Akbar v. Blinken

• Court: District Court, S.D. California
• Decided: December 18, 2023
• Docket: 3:23-cv-01054
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ATIEH AKBAR, et al., Case No.: 23cv1054-LL-BLM

12 Plaintiffs, ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS

14 ANTONY J. BLINKEN, U.S. Secretary of [ECF No. 4] State, 15 Defendant. 16 17 18 Before the Court is Defendant Antony J. Blinken's (“Defendant”) Motion to Dismiss 19 Plaintiffs Atieh Akbar and Mohammadreza Akbar’s (collectively “Plaintiffs”) Complaint. 20 ECF No. 4, Motion to Dismiss (“Motion” or “Mot.”). Defendant’s Motion has been fully 21 briefed, and the Court deems it suitable for submission without oral argument. For the 22 reasons stated below, the Court DENIES Defendant’s Motion to Dismiss. 23 I. BACKGROUND 24 A. Plaintiffs’ Complaint 25 Plaintiff Atieh Akbar, a United States citizen, filed an I-130 visa petition with U.S. 26 Citizenship and Immigration Services (“USCIS”) on behalf of her father, Plaintiff 27 Mohammadreza Akbar. ECF No. 1, Complaint (“Compl.”) ¶¶ 2, 70. Plaintiff 28 Mohammadreza Akbar is an Iranian national and currently lives in Iran. Id. ¶ 71. USCIS 1 approved the Plaintiffs’ I-130 petition and forwarded the petition to the National Visa 2 Center (“NVC”) for pre-processing. Id. ¶ 75. On September 23, 2020, Plaintiffs submitted 3 Form DS-260 to the NVC along with supporting documentation and the processing fee. Id. 4 ¶¶ 3, 77. On November 7, 2022, Plaintiff Mohammadreza Akbar was interviewed by the 5 consular section of the U.S. Embassy in Yerevan. Id. ¶¶ 4, 78. Following the interview, 6 Plaintiff Mohammadreza Akbar completed and submitted Form DS-5535, which requested 7 “15 years of detailed history including addresses, employment travel, and social media 8 handles.” Id. ¶¶ 79, 80. On November 8, 2022, Plaintiffs received confirmation that Form 9 DS-5535 had been received. Id. ¶ 80. Plaintiff Mohammadreza Akbar 's application was 10 then placed in “administrative processing, where it has remained indefinitely since that 11 time.” Id. ¶ 5. Plaintiffs contacted the U.S. Embassy numerous times following the 12 interview to inquire about the status of Plaintiff Mohammadreza Akbar’s application. Id. ¶ 13 11. Plaintiff Mohammadreza Akbar’s application, however, remains pending. Id. ¶ 81. 14 As a result of the “unreasonable delay in adjudication,” “Plaintiffs have been 15 separated from one another” and are “faced with the prospect of being separated 16 indefinitely.” Id. ¶ 9. Plaintiffs allege the delay in the adjudication of Plaintiff 17 Mohammadreza Akbar’s application has placed a severe emotional and financial strain on 18 the Plaintiffs. Id. ¶ 7. Plaintiff Atieh Akbar also explains that she is concerned about 19 Plaintiff Mohammadreza Akbar’s health because he “has heart issues as well as being hard 20 of hearing, making living alone difficult.” Id. ¶ 89. 21 On June 6, 2023, Plaintiffs filed this action seeking declaratory and injunctive relief 22 and a writ of mandamus to compel USCIS to adjudicate Plaintiff Mohammadreza Akbar’s 23 visa application. See generally id. On August 8, 2023, Defendants moved to dismiss 24 Plaintiffs’ Complaint for lack of subject matter jurisdiction and/or failure to state a claim. 25 See Mot. On September 21, 2023, Plaintiffs filed an Opposition to the Motion. ECF No. 26 10, Opposition (“Oppo.”). On September 28, 2023, Defendant filed its Reply in support of 27 the Motion. ECF No. 11. 28 1 On November 8, 2023, Plaintiffs filed an Ex Parte Request for Leave to File Notice 2 of Supplemental Authority. ECF No. 12. No opposition was filed. See generally Docket. 3 Further, on December 17, 2023, Plaintiffs filed a Second Ex Parte Request for Leave to 4 File Notice of Supplemental Authority. ECF No. 13.1 5 B. Declaration of Matthew McNeil 6 A declaration provided in support of the Defendant’s Motion provides information 7 from the Consular Consolidated Database (“CCD”) regarding Plaintiff Atieh Akbar’s 8 petition on behalf of her father, Plaintiff Mohammadreza Akbar, and information regarding 9 Plaintiff Mohammadreza Akbar’s visa application. See ECF No. 4-1, Declaration of 10 Matthew McNeil (“McNeil Decl.”). 11 Consistent with Plaintiffs’ Complaint, the CCD records indicate that Plaintiff Atieh 12 Akbar filed an I-130 petition on behalf of her father, Plaintiff Mohammadreza Akbar. Id. ¶ 13 4. On August 31, 2021, USCIS approved the I-130 petition. Id. The NVC received the 14 approved petition, and on September 4, 2021, NVC created a case file and assigned a case 15 number for processing at the U.S. Embassy in Yerevan, Armenia. Id. ¶¶ 5–6. On November 16 7, 2022, Plaintiff Mohammadreza Akbar appeared for his consular interview and applied 17 for an immigrant visa. Id. ¶ 8. “On the same date, the consular officer refused 18 [Mohammadreza Akbar’s] visa application under INA § 221(g), 8 U.S.C. §1201(g) to 19

20 21 1 Plaintiffs’ Ex Parte Request for Leave to File Notice of Supplemental Authority and Second Ex Parte Request for Leave to File Notice of Supplemental Authority cite to 22 multiple cases decided after Plaintiffs’ Opposition to the Motion was filed. See ECF Nos. 23 12, 13. These cases do not represent Ninth Circuit law and therefore, are not binding precedent on this Court. The Court does not find the supplemental authority to be 24 particularly helpful when Plaintiffs have already cited to multiple cases supporting the 25 same position in their Opposition. See Oppo. at 19. Additionally, Plaintiffs’ Second Ex Parte Request advances new arguments, arguing outside the pleadings. See ECF No. 13. 26 Accordingly, the Court DENIES Plaintiffs’ Ex Parte Request for Leave to File Notice of 27 Supplemental Authority and DENIES Plaintiffs’ Second Ex Parte Request for Leave to File Notice of Supplemental Authority. The Court, however, will consider any identified 28 1 conduct additional security screening.” Id. Additionally, on the same date, the consular 2 staff sent a request to Plaintiff Mohammadreza Akbar for additional information consistent 3 with Form DS-5535. Id. On November 8, 2022, the U.S. Embassy in Yerevan received 4 Plaintiff Mohammadreza Akbar’s completed responses to Form DS-5535. Id. ¶ 9. 5 II. LEGAL STANDARD 6 A. Federal Rule of Civil Procedure 12(b)(1) 7 “Federal courts are courts of limited jurisdiction,” possessing “only that power 8 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 9 U.S. 375, 377 (1994). Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a 10 party may move to dismiss a complaint based on a court's lack of subject matter 11 jurisdiction. See Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the 12 burden of establishing jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 13 (1992); Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir. 2006) (citation 14 omitted). 15 Rule 12(b)(1) motions can challenge a court's subject matter jurisdiction on either 16 facial or factual grounds. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 17 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “In a facial attack, the 18 challenger asserts that the allegations contained in a complaint are insufficient on their face 19 to invoke federal jurisdiction. A facial attack “accepts the truth of the plaintiff's allegations 20 but asserts that they are insufficient on their face to invoke federal jurisdiction.” Leite v. 21 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation marks omitted). 22 Conversely, a factual attack “contests the truth of the plaintiff's factual allegations, usually 23 by introducing evidence outside the pleadings.” Id.; see also St. Clair v. City of Chico, 880 24 F.2d 199, 201 (9th Cir. 1989) (a 12(b)(1) motion challenging a court's subject matter 25 jurisdiction on factual grounds may “rely on affidavits or any other evidence properly 26 before the court.”). 27 / / / 28 / / / 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 Federal Rule of Civil Procedure 8(a) requires that a complaint include “a short and 3 plain statement of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. 4 v. Twombly, 550 U.S. 544, 555 (2007). A complaint must plead sufficient factual 5 allegations to “state a claim to relief that is plausible on its face.” Id. at 570. A claim is 6 facially plausible when the facts pleaded “allow[] the court to draw the reasonable 7 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 8 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A court may accept all factual 9 allegations as true, but it need not accept legal conclusions as true. Id.; Twombly, 550 U.S. 10 at 555. 11 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a 12 complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 13 12(b)(6). A court may grant a Rule 12(b)(6) dismissal when the plaintiff fails to present a 14 cognizable legal theory or allege sufficient facts to support a cognizable legal theory. 15 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) 16 (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). While a complaint “does 17 not require ‘detailed factual allegations,’ ” to avoid a Rule 12(b)(6) motion to dismiss, it 18 does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 19 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). For purposes of ruling on a 20 Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and 21 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 22 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 23 III. DISCUSSION 24 Defendant has moved to dismiss Plaintiffs’ Mandamus and APA claims under Rule 25 12(b)(1) and Rule 12(b)(6). When a complaint seeks identical relief under the APA and the 26 Mandamus Act, courts routinely elect to analyze APA claim only. See Vaz v. Neal, 33 F.4th 27 1131, 1135 (9th Cir. 2022); Salihi v. Blinken, 2023 WL 8007348, at *6 (S.D. Cal. Nov. 17, 28 2023). The Court therefore only addresses Plaintiffs’ APA claims. 1 Defendant argues that Plaintiffs fail to allege sufficient facts to state that Defendant 2 has unreasonably delayed adjudication of Plaintiff Mohammadreza Akbar’s visa 3 application under Rule 12(b)(6). See Mot. at 6–11. 4 To determine whether agency delays are unreasonable under the APA, the Ninth 5 Circuit has adopted the TRAC factors, or the six-factor balancing test from 6 Telecommunications Research & Action Center v. FCC. See 750 F.2d 70, 79–80 (D.C. Cir. 7 1984) (“TRAC”); see also, e.g., Vaz, 33 F.4th at 1137 (Ninth Circuit applying and assessing 8 TRAC factors). The TRAC factors are: “(1) the time agencies take to make decisions must 9 be governed by a ‘rule of reason[ ]’; (2) where Congress has provided a timetable or other 10 indication of the speed with which it expects the agency to proceed in the enabling statute, 11 that statutory scheme may supply content for this rule of reason; (3) delays that might be 12 reasonable in the sphere of economic regulation are less tolerable when human health and 13 welfare are at stake; (4) the court should consider the effect of expediting delayed action 14 on agency activities of a higher or competing priority; (5) the court should also take into 15 account the nature and extent of the interests prejudiced by delay; and (6) the court need 16 not find any impropriety lurking behind agency lassitude in order to hold that agency action 17 is ‘unreasonably delayed.’ ” TRAC, 750 F.2d at 80 (citations and quotation omitted). 18 Plaintiffs raise a preliminary argument that it is too early to apply the TRAC test, 19 stating that it would be premature to consider whether an agency’s delay is unreasonable 20 at the motion to dismiss stage because it is a “fact-specific inquiry.” See Oppo. at 18–20; 21 Moghaddam v. Pomopeo, 424 F. Supp. 3d 104, 117 (D.D.C. 2020). Defendant contends 22 that in consular processing cases some district courts have found that evaluating the 23 reasonableness of delay is appropriate at the motion to dismiss stage. Reply at 3; see also 24 Assadian v. Oudkirk, 2023 WL 6237976, at *7–8 (S.D. Cal. Sept. 25, 2023) (analyzing 25 TRAC factors to resolve motion to dismiss); Kayvan v. Pompeo, 2020 WL 5834805, at *8– 26 9 (N.D. Cal. July 28, 2020) (applying the TRAC test on a motion to dismiss). 27 However, this Court agrees with Plaintiffs that the TRAC test is more appropriately 28 applied after further briefing and discovery. See Salihi, 2023 WL 80007348, at *7 (“The 1 ultimate determination of whether the TRAC factors are satisfied is not capable of 2 resolution on the pleadings and without further evidence and briefing.”); Tailawal v. 3 Alejandro Mayorkas, Sec'y of Homeland Sec., 2022 WL 4493725, at *4 (C.D. Cal. Aug. 4 18, 2022) (“[B]ecause the TRAC factor analysis is necessarily fact-intensive, it is more 5 appropriately applied after some discovery than at the pleading stage”); Hui Dong v. 6 Cuccinelli, 2021 WL 1214512, at *4 (C.D. Cal. Mar. 2, 2021) (“The TRAC test is fact- 7 intensive, and courts have declined to resolve whether the TRAC test has been satisfied at 8 the pleading stage, including with respect to immigration applications.”). 9 The TRAC test is fact-intensive and the “[r]esolution of a claim of unreasonable 10 delay is ordinarily a complicated and nuanced task requiring consideration of the particular 11 facts and circumstances before the court.” Gonzalez v. United States Dep't of Homeland 12 Sec., 500 F. Supp. 3d 1115, 1129–30 (E.D. Cal. 2020) (quoting Mashpee Wampanoag 13 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)). An assessment of 14 whether the agency’s delay is unreasonable, even in the context of consular processing, 15 “would require the court to look beyond the face of plaintiffs’ complaint and, without the 16 benefit of the administrative record, evaluate facts concerning USCIS’ general practices, 17 whether those practices were followed in this case, and the number of [] visa petitions filed 18 over the past several years.” Id. at 1130. 19 Although Defendant contends that Plaintiffs fail to demonstrate unreasonable delay 20 based on the TRAC factors, the determination of whether the TRAC factors are satisfied as 21 to Plaintiff’s APA claim is not capable of resolution at the motion to dismiss stage. 22 Defendant also argues that Plaintiffs’ APA claims must be dismissed because there 23 are no statutory or regulatory provisions establishing temporal limits for consular 24 processing or for conducting security screenings. See Mot. at 6–7. 25 The APA authorizes a court to “compel agency action unlawfully withheld or 26 unreasonably delayed.” 5 U.S.C. § 706(1). A court can “compel agency action under this 27 section only if there is ‘a specific, unequivocal command’ placed on the agency to take a 28 ‘discrete agency action,’ and the agency has failed to take that action.” Vietnam Veterans 1 Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (quoting Norton y. S. 2 || Utah Wilderness All., 542 U.S. 55, 63-64 (2004)). “The agency action must be pursuant to 3 legal obligation ‘so clearly set forth that it could traditionally have been enforced through 4 ||a writ of mandamus.’ ” Jd. at 1075—76 (quoting Hells Canyon Pres. Council v. U.S. Forest 5 || Serv., 593 F.3d 923, 932 (9th Cir. 2010)). “Thus, a court may compel agency action under 6 ||the APA when the agency (1) has ‘a clear, certain, and mandatory duty,’ .. . and (2) has 7 || unreasonably delayed in performing such duty.” Vaz, 33 F.4th at 1136 (emphasis added). 8 As previously stated above, the determination of whether an agency’s delay is 9 ||unreasonable is premature at this stage of the proceeding. Therefore, the Court cannot 10 |/determine whether Plaintiff's APA claims can be dismissed at a motion a dismiss. Jd. 11 || Accordingly, Defendant's Motion to Dismiss is DENIED. 12 CONCLUSION 13 For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss. 14 || Defendant must file an answer within twenty-one (21) days of the issuance of this Order. 15 IT IS SO ORDERED. 16 || Dated: December 18, 2023 NO 17 QF | 18 Honorable Linda Lopez 19 United States District Judge 20 21 22 23 24 25 26 27 28