Ahmed v. United States Department of State

• Court: District Court, N.D. California
• Decided: January 26, 2024
• Docket: 5:23-cv-02474
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADNAN AHMED, Case No. 23-cv-02474-SVK

8 Plaintiff, ORDER ON DEFENDANTS’ MOTION 9 v. FOR SUMMARY JUDGMENT

10 UNITED STATES DEPARTMENT OF Re: Dkt. No. 15 STATE, et al., 11 Defendants. 12 13 Plaintiff Adnan Ahmed is a United States citizen. His spouse, who is a citizen of Pakistan, 14 was found to be documentarily qualified for an immigrant visa on May 25, 2022, but at the time 15 Plaintiff filed the Complaint on May 19, 2023, his spouse was still awaiting an interview at the 16 United States Embassy in Islamabad, which is the next step in the process of obtaining a visa. The 17 Complaint requests that the Court issue a writ of mandamus compelling Defendants to adjudicate 18 the visa application of Plaintiff’s spouse, pursuant to the Administrative Procedure Act (“APA”) 19 and the Mandamus Act. Dkt. 1. All Parties have consented to the jurisdiction of a magistrate 20 judge. Dkt. 6, 8. 21 Now before the Court is Defendants’ motion for summary judgment, which Plaintiff 22 opposes. Dkt. 15 (motion); Dkt. 18 (opposition); Dkt. 22 (reply). This matter is suitable for 23 determination without oral argument. Civ. L.R. 7-1(b). For the reasons discussed below, the 24 Court GRANTS Defendants’ motion for summary judgment. 25 I. BACKGROUND 26 Plaintiff Adnan Ahmed is a United States citizen. Dkt. 1 (Complaint) ¶ 1. Plaintiff’s 27 spouse, Beenish Javed, is a citizen of Pakistan. Id. ¶ 2. Under federal immigration law, a 1 the petition is approved, the spouse may apply for a visa. See 8 U.S.C. §§ 1151, 1153, 1154. 2 Upon the spouse’s submission of materials in support of a visa application, the National Visa 3 Center (“NVC”), which is part of the United States Department of State, reviews the materials to 4 determine if the spouse is documentarily qualified, meaning that all required documents have been 5 provided to the NVC and a visa number is available. 22 C.F.R. § 40.1(h); Dkt. 15-2 (Austin 6 Decl.) ¶ 2. If so, the next step is for the beneficiary to appear for an interview and execute his or 7 her visa application at a United States embassy or consulate before a consular officer. 22 C.F.R. 8 § 40.1(l)(2); Dkt. 15-2 ¶ 2. The spouse’s immigrant visa application is not deemed complete until 9 the interview occurs. See 22 C.F.R. § 40.1(l)(2). 10 Each embassy and consulate is able to process only a set number of immigrant visas per 11 day. Dkt. 15-2 ¶ 2. Where demand exceeds processing capacity, the NVC uses the date on which 12 a case became documentarily complete to determine the order in which cases are scheduled for 13 interview appointments. Id. 14 Plaintiff submitted an I-130 petition for a visa for his spouse on June 20, 2019. Dkt. 1 15 ¶ 13. The United States Citizenship and Immigration Services (“USCIS”) approved the petition 16 on January 21, 2022. Dkt. 15-1 (Nash Decl.) ¶ 3. The NVC determined that Plaintiff’s spouse 17 was “documentarily qualified” on May 25, 2022. Id. ¶ 4. As of date Defendants filed the present 18 summary judgment motion, the agency had not scheduled a visa interview of Plaintiff’s spouse. 19 See Dkt. 1 ¶ 17; Dkt. 15 at 1; Dkt. 15-2 ¶ 4. At that time, the United States Embassy in Islamabad, 20 which is responsible for the case of Plaintiff’s spouse, had a backlog of 12,064 documentarily- 21 complete applicants for immediate relative visas who were awaiting interview appointments. Dkt. 22 15-2 ¶ 3 Of these, 1,363 applicants were ahead of Plaintiff’s spouse in the line. Id. ¶ 4. 23 II. LEGAL STANDARD 24 Plaintiff asserts that “[t]his is not an APA review case,” “[t]here is no administrative record 25 for this Court to review,” and thus “the typical Rule 56(c) standard for summary judgment should 26 be applied.” Dkt. 18 at 3-4. Defendants agree that the legal standard set forth in Federal Rule of 27 Civil Procedure 56 governs their motion for summary judgment. See Dkt. 15 (Motion) at 7-8. 1 standard. See, e.g., Khalili-Araghi v. Bitter, No. 23-cv-00696-LB, 2023 WL 5988590, at *2-3 2 (N.D. Cal. Sep. 13, 2023) (granting government’s motion for summary judgment on claims 3 relating to delay in scheduling visa interview for plaintiff’s daughter); Kapoor v. Blinken, No. 21- 4 cv-01961-BLF, 2022 WL 181217, at *3 (N. D. Cal. Jan. 20, 2022) (granting government’s motion 5 for summary judgment on claims alleging unreasonable delays in processing visa applications of 6 plaintiff’s parents); Poursohi v. Blinken, No. 21-cv-01960-TSH, 2021 WL 5331446, at *4 (N.D. 7 Cal. Nov. 16, 2021) (granting government’s motion for summary judgment on claims regarding 8 delay in scheduling visa interview of immigrant spouse). Accordingly, the Court will apply the 9 same legal standard to Defendants’ motion for summary judgment. 10 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 11 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 12 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 13 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 14 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 15 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 16 proof at trial, the moving party need only prove that there is an absence of evidence to support the 17 nonmoving party's case.” Oracle, 627 F.3d at 387. 18 “Where the moving party meets that burden, the burden then shifts to the non-moving 19 party to designate specific facts demonstrating the existence of genuine issues for trial.” Id. 20 “[T]he non-moving party must come forth with evidence from which a jury could reasonably 21 render a verdict in the non-moving party's favor.” Id. “The court must view the evidence in the 22 light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant's 23 favor.” City of Pomona, 750 F.3d at 1049. “‘Where the record taken as a whole could not lead a 24 rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Id. 25 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 26 //// 27 //// 1 III. DISCUSSION 2 A. First Claim for Relief: Agency Action Unlawfully Withheld and Unreasonably Delayed 3 Under the APA, a court may “compel agency action unlawfully withheld or unreasonably 4 delayed.” 5 U.S.C. § 706(1). Similarly, under the Mandamus Act, district courts “have original 5 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 6 United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 7 “Because mandamus relief and relief under the APA are in essence the same, when a complaint 8 seeks relief under the Mandamus Act and the APA and there is an adequate remedy under the 9 APA, [the court] may elect to analyze the APA claim only.” Vaz v. Neal, 33 F.4th 1131, 1135 (9th 10 Cir. 2022) (internal quotation marks and citation omitted) 11 “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed 12 to take a discrete agency action that it is required to take.” Id. at 1135–36 (quoting Norton v. S. 13 Utah Wilderness All., 542 U.S. 55, 64 (2004)) (emphasis in original). “Thus, a court may compel 14 agency action under the APA when the agency (1) has a clear, certain, and mandatory duty” and 15 “(2) has unreasonably delayed in performing such duty.” Vaz, 33 F.4th at 1136 (internal quotation 16 marks and citations omitted). 17 1. Duty to Schedule Spouse’s Visa Interview 18 Defendants argue that they do not have any duty—much less a duty that is “clear, certain, 19 and mandatory”—to schedule a visa interview for Plaintiff’s spouse within any particular time 20 frame following approval of Plaintiff’s petition and the determination that his spouse is 21 documentarily qualified. Dkt. 15 at 9-13. One court in this District recently concluded no such 22 duty exists and granted the government’s motion for summary judgment a case with facts similar 23 to this one. Khalili-Araghi, 2023 WL 2988590, at *5. The plaintiff in Khalili-Araghi (a U.S. 24 citizen) filed a visa petition for her daughter (who lived in Iran), the petition was approved, the 25 daughter was found to be documentarily qualified, but the immigrant visa interview had not yet 26 been scheduled. After considering the plaintiff’s various arguments as to why the relevant agency 27 had a duty to schedule the daughter’s visa interview, the court held that “the State Department 1 does not have a nondiscretionary duty to act on an immigration visa petition as opposed to an 2 immigrant visa application.” Id. 3 Another district court in this Circuit has criticized this holding, finding it would create a 4 “catch-22” in which “plaintiffs cannot take any actions to prod the [immigration agency] to 5 schedule an interview, but they also cannot bring suit to compel the agency to schedule the 6 interview so it can adjudicate their application, as statutorily required.” Iqbal v. Blinken, No. 2:23- 7 cv-01299-KJM-KJN, 2023 WL 7418353, at *7 (E.D. Cal. Nov. 9, 2023). Other courts in this 8 District have also concluded or assumed that the relevant duty exists. See, e.g., Kapoor, 2022 WL 9 181217, at *3 (stating that court may compel agency action unlawfully withheld or unreasonably 10 delayed, then proceeding to consider whether delay in scheduling visa interviews was 11 unreasonable); Poursohi, 2021 WL 5331446, at *4 (in case alleging delay in scheduling visa 12 interviews, stating “[e]xecutive agencies covered by the APA are required to conclude matters 13 presented ‘within a reasonable time’” (citing 5 U.S.C. § 555(b)), then proceeding to analyze 14 reasonableness of delay). 15 In this case, Defendants have not established that they do not have a duty to schedule a 16 visa interview of Plaintiff’s spouse without unreasonable delay. However, for the reasons 17 discussed in the following section, Defendants have shown that the delay in this case is not 18 unreasonable. 19 2. Reasonableness of Delay in Scheduling Visa Interview 20 “[C]ourts generally apply the so-called TRAC factors in deciding whether to order relief in 21 claims of agency delay brought under the APA.” Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 22 (9th Cir. 1997). The TRAC factors are:

23 (1) the time agencies take to make decisions must be governed by a ‘rule of 24 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 25 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 26 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[;] 27 (5) the court should also take into account the nature and extent of the interests behind agency lassitude in order to hold that agency action is unreasonably 1 delayed. 2 Babbitt, 105 F.3d at 507 n.7 (citing Telecommunications Research & Action v. F.C.C. (“TRAC”) 3 750 F.2d 70, 79-80 (D.C. Cir. 1984). 4 a. First TRAC Factor: Rule of Reason 5 The Ninth Circuit has held then when considering the TRAC factors, “[t]he most important 6 is the first factor, the ‘rule of reason,’ though it, like the others, is not itself determinative.” 7 In re A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). The essence of the rule of reason inquiry 8 is “whether the agency's response time ... is governed by an identifiable rationale.” Poursohi v. 9 Blinken, No. 21- CV-01960-TSH, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) (quotation 10 marks and citation omitted). When the alleged delay involves the processing of an immigrant visa 11 application, district courts have examined both the length of the delay and the reasons for the 12 delay. See id. at *4-7 (collecting cases). 13 Plaintiff points out the delays at various steps of the visa process. See, e.g., Dkt. 18-1 14 (Ahmed Decl.) ¶ 10 (“USCIS took 31 months to approve our case on January 21, 2022, which is 15 already an extremely long time for approval of an I-130”); id. (“All in all, I have been waiting for 16 4.5 years for my spouse’s visa.”). However, the length of the delay in processing a visa 17 application under the circumstances of this case is measured from the date the applicant is deemed 18 documentarily qualified. See Khalili-Araghi, 2023 WL 5988590, at *6 (“Here, the delay is 19 measured from March 2021, when [Plaintiff’s daughter] was deemed documentarily qualified”); 20 Kapoor, 2022 WL 181217, at *4 (measuring delay from date parents’ visa applications were 21 documentarily complete and they became eligible for interviews); Poursohi, 2021 WL 5331446, at 22 *5 (measuring delay in processing spousal visa from date application was documentarily 23 complete). Plaintiff’s spouse was deemed “documentarily qualified” on May 25, 2022. Dkt. 15-1 24 ¶ 4. This was less than one year before Plaintiff filed this lawsuit and approximately 20 months 25 before the date of this Order. 26 In other cases in this District, similar delays in scheduling visa interviews have been found 27 to be not unreasonable. See Khalili-Araghi, 2023 WL 5988590, at *5 (delay of nearly two years 1 2022 WL 181217, at *6 (delay of 7-8 months not unreasonable); Poursohi, 2021 WL 5331446, at 2 *6 (delay of ten months not unreasonable). In other immigration contexts, numerous district 3 courts within the Ninth Circuit have found that much lengthier delays in were not unreasonable. 4 See, e.g., Zhang v. Cissna, No. 18-cv-09696-MWF, 2019 WL 3241187, at *5 (C.D. Cal. Apr. 25, 5 2019) (four-year delay in processing asylum application was not unreasonable); Ou v. Johnson, 6 No. 15-cv-03936-BLF, 2016 WL 7238850, at *3 (N.D. Cal. Feb. 16, 2016) (“[C]ourts in this 7 district have generally found delays of four years or less not to be unreasonable under the APA.”); 8 Beyene v. Napolitano, No. 12-CV-1149-WHA, 2012 WL 2911838, at *9 (N.D. Cal. July 13, 2012) 9 (delay of nearly five years in adjudicating plaintiff's application for adjustment of immigration 10 status was not unreasonable); Islam v. Heinauer, No. C 10-04222 JSW, 2011 WL 2066661, at *8 11 (N.D. Cal. May 25, 2011) (point of unreasonableness had “not yet come” after three-year delay for 12 adjustment of status). 13 The delay in scheduling the visa interview of Plaintiff’s spouse under the “first-in, first- 14 out” scheduling protocol employed by Defendants stems from the backlog of applicants awaiting 15 interviews combined with the limitations on how many visa interviews the U.S. Embassy in 16 Islamabad can conduct each day. See Dkt. 15-2 ¶¶ 2-3. Defendants have provided evidence that 17 over 12,000 documentarily-complete immediate relative visa applicants were awaiting interviews 18 at the time they filed this motion. Dkt. id. ¶ 3. Defendants offer several explanations for this 19 backlog, including a four-month suspension of visa services at U.S. Embassy in Islamabad (and 20 elsewhere) in March 2020 due to the COVID-19 pandemic followed by a phased resumption of 21 visa services with continuing restrictions; persistent staffing shortages at that embassy; increased 22 demand at that embassy following suspension of operations at the U.S. Embassy in Kabul, 23 Afghanistan in August 2021; and prioritization of processing Afghans seeking a special immigrant 24 visa under the Afghan Allies Protection Act of 2009. See Dkt. 15 at 6-7and evidence cited 25 therein.1 The effect of these factors is demonstrated by the fact that the backlog of documentarily- 26 1 Federal Rule of Evidence 201(b) permits a court to take judicial notice of “a fact that is not 27 subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial 1 complete applicants awaiting appointments at the U.S. Embassy in Islamabad has steadily grown 2 from 193 on March 1, 2020 (shortly before visa services were suspended due to the COVID-19 3 pandemic) to 12,064 on October 18, 2023 (the day before Defendants filed their summary 4 judgment motion). Dkt. 15-2 ¶ 3. 5 Although at some point a delay in scheduling a visa interview of a United States citizen’s 6 spouse could become unreasonable, under the circumstances of the case, when considering both 7 the present length of delay and the reasons for the delay in scheduling the visa interview of 8 Plaintiff’s wife, the Court concludes that at this time, the delay is not unreasonable. Accordingly, 9 the first TRAC factor weighs in favor of Defendants. 10 b. Second TRAC Factor: Congressional Timeline 11 “[W]here Congress has provided a timetable or other indication of the speed with which it 12 expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 13 [the] rule of reason” analysis. TRAC, 750 F.2d at 80. Plaintiff has not shown that Congress 14 requires immigrant visa applications to be processed on any particular timeline, and Courts in this 15 District have found that no such timeline exists. See Kapoor, 2022 WL 181217, at *8; Poursohi, 16 2021 WL 5331446, at *7. “Because Congress has not provided a timetable for adjudication of 17 immigrant visa applications, [] the second TRAC factor is neutral.” Kapoor, 2022 WL 181217, at 18 *8; see also Jain v. Renaud, No. 21-CV-03115-VKD, 2021 WL 2458356, at *5 (N.D. Cal. June 19 16, 2021) (second TRAC factor was neutral where Congress did not mandate a timeline); 20 Poursohi, 2021 WL 5331446, at *9 (“[G]iven the absence of a mandatory timetable for 21 adjudication of Plaintiffs’ Application combined with the fact that the delay comports with the 22 rule of reason, the second TRAC factor also weighs in Defendant's favor or is at least neutral.”). 23 c. Third and Fifth TRAC Factors: Human Health and Welfare, and Nature of Interests 24 “The third and fifth factors overlap, requiring the court to consider whether human health 25

26 materials cited by Defendants regarding the effect on visa processing of pandemic-related restrictions, staffing shortages at the Islamabad embassy, the effect of the suspension of operations 27 at the U.S. Embassy in Kabul, Afghanistan, and the Islamabad embassy’s prioritization of 1 and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.” 2 Poursohi, 2021 WL 5331446, at *9. Plaintiff’s declaration submitted with his opposition to 3 Defendants’ summary judgment motion describes the hardship caused by the prolonged separation 4 from his spouse. Dkt. 18-1 (Ahmad Decl.) ¶¶ 10-13.2 The anxiety and emotional difficulty of 5 spousal separation has been exacerbated by the miscarriage suffered by Plaintiff’s wife, her loss of 6 employment, and Plaintiff’s diagnosis with prediabetes. Id. The Court finds that the third and fifth 7 factors weigh in Plaintiff’s favor. See Kapoor, 2022 WL 181217, at *8; Poursohi, 2021 WL 8 5331446, at *7 9 d. The Fourth TRAC Factor: Effect of Expediting Action 10 “The fourth TRAC factor requires the Court to consider the effect of expediting 11 adjudication of plaintiffs’ applications on agency action of a higher or competing priority.” 12 Kapoor, 2022 WL 181217, at *8 (quotation marks and citation omitted). “Most courts have found 13 that the fourth TRAC factor weighs heavily in the agency’s favor when a judicial order putting 14 plaintiffs at the head of the line would simply move all others back one space and produce no net 15 gain.” Jain, 2021 WL 2458356, at *6 (collecting cases). Defendants argue that this is precisely 16 the effect that the requested relief would have in this case. Dkt. 15 at 18-20. 17 As discussed elsewhere in this order, Defendants have shown that at the time they filed its 18 summary judgment motion, 12,064 documentarily-complete immediate family visa applicants 19 were waiting for interviews to be scheduled at the U.S. Embassy in Islamabad. Dkt. 15-2 ¶ 3. 20 Almost 90 percent of these applicants are behind Plaintiff’s spouse in line. See id. ¶4 (stating that 21 as of October 4, 2023, there were 1,363 documentarily complete immediate relative applicants 22 awaiting an interview at the U.S. Embassy in Islamabad ahead of Plaintiff’s spouse). Yet Plaintiff 23 asks this Court to “issue a writ of mandamus compelling Defendants to promptly complete all 24 administrative processing” of his spouse’s application “within sixty days.” Dkt. 1, Request for 25 2 In discussing TRAC factors 3 and 5, Plaintiff argues that because “this case is at the 12(b)(6) 26 stage, Plaintiff needs not do more than plainly state his allegations.” Dkt. 18 at 10. This statement fails to recognize that this case is at summary judgment stage, when Plaintiff must demonstrate the 27 existence of genuine issues for trial and cannot rest solely on his allegations in the Complaint. 1 Relief ¶ 5. The effect of such an order would be to move Plaintiff’s spouse towards the head of 2 the queue for interviews, ahead of approximately 1,363 applicants whose applications were 3 documentarily complete before her application. See id. “Plaintiff[] make[s] no showing that 4 would justify moving [his spouse] to the head of the queue, or why [her] petition[] should be 5 processed immediately while other similarly-situated petitioners wait their turn.” Jain, 2021 WL 6 2458356, at *6. 7 Defendants have demonstrated that the fourth TRAC factor weighs in their favor because 8 expediting the application of Plaintiff’s spouse “would result in no net gain in the appointment 9 backlog while disadvantaging visa applicants of higher priority or of the same priority but whose 10 applications have been pending longer.” Poursohi, 2021 WL 5331446, at *11. 11 e. Sixth TRAC Factor: Impropriety 12 The sixth TRAC factor requires that Court consider any allegations of impropriety. 13 Plaintiff concedes that he “does not allege that Defendants’ delay was caused by bad faith per se.” 14 Dkt. 18 at 12. However, Plaintiff’s Complaint and his opposition to Defendants’ motion for 15 summary judgment repeatedly refer to the Controlled Application Review and Resolution Program 16 (“CARRP”). See, e.g., Dkt. 1 ¶¶ 24-29 (alleging “on information and belief” that delays in 17 processing spouse’s visa application are due to CARRP); Dkt. 18 at 12-13. 18 Defendants’ motion explains that CARRP is a policy of the Department of Homeland 19 Security and USCIS that does not extend to the Department of State and that it has no application 20 to this case because the USCIS has already completed its review of and approved the visa petition. 21 Dkt. 15 at 21; see also Rahimian v. Blinken, 22-cv-785, 2023 WL 143644, at *10 and n.8 (D.D.C. 22 Jan. 10, 2023) (noting that CARRP is a USCIS policy and that USCIS’s role in adjudicating a 23 spousal visa petition concludes once USCIS transfers the application to the NVC). Even after 24 Defendants raised this issue in their motion, Plaintiff offers only speculation, not evidence, that 25 CARRP plays any role in this case. See Dkt. 18 at 12-15. 26 Where, as here, Plaintiff has not made cognizable allegations of impropriety, “courts in the 27 Ninth Circuit have found this factor to either weigh in the government's favor or to be neutral.” 1 neutral. 2 f. Weighing the TRAC Factors 3 In evaluating the TRAC factors, “courts routinely afford the most weight” to the first and 4 fourth factors. Poursohi, 2021 WL 5331446, at *11. As discussed above, the first and fourth 5 TRAC factors weigh against granting Plaintiff’s request for relief. Consequently, these factors 6 outweigh the third and fifth factors, which favor Plaintiff. The second and sixth factors either 7 favor Defendants or are neutral. Accordingly, the Court finds that Defendants have established 8 that they are entitled to summary judgment on Plaintiff’s first claim for relief based on application 9 of the TRAC factors to the undisputed facts in the record. Plaintiff has not demonstrated the 10 existence of any disputed material facts that would preclude summary judgment. 11 In his opposition to the motion for summary judgment, Plaintiff states that he “should be 12 given the opportunity to conduct discovery on the existence of any alleged exceptional 13 circumstances that have kept this agency from taking action over nearly two years of delay and on 14 the reasonableness of same.” Dkt. 18 at 4; see also id. at 17-18 (arguing that summary judgment 15 should be denied “because Plaintiff has not had the opportunity to engage in meaningful discovery 16 and develop a sufficient record of evidence that would allow this Court to make an informed 17 decision as to the unreasonableness of Defendants’ delay”). The Court concludes that discovery is 18 not warranted, for several reasons. First, Plaintiff has failed to “show[] by affidavit or declaration 19 that, for specified reasons, [he] cannot present facts essential to justify [his] opposition,” as 20 required under Rule 56(d). Second, even setting aside the improper form of Plaintiff’s request for 21 discovery, he has not met his burden, as the party seeking additional discovery, “to proffer 22 sufficient facts to show that the evidence sought exists, and that it would prevent summary 23 judgment.” Kapoor, 2022 WL 181217, at *5 (quoting Chance v. Pac-Tel Teletrac Inc., 242 F.3d 24 1151, 1161 n.6 (9th Cir. 2001). Third, as reflected in the scheduling order in this case (Dkt. 5), in 25 this District immigration mandamus actions are routinely decided on summary judgment. 26 Accordingly, discovery is not necessary or warranted in this case. 27 B. Second Claim for Relief: Due Process Violation 1 Plaintiff’s Complaint includes a claim that “Defendants’ combined failure to provide a 2 reasonable and just framework of adjudication in accordance with applicable law” violated his 3 rights under the Due Process Clause of the Fifth Amendment. Dkt. ¶¶ 34-37. Plaintiff’s 4 opposition to the motion for summary judgment elaborates somewhat, arguing that as a 5 United States citizen, Plaintiff “has an interest and right in his spouse (sic) visa application” and 6 that Defendants’ inaction has “violated the due process rights of Plaintiff and irrevocably harmed 7 him by causing loss of consortium, among other things.” Dkt. 18 at 16-17 (citing, among other 8 authority, Bustamante v. Kukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)). 9 In Muñoz v. U.S. Dept. of State, the Ninth Circuit held that “we remain convinced that 10 Bustamante correctly recognized that a U.S. citizen possesses a liberty interest in a non-citizen 11 spouse’s visa application. 50 F.4th 906, 916 (9th Cir. 2022). However, the Supreme Court 12 recently granted certiorari in Muñoz on two questions, including “[w]hether a consular officer’s 13 refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected 14 interest of the citizen.” Dept. of State v. Muñoz, -- S. Ct. --, 2024 WL 133818 (2024). 15 The due process right Plaintiff asserts in this case appears very closely related to the issue 16 before the Supreme Court in Muñoz, although that case arises out of denial of a spouse’s visa 17 application rather than a delay in processing the application. Even if Plaintiff has a due process 18 right relating to his spouse’s visa application, however, the question would be whether the delay in 19 processing the application has been unreasonable such that Plaintiff’s liberty right has been 20 impinged. Specifically, determining due process requires evaluation of three factors: (1) the 21 private interest that will be affected by the official action; (2) the risk of erroneous deprivation of 22 such interest through the procedures used and the probable value, if any, of additional or substitute 23 procedural safeguards; and (3) the government’s interest. Mathews v. Eldridge, 424 U.S. 319, 335 24 (1976); see also Singh v. Holder, No. C-13-4958 EMC, 2014 WL 117397, at *5 (N.D. Cal. Jan. 25 10, 2014). 26 Here, assuming in arguendo that Plaintiff has liberty interest in his spouse’s visa 27 application, the effect of the delay in processing the spouse’s visa application and the 1 government’s interest are addressed in the Court’s analysis of the TRAC factors analysis in Section 2 IlI.A.2. above. For the reasons discussed there, the delay is not unreasonable. 3 Accordingly, Defendants are entitled to summary judgment on Plaintiff's due process 4 || claim. 5 || IV. CONCLUSION 6 For the reasons discussed above, the Court GRANTS Defendants’ motion for summary 7 || jyudgment. 8 SO ORDERED. 9 || Dated: January 26, 2024 10 ul Seesom yeryl— SUSAN VAN KEULEN 12 United States Magistrate Judge

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28