UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KHARIS MUSALEEV et al.,

Plaintiffs,

v. Civil Action No. 24-1100 (TJK) RENA BITTER, Assistant Secretary for Con- sular Affairs, Department of State, et al.,

Defendants.

MEMORANDUM OPINION

In early 2023, Dr. Kharis Musaleev and his family applied for nonimmigrant visas so that

he could come to the United States to work as a technical sales engineer. He alleges that the

applications have languished in administrative processing since his family interviewed at the U.S.

embassy in Armenia almost two years ago. After multiple attempts to move the process along, the

Musaleev family sued several government officials for the delay. Defendants move to dismiss for

lack of jurisdiction and failure to state a claim. For the following reasons, the Court will grant the

motion—partly on jurisdictional grounds, and partly on the merits.

I. Background

Dr. Kharis Musaleev is a Russian citizen. ECF No. 10 (“Am. Compl.”) ¶ 8. He lives in

that country with his wife Alina and their two children. Id. At some point, a United States com-

pany called Altor, LLC offered Dr. Musaleev a position as a technical sales engineer. Id. Altor

then filed an O-1A petition on Dr. Musaleev’s behalf in December 2022. Id. ¶¶ 8, 19. Such a

petition may “authoriz[e]” a “qualified alien” to “come to the United States to perform” certain

services.

(o)(1)(i). As relevant here, this “O-1 classification” covers aliens with

“extraordinary ability in the sciences, arts, education, business or athletics” if they are “coming temporarily to the United States to continue work in the area of extraordinary ability.”

§ 214.2(o)(1)(ii)(A)(1). The United States Citizenship and Immigration Services approved Altor’s

O-1A petition, see Am. Compl. ¶ 8, but Dr. Musaleev and his family 1 still needed to “apply for a

visa or seek admission to the United States,” § 214.2(o)(1)(i).

Dr. Musaleev did so by applying for a visa in early 2023, and he completed his interview

at the U.S. embassy in Armenia on February 22 of that year. Am. Compl. ¶¶ 21–22. While at the

embassy, he “was told that a decision on the visa applications . . . could not be made at this time.”

Id. ¶ 23. The embassy’s consular section emailed him three weeks later to request more infor-

mation “as part of [his] administrative processing.” Id. ¶ 24. Dr. Musaleev sent that information

within five days. Id. In July 2023, the embassy returned the original documents that Dr. Musaleev

had provided when he interviewed. Id. ¶ 26.

Dr. Musaleev says that there has been radio silence since then. During that time, he has

been unable to work at Altor, placing his “employment in jeopardy.” Am. Compl. ¶ 37. His

counsel submitted a request to expedite in April 2023 to move things along and, in January 2024,

told the embassy that Dr. Musaleev would sue based on the delay. Id. ¶¶ 25, 27. Still without

action on the applications, Dr. Musaleev did just that in April 2024.

In the amended complaint, Dr. Musaleev brings three claims against several parties: the

Assistant Secretary for Consular Affairs, the Deputy Assistant Secretary for Visa Services, the

Ambassador to Armenia, and the Secretary of State. Specifically, he alleges that the delay violates

the Administrative Procedure Act,

(1), and that he is entitled to relief under that

1 Because Dr. Musaleev is the specific individual for whom Altor filed an O-1A petition, the Court follows the parties’ lead and focuses on him as the lead petitioner. That focus makes no difference for the outcome; the dispositive analysis remains the same whether keyed to Dr. Mu- saleev’s application or those of the entire family.

2 statute and

. Am. Compl. ¶¶ 33–44. He also requests a declaratory judgment

under

et seq. that the delay is unlawful. See Am. Compl. ¶¶ 45–47. Finally, he

alludes to a due-process violation.

. Defendants move to dismiss the amended complaint

on several grounds.

II. Legal Standards

A plaintiff must establish the Court’s subject-matter jurisdiction to survive a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1). Arpaio v. Obama,

(D.C.

Cir. 2015). The Court “assume[s] the truth of all material factual allegations in the complaint and

‘construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be de-

rived from the facts alleged,’ . . . and upon such facts determine[s] jurisdictional questions.” Am.

Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)). Without subject-matter jurisdiction over a claim, the Court must

dismiss it. Arbaugh v. Y&H Corp.,

(2006).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A plaintiff states a facially plausible claim when he pleads “factual content that

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

alleged.” Ashcroft v. Iqbal,

(2009). The Court accepts as true “all well-pleaded

factual allegations” and “construes reasonable inferences from those allegations in the plaintiff’s

favor.” Sissel v. HHS,

(D.C. Cir. 2014). But “mere conclusory statements” are not

enough to establish a plausible claim, and courts “are not bound to accept as true a legal conclusion

couched as a factual allegation.” Iqbal,

(quoting Twombly,

).

3 III. Analysis

Defendants raise several threshold arguments for dismissal. They say that three of them—

the Secretary of State, Assistant Secretary for Consular Affairs, and Deputy Assistant Secretary

for Visa Services—cannot provide the relief that Dr. Musaleev seeks. See ECF No. 13 at 21–22.

Next, they argue that Dr. Musaleev lacks Article III standing because he does not allege a redress-

able and concrete injury. See

at 22–31. On top of those jurisdictional problems, Defendants

add that the doctrine of consular non-reviewability bars review, see

at 31–38, that mandamus

relief is off the table because Dr. Musaleev identifies no required agency action, see

at 38–47,

and that the delay in this case is not unreasonable, see

at 47–56. Finally, Defendants contend

that the due-process allegations—to the extent Dr. Musaleev tries to raise a claim with them—

falter on the merits. See

at 57–58.

The Court disagrees with most of Defendants’ jurisdictional arguments but agrees that the

roughly two-year delay is not unreasonable (and that the amended complaint does not state a due-

process claim), so it stops there. Because consular non-reviewability is “not a jurisdictional de-

fense,” the Court “need not decide” whether that doctrine precludes judicial review. Janay v.

Blinken, No. 23-cv-3737 (RDM),

, at *10 (D.D.C. July 16, 2024). And because

Dr. Musaleev has “not suffered an unreasonable delay” warranting mandamus relief, the Court

may “assume without deciding that” Dr. Musaleev “allege[s] the defendants are subject to a dis-

crete required duty.” Lee v. Blinken, No. 23-cv-1783 (DLF),

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

15, 2024). 2 The bottom line is the same: the Court will grant Defendants’ motion to dismiss.

2 Although the Court need not address this issue here, the D.C. Circuit’s recent decision in Karimova v. Abate suggests that Dr. Musaleev has not identified “a legally required, discrete act that the agency has failed to perform.” No. 23-5178,

, at *3 (D.C. Cir. July 24, 2024) (cleaned up) (quoting Montanans for Multiple Use v. Barbouletos,

(D.C. Cir. 2009)). There, the Circuit explained that a visa applicant had not “identified any law” clearly

4 A. Dr. Musaleev Has Standing Against Most Defendants To Challenge the De- layed Adjudication

Article III of the Constitution limits the authority of federal courts, which “may only adju-

dicate actual, ongoing controversies.” Honig v. Doe,

(1988). The doctrine of

standing is a “core component”—“an essential and unchanging part”—of this “case-or-contro-

versy requirement.” Lujan v. Defs. of Wildlife,

(1992). Establishing standing

requires a plaintiff to show that he “(1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins,

(2016).

Defendants contend that Dr. Musaleev falters on the first and third elements. He has suf-

fered no cognizable injury, they say, because Dr. Musaleev asserts only the harm of “being unable

to travel to the United States and apply to admission into this country.” ECF No. 13 at 24. And

any injury he has suffered is not redressable by an “order compelling re-adjudication”—that is, the

relief he seeks will not fix the harm he asserts. Id. at 30. Both arguments miss the mark for reasons

that judges in this District have explained many times.

First, Defendants misunderstand the injury that Dr. Musaleev asserts. 3 He does not seek

to vindicate only a right to travel to the United States. Instead, Dr. Musaleev alleges a “procedural

right to reasonably expeditious agency action that is tethered to [his] concrete professional and

requiring a consular officer “to either issue her a visa or refuse her application, without then also placing it in administrative processing.” Id. That reasoning tracks Judge McFadden’s analysis in Yaghoubnezhad v. Stufft, where he held that no “statute or regulation require[s] [the State Depart- ment] to complete ‘administrative processing’ once it has already properly refused a visa.”

, 101 (D.D.C. 2024). 3 Defendants aim their jurisdictional arguments at Dr. Musaleev rather than at the other family members. And the Court “need not consider the standing of the other plaintiffs” so long as “at least one plaintiff” has standing to bring a claim, Whitman-Walker Clinic, Inc. v. HHS,

, 18 (D.D.C. 2020), which is true here.

5 financial interest” in working as a technical sales engineer for Altor. Khazaei v. Blinken, No. 23-

cv-1419 (JEB),

, at *4 (D.D.C. Sept. 18, 2023) (citation omitted). And he claims

that the delay has not only prevented him from starting that job but has also placed his “employ-

ment in jeopardy.” Am. Compl. ¶ 37. This kind of “injur[y]” to his “professional and financial

interests,” premised on the delayed adjudication, is enough. Babaei v. Dep’t of State,

, 26 (D.D.C. 2024); see also, e.g., Kahbasi v. Blinken, No. 23-cv-1667 (LLA),

, at *3 (D.D.C. June 27, 2024) (constitutional standing where plaintiff “may lose a re-

search and teaching position”).

Second, this injury is redressable. Dr. Musaleev asks for an order compelling Defendants

“and those acting under them to . . . render a decision” on the pending visa applications. Am.

Compl. at 13. This relief is appropriate, he alleges, because Defendants “have failed to adjudicate”

the applications, which have been mired in administrative processing since early 2023. See

. And when visa “applications are still pending administrative processing,” the appli-

cant’s “injuries may be redressed with an order to complete that review more expeditiously.” Ba-

baei, 725 F. Supp. 3d at 26–27 (internal quotation marks and citation omitted).

Resisting this conclusion, Defendants argue that Dr. Musaleev seeks an order directing

“State Department officials to re-adjudicate his O-1A Visa Application.” ECF No. 13 at 30. And

because the “United States has refused” that application already, forcing another decision will not

“produce a different result.”

But the factual allegations, accepted as true and construed in Dr.

Musaleev’s favor, say that the applications are in administrative processing—a process that might

result in further action. 4 See, e.g., Am. Compl. ¶¶ 23–24 (alleging that the embassy told Dr.

4 Defendants point to the State Department “Visa Status Check” website and contend that, if Dr. Musaleev’s application number is entered, the website shows the visa application as

6 Musaleev that a decision “could not be made at th[is] time” and that he provided documents for

“administrative processing” a month later). So the injury of unreasonable delay “would be re-

dressed by a decision, one way or another.” Babaei, 725 F. Supp. 3d at 27. For that reason,

“[c]ourts in this district have . . . held that those seeking to challenge unreasonable delay in their

visa applications possess constitutional standing.” Khan v. Blome, No. 22-cv-2422 (JEB),

, at *3 (D.D.C. Nov. 29, 2022). That reasoning extends to cases where the “appli-

cations have been refused pending further review” because the applicant’s “injuries plausibly may

be redressed with an order to complete that review more expeditiously.” Yaghoubnezhad v. Stufft,

, 97 (D.D.C. 2024).

Defendants next argue that Dr. Musaleev lacks standing to sue some of them specifically.

To establish standing against a defendant, a plaintiff must allege “that his injury is causally con-

nected to the defendant’s conduct and can likely be redressed by a favorable decision.” Rashidi v.

Dep’t of State, No. 23-cv-1569 (JEB),

, at *3 (D.D.C. Oct. 4, 2023) (cleaned

up) (internal quotation marks and citation omitted). Dr. Musaleev has not done so, Defendants

contend, because consular officers have “exclusive authority to review applications for visas, pre-

cluding even the Secretary of State from controlling their determinations.” ECF No. 13 at 21

(citation and some emphases omitted). So the Secretary of State, Assistant Secretary for Consular

Affairs, and Deputy Assistant Secretary for Visa Services have “no alleged role” in handling the

“[r]efused.” ECF No. 13 at 18. No results appeared when the Court entered the provided appli- cation number. In any event, Dr. Musaleev’s allegations suggest that no final decision has been made on the visa applications, so his injury would be redressable by an order directing faster ad- judication through administrative processing—i.e., an order telling officials to complete that pro- cess quicker. See also Khan v. Blome, No. 22-cv-2422 (JEB),

, at *1 (D.D.C. Nov. 29, 2022) (explaining that the Department of State “changed its website to display the status of [visa] applications undergoing further administrative processing as ‘refused’ but that this “re- porting change . . . reflects no change in such applicants’ actual cases” (internal quotation marks and citation omitted)).

7 visa applications, meaning that they cannot redress the alleged injuries.

The Court agrees as to the Secretary of State. Congress has “circumscribed” his “role in

the visa-adjudication process” by precluding him from “controlling” the determinations of consu-

lar officers. Zakeri v. Blinken, No. 23-cv-3162 (TJK),

, at *3 (D.D.C. July 2,

2024) (citation omitted). True, other courts in this District have held that

(a) does

not prevent the Secretary from directing consular officers to make those determinations “within a

reasonable time.” E.g., Al-Gharawy v. DHS,

, 10 (D.D.C. 2022). But the statu-

tory text cabins more than the Secretary’s authority to control the consular officers’ ultimate de-

terminations; it exempts from that authority the “powers, duties, and functions conferred upon the

consular officers relating to the granting or refusal of visas.” § 1104(a) (emphasis added). And

that carveout covers “administrative guidance for the pace of adjudicating visas or completing

administrative processing”—i.e., the kind of authority needed to redress Dr. Musaleev’s delay-

based injury. Zakeri,

, at *3 n.3 (emphasis added). This “clear textual limita-

tion” cuts against the idea that the Secretary “has some residual authority to control the timing” of

visa adjudications. Yaghoubnezhad, 734 F. Supp. 3d at 98; see also Emad v. Dep’t of State, No. 23-

cv-1789 (TJK),

, at *3 (D.D.C. July 23, 2024) (reaching same conclusion). Nor

has Dr. Musaleev alleged any other source of supervisory authority for the Secretary of State. The

amended complaint says only that the Secretary “is charged with the administration and enforce-

ment of the INA”—a statute that, as explained, curtails rather than confirms his authority in this

area. Am. Compl. ¶ 15.

The Deputy Assistant Secretary for Visa Services and Assistant Secretary for Consular

Affairs are a different story. Dr. Musaleev alleges that the former “is charged with all matters

relating to visas.” Am. Compl. ¶ 13. And Defendants point to no statutory text that “purports to

8 limit the Deputy Assistant Secretary’s authority in the administration” of visa adjudication.

Yaghoubnezhad, 734 F. Supp. 3d at 98–99. In other words, “no statute or regulation expressly

precludes the Deputy Assistant Secretary” from “manag[ing] the pace of visa adjudications.”

. So it is plausible that she “might redress” Dr. Musaleev’s injuries.

And that is all that

is required at the pleading stage.

The same holds true for the Assistant Secretary for Consular Affairs, whom Dr. Musaleev

alleges “oversee[s] consular matters including the adjudication of nonimmigrant visa petitions.”

Am. Compl. ¶ 12. In this way, the Assistant Secretary allegedly “plays a role” in “visa adjudication

timing.” Kahbasi,

, at *4. So “an order . . . directing” the Assistant Secretary

“to move more quickly would likely redress [Dr. Musaleev’s] harms.”

Dr. Musaleev thus has

standing to bring his claims against three defendants: the Deputy Assistant Secretary for Visa Ser-

vices, the Assistant Secretary for Consular Affairs, and the U.S. Ambassador to Armenia (whose

propriety as a defendant is unchallenged).

B. Dr. Musaleev Has Failed to State a Claim for Unreasonable Delay Under the APA or the Mandamus Act

Dr. Musaleev’s claims fail because he has not stated a claim for unreasonable delay under

§ 706(1) of the APA or under the Mandamus Act,

. See ECF No. 10 ¶¶ 33–44.

For such claims, both statutes call for the same legal standard. Skalka v. Kelly,

(D.D.C. 2017). The question is “whether the agency’s delay is so egregious as to warrant

mandamus.” 5 In re Core Commc’ns, Inc.

(D.C. Cir. 2008) (citation omitted).

5 Dr. Musaleev contends that this analysis is “fact-bound” and therefore normally inappro- priate at the motion-to-dismiss stage. But courts in this District routinely decide unreasonable- delay cases on the pleadings. See, e.g., Ghadami v. DHS, No. 19-cv-397 (ABJ),

, at *1 (D.D.C. Mar. 19, 2020). And the Court sees no reason why Dr. Musaleev’s case requires factual development in a way that these other cases did not.

9 Six factors guide this inquiry:

(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 ac- tivities 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 the agency action is unreasonably delayed.

Telecomms. Rsch. and Action Ctr. v. FCC,

(D.C. Cir. 1984) (“TRAC”) (cleaned

up and citations omitted); see also Da Costa v. Immigr. Inv. Program Off.,

(D.C.

Cir. 2023) (“[T]o guide our unreasonable-delay analysis, we ordinarily look to six non-exclusive

TRAC factors.”). These factors “are not ‘ironclad,’ but rather are intended to provide ‘useful guid-

ance in assessing claims of agency delay.’” In re Core Commc’ns,

(quoting TRAC,

). And they typically lead to “four basic inquiries.” Rahman v. Blinken, No. 22-cv-

2732 (JEB),

, at *4 (D.D.C. Jan. 17, 2023).

“First, is there any rhyme or reason—congressionally prescribed or otherwise—for an agency’s delay (factors one and two)? Second, what are the consequences of delay if the Court does not compel the agency to act (factors three and five)? Third, how might forcing the agency to act thwart its ability to address other priorities (factor four)? Finally, is the delay intentional or due to any impropriety on the part of the agency (factor six)?”

(cleaned up and citation omitted).

1. TRAC Factors 1 and 2

The first two factors evaluate “whether the agency’s response time complies with an

10 existing specified schedule and whether it is governed by an identifiable rationale.” Ctr. for Sci.

in the Pub. Int. v. FDA,

(D.D.C. 2014). Calculating the delay is the first

step. The clock starts on the day of the “last [g]overnment action” and stops upon “the issuance

of the opinion.” Asadi v. Dep’t of State, No. 23-cv-1953 (RC),

, at *6 n.2

(D.D.C. Aug. 15, 2024) (citation omitted). The parties agree that February 2023—when Dr. Mu-

saleev interviewed at the embassy—is when the last government action happened, and the Court

sees no reason to disagree. See ECF No. 13 at 17–18, 51; Am. Compl. ¶ 36. So about two years

have passed since that action.

Although this delay is unfortunate and regrettable, factors one and two favor Defendants.

To begin, “Congress has given the agencies wide discretion in the area of immigration processing.”

Skalka, 246 F. Supp. 3d at 153–54. Dr. Musaleev points to statutory text providing that “[i]t is the

sense of Congress that the processing of an immigrant benefit application should be completed”

within “180 days” of the application’s filing.

(b). But that language is “aspira-

tional, rather than mandatory,” and does not supply a “[c]ongressional timeline.” Shen v. Pompeo,

No. 20-cv-1263 (ABJ),

, at *8 (D.D.C. Mar. 24, 2021); see also, e.g., Palakuru

v. Renaud,

, 51 (D.D.C. 2021) (§ 1571(b) is “nonbinding”). Instead, while

§ 1571(b) may “somewhat favor[]” a petitioner who has “waited longer than 180 days,” he must

still show that the delay has “reached” a certain “level of disproportionality” or that the other TRAC

factors point towards relief. Da Costa,

.

Absent a set timeline, “the Court looks to case law for guidance.” Dastagir v. Blinken,

, 165 (D.D.C. 2021). And the cases show that this delay is squarely within the

realm of delays that courts in this District have found not unreasonable. Indeed, “delays of two or

three years” “typically” fall within that category. Asadi,

, at *7; see also

11 Ghadami v. DHS, No. 19-cv-397 (ABJ),

, at *8 (D.D.C. Mar. 19, 2020)

(“[M]any courts evaluating similar delays have declined to find a two-year period to be unreason-

able as a matter of law.”). Even delays “between three to five years are often not unreasonable,”

Babaei, 725 F. Supp. 3d at 31 (citation omitted), as evidenced by the D.C. Circuit’s recent decision

holding that a delay of four and a half years did not “show that USCIS does not follow a rule of

reason in processing” applications, Da Costa,

. So although the unexplained two-

year delay here is “undoubtedly maddening” for Dr. Musaleev,

it does not approach the “im-

migration delays in excess of five . . . years” that courts “generally” find to be “unreasonable,”

Lee,

, at *4 (citation omitted).

Dr. Musaleev leans on a recent case from the Middle District of North Carolina to argue

that this delay is different because he has already completed his interview. In Farahani v. Laitinen,

the court found that distinction persuasive, reasoning that many of the cases rejecting unreasona-

ble-delay claims involved “delays in scheduling interviews.” No. 23-cv-922 (TDS),

, at *6 (M.D.N.C. May 30, 2024). Because the plaintiffs there had “already interviewed

for visas with a consular officer,” the first and second TRAC factors did not favor the government

at the motion-to-dismiss stage.

The Court respectfully disagrees with the relevance of the interview process—at least in

this case. For one thing, courts in this District do not appear to have recognized this distinction.

See, e.g., Ghadami,

, at *2, *8 (25-month delay not unreasonable where peti-

tioner interviewed in July 2017); Didban v. Pompeo,

, 172, 175 (D.D.C. 2020)

(two-year delay not unreasonable where petitioner interviewed in December 2017); Dastagir, 557

F. Supp. 3d at 162, 165 (delay not unreasonable where petitioner interviewed 29 months before

filing suit). For another, the factors do not suggest that the distinction drawn in Farahani carries

12 the weight that the court placed on it. Recall the purpose of those factors: to assess “the length of

the delay in light of the complexity of the task at hand, the significance (and permanence) of the

outcome, and the resources available to the agency” while accounting for any congressional time-

lines. Da Costa,

(internal quotation marks and citation omitted). Dr. Mu-

saleev never explains why the existence (or absence) of a completed interview affects the com-

plexity of the agency’s tasks or implicates fewer resources. A consular office may try to interview

petitioners quickly, which would reduce the resources available for evaluating applications in ad-

ministrative processing. Or it may flip that prioritization and delay interviews to ensure that, once

interviewed, a petitioner is more likely to receive a quick decision. The Court sees no basis—and

Dr. Musaleev offers none—to call one process more concerning under the TRAC factors than the

other. So the timing of Dr. Musaleev’s interview does not tilt the first two TRAC factors his way.

Instead, those factors favor Defendants for the reasons discussed above.

2. TRAC Factor 4

The fourth factor, which considers how “expediting” Dr. Musaleev’s application would

affect agency priorities, favors Defendants too. Milligan v. Pompeo,

, 319

(D.D.C. 2020). This factor often “carries the greatest weight,”

because courts typically hesitate

“to direct agencies which tasks to prioritize, particularly if such intervention would move the pe-

titioner to ‘the head of the queue’” while “simply mov[ing] all others back one space,” Lee,

, at *6 (quoting In re Barr Lab’ys, Inc.,

, 75–76 (D.C. Cir. 1991)). In other

words, ordering expedited agency action is inappropriate when that relief “would necessarily come

at the expense of other similarly situated applicants” with “no net gain” in adjudications achieved.

Da Costa, 80 F.4th at 343–44 (citations omitted). That is so even though “the effect of an individ-

ual case would be minimal.” Tate v. Pompeo,

, 150 (D.D.C. 2021). After all,

“an accumulation of such individual cases being pushed by judicial fiat to the front of the line

13 would erode the ability of agencies to determine their priorities.”

Because that is precisely the

kind of relief that Dr. Musaleev seeks, and because his opposition never addresses that problem,

this factor “heavily favors” Defendants.

. TRAC Factors 3, 5, and 6

Factors three and five focus on the harm that Dr. Musaleev “suffer[s] from waiting.” Ta-

havori v. Blinken, No. 23-cv-1460 (JDB),

, at *5 (D.D.C. Mar. 28, 2024). The

former explains that delays are less likely to be reasonable when “human health and welfare” rather

than “economic” interests are “at stake.” Da Costa,

. Operating as a “broader

version of the same idea,” the fifth factor accounts for “the nature and extent of the interests prej-

udiced by the delay.”

(citation omitted).

These factors slightly favor Dr. Musaleev. Despite receiving an employment offer from

Altor, Dr. Musaleev has been unable to start working for the company because of the delay. Am.

Compl. ¶ 8. More than that, the delay has jeopardized that employment moving forward. Id. ¶ 37.

Those interests are in some sense economic because they concern Dr. Musaleev’s ability to make

money, so factor three suggests that this kind of prejudice is less helpful for him. But a delay that

prevents an individual from earning a living in the United States and bringing his family with him

affects human “welfare” too. Still, this case is not one where, for example, the plaintiff is “sepa-

rated from his children and wife” pending the adjudication of his visa. Ghadami,

, at *9 (finding that the third and fifth factors “weigh in” the plaintiffs’ “favor” but con-

cluding that they “failed to state a claim . . . for unreasonable delay” anyway). So even though

these factors tilt towards Dr. Musaleev, they “do not overcome the other factors that weigh strongly

in the [defendants’] favor.” Dastagir, 557 F. Supp. 3d at 168 (internal quotation marks and citation

omitted).

The last factor is a wash. It says only that agency action may be unreasonably delayed

14 even if no “impropriety” is “lurking behind agency lassitude.” Ghadami,

, at

*9. Dr. Musaleev neither alleges nor argues bad faith, so this factor comes out neutral.

* * *

In sum, three factors—one, two, and four—strongly favor Defendants; two factors—three

and five—slightly favor Dr. Musaleev; and one factor—six—favors neither. Balancing those fac-

tors here, the Court concludes that Dr. Musaleev has not stated a claim for unreasonable delay

under the APA or the Mandamus Act. The Court does not downplay the serious problems of the

“troubling backlog” of applications “waiting for . . . adjudication”—particularly, as here, when

Defendants offer little explanation for the delay. Da Costa,

. But this two-year

delay is within the zone of delays that courts typically find insufficient to state a claim. And

granting Dr. Musaleev “the relief [h]e seeks would come at the expense of other similarly-situated

applicants that have waited as long (if not longer)” for an adjudication. Asadi,

,

at *8. Because both the APA and Mandamus claims fail, there is no basis for a declaratory judg-

ment that Defendants ran afoul of either statute or that Dr. Musaleev is “entitled to immediate

adjudication of” his visa application. Am. Compl. at 13; see also

¶¶ 45–47 (stylizing request

for such relief as a separate claim).

C. Dr. Musaleev Has Failed to State a Due-Process Claim

Dr. Musaleev gestures at a due-process claim in his amended complaint, see Am. Compl.

¶ 38, but he neither elaborates there nor defends this potential claim in his opposition brief, see

generally ECF No. 14. The Court will not craft this claim—or an argument supporting it—for

him. But the limited allegations do not support a due-process claim. He says only that the “delay”

violates his “right to due process under the Fifth Amendment.” Am. Compl. ¶ 38. If that is meant

as a procedural due-process claim, it falters because “the visa-application procedures cannot vio-

late the Due Process Clause”; “whatever the procedure authorized by Congress is, it is due

15 process.” Al-Gharawy, 617 F. Supp. 3d at 20 (cleaned up and citation omitted). Said another way,

“the Court guarantees due process” by “assuring that” Defendants “comply with their statutory

duties.” Id. So the absence of a statutory violation dooms this potential claim. Nor would a

substantive due-process claim fare any better. A “threshold hurdle” to that claim (as well as the

procedural due-process claim) is “an allegation that” Dr. Musaleev “has been deprived of a funda-

mental right or liberty or property interest.” Taj v. Dep’t of State, No. 22-cv-1087 (RDM),

, at *5 (D.D.C. Nov. 28, 2022) (citation omitted). But Dr. Musaleev makes no such

allegation. There is typically “no property right in an immigrant visa,” and Dr. Musaleev offers

no other potential “constitutionally protected property or liberty interest.”

(citation omit-

ted); see also, e.g., Dean v. DHS, No. 21-cv-2002 (CKK),

, at *8–9 (D.D.C.

July 15, 2022) (rejecting procedural and substantive due-process claims based on delayed adjudi-

cation of spouse’s visa application).

IV. Conclusion

For all these reasons, the Court will grant Defendants’ motion to dismiss, ECF No. 13. The

case is dismissed as to the Secretary of State for lack of standing and as to the remaining Defend-

ants for failure to state a claim. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: January 28, 2025

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