UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
IQRA AMEER,
Plaintiff,
v. Case No. 1:23-cv-03066 (TNM)
ANDREW SCHOFER, et al.,
Defendants.
MEMORANDUM OPINION
Iqra Ameer, a Pakistani citizen, applied for a non-immigrant visa to teach computer
science at Pennsylvania State University. Although Ameer submitted a complete visa
application and interviewed with a consular officer, she claims her application has languished in
“administrative processing” for several months now. To nudge this process along, Ameer sued
Deputy Chief of Mission Andrew Schofer and Secretary of State Antony Blinken (collectively,
State). She contends that State has “unlawfully withheld or unreasonably delayed” a final
determination on her visa application and seeks to compel State to process her visa within fifteen
days or “as soon as reasonably possible.” State moved to dismiss under Rules 12(b)(1) and
12(b)(6). That motion is ripe. And the Court will grant it because Ameer fails to state a claim
under Rule 12(b)(6).
I.
Plaintiff Iqra Ameer was hired by Penn State as an Assistant Professor of Computer
Science. Pet. for Writ of Mandamus & Compl. (Compl.) ¶ 3, ECF No. 1. In May 2023, she filed
a completed application for an H-1B nonimmigrant visa, which permits foreign nationals to work
temporarily in certain specialty occupations. See 8 U.S.C. § 1101(a)(15)(H). That month, U.S. Citizenship and Immigration Services approved the university’s H-1B sponsorship petition.
Compl. ¶ 12; see 8 C.F.R. § 214.2(h)(1) (describing employer petition requirement for H-1B
visas).
In June 2023, Ameer was interviewed by a consular officer at the U.S. Embassy in
Pakistan. Compl. ¶ 13. Following the interview, the consular officer refused Ameer’s
application, citing Section 221(g) of the Immigration and Nationality Act (INA). See Mot. to
Dismiss (MTD) at 7, ECF No. 8; Opp’n to MTD (Opp’n) at 14–15, ECF No. 11. Section 221(g)
provides that a consular officer must refuse to issue a visa if it appears “from statements in the
application, or in the papers submitted therewith” that the alien is ineligible for a visa under any
“provision of law” or if the “officer knows or has reason to believe that such alien is ineligible to
receive a visa.” 8 U.S.C. § 1201(g). Upon refusing her application, the consular officer
informed Ameer that her application would be placed in “administrative processing.” Compl.
¶ 14.
Ameer’s application remains in “administrative processing” to this day. And despite
making several inquiries with State as to the status of her application, she has received no
meaningful responses. Id. ¶ 15. With no visa in hand, Ameer has been forced to teach her
classes at Penn State “remotely.” Id. ¶ 3. And if she does not obtain a visa soon, she fears that
her position will be terminated. Id.
In October 2023, Ameer sued State, claiming that it has unreasonably delayed
adjudicating her visa application in violation of 5 U.S.C. §§ 555(b) and 706(1). Compl. ¶¶ 12–
32. She seeks injunctive relief compelling State to “process [her] visa application within fifteen
(15) days . . . or as soon as reasonably possible.” Id. ¶ 33. State now moves to dismiss the
Complaint.
2 II.
State argues that dismissal is proper under Rule 12(b)(1) and 12(b)(6). So two standards
apply.
To survive a Rule 12(b)(1) motion to dismiss, Ameer “bears the burden of establishing
jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91
(D.D.C. 2020) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). This includes
“establishing the elements of standing.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). At
this stage, the Court “assume[s] the truth of all material factual allegations in the complaint and
construe[s] the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be
derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (cleaned up).
And to survive a motion to dismiss under Rule 12(b)(6), a complaint must plausibly
“state a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552
(2007). While “detailed factual allegations” are unnecessary, the “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). In short, the facts alleged in the
complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
III.
State advances several grounds for dismissal. It argues that Ameer lacks standing; that
State has no duty to act on her visa application; that judicial review of visa adjudications is
barred by consular nonreviewability; and that, in any case, Ameer’s claims fail on the merits
because a delay of twelve months is not unreasonable. The Court addressed similar arguments at
3 length in a recent opinion. See Yaghoubnezhad, et al. v. Stufft, et al., 2024 WL 2077551 (D.D.C.
May 9, 2024). And it finds no reason why this case should not be resolved on the same grounds.
A.
Consider first whether Ameer has standing. To satisfy Article III’s constitutional
standing requirements, she must show “(1) an ‘injury in fact’ that is ‘concrete and particularized’
as well as ‘actual or imminent’; (2) a ‘causal connection’ between the injury and the challenged
conduct; and (3) a likelihood, as opposed to mere speculation, ‘that the injury will be redressed
by a favorable decision.’” Ark Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014)
(quoting Lujan, 504 U.S. at 560–61).
1.
State argues that the procedural harm of delay and the ultimate harm of denied entry do
not support standing here. Not so.
To satisfy Article III, a procedural harm “must be tethered to some concrete interest
adversely affected by the procedural deprivation.” WildEarth Guardians v. Jewell, 738 F.3d
298, 305 (D.C. Cir. 2013). Ameer plausibly alleges that her procedural injury—delay in
processing her visa—has caused cognizable downstream harms. See Lujan, 504 U.S. at 572.
Because of the delay, she has been forced to take “unpaid leave” and faces “termination if her
visa is not obtained soon.” Compl. ¶¶ 2–3. As several cases from this district illustrate, these
injuries are concrete enough to constitute an injury-in-fact. See Khan v. Blome, 2022 WL
17262219, at *3 (D.D.C. Nov. 29, 2022) (finding plaintiff had “concrete financial and other
interests in attending his residency program or pursuing other options”); Rahman v. Blinken,
2023 WL 196428, at *2 (D.D.C. Jan. 17, 2023) (similar).
4 State glosses over these alleged concrete harms and instead insists that Ameer lacks
standing because she has no legally protected interest in obtaining the requested visa. See MTD
at 7–13; Reply to Opp’n (Reply) at 3, ECF No. 12. Citing a bevy of seemingly conclusive
authorities, State asserts that Ameer’s alleged substantive harm—her inability to obtain a visa for
admission to the United States—is “not one recognized at common law, by statute, or in the
Constitution.” MTD at 7. In its view, this should dispense with Ameer’s claim to injury-in-fact.
But State’s “long line of cases” regarding a statutory or constitutional right to entry does
not directly bear on Article III standing. See, e.g., Pourabdollah v. Blinken, 2024 WL 474523, at
*4 (D.D.C. Feb. 7, 2024); Yaghoubnezhad, 2024 WL 2077551, at *4. To be sure, the Supreme
Court has held that “an unadmitted and nonresident alien[] ha[s] no constitutional right of entry.”
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); see also Trump v. Hawaii, 585 U.S. 667, 670
(2018) (explaining that “[f]oreign nationals seeking admission have no constitutional right to
entry”). Yet those cases addressed the merits of plaintiffs’ constitutional claims—not whether
plaintiffs had suffered legally cognizable injuries that satisfy Article III. See Pourabdollah, 2024
WL 474523, at *4.
Although aliens seeking visa adjudications can assert no constitutional injuries, “harms
specified by the Constitution itself” are not the only means to establish Article III standing.
TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). Plaintiffs may also plead “traditional
tangible harms, such as physical harms and monetary harms” or “[v]arious intangible harms . . .
with a close relationship to harms traditionally recognized.” Id. Since Ameer has pled that she
5 suffers from “job instability” and lost income because of the delay in processing, she satisfies the
injury-in-fact requirement. See Compl. ¶ 3; Opp’n at 7.
State also points to courts’ general practice of refusing to review consular visa
determinations as proof of Ameer’s lack of a legally cognizable injury. See MTD at 12. But just
like the existence of a right of entry, State’s consular nonreviewability arguments go to the
merits and not to standing. Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1027 (D.C. Cir.
2021) (explaining that consular nonreviewability is “a merits disposition under Federal Rule of
Civil Procedure 12(b)(6)”); see also Matushkina v. Nielsen, 877 F.3d 289, 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 courts’ subject matter jurisdiction.”); Allen v. Milas, 896 F.3d 1094, 1102 (9th
Cir. 2018) (same). Though consular nonreviewability is an important issue here, its relevance is
on the merits—which is where the Court will address it. Accord Yaghoubnezhad, 2024 WL
2077551, at *4.
2.
Next, State argues that any order compelling further adjudication of Ameer’s visa will not
redress her alleged injuries. MTD at 13. According to State, a consular officer has already
“refused” Ameer’s visa. Id. And though her application is now in “administrative processing,”
Ameer has not pled facts establishing that further adjudication would lead to any different result.
Id. The Court is unpersuaded. It is no secret that refused applications placed in administrative
processing are sometimes granted. See Yaghoubnezhad, 2024 WL 2077551, at *1 n.1. And at
this early stage, the Court finds that an order requiring State to speed up this process would
plausibly redress Ameer’s injuries. Khazaei v. Blinken, 2023 WL 6065095, at *4 (D.D.C. Sept.
18, 2023).
6 3.
Last, State contends that the Secretary cannot provide the relief requested and should be
dismissed. The Court agrees. Under 8 U.S.C. § 1104(a), the Secretary is granted broad control
over “the administration and the enforcement of . . . immigration and nationality laws.” But he is
expressly precluded from “the administration and the enforcement of . . . those powers, duties,
and functions conferred upon the consular officers relating to the granting or refusal of visas.”
Id. (emphasis added). In other words, the Secretary is precluded not only from “controlling
[consular officers’] [visa] determinations,” Baan Rao, 985 F.3d at 1024, but also from
administering or enforcing duties that merely “relate[]” to those determinations, 8 U.S.C.
§ 1104(a). This would include providing guidance for the completion of administrative
processing. See Yaghoubnezhad, 2024 WL 2077551, at *5. So the Secretary is not a proper
defendant.
The Deputy Chief of Mission presents a different question. Nothing in § 1104(a)
purports to limit the Deputy’s authority in the administration and enforcement of “duties . . .
relating to the granting or refusal of visas.” So at this initial stage, the Court concludes that an
order directed to him might redress Ameer’s injuries. Accord Logan v. Blinken, 2022 WL
3715798, at *1 (D.D.C. Aug. 29, 2022) (dismissing DHS Secretary and USCIS Director but not
Deputy Chief of Mission on standing grounds). Ameer thus has standing to sue one of the
named Defendants here.
B.
Now consider whether the Court can compel State to act on Ameer’s visa application.
Under § 706(1) of the APA, a court may “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). This provision generally applies when an agency
7 fails to take an action required by law. Yet courts’ authority to compel action under § 706(1) is
limited. A § 706(1) claim “can proceed only where a plaintiff asserts that an agency failed to
take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542
U.S. 55, 63–64 (2004). To merit relief, Ameer must show that State is subject to a “legal duty”
that is “ministerial or nondiscretionary” and amounts to “a specific, unequivocal command.” W.
Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1241 (D.C. Cir. 2018) (cleaned up). The
standards for granting mandamus relief “are essentially the same.” Vietnam Veterans of Am. v.
Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010).
Ameer seeks § 706(1) and mandamus relief on the grounds that State has a discrete and
nondiscretionary duty to adjudicate her visa application within a reasonable time. See Compl. ¶¶
12–32. This duty arises from the INA and its implementing regulations. The INA requires that
“[a]ll nonimmigrant visa applications shall be reviewed and adjudicated by a consular officer.” 8
U.S.C. § 1202(d). And the INA’s implementing regulations dictate that once “a visa application
has been properly completed and executed . . . the consular officer must issue the visa, refuse the
visa, or . . . discontinue granting the visa.” 22 C.F.R. § 41.121(a).
As this Court and others have concluded, these provisions establish a discrete duty for
State to adjudicate visa applications. See Yaghoubnezhad, 2024 WL 2077551, at *7; Vulupala v.
Barr, 438 F. Supp. 3d 93, 100 (D.D.C. 2020); Khazaei, 2023 WL 6065095, at *6 (same).
Judicial review under § 706(1) or mandamus relief is therefore appropriate if a consular officer
has indefinitely delayed “issu[ing] or refus[ing] [a] visa.” 22 C.F.R. § 41.121(a).
Ameer claims that State has shirked its duty to either “issue” or “refuse” her visa
application by casting it into a purgatory of “administrative processing.” But, as with most cases
of this type, this is not the full story. In its Motion to Dismiss, State contends that a consular
8 officer has, in fact, “refused” Ameer’s application under INA § 221(g), thereby discharging its
duty to adjudicate Ameer’s applications. See MTD at 23. Ameer’s Complaint does not indicate
that her application was first refused under § 221(g). But she concedes so much in her
Opposition. See Opp’n at 15.
Still, the parties disagree about the legal significance of the § 221(g) refusal. Because her
application remains in “administrative processing,” Ameer contends that her § 221(g) refusal
was not “final.” See Opp’n at 17–19. And, according to Ameer, State discharges its duty only
when it either issues a “final” refusal or grants the visa. Meanwhile, State argues that once it has
issued a § 221(g) refusal it has no statutory or regulatory obligation to take any further action.
Opp’n at 23.
The Court addressed this issue at length in Yaghoubnezhad. 2024 WL 2077551, at *8–9.
And it concluded that neither the INA nor its implementing regulations impose a duty on State to
complete “administrative processing” once it has already refused a visa under § 221(g). Id. The
same analysis applies here. By refusing Ameer’s application under § 221(g) following a
consular interview, State complied with the regulations governing visa adjudications. For the
Court to require anything more would be to “impose a duty that has no basis in the INA or its
implementing regulations.” Id. at 9. And judicial review of Ameer’s refused application would
“clash[] with the longstanding assumption that aliens residing abroad are ‘barred from
challenging consular visa decisions in federal court unless legislation specifically permitted such
actions.’” Id. (quoting Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999)
(emphasis added)). Without “a specific, unequivocal command” from Congress requiring State
to complete administrative processing following a visa refusal, State has not “unlawfully
withheld” any action that the Court can compel by mandamus or under the APA. See id.
9 C.
State also raises consular nonreviewability as a merits bar to Ameer’s claims. “Th[is]
doctrine holds 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, 197 F.3d at 1159.
Ameer argues that consular nonreviewability does not bar review when State has failed to issue a
final decision on a visa application. See Opp’n at 14–19.
But recall that Ameer concedes her visa application was refused under § 221(g). The
Court is barred from reviewing this decision under consular nonreviewability. See
Yaghoubnezhad, 2024 WL 2077551, at *10–11. Were the Court to order State to complete
administrative processing, it would, in effect, be ordering State to re-adjudicate its initial
refusal—which necessarily entails a reexamination of that refusal’s substance. Id. at 11. This
kind of review is precisely what consular nonreviewability counsels against. Id.
The Court does not doubt that it can “compel the agency to issue a decision—up or
down—on a long-pending application.” Al-Gharawy v. DHS, 617 F. Supp. 3d 1, 13 (D.D.C.
2022). But once an agency has issued a decision, the Court must “steer clear of the substance of
the decision.” Id. In this case, that means refraining from ordering additional processing of a
refused visa application.
D.
The Court has already given two independent grounds for dismissal: lack of a
nondiscretionary duty and consular nonreviewability. Nor can Ameer succeed on the merits.
To evaluate whether an agency’s delay is unreasonable, the Court applies the six-factor
test from Telecommunications Research & Action Center (TRAC) v. FCC, 750 F.2d 70, 80 (D.C.
Cir. 1984). The TRAC factors are:
10 (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) (cleaned up).
Ameer argues that a TRAC analysis is “inappropriate” at the motion-to-dismiss stage and
“useless” in the visa adjudication context. MTD at 28–32. This assertion is belied by the
Circuit’s recent decision in Da Costa v. Immigration Investor Program Office, 80 F.4th 330, 340
(D.C. Cir. 2023), affirming a district court’s dismissal of a visa adjudication case on TRAC
factors. This is not to mention the dozens of similar cases in this district granting Rule 12(b)(6)
motions following a TRAC analysis. See, e.g., Bega v. Jaddou, 2022 WL 17403123 (D.D.C.
Dec. 2, 2022) (“[A]pplication of the TRAC factors is appropriate at the motion-to-dismiss stage
when the facts alleged do not support a plausible claim of unreasonable delay.”). As in those
cases, the record here provides sufficient undisputed facts—namely, the short length of the
delay—to determine whether Ameer has pled a “plausible claim for unreasonable administrative
delay” under TRAC. See Mokkapati v. Mayorkas, 2022 WL 2817840, at *4 n.4 (D.D.C. July 19,
2022) (collecting cases). So a TRAC analysis is appropriate.
11 Courts typically consider TRAC factors one and two together. Dastagir v. Blinken, 557 F.
Supp. 3d 160, 165 (D.D.C. 2021). These factors “strongly favor” State because “Congress has
not supplied a rule of reason” or “statutory deadline” for processing non-immigrant H-1B visa
applications. See Yaghoubnezhad, 2024 WL 2077551, at *12. “To the contrary, Congress has
given the agencies wide discretion in the area of immigration processing.” Skalka v. Kelly, 246
F. Supp. 3d 147, 153–54 (D.D.C. 2017).
Ameer argues that Congress set a timeframe for adjudication in 8 U.S.C. § 1571(b),
which states that “[i]t is the sense of Congress that the processing of an immigration benefit
application should be completed not later than 180 days after the initial filing of the application.”
But several courts have held that the “sense of Congress” language reflects that the provision is
“precatory” and not binding on the agency. Palakuru v. Renaud, 521 F. Supp. 3d 46, 51 (D.D.C.
2021); see also Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 529 n.26 (D.C. Cir. 2015) (noting the
First, Third, and Ninth Circuits, have treated similar language as “precatory”). And, in any case,
courts have regularly found far longer delays insufficient to support an unreasonable delay claim.
Yaghoubnezhad, 2024 WL 2077551, at *11 (collecting cases).
The fourth factor likewise “strongly disfavors” Ameer, because granting her application
would enable “line jumping,” putting her application “ahead of longer-pending petitions.” Da
Costa, 80 F.4th at 343. Ameer disclaims that any order from the Court would have such effect.
Opp’n at 37. But the relief Ameer seeks—expedited adjudication—would “necessarily
reshuffle[] the queue of other applicants also waiting for adjudication of their cases.” Dastagir,
557 F. Supp. 3d at 167. More, since Ameer does not allege any impropriety by State in its
processing of her application, Opp’n at 39, the sixth factor does not help her either.
12 Factors three and five—“the interests prejudiced by delay” and its effects on “human
health and welfare”—weigh slightly in favor of Ameer. TRAC, 750 F.2d at 80. Ameer alleges
that because of the delay in visa processing she faces “the possibility of termination” from her
position at Penn State. Compl. ¶ 3. This would put her in a position where she “may not be able
to provide for her family.” Id. Though these disruptions are undoubtedly frustrating for Ameer,
many other visa applicants face similar circumstances. See Palakuru, 521 F. Supp. 3d at 53.
In short, Plaintiff’s hardships cannot “tip the scales” when weighed against the other four
factors. Da Costa, 80 F.4th at 344. All told, Ameer loses under TRAC.
IV.
For these reasons, State’s Motion to Dismiss will be granted. While the desire to work
and teach in the United States is a worthy one, visa-related matters are particularly within the
grace of the Executive Branch, and this is not one of the exceedingly rare situations where
judicial oversight is allowed. A separate Order will issue today.
2024.06.04 08:57:54 -04'00' Dated: June 4, 2024 TREVOR N. McFADDEN, U.S.D.J.