UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KHAIRIYAH MOHAMMED ABBOOD AL SAEDI,

Plaintiff, Civil Action No. 24-1401 (LLA) v.

VIRAJ LEBAILLY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Khairiyah Mohammed Abbood Al Saedi, a citizen of Iraq residing in Turkey,

seeks to compel Defendants—Viraj LeBailly, in her official capacity as Acting Deputy Chief of

Mission to the U.S. Embassy in Turkey, and Marco Rubio, in his official capacity as Secretary of

State—to adjudicate her immigrant visa application. ECF No. 1.1 Ms. Al Saedi contends that her

I-130 application has been unreasonably delayed in violation of the Administrative Procedure Act

(“APA”),

et seq., and the Mandamus Act,

. ECF No. 1 ¶¶ 24-35.

Defendants have moved to dismiss Ms. Al Saedi’s claim under Federal Rules of Civil Procedure

12(b)(1) and (b)(6). ECF No. 5. For the reasons explained below, the court will dismiss the case

under Rule 12(b)(6).

1 Ms. Al Saedi named former Deputy Chief Scott M. Oudkirk and former Secretary of State Antony J. Blinken as Defendants, but the current Deputy Chief and Secretary of State are “automatically substituted” as parties pursuant to Federal Rule of Civil Procedure 25(d). I. BACKGROUND

The court draws the following facts, accepted as true, from Ms. Al Saedi’s complaint.

Wright v. Eugene & Agnes E. Meyer Found.,

(D.C. Cir. 2023). It further takes

judicial notice of “information posted on official public websites of government agencies.” Arab

v. Blinken,

, 63 n.1 (D.D.C. 2022).

The Immigration and Nationality Act (“INA”) provides that a U.S. citizen, U.S. national,

or lawful permanent resident may petition for a qualifying relative to receive permanent residency

in the United States.

. There are several steps to the process. First, the sponsor

must file a Form I-130, Petition for Alien Relative with U.S. Citizenship and Immigration Services

(“USCIS”). See

;

(a)(1); USCIS, I-130 Petition for Alien

Relative.2 If USCIS approves the petition, it transfers the case to the U.S. State Department’s

National Visa Center (“NVC”).

(a)(3). The foreign national must then submit an

application to the NVC and await an interview with a consular officer at the appropriate consular

office.

-.62. At the conclusion of the interview, “the consular officer must

[either] issue [or] refuse the visa.”

§ 42.81(a). If the consular officer determines that he does

not have sufficient information to establish visa eligibility, the officer may “refuse” the visa

pending further administrative processing pursuant to Section 221(g) of the INA, which typically

consists of additional information-gathering. U.S. Dep’t of State, Administrative Processing

Information;3 see

(g); Giliana v. Blinken,

, 18 (D.D.C. 2022).

In July 2019, Ms. Al Saedi’s daughter, a U.S. citizen, filed a Form I-130 on her mother’s

behalf. ECF No. 1 ¶ 17. In October 2022, Ms. Al Saedi was interviewed at the U.S. Embassy in

2 https://perma.cc/M4TN-T4MY. 3 https://perma.cc/44NK-RVZE.

2 Turkey.

. After the interview, Ms. Al Saedi learned that her visa had been placed in

administrative processing, where it has remained ever since.

; 8 U.S.C § 1201(g).

Ms. Al Saedi and her daughter have inquired numerous times about the status of Ms. Al Saedi’s

application, but they have received “no meaningful responses.” ECF No. 1 ¶ 23. As a result, “it

is unclear what steps, if any [are being taken by Defendants] to complete the adjudication of

[Ms. Al Saedi’s] visa application.” Id.

The delay in the adjudication of Ms. Al Saedi’s visa application has caused Ms. Al Saedi

and her daughter to suffer from “significant personal, financial, and emotional hardship.” Id. ¶ 7.

Ms. Al Saedi currently lives alone—her husband is presumed to have died in the war between Iran

and Iraq in 1985 and her children immigrated to the United States in 2013. Id. ¶ 8.4 Ms. Al Saedi’s

daughter is a single mother and the primary provider and caretaker for her child and her brother,

who is disabled. Id. ¶ 10. She also sends money to Ms. Al Saedi monthly. Id. Ms. Al Saedi’s

daughter seeks to be reunited with her mother because it would enable her to seek full-time

employment and attain greater financial stability for the family. Id. ¶ 8.

In May 2024, Ms. Al Saedi filed a complaint seeking to compel the adjudication of her visa

application. Id. ¶ 36. Defendants have moved to dismiss under Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6). ECF No. 5. The matter is fully briefed. ECF Nos. 5, 8, 9.

II. LEGAL STANDARDS

Ms. Al Saedi bears the burden of establishing subject-matter jurisdiction. Lujan v. Defs.

of Wildlife,

(1992). In reviewing a motion to dismiss for lack of jurisdiction

under Federal Rule of Civil Procedure 12(b)(1), the court will “assume the truth of all material

4 Ms. Al Saedi variously alleges that she resides in Turkey, ECF No. 1 ¶ 11, and Iraq, id. ¶ 8-9.

3 factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff[s] the

benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,

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

(D.C. Cir. 2005)).

Under Rule 12(b)(6), the court will dismiss a complaint that does not “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)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

In

evaluating a motion to dismiss under Rule 12(b)(6), the court will accept the factual allegations in

Ms. Al Saedi’s complaint as true and draw all reasonable inferences in her favor.

III. DISCUSSION

Defendants raise myriad arguments for dismissal under Rule 12(b)(1) and (b)(6), including

arguments about standing, nonreviewability, and failure to state a claim. See generally ECF No. 5.

These arguments have been raised in scores of cases in this district, providing a wealth of

persuasive authority for the court. See, e.g., Kahbasi v. Blinken, No. 23-CV-1667,

(D.D.C. June 27, 2024); Ameer v. Schofer, No. 23-CV-03066,

(D.D.C. June 4, 2024); Al-Gharawy v. Dep’t of Homeland Sec.,

(D.D.C. 2022);

Shen v. Pompeo, No. 20-CV-1263,

(D.D.C. Mar. 24, 2021).

A. Standing

The court begins, as it must, with jurisdiction. Steel Co. v. Citizens for a Better Env’t,

(1998). Article III of the Constitution limits the jurisdiction of federal courts to

“actual cases or controversies,” meaning that Ms. Al Saedi “must establish that [she] ha[s]

4 standing to sue.” Clapper v. Amnesty Int’l USA,

(2013) (quoting Raines v. Byrd,

(1997)). To satisfy the constitutional requirement of standing, Ms. Al Saedi

must show: “(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.’” Ark Initiative v. Tidwell,

(D.C. Cir. 2014) (quoting Lujan,

).

Here, the Secretary of State contests the redressability prong of standing. Specifically, he

argues that he cannot provide the requested relief, meaning that he should be dismissed from the

suit. ECF No. 5, at 5-7; ECF No. 9, at 1-2. “To demonstrate standing under Article III, a party

must show injury in fact that was caused by the conduct of the defendants and that can be redressed

by judicial relief.” Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,

, 1289

(D.C. Cir. 2007). The Secretary correctly acknowledges that the INA “grants consular officers

‘exclusive authority to review applications for visas, precluding even the Secretary of State from

controlling their determinations.’” ECF No. 5, at 6 (emphasis omitted) (quoting Saavedra Bruno

v. Albright,

(D.C. Cir. 1999). But Ms. Al Saedi does not seek to have her

visa adjudication revised; rather, she seeks to have the adjudication completed. See ECF No. 1

¶¶ 23, 33, 39. As numerous courts in this district have acknowledged, decisions on the merits are

distinct from decisions about timing. See, e.g., Al-Gharawy, 617 F. Supp. 3d at 10.

“[N]othing . . . precludes the Secretary [of State] . . . from directing consular officers ‘to

conclude . . . matter[s] presented to [them]’ ‘within a reasonable time.’” Id. (fifth, sixth, and

seventh alterations in original) (quoting

(b)). Because the Secretary either does or

could play a role in the pace of visa adjudications, an order from this court directing him to move

5 more quickly would likely redress Ms. Al Saedi’s harms. See Lujan,

.

Accordingly, Ms. Al Saedi has satisfied the redressability prong of standing.

B. Consular Nonreviewability and Non-Discretionary Duty

Defendants next raise two non-standing threshold challenges: (1) that the doctrine of

consular nonreviewability bars Ms. Al Saedi’s claims, ECF No. 5, at 7; and (2) that she fails to

identify a discrete agency action that Defendants were obligated to, but did not, take, id. at 11. The

court is unpersuaded.

First, Defendants argue that the doctrine of consular nonreviewability prevents this court

from reaching the merits of the case. Id. at 7. In the context of visa adjudications, 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 Thai Rest. v. Pompeo,

(D.C. Cir. 2021). “[A] long line of decisions from this Court have held that the consular

nonreviewability doctrine applies only to final decisions and thus does not bar judicial review of a

consular officer’s delay when a visa application has been provisionally refused pending a final

decision.” Al-Gharawy, 617 F. Supp. 3d at 11. Ms. Al Saedi’s application remains in

administrative processing. ECF No. 1 ¶¶ 21-23. Thus, the doctrine does not apply.

Second, Defendants contend that Ms. Al Saedi has failed to meet the threshold statutory

requirements to bring a mandamus claim—specifically, that there is “(1) a clear and indisputable

right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that

no adequate alternative remedy exists”—or a related claim of unreasonable delay under the APA.

ECF No. 5, at 11-12 (quoting Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016)).

6 Defendants argue that Ms. Al Saedi cannot identify a nondiscretionary duty to adjudicate her visa

application. ECF No. 5, at 11.5

Several courts in this district have concluded that there is a duty to complete adjudication

of visa applications, explaining “that both the APA and State Department regulations create a clear

duty to adjudicate visa applications within a reasonable time.” Rashidian,

,

at *5; see, e.g., Kahbasi,

, at *5, Ameer,

, at *4; Akrayi v.

Dep’t of State, No. 22-CV-1289,

, at *2 (D.D.C. Mar. 9, 2023); Vulupala v.

Barr,

, 100 (D.D.C. 2020). But see Mukkavilli v. Jaddou, No. 22-CV-2289,

, at *7-12 (D.D.C. June 15, 2023), aff’d on other grounds, No. 23-5138,

(D.C. Cir. Mar. 22, 2024). This court agrees with the majority view. Issuing a final

decision on a visa application is plainly a discrete agency action, and it is required by both the

APA and federal regulations. See Khazaei v. Blinken, No. 23-CV-1419,

, at *6

(D.D.C. Sept. 18, 2023); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003) (explaining that the APA “imposes a general but nondiscretionary

duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time,’

(b), and authorizes a reviewing court to ‘compel agency action unlawfully withheld

or unreasonably delayed,’

§ 706(1)”).6

5 While Defendants frame their argument in terms of “re-adjudicating,” ECF No. 5, at 13, as explained above, a Section 221(g) refusal is not a final adjudication of a visa application. 6 In a Notice of Supplemental Authority filed on July 26, 2024, ECF No. 6, Defendants note a recent decision from the U.S. Court of Appeals for the D.C. Circuit, Karimova v. Abate, No. 23-5178,

(D.C. Cir. July 24, 2024), in which the Court held that the plaintiff, who sought adjudication of her visa application, had not shown a clear and indisputable right to relief or a discrete action that the federal defendant had failed to perform.

. Defendants contend that Karimova’s “controlling holding . . . is dispositive of the claims in this case.” ECF No. 6, at 1. Not so. Karimova is an unpublished opinion, and “a panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition.” D.C. Cir. R. 36(e)(2). This court has considered Karimova but declines to follow it.

7 C. Unreasonable Delay

On the merits, Defendants argue that Ms. Al Saedi has failed to state a claim for

unreasonable delay on which relief can be granted. ECF No. 5, at 19. Ms. Al Saedi’s claims under

the Mandamus Act and the APA share the same standards for obtaining relief. Viet. Veterans of

Am. v. Shinseki,

, 659 n.6 (D.C. Cir. 2010). “The central question in evaluating ‘a

claim of unreasonable delay’ is ‘whether the agency’s delay is so egregious as to warrant

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

(D.C. Cir. 2008) (quoting

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

(D.C. Cir. 1984) (“TRAC”)).

Unreasonable delay is analyzed using the six “TRAC” factors:

(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.

Am. Hosp. Ass’n,

(quoting TRAC,

). While not “ironclad,” the

TRAC factors provide “useful guidance in assessing claims of agency delay.” In re Core

Commc’ns, Inc.,

(quoting TRAC,

). However, “[e]ach case must be

analyzed according to its own unique circumstances,” because each “will present its own slightly

different set of factors to consider.” Air Line Pilots Ass’n v. Civ. Aeronautics Bd.,

(D.C. Cir. 1984). The first and fourth factors are most important in the visa context. Da Costa v.

Immigr. Inv. Program Off.,

(D.C. Cir. 2023). Weighing the TRAC factors here,

the court concludes that Ms. Al Saedi has failed to state a claim on which relief can be granted.

8 The first two factors—requiring agencies to follow “a rule of reason” that justifies their

timeline and consider any congressionally imposed timelines—are typically analyzed together.

Milligan v. Pompeo,

, 317 (D.D.C. 2020). In essence, these two factors require

the court to consider “whether ‘there [is] any rhyme or reason—congressionally prescribed or

otherwise—for [the] agency’s delay.’” Rashidian,

, at *6 (alterations in

original) (quoting Khazaei,

, at *6). In analyzing these factors, the court may

consider the “complexity of the task at hand, the significance (and permanence) of the outcome,

and the resources available to the agency.” Da Costa,

(quoting Mashpee

Wampanoag Tribal Council,

). Both factors favor Defendants.

Ms. Al Saedi suggests that the delay in the adjudication of her application contravenes the

congressionally “contemplated [] statutory timeframe within which immigration benefits [must]

be adjudicated.” ECF No. 8, at 24. The relevant section of the INA provides that “[i]t is the sense

of the Congress that the processing of an immigration benefit application should be completed not

later than 180 days after the initial filing of the application.”

(b). However, as

Ms. Al Saedi admits, see ECF No. 8, at 24, this guidance is not binding, and therefore cannot be

considered to set forth a congressionally imposed deadline, see Da Costa,

(describing Section 1571(b) as an “aspirational statement”).

“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.”

Sarlak v. Pompeo, No. 20-CV-35,

, at *6 (D.D.C. June 10, 2020). While “[n]o

bright lines have been drawn in this context . . . ‘[d]istrict courts have generally found that

immigration delays . . . between three to five years are often not unreasonable.’” Arab, 600 F.

Supp. 3d at 70 (quoting Sarlak,

, at *6). The D.C. Circuit has concluded that a

four-year delay is not unreasonable. Da Costa,

. The court is satisfied that

9 Defendants utilize a rule of reason that does not constitute unreasonable delay. At the time of this

decision, Ms. Al Saedi’s application has been in administrative processing for twenty-eight

months.7 Although such a timeline is undoubtedly frustrating, it does not constitute unreasonable

delay when compared to relevant cases.

The fourth TRAC factor, which is “the effect of expediting delayed action on agency

activities of a higher or competing priority,” is particularly important in the visa context and also

favors Defendants. Da Costa,

(quoting TRAC, 750 F.2d at 80). The D.C. Circuit

has “refused to grant relief . . . where ‘a judicial order putting [the plaintiff] at the head of the

queue [would] simply move[] all others back one space and produce[] no net gain.’” Mashpee

Wampanoag Tribal Council,

(quoting In re Barr Lab’ys, Inc.,

(D.C. Cir. 1991)). Such would be the case here, where moving Ms. Al Saedi to the front of the

visa-adjudication queue would merely reorder all applicants with no change in the overall timeline.

Ms. Al Saedi counters that Defendants have failed to establish that a queue exists and

contends that, even if one does, she “should not be penalized for a lack of agency resources” in

processing applications. ECF No. 8, at 27-28. “Th[ese] assertion[s], however, do[] not grapple

with the fact that [Ms. Al Saedi’s] request here boils down to a request that [she] ‘should be

prioritized for processing ahead of others.’” Augustin v. Blinken, No. 23-CV-76,

, at *6 (D.D.C. July 14, 2023) (quoting Milligan v. Blinken, No. 20-CV-2631,

, at *9 (D.D.C. Sept. 2, 2021)). To be sure, this delay is troubling and affects

7 Courts generally measure the delay from the date of the last governmental action. See, e.g., Sereshti v. Gaudiosi, No. 24-CV-1288,

, at *9 (D.D.C. Oct 30, 2024); Janay v. Blinken, No. 23-CV-3737,

, at *11 (D.D.C. July 16, 2024). Here, that is October 2022, when Ms. Al Saedi was informed that her application was in administrative processing. ECF No. 1 ¶ 20. While Ms. Al Saedi mentions that her initial Form I-130 was filed with USCIS in 2019, ECF No. 8, at 8, she does not argue that the court should measure the delay from then instead of from October 2022.

10 Ms. Al Saedi and her family. See ECF No. 1 ¶¶ 7-10; ECF No. 8, at 26-27. But compelling

Defendants to process Ms. Al Saedi’s visa application presents an individualized solution to a

systemic problem and “would presumably delay other adjudications.” Liu v. Blinken,

, 13 (D.D.C. 2021) (quoting Skalka v. Kelly,

(D.D.C. 2017)).

Additionally, “deference must be given to the State Department’s priority-setting and

resource-allocation decisions” in the visa-adjudication context. Arab, 600 F. Supp. 3d at 71. It

would be improper for the court to intervene and expedite Ms. Al Saedi’s visa application at the

expense of others. The fourth factor thus heavily weighs in favor of Defendants.

The third and fifth factors concern the impacts of the delay on Ms. Al Saedi. The third

factor identifies “whether ‘human health and welfare are at stake’—in which case judicial

intervention is more justified—and the fifth assesses the ‘nature and extent of the interests

prejudiced by delay.’” Milligan, 502 F. Supp. 3d at 319 (quoting TRAC, 750 F.2d at 80). These

factors weigh in Ms. Al Saedi’s favor. Ms. Al Saedi has alleged significant costs, including

“emotional hardship” due to her prolonged inability to visit her family, caretaking challenges given

her inability to attend to her disabled son and grandchild, and financial hardship given her

daughter’s inability to work full-time due to her own caretaking responsibilities. ECF No. 1

¶¶ 8-10. But while these factors weigh in Ms. Al Saedi’s favor, they are not presently enough to

overcome Defendants’ advantage on the more important factors. Cf. Ahmed v. Blinken,

No. 24-CV-153,

(D.D.C. Nov. 27, 2024) (finding that the balance of the TRAC

factors favored the plaintiff where she alleged familial hardships and a five-year delay from the

last governmental action on her visa application).

11 Finally, the sixth TRAC factor concerns “whether the agency’s bad faith caused the delay.”

Sawahreh v. Dep’t of State,

, 164 (D.D.C. 2022). Ms. Al Saedi does not allege

that Defendants have acted with impropriety. ECF No. 8, at 29. Thus, this factor is neutral.

* * * *

As the D.C. Circuit explained in Da Costa, the delays in visa adjudications are “troubling.”

. The costs of this delay have been undoubtedly difficult for Ms. Al Saedi and her

family. But after weighing the TRAC factors, the court concludes that Ms. Al Saedi has not

plausibly alleged that the delay in her visa adjudication is unreasonable. Accordingly, the court

will dismiss the complaint.

IV. CONCLUSION

For the foregoing reasons, the court will grant Defendants’ motion to dismiss, ECF No. 5.

A separate order will issue.

LOREN L. ALIKHAN United States District Judge

Date: February 13, 2025

12