UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALI AGHAZADEH, et al.,
Plaintiffs, Civil Action No. 23-3150 (CKK)
v.
MERRICK B. GARLAND, in his official capacity as Attorney General, et al.,
Defendants.
MEMORANDUM OPINION (August 1, 2024)
In this action, Plaintiffs Ali Aghazadeh and Gholamhossein Aghazadeh Khoei (collectively,
“Plaintiffs”) seek injunctive and mandamus relief ordering Defendants Attorney General of the
United States Merrick Garland, Secretary of Homeland Security Alejandro Mayorkas, Secretary
of State Antony Blinken (collectively, “Defendants”) to adjudicate Plaintiff Khoei’s visa
application. See generally Compl., ECF No. 1. Pending before the Court is Defendants’ [10]
Motion to Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule
12(b)(6) (“Motion” or “Defs.’ Mot.”). Upon careful consideration of the pleadings, 1 the relevant
legal authority, and the record as a whole, the Court shall GRANT Defendants’ [10] Motion to
Dismiss and DISMISS Plaintiffs’ [1] Complaint in its entirety.
1 The Court’s consideration has focused on the following documents: • Plaintiffs’ Complaint (“Compl.”), ECF No. 1; • Defendants’ Motion to Dismiss and Memorandum in Support Thereof (“Defs.’ Mot.”), ECF No. 10; • Plaintiffs’ Opposition to Motion to Dismiss (“Pls.’ Opp’n”), ECF No. 11; and • Defendants’ Reply in Support of Defendants’ Motion to Dismiss (“Defs.’ Reply”), ECF No. 12.
1 I. BACKGROUND
Plaintiff Khoei is an Iranian national who applied for a visa at the United States Embassy
in Turkey. Compl. ¶ 2. Prior to submitting Plaintiff Khoei’s visa application to the U.S. Embassy,
Plaintiff Aghazadeh, who is a U.S. citizen, filed an I-130 petition for his father (Plaintiff Khoei).
Id. ¶ 4. Plaintiff Aghazadeh’s I-130 petition was approved by the United States Citizenship and
Immigration Services (“USCIS”) on June 16, 2020, and subsequently transferred to the National
Visa Center (“NVC”) on June 22, 2020. Id. ¶¶ 5–6. Plaintiff Khoei then submitted his DS-260
visa application by October 2020. Id. ¶ 7. On January 22, 2021, the NVC labeled Plaintiff Khoei’s
visa application as “Documentarily Qualified.” Id. ¶ 8. The NVC then scheduled Plaintiff Khoei’s
interview for April 4, 2022 at the U.S. Embassy in Turkey. Id. ¶ 9. After his interview, Plaintiff
Khoei was informed that “additional original documentation was required to complete the
processing” of his application. Id. ¶ 10. In May 2022, Plaintiff Khoei mailed the requested
documents to the U.S. Embassy. Id. ¶ 11. In June 2022, the U.S. Embassy requested that Plaintiff
Khoei complete a Form DS-5535 Supplemental Question, which he completed and submitted to
the U.S. Embassy within two weeks of the initial request. Id. ¶ 12. On August 17, 2022, Plaintiff
Khoei was informed that his application was placed in administrative processing pursuant to
Section 221(g) of the Immigration and Nationality Act (“INA”). Id. ¶ 13. Plaintiff Khoei’s
application has remained in administrative processing to date. Id. ¶ 19.
Plaintiffs initiated this lawsuit on October 20, 2023, seeking to compel Defendants to
adjudicate Plaintiff Khoei’s visa application. See generally id. On February 6, 2024, Defendants
filed the pending Motion, seeking dismissal of Plaintiffs’ Complaint under Rules 12(b)(1) and
12(b)(6). See Defs.’ Mot. Plaintiffs oppose the Motion in its entirety. See generally Pls.’ Opp’n,
ECF No. 11. With the Motion fully briefed, the Court turns to its resolution.
2 II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Jurisdiction
On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a
preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C. 2020)
(JDB); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether
there is jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts as
evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.’” Coal for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. Of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
Courts must accept as true all factual allegations in the complaint and construe the complaint
liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged.
See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
However, the factual allegations in the complaint “will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (RMU). The Court
need not accept as true “a legal conclusion couched as a factual allegation” or an inference
“unsupported by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
B. Motion to Dismiss for Failure to State a Claim
Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint
is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
3 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must accept the
factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.”
Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006) (PLF).
In resolving a Rule 12(b)(6) motion, courts may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint” or
“documents upon which the plaintiff’s complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward
v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Gustave-
Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (RBW); Hilton v. Corr. Corp. of Am.,
624 F. Supp. 2d 45, 46 (D.D.C. 2009)).
III. DISCUSSION
Defendants present four (4) arguments for dismissal of Plaintiffs’ Complaint: (1) Plaintiffs
have named the wrong defendants; (2) Plaintiffs’ claims are precluded by the consular non-
reviewability doctrine; (3) Plaintiffs have not identified a non-discretionary duty that Defendants
are required to take; and (4) Plaintiffs’ claims fail on the merits. Two of Defendants’ arguments
are meritorious, with which the Court will begin before turning to their other, unavailing
arguments.
4 A. Improper Defendants
To begin, Defendants argue that none of the named defendants in this lawsuit had a role in
“re-adjudicating” Plaintiff Khoei’s visa application. Defs.’ Mot. at 12. In response, Plaintiffs
concede that Defendants Mayorkas and Garland were improperly named as defendants in this case.
Pls.’ Opp’n at 3. The Court will therefore dismiss the Complaint as against Defendants Mayorkas
and Garland.
The parties dispute as to whether Defendant Blinken, the Secretary of State, is a properly
named Defendant. See id.; Defs.’ Reply at 2–3. In support of their argument, Defendants rely on
the proposition that the INA “grants consular officers ‘exclusive authority to review applications
for visas, precluding even the Secretary of State from controlling their determinations.’” Defs.’
Reply at 2 (citing Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021)). In this
case, however, Plaintiffs are not “challenging a consular officer’s adjudication of [Plaintiff
Khoei’s] visa application; they are challenging” the alleged delay in the adjudication of the visa
application. Khoshrou v. Blinken, No. 22-2859, 2023 WL 4930086, at *4 (D.D.C. Aug. 2, 2023)
(CKK) (citation omitted) (quotation cleaned up); see also Al-Gharawy v. U.S. Dep’t of Homeland
Sec., 617 F. Supp. 3d 1, 10 (D.D.C. 2022) (RDM) (“Control over a consular officer’s visa
determination . . . is not the same as control over the timing by which the consular officer
considers the applications presented to her.”). Courts in this jurisdiction reject the same argument
that Defendants have raised here. See, e.g., id.; Ramirez v. Blinken, 594 F. Supp. 3d 76, 90 (D.D.C.
2022) (RC). Therefore, the Court finds that the Secretary of State, Defendant Blinken, is a properly
named defendant.
B. Unreasonable Delay
Next, Defendants argue that Plaintiffs’ claims fail on the merits because Plaintiffs have
5 failed to state a claim of unreasonable delay. See Defs.’ Mot. at 18. In response, Plaintiffs insist
that Defendants have not adjudicated Plaintiff Khoei’s visa application “within a reasonable time,”
as required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 555(b). Pls.’ Opp’n at 9.
Although a court may order an agency “to perform a [mandatory] act, [i.e.,] to take action upon a
matter,” a court may not decide “how [the agency] shall act.” Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 62 (2004).
To determine whether a plaintiff has sufficiently alleged that agency action has been
“unreasonably delayed,” courts apply the familiar “TRAC” factors laid out in Telecommunications
Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984):
(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.
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC,
750 F.2d at 80) (internal quotation marks omitted); see also Skalka v. Kelly, 246 F. Supp. 3d 147,
152 (D.D.C. 2017) (RJL) (applying TRAC factors to claim for mandamus relief). Whether a delay
is unreasonable “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,
6 and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton,
336 F.3d 1094, 1102 (D.C. Cir. 2003).
In their opposition, Plaintiffs first argue that the TRAC analysis is inappropriate to apply at
the motion to dismiss stage because it is a “fact specific inquiry.” Pls.’ Opp’n at 10. The Court
disagrees. Although some district courts have concluded that it is premature to decide
unreasonable delay claims at the motion to dismiss stage, see Thomas v. Pompeo, 438 F. Supp. 3d
35, 44 (D.D.C. 2020) (ESH) (concluding that “any determination of whether defendants have
unreasonably delayed adjudication . . . is premature at this juncture”), this is the minority position.
The majority in this jurisdiction, including this Court, have applied the TRAC factors at the motion
to dismiss stage. See, e.g., Bagherian, 442 F. Supp. 3d at 94 (applying TRAC factors at the motion
to dismiss stage); Didban v. Pompeo, 435 F. Supp. 3d 168, 175 (D.D.C. 2020) (CRC) (same);
Sarlak v. Pompeo, No. 20-cv-35, 2020 WL 3082018, at *5 (D.D.C. June 10, 2020) (BAH) (same);
Skalka, 246 F. Supp. 3d at 153–54 (same); Palakura v. Renaud, 521 F. Supp. 3d 46, 50 (D.D.C.
2021) (TNM) (same); Vafaei v. U.S. Citizenship & Immigr. Servs., No. 22-cv-1608, 2024 WL
1213394, at *3 (D.D.C. March 21, 2024) (CKK) (same).
Accordingly, the Court concludes that it may consider whether Plaintiffs’ Complaint meets
the Rule 12(b)(6) pleading standards. The Court notes that it is “not determining whether there
has been an unreasonable delay; rather, it is determining whether plaintiffs’ complaint has alleged
facts sufficient to state a plausible claim for unreasonable administrative delay.” Ghadami v. U.S.
Dep’t of Homeland Sec., No. 19-00397, 2020 WL 1308376, at *7 n.6 (D.D.C. Mar. 19, 2020)
(ABJ). The Court shall now consider the TRAC factors in turn.
1. TRAC Factors One & Two
The D.C. Circuit has explained that the first TRAC factor—the time agencies take to make
7 decisions must be governed by a “rule of reason”—is the “most important,” although it is generally
reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc., 531 F.3d 849, 855
(D.C. Cir. 2008). The inquiry centers on “whether the agency’s response time . . . is governed by
an identifiable rationale.” Ctr. for Sci. in the Pub. Int. v. F.D.A., 74 F. Supp. 3d 295, 300 (D.D.C.
2014) (JEB). Because Congress has provided no statutory timeframe indicating how quickly it
requires the State Department’s adjudication and re-adjudication of visa applications, TRAC factor
two is inapplicable. “To the contrary, Congress has given the agencies wide discretion in the area
of immigration processing.” Skalka, 246 F. Supp. 3d at 153–54 (noting that a two-year delay in
processing an immigration visa “does not typically require judicial intervention”).
In general, courts in this jurisdiction have regularly found that the Government applies a
“rule of reason” to the review of visa petitions by adjudicating applications in the order they were
filed. See e.g., Muvvala v. Wolf, No. 20-cv-02423, 2020 WL 5748104, at *3 (D.D.C. Sept. 25,
2020) (CJN) (“Other federal courts have held that this first-in, first-out method of adjudication
constitutes a ‘rule of reason’ and satisfies the first TRAC factor.”). Simply put, the inquiry begins
and ends with the consistent application of the “first-in, first-out” methodology. Courts of this
jurisdiction often look to the length of delay as a rough yardstick to determine whether that rule is,
in fact, being applied.
Plaintiff Khoei had his interview on April 4, 2022, and his visa application has remained
in administrative processing since then. Compl. ¶¶ 10, 19. Plaintiffs argue that this delay—just
over eighteen (18) months at the time of the filing of Plaintiffs’ Complaint, and just over twenty-
seven (27) months now—is unreasonable. See generally id. However, courts in this jurisdiction
routinely find that delays of numerous years are not unreasonable. See, e.g., Zaman v. U.S. Dep't
of Homeland Sec., No. 19-3592, 2021 WL 5356284, at *6 (D.D.C. Nov. 16, 2021) (ABJ) (finding
8 delay of forty-two months was “insufficient to warrant emergency relief in this district”);
Pourshakouri v. Pompeo, No. 20-0402, 2021 WL 3551299, at *8–9 (D.D.C. Aug. 11, 2021) (RJL)
(finding delay of forty-four months not unreasonable); Varghese v. Blinken, No. 21-2597, 2022
WL 3016741, at *5 (D.D.C. July 29, 2022) (CRC) (finding delay of “around four years” does “not
warrant judicial intervention, standing alone”); Arab v. Blinken, No. 21-1852, 2022 WL 1184551,
at *8 (D.D.C. Apr. 21, 2022) (BAH) (finding that a thirty-month delay was not unreasonable); see
also Noori v. Blinken, No. 23-1463, 2024 WL 939990, at *3 (D.D.C. Mar. 5, 2024) (TJK) (“District
courts have generally found that immigration delays in excess of five, six, seven years are
unreasonable, while those between three to five years are often not unreasonable.”).
The time period of twenty-seven months (2.25 years) is well within the bounds of that
which other courts have found reasonable. Notably, Plaintiffs concede that the first and second
TRAC factors weigh in favor of Defendants. Pls.’ Opp’n at 11 (“The first two TRAC factors favor
Defendants because processing visas takes a baseline amount of time.”). Therefore, the Court
finds that the first and second TRAC factors do not lend credence to Plaintiffs’ claims. Because
TRAC factor one is considered the “most important” factor, In re Core Commc’ns, 531 F.3d at 855,
this finding weighs heavily on the Court’s ultimate holding.
2. TRAC Factors Three & Five
The third and fifth TRAC factors are often considered together and require the Court to
consider Plaintiffs’ interests, health, and welfare. Ghadami, 2020 WL 1308376, at *9.
Plaintiffs allege that Plaintiff Khoei has been harmed by the unreasonable delay, as it has
prevented him from providing support to his daughter as she undergoes cancer treatment in the
United States. Compl. ¶ 21; see also Pls.’ Opp’n at 11. Courts in this jurisdiction have frequently
considered the impact of familial separation on the health and welfare of plaintiffs under TRAC
9 factors three and five. See, e.g., Tate v. Pompeo, 513 F. Supp. 3d 132, 150 (D.D.C. 2021) (BAH)
(finding the third and fifth TRAC factors to weigh in plaintiffs’ favor in light of the separation of
friends, family, and loved ones); Isse v. Whitman, No. 22-3114, 2023 WL 4174357, at *7–8
(D.D.C. June 26, 2023) (BAH) (finding the third and fifth TRAC factors to weigh in plaintiff’s
favor in light of the separation from immediate family); Didban, 435 F. Supp. 3d at 177 (finding
the third and fifth TRAC factors weigh in plaintiffs’ favor in light of separation from spouse).
Accordingly, Plaintiff Khoei’s separation from his daughter, who is undergoing cancer treatment
in the United States, undeniably impacts Plaintiff’s interests.
In contending that factors three and five point in their direction, Defendants argue that
“[p]rioritizing the Visa Application here will simply benefit certain noncitizens to the detriment of
others who may have experienced the same or worse impacts from a delay.” Defs.’ Mot. at 32.
They further argue that “Plaintiffs fail to plead the type of harms that could make a third and fifth
TRAC factors plausibly tilt in Plaintiffs’ favor.” Id. at 33. But Defendants fail to address why
familial separation does not tilt TRAC factors three and five in favor of Plaintiffs, given the contrary
findings within this jurisdiction as noted above. Accordingly, the Court concludes that the third
and fifth factors weigh in Plaintiffs’ favor.
3. TRAC Factor Four
The Court next considers the fourth TRAC factor, which notes “the effect of expediting
delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80.
The Court concludes that this factor weighs against Plaintiffs. The relief that Plaintiffs
seek—the prompt adjudication of Plaintiff Khoei’s visa application—would mean that others
waiting for adjudication would be displaced. See Tate, 513 F. Supp. 3d at 149. Here, Plaintiffs
concede that TRAC factor four favors Defendants, but they still request that “the entire
10 administrative processing line be granted additional priority.” Pls.’ Opp’n at 12. However, any
such order would plainly interfere with the agency’s “unique—and authoritative—position to view
its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal
way.” In re Barr, 930 F.2d 72, 76 (D.C. Cir. 1991). Furthermore, courts in this jurisdiction,
including this Court, routinely decline to grant relief that would simply place one prospective visa
applicant ahead of others. See, e.g., Xiaobing Liu v. Blinken, 544 F. Supp. 3d 1, 13 (D.D.C. 2021)
(TJK) (“This factor not only favors Defendants, but ends up altogether dooming Plaintiffs’ claims
of unreasonable delay.”); Verma v. USCIS, No. 20-3419, 2020 WL 7495286, at *9 (D.D.C. Dec.
18, 2020) (RDM); Dehghanighanatghestani v. Mesquita, No. 22-2595, 2022 WL 4379061, at *7
(D.D.C. Sept. 22, 2022) (CKK); Pushkar v Blinken, No. 21-2297, 2021 WL 4318116, at *7
(D.D.C. Sept. 23, 2021) (CKK); Desai v. USCIS, No. 20-1005, 2021 WL 1110737, at *7 (D.D.C.
Mar. 22, 2021) (CKK); Manzoor v. USCIS, No. 21-2126, 2022 WL 1316427, at *5–*6 (D.D.C.
May 3, 2022) (CKK). Accordingly, TRAC factor four weighs in favor of Defendants.
4. TRAC Factor Six
Finally, the Court considers the sixth TRAC factor. This factor states that a “[c]ourt need
not find any impropriety lurking behind agency lassitude in order to hold the agency action is
unreasonably delayed.” Ghadami, 2020 WL 1308376, at *9. A court “must determine whether
the agency has acted in bad faith in delaying action.” Gona v. U.S. Citizenship & Immigr. Servs.,
No. 20-3680, 2021 WL 736810, at *5 (D.D.C. Feb. 25, 2021) (RCL). This factor is generally
considered neutral without plausible allegations of agency impropriety. See Palakura, 521 F.
Supp. 3d at 53 (considering the sixth TRAC factor “neutral” even though plaintiff alleged that
government had engaged in “purposeful delay” and “artificially inflate[d] [] processing times”).
Plaintiffs argue that Defendants’ failure to act after receiving notification of Plaintiff
11 Khoei’s hardship, as well as the additional requirements placed on Iranian applicants (like Plaintiff
Khoei), are allegations sufficient to survive the motion to dismiss stage. See Pls.’ Opp’n at 12–13.
However, Plaintiffs fail to show that the delay is “nefarious or the result of ill will.” Ramirez, 594
F. Supp. 3d at 95. Nonetheless, the lack of plausible allegations of impropriety does not weigh
against Plaintiffs, and therefore this factor is neutral. See Palakura, 521 F. Supp. 3d at 53.
* * *
In sum, TRAC factors one, two, and four favor Defendants, TRAC factors three and five
favor Plaintiffs, and TRAC factor six is neutral. Altogether, the Court finds that Plaintiffs have
failed to allege sufficiently that agency action has been “unreasonably delayed” under the TRAC
factors and, therefore, the Court will grant Defendants’ Motion to Dismiss. The Court now turns
to Defendants’ other arguments.
C. Doctrine of Consular Non-Reviewability
Next, Defendants argue that Plaintiffs’ claims fail under the doctrine of consular non-
reviewability. Defs.’ Mot. at 15–19. This doctrine provides that “a consular official’s decision to
issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.”
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). The doctrine of consular non-
reviewability derives from “the political nature of visa determinations and . . . the lack of any
statute expressly authorizing judicial review of consular officers’ actions.” Id. The scope of the
doctrine also aligns with Congress’s decision to commit the adjudication of visa applications
exclusively to consular officers. See 8 U.S.C. §§ 1201(a)&(g); see also id. § 1361.
For nearly a century, courts in this jurisdiction have applied the doctrine of consular non-
reviewability and “refused to review visa decisions of consular officials.” Saavedra Bruno, 197
F.3d at 1159–60 (collecting cases). The D.C. Circuit has reaffirmed that the doctrine of “[c]onsular
12 non-reviewability shields a consular official’s decision to issue or withhold a visa from judicial
review.” Baan Rao Thai Rest., 985 F.3d at 1024. However, courts have held that the doctrine does
not apply where “plaintiffs ‘do not seek judicial review of a consular decision, but instead seek a
final decision on their applications.’” Didban, 435 F. Supp. 3d at 174 (quoting Afghan & Iraqi
Allies Under Serious Threat Because of Their Faithful Serv. to U.S. v. Pompeo, No. 18-013388,
2019 WL 367841, at *10 (D.D.C. Jan. 30, 2019) (TSC)). This includes where a visa application
remains in administrative processing. See, e.g., id. at 172, 174; Vulupala v. Barr, 438 F. Supp. 3d
93, 98–99 (D.D.C. 2020) (ABJ) (refusing to apply the consular non-reviewability doctrine where
the “visa application remains in administrative processing”); Nine Iraqi Allies Under Serious
Threat Because of Their Faithful Serv. to U.S. v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016)
(GK) (holding that the consular non-reviewability doctrine does not apply where the applicant’s
tracker status remains in administrative processing); Al-Gharawy, 617 F. Supp. 3d at 11–17
(collecting cases and holding the same); Khazaei v. Blinken, No. 23-1419, 2023 WL 6065095, at
*4–5 (D.D.C. Sept. 18, 2023) (JEB) (holding same).
Here, the doctrine of consular non-reviewability does not preclude the Court from
reviewing the adjudication of Plaintiff Khoei’s visa application, as it remains in administrative
processing. Plaintiff Khoei’s latest update on his application informed him that it has been placed
in administrative processing. Compl. ¶¶ 13, 16–17. Accepting Plaintiffs’ facts as true, Plaintiff
Khoei’s application remains in administrative processing, precluding application of the consular
non-reviewability doctrine. Accordingly, the Court holds that the doctrine does not bar judicial
review of Plaintiffs’ claims. See, e.g., Khoshrou, 2023 WL 4930086, at *4.
D. Non-Discretionary Duty
Finally, Defendants contend that Plaintiffs’ claims fail because there is no discrete agency
13 action that a consular officer is required to take. See Defs.’ Mot. at 19–26.
As the Supreme Court has held, “a claim [for unreasonably delay] under § 706(1) can
proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it
is required to take.” Norton, 524 U.S. at 64 (emphasis in original). Other courts have held that
“[g]ranting or refusing a visa to an applicant who has been interviewed is clearly a discrete agency
action.” Khazaei, 2023 WL 6065095, at *6. Furthermore, taking such an action is required by
both the APA and the State Department’s own regulation, and is to be done within a reasonable
time. See Mashpee Wampanoag Tribal Council, 336 F.3d at 1099 (noting that Section 555(b)
“imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter
presented to it ‘within a reasonable time’”); Vulupala, 438 F. Supp. 3d at 100 (concluding that
“[g]ranting or refusing a final visa application is a mandatory agency action” under 22 C.F.R.
§ 41.106).
Here, Plaintiffs and Defendants disagree on whether a final decision has been issued on
Plaintiff Khoei’s application. Defs.’ Mot. at 18 (“Plaintiffs mistakenly allege that a final decision
on their Visa Application has not been reached.”). However, Defendants do not include any
exhibits or declarations supporting their argument; they simply make the conclusory allegation
that “the consular officer already refused the Visa Application.” Id. Plaintiffs, conversely,
maintain that Plaintiff Khoei “received no meaningful response or a timeline for the completion of
the administrative processing of his application.” Pls.’ Opp’n at 3. In resolving a motion to
dismiss, the Court must accept the Plaintiffs’ factual allegations as true. See Settles, 429 F.3d at
1106. Without demonstrating that the agency has taken the discrete agency action that is
required—granting or refusing the visa application—Defendants’ argument fails.
14 IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT Defendants’ [10] Motion to Dismiss.
The Court shall therefore DISMISS Plaintiffs’ [1] Complaint in its entirety. An Order will
accompany this Memorandum Opinion.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge