UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SAMAN DIDBAN, et al.,
Plaintiffs,
v. Case No. 19-cv-881 (CRC)
MICHAEL R. POMPEO, et al.,
Defendants.
MEMORANDUM OPINION
Presidential Proclamation 9645 bans citizens of seven countries, including Iran,
from entering the United States. But it allows consular officers to waive that restriction on a
case-by-case basis. Plaintiffs Saman Didban, a United States legal permanent resident, and his
wife, Fataneh Rostami, an Iranian national, submitted a waiver application two years ago that the
Government has not yet processed. Arguing that this delay is unreasonable, Plaintiffs seek to
compel the Government, under the Administrative Procedure Act and the Mandamus Act, to
reach a decision on Ms. Rostami’s application. Finding that the Government’s delay is not
unreasonable in light of the circumstances, the Court will grant the Government’s motion to
dismiss.
I. Background
A. Legal Background
Under the Immigration and Nationality Act (“INA”), a U.S. citizen or legal permanent
resident who wishes to bring a foreign national spouse to the United States must begin the
immigration process by filing a Petition for Alien Relative (form I-130) with the United States
Customs and Immigration Service (“USCIS”). 8 U.S.C. § 1154. If USCIS confirms that the I-
130 form meets the threshold requirements, it sends the petition to the U.S. embassy with jurisdiction over the foreign spouse’s residence. See 8 C.F.R. § 204.1(a)(1). The foreign spouse
must then submit an Online Immigrant Visa and Alien Registration Application (form DS-260)
and appear for an interview with a consular officer at the embassy.
At the conclusion of the interview, “the consular officer must [either] issue [or] refuse the
visa . . . .” 22 C.F.R. § 42.81(a). “If the consular officer refuses the visa, he or she must inform
the applicant of the provisions of law on which the refusal is based, and of any statutory
provision under which administrative relief is available.” 9 Foreign Affairs Manual (“FAM”) §
504.1-3(g). “If a visa is refused, and the applicant within one year from the date of refusal
adduces further evidence tending to overcome the ground of ineligibility on which the refusal
was based, the case shall be reconsidered.” 22 C.F.R. § 42.81(e). At all times, the alien bears
the burden of establishing that she “is not inadmissible” and “that [s]he is entitled to the
nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed.”
8 U.S.C. § 1361.
The INA grants broad authority to the President to control the admission of aliens. It
states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Id. § 1182(f). In September 2017, President Trump exercised this authority by signing
Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” 82 Fed.
Reg. 45,161 (Sept. 24, 2017) (“the Proclamation”). The Proclamation arose out of the Secretary
of Homeland Security’s finding that “a small number of countries . . . remain deficient . . . with
2 respect to their identity-management and information-sharing capabilities, protocols, and
practices” and that these deficiencies prevent the United States from adequately assessing
whether foreign nationals from those countries pose national security threats. Id. at 45,161.
With limited exceptions not at issue here, the President banned entry into the United States by
nationals of seven countries, including Iran. Id. at 45,162, 45,165-67. Following several
iterations of the restrictions and extensive litigation in the lower federal courts, the Supreme
Court ultimately upheld the constitutionality of the present version of the ban. Trump v. Hawaii,
138 S. Ct. 2392, 2423 (2018).
The Proclamation provides for waiver of its restrictions in individual cases. “[A]
consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or
the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-
by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or
limited . . . .” Proclamation, 82 Fed. Reg. at 45,168. “A waiver may be granted only if a foreign
national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying
entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the
national security or public safety of the United States; and (C) entry would be in the national
interest.” Id.
The President did not instruct the Secretary of State and Secretary of Homeland Security
on how they should implement this waiver provision, instead simply directing them to
“coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate
for foreign nationals seeking entry as immigrants or nonimmigrants.” Id. The Proclamation
does, however, include specific examples of when the award of a waiver would be appropriate.
These examples include when a foreign applicant “seeks to enter the United States to visit or
3 reside with a close family member (e.g., a spouse, child, or parent) who is a United States
citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa,” and
for whom “the denial of entry would cause . . . undue hardship.” Id. at 45,169. As of September
2019, 9,473 waivers had been issued to visa applicants otherwise barred from entry by the
Proclamation, while some 15,000 applicants remain under review. See U.S. Dep’t of State,
Implementation of Presidential Proclamation 9645 at 3 (Sept. 2019) (explaining that “nearly a
third” of the 45,662 currently ineligible visa applicants “are likely to be issued visas, pursuant to
waivers of P.P. 9645, following completion of national security checks”). 1
B. Ms. Rostami’s Visa and Waiver Applications
On November 24, 2015, Mr. Didban filed an I-130 Petition on behalf of his wife, Ms.
Rostami. Compl. ¶ 57. On July 16, 2017, Ms. Rostami submitted her DS-260 form, along with
the applicable fees and documents. Id. ¶ 58. On December 3, 2017, Ms. Rostami submitted
Supplemental Questions for Visa Application form (D-5535), after receiving a request from the
embassy to do so. Id. ¶ 59.
On December 28, 2017, Ms. Rostami was interviewed by a consular officer of the U.S.
Embassy in Ankara, Turkey. Id. ¶ 60. During the interview, she attempted to give the consular
officer a statement explaining her eligibility for waiver but, according to her, the consular officer
refused to accept the document, explaining that she did not need to file anything in order to be
considered for waiver. Id. ¶ 62. At the conclusion of the interview, Ms. Rostami’s visa
application was refused pursuant to the Proclamation. Id. ¶ 62; Exh. E. After making an initial
assessment that Ms. Rostami appeared to meet the first two prongs of the waiver analysis
1 https://travel.state.gov/content/dam/visas/presidentialproclamation/Presidential% 20Proclamation%209645%20Report%20%E2%80%93%20September%202019.pdf
4 (personal hardship and national interest), the officer referred her waiver application for further
review regarding whether her entry would “pose a threat to the national security or public safety
of the United States.” Proclamation, 82 Fed. Reg. at 45,168. Since then, USCIS has listed her
waiver application as undergoing administrative processing. Compl. ¶¶ 64–65. The Government
has informed Ms. Rostami that applying for a waiver “can be a lengthy process, and until the
consular officer can make an individualized determination on these three factors, your visa
application will remain refused under Section 212(f). You will be contacted with a final
determination on your visa application as soon as practicable.” Id. Exh. H.
On March 27, 2019, after waiting fifteen months for a decision from USCIS, Plaintiffs
filed a petition for writ of mandamus and complaint for declaratory relief in this Court. Plaintiffs
do not seek to compel the Government to grant Ms. Rostami a waiver, but merely “challeng[e]
the Embassy’s authority to refuse to adjudicate Plaintiff Rostami’s immigrant visa application.”
Id. ¶ 13. Plaintiffs request an order directing the Government to adjudicate Ms. Rostami’s
waiver application. According to Plaintiffs, a declaratory judgment would be proper under the
Administrative Procedure Act (“APA”), which grants courts the authority to “compel agency
action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Alternatively, they
seek a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, which grants district
courts jurisdiction to hear “action[s] in the nature of mandamus to compel an officer or employee
of the United States or any agency thereof to perform a duty owed to the plaintiff.” Id. 33–34
(quoting 28 U.S.C. § 1361).
The Government moves to dismiss Plaintiffs’ claims. It raises various objections under
Federal Rule of Civil Procedure 12(b)(1) to this Court’s subject matter jurisdiction. Even
assuming that this Court has jurisdiction, the Government also argues that Plaintiffs have failed
5 to state a claim under Federal Rule of Civil Procedure 12(b)(6) because the two-year delay in
adjudicating Ms. Rostami’s waiver application is not unreasonable.
II. Standard of Review
When analyzing a motion to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), the Court “assume[s] the truth of all material factual
allegations in the complaint, and ‘construe[s] the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v.
F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005)). However, “[w]here necessary to resolve a jurisdictional challenge under Rule
12(b)(1), the court may consider the complaint supplemented by undisputed facts evidenced in
the record, or the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)
(internal citation and quotation marks omitted). The plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992).
In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead
“enough facts to state a claim to relief that is plausible on its face” and to “nudge [ ] [his or her]
claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 563.
6 III. Analysis
A. Jurisdiction
Defendants raise two jurisdictional bars—the doctrine of consular non-reviewability and
mootness—to Plaintiffs’ APA and Mandamus Act claims.
“[U]nder the long-standing doctrine of consular non-reviewability, courts do not
typically have subject-matter jurisdiction to review visa denials because consular officers ‘have
complete discretion over issuance and revocation of visas.’” Rohrbaugh v. Pompeo, 394 F.
Supp. 3d 128, 131 (D.D.C. 2019) (CRC) (quoting Saavedra Bruno v. Albright, 197 F.3d 1153,
1158 n.2 (D.C. Cir. 1999)). This doctrine applies broadly, barring judicial review “even where it
is alleged that the consular officer failed to follow regulations, where the applicant challenges the
validity of the regulations on which the decision was based, or where the decision is alleged to
have been based on a factual error.” Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5
(D.D.C. 2009) (quoting Chun v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002)); see also
Castaneda-Gonzalez v. Immigration & Naturalization Serv., 564 F.2d 417, 428 n.25 (D.C. Cir.
1977) (“[A] consular officer could make such a decision without fear of reversal since visa
decisions are nonreviewable.”). “Courts routinely apply this doctrine to bar suits seeking review
of visa denials . . . .” Rohrbaugh, 394 F. Supp. 3d at 131. 2
2 There is some ambiguity as to whether the doctrine of consular non-reviewability limits this Court’s subject matter jurisdiction. Several courts in this district, including this one, have characterized the doctrine of consular non-reviewability as bearing on subject matter jurisdiction. See, e.g., Rohrbaugh, 394 F. Supp. 3d at 131; Baan Rao Thai Rest. v. Pompeo, No. 19-CV-0058- ESH, 2019 WL 3413415, at *2 (D.D.C. July 29, 2019); Jathoul v. Clinton, 880 F. Supp. 2d 168, 172 (D.D.C. 2012). While the Circuit has not definitively addressed this issue, see Saavedra Bruno, 197 F.3d at 1159–61, other circuit courts of appeals have concluded that the doctrine is not jurisdictional, Allen v. Milas, 896 F.3d 1094, 1102 (9th Cir. 2018) (“[T]he rule of consular nonreviewability[] supplies a rule of decision, not a constraint on the subject matter jurisdiction of the federal courts.”); Matushkina v. Nielsen, 877 F.3d 289, 294 n.2 (7th Cir. 2017) (“We treat
7 In the Government’s view, because Ms. Rostami’s visa application was refused at the
conclusion of her December 28, 2017 interview, the doctrine of consular non-reviewability
precludes this Court from re-adjudicating that decision. Mot. at 6. (“Plaintiffs purport to seek
judicial review of the consular officer’s finding that Rostami is an inadmissible alien.”). The
Government is correct that this Court is barred from reviewing the consular officer’s decision to
deny Ms. Rostami’s visa application, but that is not what Plaintiffs seek. Rather, Plaintiffs
request review of the Government’s failure to decide Ms. Rostami’s waiver application. Compl.
¶ 13. Thus, while the doctrine of consular non-reviewability would almost certainly bar this
Court from evaluating a consular officer’s denial of a waiver, it does not prevent the Court from
considering Plaintiffs’ claim that the Government has unreasonably delayed rendering a decision.
As other courts in this district have held, “the doctrine of consular nonreviewability is not
triggered until a consular officer has made a decision with respect to a particular visa
application.” Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the
United States v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016); see Afghan & Iraqi Allies
Under Serious Threat Because of Their Faithful Serv. to the United States v. Pompeo, No. 18-
CV-01388-TSC, 2019 WL 367841, at *10 (D.D.C. Jan. 30, 2019) (noting that consular non-
reviewability does not apply where plaintiffs “do not seek judicial review of a consular decision,
but instead seek a final decision on their applications”).
the doctrine of consular nonreviewability as a matter of a case’s merits rather than the federal courts’ subject matter jurisdiction.”). In Trump v. Hawaii, the Supreme Court “assume[d] without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability,” though the Court expressly noted that “[t]he Government does not argue that the doctrine of consular nonreviewability goes to the Court’s jurisdiction,” and the Court therefore had no occasion to address the proper characterization of the doctrine. 138 S. Ct. at 2407. In any case, because this Court concludes that consular non-reviewability does not apply here, it need not resolve this debate.
8 Courts outside this Circuit largely agree with that conclusion. See Emami v. Nielsen, 365
F. Supp. 3d 1009, 1018–19 (N.D. Cal. 2019) (holding that the doctrine of consular non-
reviewability did not bar review of plaintiffs’ claims that the government had failed to follow its
own guidelines in adjudicating waiver applications); Najafi v. Pompeo, No. 19-CV-05782-KAW,
2019 WL 6612222, at *5 (N.D. Cal. Dec. 5, 2019) (“Plaintiffs are still waiting for a decision by
the consular officer, there is no decision to review and thus consular nonreviewability is not at
issue.”); see also Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997) (“Normally a consular
official’s discretionary decision to grant or deny a visa petition is not subject to judicial
review . . . . However, when the suit challenges the authority of the consul to take or fail to take
an action as opposed to a decision taken within the consul’s discretion, jurisdiction exists.”). But
see Abdo v. Tillerson, No. 17-CIV-7519-PGG, 2019 WL 464819, at *3–4 (S.D.N.Y. Feb. 5,
2019) (holding that the doctrine of consular non-reviewability bars review of allegations that the
Government failed to adjudicate a waiver application).
Because Plaintiffs do not seek review of a consular officer’s decision, the doctrine of
consular non-reviewability does not apply. 3
The Government’s second jurisdictional argument fares no better. It contends that
Plaintiffs’ case is moot because this Court lacks the power to order the Government to grant
Plaintiff a visa. It argues that “events have so transpired that the decision will neither presently
affect the parties’ rights nor have a more-than-speculative chance of affecting them in the
future.” 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003) (citation
3 Defendants correctly note that the doctrine of consular non-reviewability is unaffected by the APA’s presumption of judicial review of agency action. See Saavedra Bruno, 197 F.3d at 1157–58. Because that doctrine does not apply at all, for the reasons discussed above, it necessarily does not preclude review of Plaintiffs’ APA claims.
9 omitted). Not so. While the Court cannot order the Government to grant Plaintiff a visa, it is
within the Court’s power to order the Government to adjudicate Ms. Rostami’s waiver
application. See Patel, 134 F.3d at 933 (ordering the consulate to render a decision “to either
grant or deny the visa applications . . . . no later than thirty days from the date this order is
filed”). Because the Government’s adjudication of Ms. Rostami’s waiver application has a more
than speculative chance of affecting her legal rights, the case is not moot.
B. APA Claims
The Court now turns to Plaintiffs’ contention that the Government’s delay in processing
Ms. Rostami’s waiver application violated the Administrative Procedure Act. The APA requires
that agencies must pass on matters presented to them “within a reasonable time,” 5 U.S.C.
§555(b), and if they fail to do so, permits courts to “compel agency action unlawfully withheld or
unreasonably delayed,” id. § 706(1). At the same time, however, the APA exempts from
judicial review “agency action [that] is committed to agency discretion by law.” Id. § 701(a)(2).
The parties disagree on how these principles apply here. Plaintiffs argue that the
Government has unreasonably delayed passing on Ms. Rostami’s waiver application and that the
Court should therefore compel the Government to act. The Government, in contrast, maintains
that Plaintiffs’ claims are unreviewable under the APA because the waiver program is governed
entirely by the Proclamation (which is presidential action that is allegedly not subject to the
APA) and the pace of adjudicating waiver applications is committed to agency discretion. In the
alternative, the Government contends that, on the merits, the two-year delay in adjudicating Ms.
Rostami’s waiver application is not unreasonable Mot. at 10. The Court assumes without
deciding that the Government’s failure to issue a waiver decision is reviewable under the APA,
10 but nonetheless concludes that Plaintiffs have failed to state a claim because the two-year delay
in adjudicating her application is not unreasonable under the circumstances. 4
This Circuit applies the six-factor test established by Telecommunications Research &
Action Center v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”) to determine whether agency
action has been unreasonably delayed. Under the TRAC test, courts must balance the following
considerations:
(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 79–80 (citations and quotation marks omitted).
In evaluating these factors, the Circuit has stressed that determining whether an agency’s
delay is unreasonable “cannot be decided in the abstract, by reference to some number of months
or years beyond which agency inaction is presumed to be unlawful, but will depend in large
part . . . upon the complexity of the task at hand, the significance (and permanence) of the
4 Courts may assume reviewability under the APA because the “committed to agency discretion” doctrine does not go to this Court’s Article III jurisdiction. See Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“[A] complaint seeking review of agency action ‘committed to agency discretion by law,’ 5 U.S.C. § 701(a)(2), has failed to state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).”).
11 outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc.
v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). Further, the Circuit has noted “the importance
of ‘competing priorities’ in assessing the reasonableness of an administrative delay.” Id.
(quoting In re Barr Laboratories, Inc., 930 F.2d 72, 75 (1991)). It therefore has refused to grant
relief where “a judicial order putting [the petitioner] at the head of the queue [would] simply
move[] all others back one space and produce[] no net gain.” In re Barr Laboratories, Inc., 930
F.2d at 75.
As applied here, the first and second TRAC factors strongly favor the Government.
Congress has supplied no timeline for processing waiver applications. “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) (noting that a two-year delay in processing
an immigration visa “does not typically require judicial intervention”). Decisions regarding the
admission of foreign nationals are granted an especially wide degree of deference, as they
frequently implicate “‘relations with foreign powers,’ or involve ‘classifications defined in the
light of changing political and economic circumstances.’” Hawaii, 138 S. Ct. at 2418–19
(quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)). For this reason, in the related context of
asylum applications, “[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.” Yavari, 2019 WL 6720995, at *8 (collecting cases).
The fourth TRAC factor also favors the Government, as the effect of compelling agency
action on Ms. Rostami’s waiver application would “impose offsetting burdens on equally
worthy” applicants by putting her “at the head of the queue,” thereby “mov[ing] all others back
one space and produc[ing] no net gain.” In re Barr Labs., Inc., 930 F.2d at 73, 75. Given the
12 approximately 15,000 waiver applications currently undergoing national security review, U.S.
Dep’t of State, Implementation of Presidential Proclamation 9645 at 3 (Sept. 2019), such a result
would impermissibly interfere with the agency’s “unique” and “authoritative [] position to view
its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal
way,” In re Barr Labs., Inc., 930 F.2d at 76; see also 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.”).
On the other side of the scale, the third and fifth factors favor Plaintiffs. As alleged in
their Petition, Plaintiffs’ health and welfare are at stake because the delay in adjudicating Ms.
Rostami’s waiver application has caused Plaintiffs to endure a prolonged and indefinite
separation, thereby forcing them to delay beginning their life as a married couple. Compl.
¶¶ 73–84. Their interests in receiving a decision are undeniably significant.
Finally, the last TRAC factor—that “the court need not find any impropriety lurking
behind agency lassitude in order to hold that agency action is ‘unreasonably delayed,’” 750 F.2d
at 80—is inapplicable because Plaintiffs make no allegations regarding the Government’s
motivations.
After carefully weighing the relevant considerations, the Court concludes that Plaintiffs
have failed to establish that the two-year delay in processing Ms. Rostami’s waiver application is
unreasonable. The Court recognizes that the delay is substantial and imposes hardship on
Plaintiffs, and it encourages the Government to act on the application as soon as possible.
However, the couple’s difficulties are insufficient to overcome the significant national security
interests involved in assessing waiver applications and the compelling governmental interest in
allowing the agency to balance its competing priorities as it sees fit. Further, the Court is
13 reassured that the Government is in fact processing waiver applications, given that the State
Department has granted almost 10,000 waivers and that a nearly identical case before this Court
(which was brought by the same Plaintiffs’ counsel) was recently dismissed due to the
Government’s eventual resolution of the waiver application. See Attarian v. Pompeo, 19-cv-
832-CRC, ECF No. 13 (Notice of Voluntary Dismissal based on the fact that “the Embassy
issued the visa”). 5
C. Mandamus Claims
Because Plaintiffs have failed to establish an undue delay, their claim for mandamus
relief under 28 U.S.C. § 1361 necessarily fails as well. See Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 63–64 (2004).
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A
separate Order shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER United States District Judge
Date: January 15, 2020
5 The Court grants Plaintiffs’ Motion for Judicial Notice of the congressional testimony of Edward Ramotowski, Deputy Assistant Secretary of the State Department’s Bureau of Consular Affairs, and the excerpt of the State Department’s Foreign Affairs Manual. These documents, however, do not change the Court’s conclusion. If anything, they support the Government as they show that the new automated vetting process is enabling the Government to work through the backlog of waiver applications.