UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMIR AZARHOMAYOUN, et al.,

Plaintiffs, Case No. 23-cv-1595 (JMC)

v.

ANTONY J. BLINKEN, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are five Iranian citizens who applied for nonimmigrant visas to work and study

in the United States. ECF 1 ¶¶ 1, 20, 30.1 Their applications have been stuck in “administrative

processing” for more than two and a half years. Id. ¶¶ 1, 6, 35, 37. Plaintiffs sue various federal

officials, arguing that this delay is unreasonable. Id. ¶¶ 21–29, 52. Defendants move to dismiss the

complaint for lack of subject matter jurisdiction and failure to state a claim. ECF 5.

Plaintiffs fail to respond to many of Defendants’ arguments in their opposition, including

the argument that Plaintiffs lack standing. See ECF 6. The Court finds that Plaintiffs have conceded

those issues and will therefore GRANT Defendants’ motion to dismiss for lack of subject matter

jurisdiction. Even if Plaintiffs had not conceded standing and other threshold issues, the Court

would nonetheless dismiss the complaint because Plaintiffs have failed to plausibly allege an

unreasonable delay.

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 I. BACKGROUND

Plaintiffs Dr. Amir Azarhomayoun, Saeedeh Shirdel, Khashayar Khajavi, Leila Kianmehr,

and Sadegh Mohtarami are citizens of Iran who have applied for nonimmigrant F-1, J-1, and J-2

visas.2 ECF 1 ¶¶ 1, 20. They attended visa interviews at the U.S. Consulate in Istanbul between

August 2022 and December 2022. Id. ¶ 4. After their interviews, most of the Plaintiffs were asked

for, and submitted, additional information. Id. ¶¶ 5, 34. Plaintiffs were informed that their visa

applications were placed into administrative processing pursuant to Section 221(g) of the

Immigration and Nationality Act (INA), where they have remained ever since. Id. ¶¶ 35, 38.

Plaintiffs filed this lawsuit, alleging that Defendants’ delay is unreasonable and violates

the Administrative Procedure Act (APA). Id. ¶¶ 43–54. They seek a writ of mandamus, compelling

the agency to adjudicate their visa applications. Id. ¶¶ 55–64. Defendants filed a motion to dismiss

for lack of subject matter jurisdiction and failure to state a claim, pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). ECF 5.

II. LEGAL STANDARD

a. Rule 12(b)(1)

When assessing a motion to dismiss for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1), “[i]t is to be presumed that a cause lies outside [the federal courts’] limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). The court

accepts the complaint’s allegations as true, Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015), and “where necessary . . . may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

2 “F-1 visas are available to international students, J-1 visas are available to international scholars, researchers, and exchange visitors, and J-2 visas are available to the dependents of J-1 visa applicants.” ECF 1 ¶ 30.

2 the court’s resolution of disputed facts,” Herbert v. Nat’l Acad. of Scis.,

(D.C.

Cir. 1992).

b. Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), “a 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)).

The Court “must accept as true all of the allegations contained in a complaint,” but need not do

the same for legal conclusions. Harris v. D.C. Water & Sewer Auth.,

(D.C.

Cir. 2015) (quoting Iqbal,

). At bottom, the complaint must contain allegations

sufficient to permit a “reasonable inference that the defendant is liable for the misconduct alleged.”

Matrixx Initiatives, Inc. v. Siracusano,

(2011) (quoting Iqbal,

).

III. ANALYSIS

Defendants move to dismiss, arguing that (1) Plaintiffs lack standing, (2) there is no

non-discretionary duty at issue, (3) Plaintiffs’ claims present non-justiciable questions, (4) some

of the named Defendants cannot redress Plaintiffs’ alleged injuries, (5) Plaintiffs’ claims are

precluded by the doctrine of consular nonreviewability, and (6) on the merits, Plaintiffs have not

plausibly alleged that the agency’s delay is unreasonable. ECF 5 at 11–13. Plaintiffs chose to

contest only two of those arguments in their opposition, contending that consular nonreviewability

does not bar their claims and that they have plausibly alleged an unreasonable delay.3 ECF 6 at 4–

3 Plaintiffs place their consular nonreviewability argument under the heading “Jurisdiction,” list a number of cases dealing with consular nonreviewability, and then state that “[b]ased on the weight of the decisions listed above” the Court should “find that it has subject-matter jurisdiction to hear their complaint under the Administrative Procedure Act.” ECF 6 at 4–5. But the D.C. Circuit has held that consular nonreviewability is non-jurisdictional. Baan Rao Thai Rest. v. Pompeo,

, 1027–29 (D.C. Cir. 2021). Even assuming arguendo that Plaintiffs’ claims are not barred by consular nonreviewability, that has no bearing on this Court’s subject matter jurisdiction to hear a case. And Plaintiffs make no attempt to contest Defendants’ actual jurisdictional argument, which is that Plaintiffs lack standing.

3 12. But Plaintiffs make no effort to argue that they have standing, that Defendants have failed to

perform a non-discretionary duty, that their claims are justiciable, or that they named the correct

Defendants. See

“[I]f a party files an opposition to a motion and therein addresses only some of the

movant’s arguments, the court may treat the unaddressed arguments as conceded.” Wannall v.

Honeywell, Inc.,

(D.C. Cir. 2014). The Court is especially concerned that

Plaintiffs have said nothing about standing because, as the party invoking federal jurisdiction, it is

always Plaintiffs’ burden to persuade the Court that they have standing. See TransUnion LLC v.

Ramirez,

, 430–31 (2021); Fateh v. Blinken, No. 23-cv-1277,

, at *5

(D.D.C. Feb. 29, 2024) (collecting cases where a plaintiff conceded standing by failing to respond

to defendant’s argument). Because Plaintiffs have apparently made a considered choice not to

contest Defendants’ argument that they lack standing, the Court will treat that issue as conceded

and grant Defendants’ motion to dismiss for lack of subject matter jurisdiction. See Fateh,

, at *6 (taking same approach in visa mandamus case where plaintiffs similarly failed

to respond to defendants’ standing arguments).

Even if Plaintiffs had addressed Defendants’ standing arguments and successfully

contested the remaining threshold challenges raised in the motion to dismiss, their unreasonable

delay claim would still fail on the merits. In the interest of comprehensiveness, the Court will

briefly lay out that argument here.

As of this writing, Plaintiffs have been awaiting adjudication of their nonimmigrant visa

applications for somewhere between 31 and 34 months. See ECF 1 ¶ 6 (citing delays of between

seven and ten months as of June 2023). To determine whether that qualifies as an unreasonable

delay, the Court evaluates the six “TRAC factors”:

4 (1) [T]he 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.’”

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

(D.C. Cir. 1999) (quoting

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

, 80 (D.C. Cir. 1984) (TRAC)). These factors

guide the unreasonable delay analysis, but are not exclusive. Da Costa v. Immigr. Inv. Program

Off.,

, 340 (D.C. Cir. 2023). In another unreasonable delay case concerning visa

petitions, the D.C. Circuit afforded the first and fourth factors “the greatest weight.”

The first and second TRAC factors ask whether there is “‘any rhyme or reason’ for the

Government’s delay—in other words, ‘whether the agency’s response time . . . is governed by an

identifiable rationale.’” Desai v. USCIS, No. 20-cv-1005,

, at *5

(D.D.C. Mar. 22, 2021) (quoting Ctr. for Sci. in the Pub. Interest v. FDA,

(D.D.C. 2014)). Sometimes a “statutory scheme may supply content for this rule of reason,” but

Congress has not provided such a deadline here. In re United Mine Workers of Am. Int’l Union,

; see ECF 5 at 42. “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).

The caselaw in this District indicates that the delay Plaintiffs face, while unquestionably

frustrating, is not unreasonable as a matter of law. “[D]istrict courts have generally found that

5 immigration delays in excess of five, six, [and] seven years are unreasonable, while those between

three to five years are often not unreasonable.”

(quoting Yavari v. Pompeo, No. 19-cv-2524,

, at *8 (C.D. Cal. Oct. 10, 2019)) (collecting cases). The D.C. Circuit recently

held that a four-and-a-half-year delay in processing a visa petition was not unreasonable. See Da

Costa, 80 F.4th at 342. Plaintiffs’ alleged delays of 31 to 34 months fall within that realm of

reasonableness. But of course, the sheer amount of time that has passed does not resolve the issue.

See id. The reasonableness of an agency’s delay depends “upon the complexity of the task at hand,

the significance (and permanence) of the outcome, and the resources available to the agency.”

Mashpee Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003). Here,

Defendants are statutorily required to make a finding that Plaintiffs, who are Iranian nationals,

“do[ ] not pose a threat to . . . safety or national security” before issuing them visas.

(a); see Ahmadi v. Scharpf, No. 23-cv-953,

, at *5 (D.D.C. Feb. 12, 2024)

(considering this statutory requirement in evaluating reasonableness); Babaei v. U.S. Dep’t of

State,

, 31 (D.D.C. 2024) (same). Given the complexity and significance of that

undertaking, the Court concludes that the first and second TRAC factors weigh in Defendants’

favor.

The third and fifth TRAC factors consider the effects of the agency’s delay. Milligan v.

Pompeo,

, 319 (D.D.C. 2020). Both factors favor Plaintiffs. “The third looks

to 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.’”

(quoting TRAC, 750 F.2d at 80). Plaintiffs plausibly allege that Defendants’ delay has caused them

real, tangible harm. To take just a few examples: because of the agency’s delay, Plaintiff

Azarhomayoun has been unable to begin his neurologic surgery research program at the Mayo

6 Clinic, has had to pay (unnecessarily) for U.S.-based health insurance, and has been forced to

reschedule travel arrangements. ECF 1-3 ¶¶ 2, 7, 13, 16. Plaintiff Khajavi was admitted to a

Computer Science Ph.D. program at the University of Massachusetts but has had to defer his start

date because of the delay in adjudicating his visa. ECF 1-5 ¶ 2. If his visa is not adjudicated soon,

the university may award his position and stipend to another student. Id. Plaintiff Kianmehr has

been unable to begin her postdoctoral program at University of Texas, where she will be studying

acute myeloid leukemia. ECF 1-6 ¶¶ 2–3. The University expects Kianmehr’s research to lead to

a promising therapy for this deadly disease, and “urgently” needs Kianmehr to begin her position

on time. ECF 1-6 at 25. The third and fifth TRAC factors clearly weigh against dismissal.

The fourth TRAC factor weighs in Defendants’ favor. It requires the Court to “consider the

effect of expediting delayed action on agency activities of a higher or competing priority.” TRAC,

750 F.2d at 80. Courts in this District decline to compel agency action where an order putting the

petitioner “at the head of the queue simply moves all others back one space and produces no net

gain,” Da Costa,

at 343 (quoting In re Barr Laboratories,

(D.C.

Cir. 1991)), and Plaintiffs do not contest that that would occur here, see ECF 6 at 9–10. Instead,

Plaintiffs argue that Defendants are assigning insufficient resources to process visa applications

like theirs, but such “resource-allocation decisions . . . do not lend themselves to judicial

reorderings of agency priorities.’” Khazaei v. Blinken, No. 23-cv-1419,

, at *7

(D.D.C. Sept. 18, 2023) (quoting Rahman v. Blinken, No. 22-cv-2732,

, at *4

(D.D.C. Jan. 17, 2023)). Factor four therefore tips in favor of dismissal. See Babaei, 725 F. Supp.

3d at 24, 31–32 (concluding that factor four weighed in defendants’ favor where—just as in this

case—Iranian plaintiffs alleged that F-1 and J-1 visa adjudications were delayed).

7 The sixth TRAC factor provides that the court need not “find any impropriety lurking

behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’” TRAC,

750 F.2d at 80. Because Plaintiffs do not allege any such impropriety, this factor is neutral. See

ECF 6 at 11–12; Da Costa, 80 F.4th at 345–46 (finding sixth TRAC factor to be neutral where

plaintiffs did not plausibly allege impropriety).

In sum: factors one, two, and four weigh in favor of Defendants, factors three and five

weigh in favor of Plaintiffs, and factor six is neutral. The agency’s delay has harmed Plaintiffs,

“but the rule of reason supplied by the caselaw, judicial deference to agency priority-setting, and

the absence of bad faith all suggest that the delay is not yet unreasonable.” Sawahreh v. U.S. Dep’t

of State,

, 164 (D.D.C. 2022). The Court therefore concludes that Plaintiffs

have not plausibly alleged an unreasonable delay.

* * *

For the foregoing reasons, Defendants’ motion to dismiss, ECF 5, is GRANTED, and as a

result Plaintiff’s complaint is DISMISSED without prejudice for lack of subject matter

jurisdiction and for failure to state a claim. A separate order accompanies this memorandum

opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: June 5, 2025

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