(6th Cir. 2007); see also Mudric v.

Att’y Gen. of the U.S.,

(3d Cir. 2006) (“[F]ederal immigration laws do not vest in

aliens a constitutional right to have their immigration matters adjudicated in the most expeditious

manner possible.”); Garrido v. Att’y Gen. of U.S.,

(3d Cir. 2010)

(noncitizens “do not have a due process right to prompt adjudication of asylum applications”);

Lixandru v. U.S. Att’y Gen.,

(11th Cir. 2009) (“In the absence of a

cognizable due process right to have his asylum application adjudicated in a timely manner,

[petitioner’s] due process claim must fail.”).

22 Considering that “[t]here is no constitutional right to political asylum itself,”

Maldonado-Perez,

, and Arabzada will eventually have a chance for a hearing

before the Government adjudicates her application, Arabzada has not pleaded any facts that

plausibly demonstrate a cognizable liberty or property interest is at stake or that the procedures

here are inadequate. Arabzada, therefore, cannot state a Fifth Amendment Due Process claim.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 8) is GRANTED.

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

Dated: March 19, 2024 RUDOLPH CONTRERAS United States District Judge

23