Arab v. Blinken

• Court: District Court, District of Columbia
• Decided: April 21, 2022
• Docket: Civil Action No. 2021-1852
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOHAMED ARAB, Plaintiff, v. ANTONY BLINKEN, in his official capacity Civil Action No. 21-1852 (BAH) as Secretary of State, et al., Chief Judge Beryl A. Howell Defendants.

MEMORANDUM OPINION

Plaintiff Mohamed Arab, a U.S. citizen, seeks to compel defendants—various federal

officials in their official capacities—to adjudicate his wife’s visa application, which has been

pending without decision for over two years. Compl. ¶¶ 1, 14, ECF No. 1. Plaintiff claims

defendants have unreasonably delayed the visa application, in violation of the Administrative

Procedures Act (“APA”) and the Mandamus Act, id. ¶¶ 19, 33–34, and have done so intentionally

by applying the policies of the Controlled Application Review and Resolution Program

(“CARRP”) to their review of the visa application, in violation of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1101 et seq., Article 1, Section 8, Clause 4 of the U.S. Constitution, the

Fifth Amendment of the U.S. Constitution, and the APA, id. at 8–9. Defendants have moved to

dismiss this case for lack of jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), or, in the

alternative, for failure to state a claim under Rule 12(b)(6). Defs.’ Mot. Dismiss & Mem. Supp.

Mot. Dismiss (“Defs.’ Mot.”), at 1, ECF No. 6. While contesting defendants’ challenges under

Rules 12(b)(1) and 12(b)(6), plaintiff moves for summary judgment. Pl.’s Mot. Summ. J. (“Pl.’s

Mot.”), at 1, ECF No. 9. For the reasons set forth below, plaintiff’s motion for summary judgment

is denied and defendants’ motion to dismiss is granted.

1 I. BACKGROUND

Following a brief review of the statutory and regulatory background, the factual history

underlying the claims and procedural history of this case are summarized below.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes the

issuance of visas to different categories of immigrants, including relatives of U.S. citizens. 8

U.S.C. § 1154; 8 C.F.R. §§ 204.1(a)(1), (b). A U.S. citizen seeking to obtain lawful permanent

resident status for an immediate relative, including a spouse, must file a Form I-130, Petition for

Alien Relative, with U.S. Customs and Immigration Services (“USCIS”). 8 U.S.C. §§ 1154,

1151(b)(2)(A)(i) (defining a spouse as an “immediate relative” for the purposes of Form I-130

petitions); 8 C.F.R. § 204.1(a)(1). If USCIS approves the petition, the case is forwarded to the

National Visa Center (“NVC”), the Department of State processing center. 8 C.F.R. § 204.2(a)(3).

The foreign spouse must then submit additional paperwork and fees to NVC. 22 C.F.R. § 42.67.

After processing the requisite materials, NVC schedules an interview for the applicant with a

consular officer at the embassy with jurisdiction over the applicant’s residence. Id. § 42.62.

Following the interview, the consular officer must either issue or refuse the visa. Id. § 42.81(a).

B. Factual Background

In October 2018, plaintiff filed a visa petition on his wife’s behalf with USCIS, hoping to

have her join him in the United States as a lawful permanent resident. Compl. ¶¶ 14–15. Although

USCIS approved the petition in October 2019, id. ¶ 14, and plaintiff has paid all the requisite fees,

id. ¶ 25, the application has yet to be finally adjudicated, id. ¶ 1. The next step in the process is

for plaintiff’s wife to attend a consular interview in Jordan so that her visa application can be

finally adjudicated. 22 C.F.R. § 42.62; see Compl. ¶ 12. The application remains, however, at

2 NVC, without NVC scheduling a consular interview. See Compl. ¶ 14 (identifying plaintiff’s State

Department receipt number); Visa Status Check, U.S. DEP’T OF STATE,

https://ceac.state.gov/CEACStatTracker/Status.aspx (last visited Apr. 19, 2022) (showing

plaintiff’s case status, based on the provided receipt number, as “At NVC”).

In March 2020, the State Department temporarily suspended visa services at all U.S.

embassies and consulates, including the embassy in Jordan, due to the onset of the COVID-19

pandemic. Suspension of Routine Visa Services, U.S. DEP’T OF STATE,

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-

archive/suspension-of-routine-visa-services.html (July 22, 2020). 1 In July 2020, the State

Department authorized a phased resumption of visa services. Id. Subsequently, in November

2021, the State Department returned broad discretion to embassies and consulates in determining

how to prioritize appointments as safely as possible in all visa categories. Visa Services Operating

Update, U.S. DEP’T OF STATE, https://travel.state.gov/content/travel/en/News/visas-news/visa-

services-operating-status-update.html (Nov. 19, 2021).

Despite efforts to resume pre-pandemic processing capabilities, many embassies and

consulates face substantial backlog of immigrant visa applications. See Briefing, Julie Stufft,

Acting Deputy Assistant Secretary, Bureau of Consular Affairs, U.S. Dep’t of State, Update on

U.S. Immigrant Visa Processing at Embassies and Consulates (Mar. 9, 2021),

https://www.state.gov/briefings-foreign-press-centers/update-on-u-s-immigrant-visa-processing-

at-embassies-and-consulates/. This backlog has caused increased wait times for individual

applicants awaiting an appointment date from NVC. Id. According to the State Department’s

website, the U.S. Embassy in Amman, Jordan, much like other embassies around the world, is

1 The Court may take judicial notice of information posted on official public websites of government agencies. See Cannon v. District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013).

3 experiencing substantial pandemic-related backlog in every visa category, resulting in significant

delays in the scheduling of consular interviews. See Immigrant Visas, U.S. EMBASSY IN JORDAN,

https://jo.usembassy.gov/visas/immigrant-visas/ (last visited Apr. 19, 2022). Nonetheless, the

State Department has publicly committed “to resolve backlogs and process visas as quickly and

efficiently as [it] can” while also ensuring that the “health and safety of [its] personnel and [its]

clients] coming into [the] consular sections abroad” remains “the department’s highest priority

during the pandemic.” Briefing, Julie Stufft, Acting Deputy Assistant Secretary, Bureau of

Consular Affairs, U.S. Dep’t of State, Update on U.S. Immigrant Visa Processing at Embassies

and Consulates (Mar. 9, 2021), https://www.state.gov/briefings-foreign-press-centers/update-on-

u-s-immigrant-visa-processing-at-embassies-and-consulates/.

Despite plaintiff’s repeated attempts to contact NVC regarding his case, NVC has yet to

provide any meaningful status update or any information on processing times. Compl. ¶¶ 16–17.

As a result, plaintiff and his wife have remained separated for three years and six months with no

indication as to when the delay in adjudicating the application may be resolved. This prolonged

separation has resulted in a “profound and negative impact” on the couple. Id. ¶ 18.

C. Procedural Background

On July 12, 2021, plaintiff commenced this action seeking “to compel the [d]efendants to

take action on and adjudicate” his wife’s visa application and asserting that, in failing to schedule

a consular interview, defendants have unreasonably delayed the visa application in violation of the

APA and the Mandamus Act. Id. ¶¶ 1, 19, 33. Plaintiff also claims that defendants have unlawfully

delayed his visa application, pursuant to CARRP, a policy of the Department of Homeland

Security designed “to investigate and adjudicate applications deemed to present potential ‘national

security concerns,’” id. ¶¶ 37, 39, which policy, according to plaintiff, “intentionally delays the

4 applications of Muslims or those from predominantly Muslim countries due to perceived security

concerns,” id. ¶¶ 36–39.

As noted, pending before the Court is defendants’ motion to dismiss and plaintiff’s motion

for summary judgment on his APA, Mandamus, and CARRP claims. See generally Defs.’ Mot.;

Pl.’s Mot.; Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss & Supp. Pl.’s Mot. Summ. J. (“Pl.’s Opp’n”),

ECF No. 8. Both motions are now ripe for review.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction,” Gunn v. Minton, 568 U.S. 251, 256

(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)), and “have

only the power that is authorized by Article III of the Constitution and the statutes enacted by

Congress pursuant thereto,” Johnson v. Comm’n on Presidential Debates, 869 F.3d 976, 980 (D.C.

Cir. 2017) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). To survive

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff thus “bears the

burden of invoking the court’s subject matter jurisdiction.” Arpaio v. Obama, 797 F.3d 11, 19

(D.C. Cir. 2015).

When a jurisdictional argument “present[s] a dispute over the factual basis of the court’s

subject matter jurisdiction,” “the court must go beyond the pleadings and resolve” any dispute

necessary to the disposition of the motion to dismiss. Feldman v. FDIC, 879 F.3d 347, 351 (D.C.

Cir. 2018) (alteration in original) (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36,

40 (D.C. Cir. 2000)). The court must accept as true “material factual allegations in the complaint

and ‘construe the complaint liberally, granting plaintiff 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.

5 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). In addition, however,

the “court may properly consider . . . evidentiary material in the record,” again affording the

plaintiff “the benefit of all reasonable inferences.” Feldman, 879 F.3d at 351.

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.

Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A

facially plausible claim pleads facts that are not “‘merely consistent with’ a defendant’s liability”

but that “allow[] the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). In deciding a

motion under Rule 12(b)(6), the court must consider the whole complaint, accepting all factual

allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555. Courts do not, however,

“assume the truth of legal conclusions, nor do [they] ‘accept inferences that are unsupported by

the facts set out in the complaint.’” Arpaio, 797 F.3d at 19 (internal citation omitted) (quoting

Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)). “In determining

whether a complaint fails to state a claim,” a court “may consider only the facts alleged in the

complaint, any documents either attached to or incorporated in the complaint and matters of which

[courts] may take judicial notice.” Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997)).

III. DISCUSSION

Defendants move to dismiss, under Rules 12(b)(1) and (6), on three grounds: first, plaintiff

has improperly named as defendants officials who cannot provide the relief plaintiff seeks, Defs.’

6 Mot. at 5–6; second, plaintiff fails to state a claim of unreasonable delay in the adjudication of

plaintiff’s visa application under the APA and Mandamus Act, id. at 6; and, finally, plaintiff’s

claim of intentional and unreasonable delay based on the CARRP fails to state a claim because it

relies on nothing more than speculation, id. at 16. 2 For the reasons explained below, defendants’

motion to dismiss is granted on all three grounds. 3 After addressing threshold questions of

jurisdiction, each merits argument is addressed in turn.

A. Plaintiff Claims Against Certain Federal Officials Are Moot

Defendants contend that claims asserted against officials from the Department of

Homeland Security and its component, USCIS, should be dismissed under Rule 12(b)(1) because

those officials have completed their role with respect to plaintiff’s visa application and therefore

cannot provide the relief plaintiff seeks. Id. at 5–6. 4

2 Plaintiff’s argument that defendants’ motion should be denied for failure to comply with D.D.C. Local Civil Rule 7(n)(1), Pl.’s Opp’n at 15, is without merit. Local Civil Rule 7 states, in relevant part, “the agency must file a certified list of the contents of the administrative record with the Court within 30 days following service of the answer to the complaint or simultaneously with the filing of a dispositive motion.” D.D.C. LCVR 7(n). Defendants acknowledge the omission of an index of an administrative record contemporaneously with the dispositive motion, positing that the index requirement “does not apply” because “the basis for [plaintiff’s] challenge is not final agency action, but rather agency inaction.” Defs.’ Mot. at 15 n.4. In the alternative, if this Court deems this Local Civil Rule applicable here, defendants formally move to waive compliance with the requirements of the rule. Defs.’ Reply Supp. Mot. Dismiss & Opp’n Pl.’s Mot. Summ. J. (Defs.’ Opp’n”) at 11 n.1, ECF No. 11. Following the general practice in this Court, defendants’ motion to waive compliance with Local Civil Rule 7(n) is granted because “the administrative record is not necessary for [the court’s] decision.” Connecticut v. U. S. Dep’t of Interior, 344 F. Supp. 3d 279, 294 (D.D.C. 2018) (alteration in original) (quoting Mdewakanton Sioux Indians of Minn. v. Zinke, 264 F. Supp. 3d 116, 123 n.12 (D.D.C. 2017) and citing PETA v. U.S. Fish & Wildlife Serv., 59 F. Supp. 3d 91, 94 n.2 (D.D.C. 2014)). 3 Plaintiff’s motion for summary judgment includes allegations, exhibits, and other evidence not included or referenced in the Complaint. See, e.g., Decl. of Mohamed Arab, ECF No. 8-3. This factual matter need not be considered, however, since defendants’ motion to dismiss may be resolved based solely on the facts in the Complaint. Even if the additional factual allegations and evidence were considered, resolution of the pending motions would not be altered. 4 Plaintiff argues that the doctrine of consular nonreviewability does not bar judicial review of plaintiff’s claims, Pl.’s Opp’n at 9, but this is simply beside the point here. The doctrine of consular nonreviewability shields a consular official’s decision to grant or deny a visa from judicial review, “at least unless Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). “[T]he doctrine of consular nonreviewability is not triggered,” where, as here, “a consular officer” has not rendered a final decision and the visa application remains under consideration. Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016); see Compl. ¶ 1. Thus, the doctrine has no bearing on this case and defendants’ 12(b)(1) argument does not rest on its application.

7 “Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and

‘controversies.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (quoting U.S. Const.

art. III, § 2). The Supreme Court has interpreted this requirement “to demand that ‘an actual

controversy . . . be extant at all stages of review, not merely at the time the complaint is filed.’”

Id. (omission in original) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997)). “[A] case becomes moot when the issues presented are no longer live or the parties lack

a legally cognizable interest in the outcome.” Porzecanski v. Azar, 943 F.3d 472, 479 (D.C. Cir.

2019) (quoting Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013)); see

also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (requiring the resolution of a

dispute to “have direct consequences on the parties involved” (quoting Genesis HealthCare Corp.

v. Symczyk, 569 U.S. 66, 71 (2013))). The initial “heavy burden” of establishing mootness lies

with the party asserting a case is moot, see Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449,

459 (D.C. Cir. 1998), but the opposing party bears the burden of showing an exception applies,

see S. Co. Servs., Inc. v. FERC, 416 F.3d 39, 43 (D.C. Cir. 2005). “A case that becomes moot at

any point during the proceedings is ‘no longer a “Case” or “Controversy” for purposes of Article

III,’ and is outside the jurisdiction of the federal courts.” Sanchez-Gomez, 138 S. Ct. at 1537

(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

Plaintiff’s claims against officials from the Department of Homeland Security and USCIS

are moot. When plaintiff filed his complaint, USCIS, a component of the Department of Homeland

Security, had already approved plaintiff’s visa petition and forwarded it to NVC for further

processing. Compl. ¶¶ 1, 14. Accordingly, the Department of Homeland Security’s and USCIS’

roles in processing the visa application are complete. For the application process to proceed, the

Department of State must schedule a consular interview, after which a consular officer will issue

8 or refuse the visa. 22 C.F.R. §§ 42.62, 42.81. Even assuming officials from the Department of

Homeland Security and USCIS “share security information with other agencies,” Pl.’s Opp’n at 9,

plaintiff has not alleged facts to support the claim that officials from the Department of Homeland

Security or USCIS have continued involvement in processing the application for plaintiff’s wife.

In the absence of such supporting facts, plaintiff has not adequately alleged ““an actual and

concrete dispute’ exists between the parties.” Mahmood v. U.S. Dep’t of Homeland Sec., No. 21-

cv-1262 (RC), 2021 WL 5998385, at *4 (D.D.C. Dec. 20, 2021) (dismissing similar claims

asserted against officials from the Department of Homeland Security and USCIS for failure to

allege sufficient facts showing an actual controversy between the parties (citing Sanchez-Gomez,

138 S. Ct. at 1537)); Brzezinski v. U.S. Dep’t of Homeland Sec., No. 21-cv-376 (RC), 2021 WL

4191958, at *3 (D.D.C. Sept. 15, 2021) (same). Accordingly, plaintiff’s claims against officials

from the Department of Homeland Security and USCIS must be dismissed as moot. 5

B. Plaintiff Fails to State a Claim of Intentional Delay Based on CARRP

Plaintiff alleges that defendants are “intentionally delaying this visa application” pursuant

to CARRP. Compl. ¶ 39. Specifically, plaintiff alleges that the Department of Homeland Security

uses CARRP to “intentionally delay[] the applications of Muslims or those from predominantly

Muslim countries due to perceived security concerns.” Id. ¶ 36. In response, defendants asserts

5 Defendants raise substantially the same argument under Rule 12(b)(6) with respect to claims asserted against officials from the Department of Justice and FBI. Defs.’ Mot. at 6. The above reasoning may apply with equal force. Mahmood, 2021 WL 5998385, at *4 n.2 (considering defendants’ Rule 12(b)(1) and Rule 12(b)(6) claims together because the defendants “[did] not indicate how [the] 12(b)(6) claim would be analyzed any differently”). As with his claims against officials from the Department of Homeland Security and USCIS, plaintiff has not stated facts to show how officials from the Department of Justice and FBI have any involvement in the remaining steps of the visa processing. See id. at *4. Thus, claims against these officials also may be dismissed as moot. Sanchez-Gomez, 138 S. Ct. at 1537. Alternatively, plaintiff’s claims may be dismissed under 12(b)(6) for failure to state a claim because plaintiff has not alleged sufficient facts to show that officials from the Department of Justice or FBI had any hand in causing the complained-of delay in the processing of the visa application. Iqbal, 556 U.S. at 678 (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (quoting Twombly, 550 U.S. at 555)).

9 that this claim fails because plaintiff “offers nothing more than speculation that CARRP has played

any role in the [d]elay.” Defs.’ Mot. at 16. Defendants are correct.

Plaintiff has not set forth sufficient factual allegations to support his CARRP claim, relying

instead “on information and belief” that defendants “are intentionally delaying this visa application

because of an application of the CARRP program.” Compl. ¶ 39. The complaint, however,

contains no allegations to support that USCIS and the Department of Homeland Security are still

involved or are using CARRP “to investigate or adjudicate” the visa application at this point in the

processing. Id. ¶ 37. Courts “do not assume the truth of legal conclusions, nor do [they] ‘accept

inferences that are unsupported by the facts set out in the complaint.’” Arpaio, 797 F.3d at 19

(internal citation omitted) (quoting Islamic Am. Relief Agency, 477 F.3d at 732). Given the lack

of factual support, defendants’ motion to dismiss the CARRP claim is granted. See Ghadami v.

U.S. Dep’t of Homeland Sec., No. 19-cv-00397, 2020 WL 1308376, at *6 (D.D.C. Mar. 19, 2020)

(dismissing a similar claim because plaintiffs failed to “set forth any factual allegations to support”

the conclusion that defendants intentionally delayed plaintiffs’ visa application pursuant to

CARRP); Mahmood, 2021 WL 5998385, at *6 (same); Al-Saadoon v. Barr, 973 F.3d 794, 804

(8th Cir. 2020) (affirming a dismissal of CARRP claims on the same ground). 6

6 Indeed, CARRP is a USCIS policy, and USCIS has completed its role in processing the application. Moreover, as several other courts have found, publicly available documents released by USCIS state that CARRP does not apply to I-130 petitions. See Mahmood, 2021 WL 5998385, at *5–6 & *5 n.6 (citing U.S. Citizenship and Immigr. Servs., Fraud Detection & National Security Controlled Application Review and Resolution Program (CARRP) Independent Study 28 (Dec. 28, 2011), https://www.aclusocal.org/sites/default/files/wp- content/uploads/2013/01/FDNS-CARRP-Independent-Study-Powerpoint-v.-1.1-Dec.-28-2011.pdf); Ghadami, 2020 WL 1308376, at *6; Alshawy v. U.S. Citizenship & Immigr. Servs., No. 21-cv-2206 (FYP), 2022 WL 970883, at *4 (D.D.C. Mar. 30, 2022); see also Abbas v. U.S. Dep’t of Homeland Sec., 20-cv-03192 (CJN), 2021 WL 3856625, at *2 n.3 (D.D.C. Aug. 29, 2021) (noting that CARRP is not used in the Form I-130 context). Consequently, plaintiff’s unsupported allegations fail to establish that CARRP played or continues to play a role in any delay in processing the visa application at issue.

10 C. The Alleged Delay in Rendering a Decision on Plaintiff’s Application Is Not Unreasonable, so Plaintiff’s Claims Are Dismissed for Failure to State a Claim

Plaintiff’s only remaining claim is that defendants have unreasonably delayed the

processing and adjudication of his wife’s visa application under the APA and Mandamus Act.

Compl. ¶¶ 19, 33. The government contends that plaintiff’s claim must fail, as a matter of law,

because the 30-month delay at issue in this case is not unreasonable. Defs.’ Mot. at 6. 7

The APA requires agencies to “proceed to conclude a matter presented to [them]” in a

“reasonable time,” 5 U.S.C. § 555(b), and authorizes reviewing courts to “compel agency action

unlawfully withheld or unreasonably delayed,” id. § 706(1). In determining whether a delay in

agency action is unreasonable, the D.C. Circuit has enumerated six factors for consideration:

(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.

Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984) (internal

quotation marks and citations omitted). This standard applies to claims of unreasonable delay

under both the Mandamus Act and the APA. See Norton v. S. Utah Wilderness All., 542 U.S. 55,

63–64 (2004); Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Applying the

7 The last government action on this matter is dated October 2019. Compl. ¶ 14.

11 facts in the record to the TRAC factors shows that the complaint fails to state a claim that action

on plaintiff’s application has been unreasonably delayed.

1. TRAC Factors 1 & 2

The first and second TRAC factors, on balance, weigh in favor of defendants. The first

factor is the most important TRAC factor, In re Core Commc’ns Inc., 531 F.3d 849, 855 (D.C. Cir.

2008), and is “typically considered together” with the second TRAC factor, Milligan v. Pompeo,

502 F. Supp. 3d 302, 317 (D.D.C. 2020).

As defendants correctly point out, “Congress has established no firm timetable for

scheduling the visa interview at issue,” Defs.’ Mot. at 9; see also Mahmood, 2021 WL 5998385,

at *7 (finding the same). Instead, Congress has given “agencies wide discretion in the area of

immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017) (finding

that a two-year delay in processing a visa application “does not typically require judicial

intervention”). Looking to “supply content for th[e] rule of reason,” TRAC, 750 F.2d at 80,

plaintiff points to 8 U.S.C. § 1571(b), the preamble to legislation providing for the institution of

measures to reduce the backlog in processing of immigration benefits by the now-defunct

Immigration and Naturalization Service, that states “[i]t is the sense of Congress that the

processing of an immigration benefit application should be completed not later than 180 days [or

six months] after the initial filing of the application,” Pl.’s Opp’n at 10–11 (alteration in original)

(quoting 8 U.S.C. § 1571(b)); Pl.’s Reply Supp. Mot. Summ. J. (“Pl.’s Reply”) at 5, ECF No. 13.

Plaintiff argues that this language is evidence that Congress intended to set a six-month timetable

for the Department of State’s processing of applications. Pl.’s Opp’n at 10–11; Pl.’s Reply at 5.

This Court has previously found § 1571(b) to add some weight in a plaintiff’s favor for the

second TRAC factor. See Nibber v. U.S. Citizenship and Immigr. Servs., No. 20-cv-3207 (BAH),

12 2020 WL 7360215, at *6 & n.5 (D.D.C. Dec. 15, 2020) (collecting cases finding 8 U.S.C § 1571(b)

relevant to the TRAC analysis in cases involving unreasonable delay by USCIS in adjudicating

immigration benefit applications). As defendants, however, point out, plaintiff has failed to

identify any authority holding that the preamble applies to the Department of State’s scheduling

of visa application interviews. Defs.’ Reply Supp. Mot. Dismiss & Opp’n Pl.’s Mot. Summ. J.

(Defs.’ Opp’n”) at 4–5, ECF No. 11. In fact, several cases suggest otherwise. See Murway v.

Blinken, No. 21-cv-1618 (RJL), 2022 WL 493082, at *2 n.2 (D.D.C. Feb. 16, 2022) (questioning

whether 8 U.S.C. § 1571(b) applies to visa cases alleging unreasonable delay in processing by

consular officials at the State Department); El Centro Reg’l Med. Ctr. v. Blinken, No. 21-CV-

00361-DMS-BDD, 2021 WL 3141205, at *4 & n.2 (S.D. Cal. July 26, 2021) (“[T]he plain text of

§ 1571 indicates that it applies to the processing of immigrant benefit applications by USCIS, not

consular officials at the State Department.”). Accordingly, § 1571(b) cannot here carry the weight

that plaintiff would like it to shoulder.

“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.”

Sarlak v. Pompeo, No. 20-cv-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020); see

Skalka, 246 F. Supp. 3d at 154 (collecting cases). No bright lines have been drawn in this context,

but “[d]istrict 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.”

Sarlak, 2020 WL 3082018, at *6 (quoting Yavari v. Pompeo, No. 19-cv-02524-SWW-JC, 2019

WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019)); see also Skalka, 246 F. Supp. 3d at 154 (concluding

based on “comparable cases” that “a delay of [two years] does not typically require judicial

intervention”). Plaintiff cites no persuasive caselaw holding otherwise. Furthermore, a court in

this District deemed a longer delay of forty-two months to be reasonable under the first and second

13 TRAC factors. See Zaman v. U.S. Dep’t of Homeland Sec., No. 19-cv-3592 (ABJ), 2021 WL

5356284, at *6 (D.D.C. Nov. 16, 2021) (finding that a delay of forty-two months was “insufficient

to warrant emergency relief in this district”). Accordingly, the thirty-month delay in this case is

not long enough to tilt the first two TRAC factors in favor of plaintiff.

Of course, whether a “rule of reason” exists for agency action “cannot be decided in the

abstract, by reference to some number of months or years beyond which agency action is presumed

to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the

significant (and permanence) of the outcome, and the resources available to the agency.” Mashpee

Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). Defendants

explain that “the operational impacts of COVID-19 have delayed scheduling” the consular

interview required to adjudicate plaintiff’s visa application. Defs.’ Mot. at 3, 10. In March 2020,

five months after USCIS approved plaintiff’s petition and forwarded the application to NVC, U.S.

embassies and consulates shut down due to the COVID-19 pandemic. Although the State

Department authorized a phased resumption of visa services in July 2020, the department gave

broad discretion to embassies and consulates to determine how to prioritize visa appointments as

safely as possible in all visa categories. The temporary suspension and limited resumption of

services has resulted in a substantial backlog at the U.S. Embassy in Jordan. Id. Given this backlog

and ongoing public health considerations impacting consular staff operations, the first two TRAC

factors tilt decisively in defendants’ favor. See Murway, 2022 WL 493082, at *3 (finding that

“operational delays due to the COVID-19 pandemic favor the Government on the first two [TRAC]

factors”); Zaman, 2021 WL 5356284, at *6 (same); Khan v. Blinken, No. 21-cv-1683 (JEB), 2021

WL 5356267, at *3 (same); see also Tate v. Pompeo, 513 F. Supp. 3d 132, 151 (D.D.C. 2021)

14 (finding that the government’s determination of “how to allocate scarce resources in a global

pandemic outweigh[s] [visa applicants’] interests in immediate adjudication of their visas”).

2. TRAC Factors 3 & 5

The third and fifth factors consider whether “human health and welfare are at stake” and

the “nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80. The delay in

processing the visa application has exacerbated the prolonged separation endured by plaintiff and

his wife, causing a “profound and negative impact” on both their lives. Compl. ¶¶ 1, 18. This

Court acknowledges that the “prolonged and indefinite separation” of spouses may place health

and welfare at stake. Didban v. Pompeo, 435 F. Supp. 3d 168, 177 (D.D.C. 2020) (finding the

third and fifth TRAC factors to weigh in plaintiff’s favor in light of the prolonged separation of

spouses); see also Bagherian v. Pompeo, 442 F. Supp. 3d 87, 95 (D.D.C. 2020) (finding the third

and fifth TRAC factors to weigh in plaintiff’s favor in light of the prolonged separation of an

engaged couple); Tate, 513 F. Supp. 3d at 150 (finding the third and fifth TRAC factors to weigh

in plaintiffs’ favor in light of the separation of friends, family, and loved ones). Defendants do not

argue otherwise but emphasize that scheduling the visa interview “has been delayed further due to

measures necessary to prevent the spread of COVID-19 and protect the safety of U.S. officials—

and visa applicants—abroad.” Defs.’ Mot. at 14. This point is well-taken, but the nature of

plaintiff’s interests and the prejudice to those interests from delay in processing the visa still weigh

in his favor.

3. TRAC Factor 4

The fourth TRAC factor addresses whether expediting a visa application “would harm other

agency activities of equal or greater priority.” Sarlak, 2020 WL 3082018, at *6. The D.C. Circuit

affords the fourth TRAC factor great weight, Mashpee Wampanoag Tribal Council, Inc., 336 F.3d

15 at 1100, and it conclusively favors defendants’ position here. As discussed above, defendants face

an extraordinary backlog of visas not only in the embassy in Jordan but across the world.

Accordingly, deference must be given to the State Department’s priority-setting and resource-

allocation decisions. See Milligan, 502 F. Supp. 3d at 319 (“[D]elays stemming from resource-

allocation decisions simply do not lend themselves to ‘judicial “reordering[s] [of] agency

priorities.”’ (alterations in original) (quoting Bagherian, 442 F. Supp. 3d at 96); Liberty Fund, Inc.

v. Chao, 394 F. Supp. 2d 105, 117 (D.D.C. 2005) (“[W]here resource allocation is the source of

the delay, courts have declined to expedite action because of the impact on competing priorities.”);

Tate, 513 F. Supp. 3d at 149 (“Relief that would simply ‘reorder’ a queue of applications seeking

adjudication is generally viewed as inappropriate when ‘no net gain’ in such adjudications is

achieved.” (quoting In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991))); see also, e.g., Am.

Hosp. Ass’n, 812 F.3d at 192 (collecting cases that “rejected mandamus claims that would have

had the effect of allowing the plaintiffs to jump the line, functionally solving their delay problem

at the expense of other similarly situated applicants”).

Plaintiff responds that the idea of a queue is “a fiction,” Pl.’s Opp’n at 11, and that he and

his family “should not be penalized for a lack of agency resources,” Pl.’s Reply at 6. First, the

website for the U.S. Embassy in Jordan shows that the existence of a queue is a fact and not fiction.

It advises that “all applicants whose cases are . . . pending an appointment date from the [NVC] .

. . will receive [their] appointment date on a first-in, first-out basis.” Immigrant Visas, U.S.

EMBASSY IN JORDAN, https://jo.usembassy.gov/visas/immigrant-visas/ (last visited Apr. 19, 2022)

(emphasis in original). Second, despite the significant burdens the pandemic and defendants’

necessary responses impose on blameless applicants, D.C. Circuit precedent recognizes “no basis

for reordering agency priorities” when an “agency is in a unique—and authoritative—position to

16 . . . allocate its resources in the optimal way.” In re Barr Labs, 930 F.2d at 76. As a result, the

fourth factor weighs in defendants’ favor.

4. TRAC Factor 6

Finally, the sixth and final factor weighs in defendants’ favor. “[T]he court need not ‘find

any impropriety lurking behind agency lassitude in order to hold that agency action is

“unreasonably delayed.”’” TRAC, 750 F.2d at 80 (quoting PCHRG v. FDA, 740 F.2d 21, 34 (D.C.

Cir. 1984)). Here, however, the government’s good faith efforts to address processing delays

caused by the pandemic weigh against relief. See Tate, 513 F. Supp. 3d at 150 (holding the same

(citing Liberty Fund, Inc., 394 F. Supp. 2d at 119–20)). Plaintiff is understandably frustrated that

defendants’ lack of resources and response to the pandemic has unfairly resulted in profound

hardship for him and his wife, but does not allege any impropriety or dispute that the government

“ha[s] acted in good faith to address the delays caused by the pandemic.” Defs.’ Opp’n at 9; see

Pl.’s Reply at 8.

5. TRAC Factors Considered in their Totality

Considering the six TRAC factors in their totality, plaintiff has not stated a claim under the

Mandamus Act or the APA for unreasonable delay. See Zaman, 2021 WL 5356284, at *6–8

(reaching the same conclusion); Mahmood, 2021 WL 5998385, at *9 (same); Milligan, 502 F.

Supp. 3d at 320 (same); Murway, 2022 WL 493082, at *5 (same). The Court sympathizes with

plaintiff’s concerns—the delays in visa processing have resulted in a prolonged separation of

plaintiff’s family and challenging hardships. Many other individuals are in similarly trying

circumstances, however, and defendants face challenges in determining how best to deploy scarce

resources during an unprecedent global pandemic. Taking the factors as a whole, the rule of reason

found in the caselaw coupled with “the government’s interests in balancing its own priorities” and

17 determining how to allocate scarce resources in a global pandemic outweighs the real hardship this

delay has caused plaintiff and his wife. Milligan, 502 F.Supp.3d at 320 (quoting Bagherian, 442

F. Supp. 3d at 95–96); see, e.g., Am. Hosp. Ass’n, 812 F.3d at 192 (collecting cases “reject[ing]

mandamus claims that would have had the effect of allowing the plaintiffs to jump the line,

functionally solving their delay problem at the expense of other similarly situated applicants”).

Although the State Department’s delay does not warrant judicial intervention at this juncture, as

circumstances surrounding the pandemic change, the Court’s consideration of these factors might

also change in the face of continued extended delays.

IV. CONCLUSION

For the reasons given, defendants’ motion to dismiss is granted. Plaintiff’s motion for

summary judgment is denied.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: April 21, 2022

__________________________ BERYL A. HOWELL Chief Judge