UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Aya Raouf

v. Civil No. 23-cv-302-LM Opinion No.

P U.S. Department of State, et al.

ORDER

Plaintiff Aya Raouf brings this action to compel the defendants (the U.S.

Department of State; the U.S. Embassy in Abu Dhabi; the Secretary of State; and

the United States Ambassador to the United Arab Emirates) to issue a final

adjudication with respect to her spouse’s visa application. She alleges that

defendants’ failure to issue a timely, final decision as to whether to grant or deny

her spouse a visa violates the Administrative Procedure Act (“APA”) and her due

process rights. Presently before the court is defendants’ motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6) (doc. no. 10). Defendants argue that

Raouf lacks standing to pursue relief against the Secretary of State, that the

doctrine of consular nonreviewability bars her claims, that she fails to state an APA

claim, and that she fails to state a due process claim. For the following reasons, the

court grants the motion with respect to Raouf’s due process claim, but otherwise

denies it. STANDARD OF REVIEW

The court’s first task is to discern the appropriate standard of review.

Although defendants purport to bring their motion under Rule 12(b)(6), two of the

grounds upon which they seek dismissal at least arguably should be evaluated

under Rule 12(b)(1).

Defendants’ first argument is that the Secretary of State must be dismissed

because he lacks authority to grant Raouf the relief she seeks. While the precise

legal basis upon which defendants ground this argument is somewhat unclear, the

argument is best understood as challenging Raouf’s standing. See In re Fin.

Oversight & Mgmt. Bd. for P.R.,

, 21-22 (1st Cir. 2021) (explaining that,

to demonstrate Article III standing, plaintiff must establish that a favorable

resolution would likely redress the complained-of injury); Sierra Club, Inc. v.

Granite Shore Power LLC, Civ. No. 19-cv-216-JL,

, at *4 (D.N.H.

Sept. 13, 2019) (stating that plaintiff must demonstrate standing “with respect to

each defendant”). Standing is an issue of subject-matter jurisdiction, and motions to

dismiss for lack of subject-matter jurisdiction are governed by Rule 12(b)(1). See

Freeman v. City of Keene,

, 25 n.1 (D.N.H. 2021). Therefore, the

court will analyze defendants’ argument for dismissal of the Secretary of State

under Rule 12(b)(1).

In addition, there is some authority within the First Circuit for the

proposition that consular nonreviewability—the second basis upon which

defendants seek dismissal—is an issue of subject-matter jurisdiction. See Chiang v.

Skeirik,

(1st Cir. 2009) (“Under the doctrine of consular

2 nonreviewability, in immigration disputes nonconstitutional issues are generally

outside the jurisdiction of the courts.”); Adams v. Baker,

(1st Cir.

1990) (“[I]n the absence of statutory authorization or mandate from Congress,

factual determinations made by consular officers in the visa issuance process

are . . . not reviewable by courts.”).1 Although defendants do not argue that the

doctrine of consular nonreviewability deprives the court of jurisdiction, the court

considers whether the doctrine is jurisdictional in nature in order to satisfy itself of

its power to proceed. See Steel Co. v. Citizens for a Better Env’t,

(1998) (“The requirement that jurisdiction be established as a threshold matter

spring[s] from the nature and limits of the judicial power of the United States and is

inflexible and without exception.” (quotation omitted); One & Ken Valley Hous. Grp.

v. Me. State Hous. Auth.,

(1st Cir. 2013).

The consular nonreviewability doctrine provides that, as a general matter,

courts may not review a decision to exclude a particular alien. See Chiang,

; United States ex rel. Knauff v. Shaughnessy,

(1950)

(explaining that courts cannot “review the determination of the political branch of

1 Whether consular nonreviewability is an issue of subject-matter

jurisdiction, however, was not before the First Circuit in these cases. It may be appropriate to consider the First Circuit’s statements in Chiang and Adams as dicta with respect to this issue. See Díaz-Rodríguez v. Pep Boys Corp.,

(1st Cir. 2005) (noting that a statement constitutes dicta when it is “unnecessary to the decision in the case” (quoting Black’s Law Dictionary (8th ed. 2004)), abrogated on other grounds by Hertz Corp. v. Friend,

(2010)); see also Reed Elsevier, Inc. v. Muchnick,

(2010) (“Courts—including this court—have sometimes mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.”).

3 the Government to exclude a given alien”). While the doctrine is founded upon

constitutional considerations and interpretation of the Immigration and Nationality

Act (“INA”), see Al-Gharawy v. U.S. Dep’t of Homeland Sec.,

, 12

(D.D.C. 2022), it is nonetheless a judicially-created doctrine, see Allen v. Milas,

(9th Cir. 2018).

The First Circuit is not the first court to have discussed consular

nonreviewability as though application of the doctrine deprives the court of

jurisdiction. Indeed, the doctrine traces its roots to the “infamous” Chinese

Exclusion Case. Donald S. Dobkin, Challenging the Doctrine of Consular

Nonreviewability in Immigration Cases,

, 116 (2010). That

case’s holding is understood to be sweeping. See Chae Chan Ping v. United States

(The Chinese Exclusion Case),

(1889); Kleindienst v. Mandel,

(1972) (characterizing the Chinese Exclusion Case as having held

“that the power to exclude aliens is inherent in sovereignty, necessary for

maintaining normal international relations and defending the country against

foreign encroachments and dangers—a power to be exercised exclusively by the

political branches of government” (quotation omitted)).

There is, however, a growing consensus among the Courts of Appeals that,

despite statements in the caselaw suggesting that the doctrine is jurisdictional in

nature, consular nonreviewability is in reality a merits issue. See Del Valle v. Sec’y

of State,

, 838 (11th Cir. 2021) (“[W]hen the doctrine of consular non-

reviewability bars review of a consular official’s decision, a district court should

4 dismiss a suit challenging the decision under Rule 12(b)(6).”); Baan Rao Thai Rest.

v. Pompeo,

, 1027 (D.C. Cir. 2021) (“Dismissal based on consular

nonreviewability . . . is a merits disposition under Federal Rule of Civil Procedure

12(b)(6).”); Allen,

(“The doctrine of consular nonreviewability,

which is judicial in origin, is surely informed by our respect for the separation of

powers, but it is not, for that reason, a constraint on our subject matter jurisdiction;

our deference goes to our willingness, not our power, to hear these cases.” (emphasis

omitted)); Matushkina v. Nielsen,

, 294 n.2 (7th Cir. 2017) (“We treat

the doctrine of consular nonreviewability as a matter of a case’s merits rather than

the federal court’s subject matter jurisdiction.”); Am. Acad. of Religion v.

Napolitano,

(2d Cir. 2009) (noting that “the term ‘jurisdiction’ is

often used imprecisely,” and finding that traditional subject matter jurisdiction

existed despite applicability of consular nonreviewability). Many of these cases

reason that, because only Congress may determine the federal courts’ jurisdiction,

see Kontrick v. Ryan,

(2004), the doctrine of consular

nonreviewability—which is a judicial creation—by definition cannot limit a court’s

Article III jurisdiction. See, e.g., Del Valle, 16 F.4th at 838.

Guidance on this issue is found in the recent case of Trump v. Hawaii,

(2018). In that case, the government asserted consular

nonreviewability as a defense but did “not argue that the doctrine . . . goes to the

Court’s jurisdiction.”

. The Supreme Court stated that it would

“assume without deciding that plaintiffs’ statutory claims are reviewable,

5 notwithstanding consular nonreviewability.”

However, as the Court of Appeals

for the District of Columbia Circuit explained in Baan Rao Thai Restaurant, “[h]ad

the doctrine been jurisdictional, the Court would have had to consider the doctrine

to ensure its jurisdiction.” Baan Rao, 985 F.3d at 1028 (emphasis added); see also

Citizens for a Better Env’t,

; Avullija v. Sec’y of State, 839 Fed.

App’x 292, 295 (11th Cir. 2020) (“Although the [Trump v. Hawaii] Court did not

expressly state that the doctrine of consular nonreviewability is not an aspect of

subject matter jurisdiction, its merits analysis is strong support for the conclusion

that the doctrine poses no jurisdictional bar.”).

For these reasons, the court concludes that the doctrine of consular

nonreviewability does not implicate subject-matter jurisdiction. The court will

therefore honor defendants’ request to analyze their consular nonreviewability

challenge under Rule 12(b)(6).2

Under that rule, the court must accept the factual allegations in the

complaint as true, construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s complaint set forth a

plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A.,

2 With respect to defendants’ standing challenge, the defendants do not

challenge the accuracy of the jurisdictional facts alleged in the complaint to support standing; they merely argue that Raouf has failed to show that the Secretary of State is empowered to grant the relief she seeks. When a jurisdictional motion to dismiss challenges only the sufficiency of the facts relied upon the complaint to support jurisdiction, the standard of review is the same as the Rule 12(b)(6) standard. See Sevigny v. United States, Civ. No. 13-cv-401-PB,

, at *2-3 (D.N.H. July 21, 2014); Valentin v. Hosp. Bella Vista,

(1st Cir. 2001).

6

(1st Cir. 2014) (quotation omitted). A claim is facially plausible

“when the plaintiff 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). Ordinarily, the court is “forbidden” from

considering documents that are not attached to the complaint, or expressly

incorporated therein, in ruling on a motion to dismiss pursuant to Rule 12(b)(6).

Watterson v. Page,

(1st Cir. 1993). “However, courts have made

narrow exceptions for documents the authenticity of which are not disputed by the

parties; for official public records; for documents central to plaintiff’s claim; or for

documents sufficiently referred to in the complaint.”

Here, defendants attach a declaration prepared by an employee with the

Office of the Assistant Legal Adviser for Consular Affairs to their motion to dismiss.

See doc. no. 10-2. Defendants’ arguments for dismissal rely in part on factual

information contained in this declaration. However, defendants have not

established that consideration of this declaration is appropriate at this juncture.

The declaration is not a public record; it is not central to Raouf’s claim; it is

nowhere referred to in Raouf’s complaint; and Raouf does not concede the

declaration’s authenticity. Therefore, the court will limit its analysis to the well-

pleaded allegations in Raouf’s complaint.3

3 For these same reasons, the court declines to consider the affidavit Raouf

attached to her objection to defendant’s motion to dismiss. See doc. no. 11-1.

7 BACKGROUND

The court will begin its discussion with a brief summary of relevant law

applicable to visa applications. Then, the court will recite the relevant factual

allegations in plaintiff’s complaint before summarizing this case’s procedural

posture and the defendants’ motion to dismiss.

Generally speaking, “an alien may not enter and permanently reside in the

United States without a visa.” Kerry v. Din,

, 89 (2015) (plurality

opinion) (citing

(a)). However, “[t]he INA creates a special visa-

application process for aliens sponsored by ‘immediate relatives’ in the United

States.”

(quoting

(b), 1153(a)). “Under this process, the citizen-

relative first files a petition on behalf of the alien living abroad, asking to have the

alien classified as an immediate relative.”

“If and when a petition is approved,

the alien may apply for a visa by submitting the required documents and appearing

at a United States Embassy or consulate for an interview with a consular officer.”

Raouf is a United States citizen residing in New Hampshire. Raouf’s spouse,

Abdullah A. Al Sammarraie, is an Iraqi citizen residing in the United Arab

Emirates. Raouf filed a petition with United States Citizenship and Immigration

Services (“USCIS”) on April 6, 2020, asking to have Al Sammarraie classified as her

immediate relative. USCIS approved her petition on September 17, 2020. USCIS

then submitted Raouf’s petition to the National Visa Center (“NVC”), an arm of the

State Department, for further processing. NVC subsequently forwarded Raouf’s

petition to the U.S. Embassy in Abu Dhabi, United Arab Emirates.

8 The Embassy scheduled Al Sammarraie’s visa interview for August 23, 2022.

Al Sammarraie attended the interview and applied for a visa. Raouf alleges that,

since that time, “the agency has refused to issue a decision on this case,” despite her

numerous attempts to contact the Embassy and obtain a decision. Doc. no. 1 ¶¶ 17-

18.

Raouf alleges that the Department of Homeland Security “has a policy,

known as the ‘Controlled Application Review and Resolution Program’ (hereinafter

sometimes referred to as ‘the CARRP’) that intentionally delays the applications of

applicants such as Abdullah A. Al Sammarraie due to security concerns.” Id. ¶ 24.

She further alleges that, defendants have used CARRP since 2008 “to investigate

and adjudicate applications deemed to present potential ‘national security

concerns.’” Id. ¶ 27. While Raouf did not attach any materials pertaining to CARRP

to her complaint, she alleges that the program’s “definition of ‘national security

concern’ is far more expansive than the security-related ineligibility criteria for

immigration applications set forth by Congress in the INA.” Id. ¶ 28. She contends

that CARRP’s definition—which has neither been approved by Congress nor subject

to notice and comment—is based on “deeply flawed and expansive government

watchlists, and other vague and overbroad criteria that bear little, if any, relation to

the security-related statutory ineligibility criteria” set forth in the INA. Id. ¶¶ 27-

28. Raouf ultimately contends, “[o]n information and belief,” that defendants “are

intentionally delaying a response . . . in regard to Abdullah A. Al Sammarraie’s visa

application pursuant to the CARRP program.” Id. ¶ 25.

9 Raouf filed the instant complaint in this court on or about June 6, 2023. She

brings two claims. Her first claim is brought under the APA in conjunction with the

Mandamus Act. The APA requires agencies to conclude matters “[w]ith due regard

for the convenience and necessity of the parties or their representatives and within

a reasonable time.”

(b). Raouf contends that this statute “creates a

non-discretionary duty to conclude agency matters,” a violation of which is itself is

“a sufficient basis for mandamus relief.” Doc. no. 1 ¶ 20 (citing Litton Microwave

Cooking Prods. v. NLRB,

, 253 (8th Cir. 1991)). Moreover, the APA

provides that a court may “compel agency action unlawfully withheld or

unreasonably delayed.”

(1). Raouf alleges that defendants’

unreasonable delay in issuing a final adjudication with respect to Al Sammarraie’s

visa application violates

(b), entitling her to mandamus relief.

Raouf’s second claim alleges that the defendants’ delay has violated her due

process rights. She asserts that “[t]he right to fundamental fairness in

administrative adjudication[s] is protected by the Due Process Clause,” and that she

“may seek redress in this Court for Defendants’ combined failures to provide a

reasonable and just framework of adjudication in accordance with applicable law.”

Doc. no. 1 ¶ 35. She further alleges that the defendants’ delay and failure to act “has

irrevocably harmed [her] by causing a loss of consortium between Plaintiff

and . . . Al Sammarraie, among other ways.” Id. ¶ 37.

Defendants have filed a motion to dismiss. Doc. no. 10. They make four

primary arguments. First, they argue that the Secretary of State must be dismissed

10 because he lacks authority to grant Raouf the relief she seeks. Second, defendants

argue that Raouf’s claims are barred by the doctrine of consular nonreviewability.

Third, they argue that Raouf has failed to state an unreasonable delay claim

because she has not identified a clear nondiscretionary duty to act nor sufficiently

alleged an unreasonable delay. Finally, they argue that Raouf has failed to

sufficiently allege a due process claim. The court will consider each of the

defendants’ argument in turn.

DISCUSSION

I. Raouf Has Standing to Pursue Relief Against the Secretary of State

“Article III of the Constitution limits the jurisdiction of federal courts to

‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus,

, 157

(2014) (quoting U.S. Const. art. III, § 2). “The doctrine of standing gives meaning to

these constitutional limitations by ‘identifying those disputes which are

appropriately resolved through the judicial process.’” Id. (footnote and brackets

omitted) (quoting Lujan v. Defs. of Wildlife,

(1992)). “To establish

Article III standing, a plaintiff must show ‘(1) [she] has suffered an “injury in fact”

that is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.’” Petrello v. City of Manchester, Civ. No. 16-cv-

008-LM,

, at *16 (D.N.H. Sept. 7, 2017) (quoting Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

(2000)). The

11 plaintiff has the burden of demonstrating standing “with respect to each

defendant.” Sierra Club,

, at *4.

Here, defendants assert that the Secretary of State is not a proper defendant

to this action because he lacks authority to grant Raouf the relief she seeks. In other

words, defendants argue that Raouf lacks standing to pursue her claims against the

Secretary of State because the Secretary cannot redress her complained-of injuries.

In support of their argument, defendants cite Ninth Circuit caselaw wherein that

Court of Appeals recognized that the INA “specifically exempted” the authority to

issue or withhold visas from the Secretary of State. Li Hing of Hong Kong, Inc. v.

Levin,

(9th Cir. 1986) (citing

(a)). Raouf counters

that she is not asking the Secretary of State to issue Al Sammarraie a visa; rather,

she is merely asking that he perform “his duty under the Administrative

Procedure[] Act to adjudicate the petition in a timely manner.” Doc. no. 11 at 8.

Raouf distinguishes Li Hing on this basis, noting that the Ninth Circuit was there

asked to enjoin the denial of a visa application. See Li Hing,

.

The court agrees with Raouf that the Secretary of State is a proper party at

this juncture. The INA provides that “[t]he Secretary of State shall be charged with

the administration and the enforcement of the provisions of this chapter and all

other immigration and nationality laws relating to . . . the powers duties, and

functions of diplomatic and consular officers of the United States.”

(a). While this same statute exempts from the Secretary’s authority “those

powers, duties, and functions conferred upon the consular officers relating to the

12 granting or refusal of visas,”

Raouf has not alleged that defendants have refused

to grant Al Sammarraie’s visa. Rather, she alleges that defendants have simply

failed to make a decision with respect to Al Sammarraie’s visa, and the court is

required to assume the truth of that allegation at this early stage. Raouf asks not

for the Secretary of State to grant Al Sammarraie a visa; she asks only that he

carry out his agency’s duty to issue a timely adjudication of the visa application at

issue.

“Control over a consular officer’s visa determinations—that is, her decisions

to grant, deny, or revoke immigrant and non-immigrant visas—is not the same as

control over the timing by which the consular officer considers the applications

presented to her.” Al-Gharawy, 617 F. Supp. 3d at 10 (quotation, brackets, ellipses,

and citation omitted). While the Secretary is barred “from directing a particular

outcome with respect to . . . visa adjudications,” he is not barred “from directing

consular officers ‘to conclude . . . matter[s] presented to [them]’ ‘within a reasonable

time.’” Id. (quoting

(b)). Because the Secretary has authority to direct

consular officials to adjudicate particular visa applications, the court denies the

motion to dismiss with respect to the Secretary of State.

II. Consular Nonreviewability Does Not Compel Dismissal of Raouf’s Claims

As noted, the consular nonreviewability doctrine provides that, as a general

matter, courts may not review a decision to exclude a particular alien. See Chiang,

; Shaughnessy,

. There are two primary exceptions to

the doctrine. The first exception allows for judicial review of a claim that the

13 challenged decision “infringes the constitutional rights of a citizen of the United

States,” although this form of review asks only whether there was a “facially

legitimate and bona fide reason” for the allegedly unconstitutional action.

Samandar v. Blinken,

, 29 (D. Mass. 2022) (quoting Mandel,

).

The second exception allows for judicial review of claims alleging that a

“consular officer[] fail[ed] to follow nondiscretionary regulatory duties,” i.e., where

the plaintiff seeks to compel an immigration official to take an action he or she is

already required by law to take. Ruston v. U.S. Dep’t of State,

(E.D. Ark. 1998), summarily aff’d,

(8th Cir. 1999); see Al-

Gharawy, 617 F. Supp. 3d at 11-13 (identifying a “long line of decisions” holding

that consular nonreviewability “does not bar judicial review of a consular officer’s

delay when a visa application has been provisionally refused pending a final

decision” because the INA does not give immigration officials “discretion [to]

indefinitely . . . delay a decision on a visa application”); Patel v. Reno,

(9th Cir. 1997) (holding that court had authority to review consular official’s

decision to “suspend” a visa application, which was not “a decision within the

discretion of the consul”).

Defendants do not appear to dispute that consular officers are required by

law to act on visa petitions. See

(providing that, when faced with a

properly completed visa application, “the consular officer must issue the visa, refuse

the visa . . . , or . . . discontinue granting the visa”). Rather, they argue that the

14 consular officer has already acted. Defendants contend that the Embassy has issued

a final decision to “refuse,” or deny, Al Sammarraie’s visa application pursuant to

(g). They contend, therefore, that any relief ordered by the court would

compel the defendants to exercise their discretion to “re-adjudicate” Raouf’s spousal

visa petition—which, defendants assert, the doctrine of consular nonreviewability

bars the court from doing. See

(g) (setting forth bases upon which a

consular officer may deny a visa application).

However, defendants’ argument relies upon the factual premise that Al

Sammarraie’s application has already been “refused” pursuant to

(g). Raouf does not allege in her complaint that Al Sammarraie’s application

has been refused; rather, she alleges that defendants have failed to act on his

application. Doc. no. 1 ¶ 17. Defendants’ assertion that Al Sammarraie’s application

has already been refused is drawn from the declaration that defendants attached to

their motion to dismiss, which the court has already determined is inappropriate to

consider in evaluating this motion brought under Rule 12(b)(6). At this stage, the

court is required to assume the truth of Raouf’s allegation that defendants have not

yet issued a decision on Al Sammarraie’s visa. Given that defendants do not appear

to argue that consular officers lack a nondiscretionary duty to act on visa

applications, the court rejects defendants’ argument for dismissal on the basis of

consular nonreviewability.4

4 Defendants may renew their consular nonreviewability argument at

summary judgment.

15 III. Raouf Adequately States an Unreasonable Delay Claim

Defendants next move to dismiss Raouf’s unreasonable delay claim. To state

an unreasonable delay claim under the APA, the plaintiff must plausibly allege (1)

that defendants failed to take an action that they are required by law to take,

Norton v. S. Utah Wilderness All.,

(2004), and (2) defendants’ delay

in taking this action was unreasonable, Da Costa v. Immigr. Inv. Program Off.,

, 340 (D.C. Cir. 2023).5 Defendants attack Raouf’s showing on both prongs.

With respect to the first prong, defendants’ argument mirrors their consular

nonreviewability argument (i.e., Al Sammarraie’s visa application has been refused

pursuant to

(g)). The court rejects this argument for the same reason

it rejected defendants’ consular nonreviewability argument.

With respect to the second prong, defendants argue that Raouf has failed to

plausibly allege that any delay in this case has been unreasonable. Unreasonable

delay claims are usually evaluated under the nonexclusive six-factor balancing test

set forth in Telecommunications Research and Action Center v. F.C.C.,

,

80 (D.C. Cir. 1984) (“TRAC”). See Towns of Wellesley, Concord, and Norwood, Mass.

5 Raouf’s request for mandamus relief does not meaningfully alter what she

must allege to adequately state an unreasonable delay claim. See Kinuthia v. Biden, Civ. No. 21-11684-NMG,

, at *4 n.7 (D. Mass. Nov. 9, 2022) (noting that, “where agency action has allegedly been unreasonably delayed, courts recognize that a mandamus claim is, effectively, an APA one”); Al-Gharawy, 617 F. Supp. 3d at 17 (noting that the standards for obtaining relief under the APA and the Mandamus Act on an unreasonable delay claim are “essentially the same” (quoting Vietnam Veterans of Am. v. Shinseki,

, 659 n.6 (D.C. Cir. 2010))); In re Core Commc’ns., Inc.,

(D.C. Cir. 2008) (explaining that, to obtain relief on an unreasonable delay claim, plaintiff must show that issuance of writ of mandamus would be justified).

16 v. FERC,

(1st Cir. 1987); V.U.C. v. U.S. Citizenship and Immigr.

Servs.,

, 223 (D. Mass. 2021). Under this test, the court

considers the following:

(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

TRAC, 750 F.2d at 80 (citations and quotations omitted).

As the recitation of these factors demonstrates, “addressing an unreasonable

delay claim is ‘ordinarily a complicated and nuanced task requiring consideration of

the particular facts and circumstances before the court.’” Al-Gharawy, 617 F. Supp.

3d at 17 (quoting Mashpee Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003)); see also Anversa v. Partners Healthcare Sys., Inc.,

(1st Cir. 2016) (“[D]etermining whether a timeframe for agency action

is unreasonable involves more than a matter of simple arithmetic.”). “Because an

analysis of the TRAC factors typically requires the court to wade through the

particular facts and circumstances of an agency’s delay, courts generally conclude

that ‘undertaking such a fact-bound analysis at the motion to dismiss stage is

premature.’” Al-Gharawy, 617 F. Supp 3d at 17-18 (brackets omitted) (quoting

Thomas v. Pompeo,

, 44 n.6 (D.D.C. 2020)); see, e.g., Roe v.

17 Mayorkas, Civ. No. 22-cv-10808-ADB,

, at *17 (D. Mass. May 12,

2023); Litvin v. Chertoff,

(D. Mass. 2008).

Defendants resist this notion and assert that a motion to dismiss is a proper

vehicle to challenge Raouf’s unreasonable delay claim. In support, they cite the

District of Columbia Circuit’s recent opinion in Da Costa v. Immigration Investor

Program Office,

(D.C. Cir. 2023). There, the Court of Appeals affirmed

the dismissal of unreasonable delay claims challenging USCIS’s failure to act on

plaintiffs’ petitions for classification as “approved investors” in certain job-creating

enterprises, the approval of which would make petitioners eligible to apply for

lawful permanent resident status. Da Costa, 80 F.4th at 334-36, 338. The Da Costa

court explained at length USCIS’s “availability-screened queue” procedure for

processing petitions such as plaintiffs’. See id. at 336-37. Under that procedure,

USCIS conducts initial screens of petitions for approved investor status to

determine whether the petitioner hails from a country for which visas remain

available for issuance. See id.; see also

(a)(2) (capping available visas

in a given year by country). Once this initial screen is complete, USCIS processes

petitions on a “first-in, first-out” basis, meaning that priority is given to petitions

that have been waiting the longest. Da Costa, 80 F.4th at 337.

In affirming the district court’s dismissal, the Court of Appeals emphasized

the “rule of reason” apparent in USCIS’s procedure for handling petitions such as

plaintiffs’. See id. at 340-41; see also TRAC, 750 F.2d at 80 (first factor to consider is

whether delay is “governed by a rule of reason” (quotation omitted)). By instituting

18 its availability-screened queue, USCIS responded to concerns that a simple first-in,

first-out processing format led to the prioritization of petitions from countries which

had already reached their yearly visa cap, such that, in many instances, processing

priority was being given to applicants for whom it was clear no visa would be

issued. See Da Costa, 80 F.4th at 336-37, 340. And, perhaps more critically,

plaintiffs conceded that this process was sensible, i.e., that it was governed by a

“rule of reason.” See id. at 341-42.

In short, the District of Columbia Circuit had the benefit of a developed

record (and a critical concession) on a key TRAC factor at the motion to dismiss

stage that is absent in this case. See Core Commc’ns.,

(explaining

that the first TRAC factor is the “most important factor”). Here, defendants have

failed to articulate a clear “rule of reason” that would justify the alleged delay in

adjudicating Raouf’s spousal visa petition. In asserting that the first TRAC factor

weighs in their favor—a factor which was critical to the Court of Appeals’ reasoning

in Da Costa—defendants merely argue that the length of the delay in this case is

not unreasonable as a matter of law, without pointing to agency constraints or

procedures that could justify the delay.6 See Xiaobing Liu v. Blinken,

, 11 (D.D.C. 2021) (“Defendants must show an identifiable rationale governing

6 Defendants assert that the length of the delay in this case should be

calculated from the most recent government action on the visa application, which, defendants contend, was shortly after Al Sammarraie’s interview in 2022. By contrast, Raouf contends that the delay should be calculated from the time she submitted her application to have Al Sammarraie classified as her spouse. Because the court does not reach the merits of Raouf’s unreasonable delay claim, it does not resolve this dispute.

19 their decisions.” (quotation omitted)). But “[w]hether a ‘rule of reason’ exists for

agency action ‘cannot be decided in the abstract, by reference to some number of

months or years beyond which agency inaction is presumed to be unlawful, but will

depend in large part . . . upon the complexity of the task at hand, the significance

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

v. Pompeo,

, 148 (D.D.C. 2021) (quoting Mashpee Wampanoag,

).

Here, Raouf alleges that she submitted a spousal visa petition on April 6,

2020, and that the Embassy interviewed Al Sammarraie on August 23, 2022, but

that no decision with respect to Al Sammarraie’s visa has yet been made. Moreover,

Raouf alleges that this delay is attributable to the CARRP program, which she

claims to be an ultra vires internal policy for intentionally delaying issuance of

visas. Raouf’s allegations are sufficient to withstand a motion to dismiss her

unreasonable delay claim when considered against the complex, fact-laden inquiry

that analysis of such a claim will involve. See, e.g., Mayorkas,

, at

*17; Litvin,

. The court therefore denies defendants’ motion to

dismiss with respect to Raouf’s unreasonable delay claim.

IV. Raouf Fails to State a Due Process Claim

Finally, defendants move to dismiss Raouf’s due process claim, arguing that

she has failed to plead facts upon which relief could be granted. The precise

contours of Raouf’s due process claim are opaque. Based on the complaint alone, it

is difficult to determine whether she alleges a violation of her procedural or

20 substantive due process right. However, Raouf’s objection clarifies that she intends

to bring a procedural due process claim, and that she alleges she has a protected

interest in her spouse’s visa application which has been afforded insufficient

procedural protections by defendants.

“A procedural due process claim consists of two elements: (i) deprivation by

state action of a protected interest in life, liberty, or property, and (ii) inadequate

state process.” Reed v. Goertz,

(2023). With respect to the first

element, in Kerry v. Din, a plurality of the Supreme Court rejected the claim that a

U.S. citizen has a protected liberty or property interest in a spousal visa

application. 576 U.S. at 88, 101. While this conclusion does not carry the weight of

binding precedent,7 see Rohrbaugh v. Pompeo,

, 133 n.3 (D.D.C.

2019), “some lower courts have likewise concluded [that] a U.S. citizen has no

liberty interest in a spouse’s visa application,” Aslam v. U.S. Dep’t of State, No.

2:22-cv-701,

, at *14 & n.166 (D. Utah Sept. 21, 2023) (collecting

cases); see, e.g., Rohrbaugh, 394 F. Supp. 3d at 133 (highlighting that “numerous

7 Justice Scalia, writing for himself, Chief Justice Roberts, and Justice

Thomas, concluded that no protected interest is implicated in this scenario. Din, 576 U.S. at 87-88. 101. In their concurrence in the judgment, Justice Kennedy and Justice Alito assumed without deciding that the plaintiff was deprived of a protected interest but found that the State’s deprivation of that interest comported with due process. Id. at 101-02. Four justices dissented, arguing that the plaintiff was deprived of a protected interest without sufficient process. Id. at 106-07. Because “[n]one of the reasonings supporting the three opinions in Din are logical subsets of another, . . . ‘there is no controlling opinion’ and the ‘precedent is to be read only for its persuasive force.’” Rohrbaugh, 394 F. Supp. 3d at 133 n.3 (quoting United States v. Epps,

(D.C. Cir. 2013)); accord Ali v. United States,

, 515 n.3 (1st Cir. 2017).

21 courts in this district have ruled that a U.S. citizen has no constitutional right

which is violated by the denial of a spouse’s visa application”). The Ninth Circuit

has reached a contrary conclusion. See Bustamante v. Mukasey,

(9th Cir. 2008) (holding that a U.S. citizen has a protected liberty interest in

the adjudication of a noncitizen spouse’s visa application); Muñoz v. U.S. Dep’t of

State,

, 915-16 (9th Cir. 2022) (affirming Bustamante’s vitality post-

Din).

The First Circuit has left open the question of whether a U.S. citizen has a

cognizable due process interest in the procurement of a visa for a noncitizen spouse.

See Ali v. United States,

, 515 & n.3 (1st Cir. 2017). But cf. Silverman

v. Rogers,

(1st Cir. 1970) (rejecting argument that deportation of

noncitizen spouse would deprive citizen spouse “of [his] constitutional rights”).

However, “[t]he Supreme Court has explained that ‘[t]o have a [protected] interest

in a benefit, a person clearly must have more than an abstract need or desire and

more than [a] unilateral expectation of it. He must, instead, have a legitimate claim

of entitlement to it.’” Doe v. UMass-Amherst, --- F. Supp. 3d ---,

,

at *26 (D. Mass. Nov. 1, 2023) (quoting Town of Castle Rock v. Gonzales,

(2005)); accord Ky. Dep’t of Corr v. Thompson,

(1989).

“Thus, ‘a benefit is not a protected entitlement if government officials may grant or

deny it in their discretion.’” UMass-Amherst,

, at *26 (quoting

Town of Castle Rock,

). “A reasonable expectation of entitlement is

determined largely by the language of the statute and the extent to which the

22 entitlement is couched in mandatory terms.” Wedges/Ledges of Cal., Inc. v. City of

Phoenix, Ariz.,

(9th Cir. 1994) (quoting Ass’n of Orange Cnty. Deputy

Sheriffs v. Gates,

, 734 (9th Cir. 1983)); see also Bd. of Regents of State

Colls. v. Roth,

(1972) (“Property interests . . . are created and

their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law . . . .”).

Here, Raouf lacks a legitimate claim of entitlement to the issuance of a visa

to her noncitizen spouse. The INA grants consular officials wide discretion in

granting or denying visas. For example, the INA provides that, “a consular official

may issue” a visa “to an immigrant who has made proper application therefor.”

(a)(1)(A) (emphasis added). Courts have interpreted this provision as

permitting consular officials to deny even properly submitted visa applications. See,

e.g., Al-Gharawy, 617 F. Supp. 3d at 12; see also Saavedra Bruno v. Albright,

, 1158 n.2 (D.C. Cir. 1999) (“Consular officers have complete discretion

over issuance and revocation of visas.”). Consular officers’ discretionary decisions to

grant or deny visa applications are immunized from review by even the Secretary of

State.

(a). Moreover, “[a]fter the issuance of a visa or other

documentation to any alien, the consular officer . . . may at any time, in his

discretion, revoke such visa or other documentation.”

(i); accord

(a). Given immigration officials’ wide discretion over the substantive

decision to grant, deny, or revoke a visa, Raouf fails to plausibly alleged facts

showing a legitimate claim of entitlement to the issuance of a spousal visa.

23 Raouf’s arguments in support of her position rely upon the Ninth Circuit’s

opinion in Ching v. Mayorkas,

(9th Cir. 2013). However, Ching

concerned a claim of entitlement to having one’s noncitizen spouse classified as an

“immediate relative”; the plaintiffs in that case did not claim an entitlement to a

visa. Ching,

(emphasis added). Immigration officials retain

discretion to grant, refuse, or revoke spousal visas even after a noncitizen has been

classified as a U.S. citizen’s immediate relative. See Saavedra Bruno,

n.2; Din, 576 U.S. at 89. Here, Raouf alleges that her application for

classification of Al Sammarraie as her immediate relative has already been

approved by USCIS. To the extent she has a legitimate claim of entitlement to

classification of Al Sammarraie as her immediate relative, that entitlement has

already been afforded to her. Nor does Raouf contend that USCIS’s actions in

classifying Al Sammarraie as her spouse failed to comport with due process—

indeed, she has not named USCIS as a party to this action. Therefore, Raouf’s

reliance on Ching is misplaced.

For the foregoing reasons, Raouf fails to plausibly allege facts in support of

her due process claim, and the court grants defendants’ motion to dismiss with

respect to that claim.

24 CONCLUSION

Defendants’ motion to dismiss (doc. no. 10) is granted in part and denied in

part. It is granted with respect to Raouf’s due process claim (Count II). It is denied

in all other respects.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 20, 2023

cc: Counsel of Record.

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