UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MOHAMMAD MAHDI FAKHIMI, et al., Plaintiffs, v. Civil Action No. 23-1127 (CKK)
DEPARTMENT OF STATE, et al., Defendants.
MEMORANDUM OPINION (October 23, 2023)
In this action, five Plaintiffs sought injunctive and mandamus relief ordering officials of
the United States Department of State (“State Department”), Secretary of State Antony Blinken,
the United States Department of Homeland Security (“DHS”), Secretary of DHS Alejandro
Mayorkas, consul at the U.S. Embassy in Yerevan Stephanie Zakehm, and consular officers at the
U.S. Embassy in Yerevan to act on and grant their nonimmigration visa applications.
Now pending before the Court is Defendants’ [15] Motion to Dismiss Plaintiffs’ Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the
briefing1, the relevant authorities, and the record as a whole, the Court will GRANT Defendants’
Motion and DISMISS Plaintiffs’ Complaint in its entirety. As Plaintiffs assert that their “claims
are now moot” or “imminently moot” and that Plaintiff “Javaheri is the sole remaining plaintiff
pursuing his live claims,” Pls.’ Opp’n at 1 n.1, the Court shall dismiss claims regarding Plaintiffs
Fakhimi, Mousavi, Ackley, Najdmofarrah, and Irannejad. The Court shall dismiss claims as to
1 The Court’s consideration has focused on Plaintiffs’ Complaint (“Compl.”), ECF No. 1; Defendants’ Motion to Dismiss (“Defs.’ Mot. to Dismiss”), ECF No. 15; Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n.”), ECF No. 16; Defendants’ Reply in Support of the Motion to Dismiss (“Defs.’ Reply”), ECF No. 18.
1 Plaintiff Javaheri on the merits.
I. BACKGROUND
A. Procedural History
Plaintiffs initiated this lawsuit in April 2023. Through this action, Plaintiffs seek to compel
the Government to decide their various requests for nonimmigrant visas. See generally Compl.
On July 7, 2023, the Court issued a Minute Order indicating that the matter was before the Court
on sua sponte review of Plaintiffs’ Complaint and ordering Plaintiffs to show cause why their
Complaint should not be dismissed sua sponte for failure to state a claim. See Minute Order, July
7, 2023 (citing Turan Petroleum, Inc. v. Ministry of Oil and Gas of Kaz., 406 F. Supp. 3d 1, 3 n.1
(D.D.C. 2019) (explaining circumstances where court may dismiss complaint for failure to state a
claim sua sponte)). Plaintiffs then filed the [14] Response. Before the Court could issue an
opinion, Defendants filed the [15] Motion to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), see Defs.’ Mot. at 1, which is now fully briefed and ripe for the Court’s
review.
In their opposition, Plaintiffs write that “Plaintiffs Mohammad Mahdi Fakhimi and
Seyedali Mousavi received final decisions on their visa applications, so their claims are now
moot.” Pls.’ Opp’n at 1 n.1. They continue that “Plaintiff Erfun Ackley just received word that
administrative processing in his case is complete, so his claims should be mooted shortly once
Defendants finalize issuance of his visa.” Id. “Plaintiff Nazanin Najdmofarrah’s case number just
appeared as having cleared administrative processing on the Yerevan Embassy website,” so
Plaintiffs explain that her claim and Mr. Irannejad’s claim “should also be immintently moot.” Id.
Therefore, Plaintiffs state that “Plaintiff Houman Javaheri is the sole remaining plaintiff pursuing
his live claims.” Id.; see also Defs.’ Reply at 8 (“Plaintiffs… not[e] that only Plaintiff Houman
2 Javaheri is still purs[u]ing his claims against Defendants.”)
Accordingly, as the Court will grant Defendants’ Motion to Dismiss as to the claims for
Plaintiffs Fakhimi, Mousavi, Ackley, Najdmofarrah, and Irannejad, based on Plaintiffs’ assertion
that they are or soon to become moot, the Court addresses below only the history of Plaintiff
Javaheri’s application.
B. Plaintiff Houman Javaheri’s Visa Application
Plaintiff Houman Javaheri is an Iranian citizen who was admitted to Johns Hopkins
University’s School of Medicine to begin a Ph.D. program in Biomedical Engineering in fall 2022.
Id. ¶¶ 67–68. Mr. Javaheri completed the required DS-160 application form and attended an
interview at the U.S. Embassy in Yerevan on April 15, 2022. Id. ¶ 70. At the interview, the
consular officer reviewed Mr. Javaheri’s documents and handed him a sheet informing him that
his visa application was “refused under section 221(g) of the U.S. Immigration and Nationality
Act” because his case “is undergoing administrative processing[.]” Id. ¶ 71; see also id. Ex. 9.
Defendants explain that this was triggered “because Section 1735 mandated as such.”
Defs.’ Mot. at 1. That section of the U.S. Code restricts nonimmigrant visa issuance to nationals
of countries designated as a state sponsor of international terrorism, which includes Iran, “unless
the Secretary of State determines, in consultation with the Attorney General and the heads of other
appropriate United States agencies, that such [noncitizen] does not pose a threat to the safety or
national security of the United States.” Id. (citing Enhanced Border Security & Visa Entry Reform
Act of 2002, P.L. 107-173 § 306, 116 Stat. 555 (May 14, 2002) (codified at 8 U.S.C. § 1735)
(“Section 1735”)); see also id. at 4.
Mr. Javaheri received an email on April 18, 2022 requesting additional information, which
he provided on April 21, 2022. Compl. ¶¶ 72–73. He received a reply the same day stating that
3 his “administrative processing has started.” Id. Ex. 10. Since then, Mr. Javaheri has emailed the
Embassy numerous times seeking adjudication of his case. Id. ¶¶ 74–77. On August 1, 2022, he
was part of a group email sent to the Embassy on behalf of F-1 visa applications who were
interviewed on April 15, 2022; they received a reply on August 4, 2022 indicating that the Embassy
was “not able to provide [them] the approximate date when [their] Administrative Processing will
be finished.” Id. ¶ 76. Mr. Javaheri submitted his last inquiry on April 6, 2023; he received an
automatic reply instructing him to use the Embassy’s “Visa Navigator” tool. Id. ¶ 77. As a result
of not obtaining an F-1 visa, Mr. Javaheri was forced to defer his admission to Johns Hopkins
University. Id. ¶ 79.
II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Jurisdiction
On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a
preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C. 2020)
(JDB); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether
there is jurisdiction, 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.’” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992)). Courts must accept as true all factual allegations in the complaint and construe
the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from
the facts alleged. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
However, “the factual allegations in the complaint “will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of
4 Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (RMU). A court
need not accept as true “‘a legal conclusion couched as a factual allegation’” or an inference
“‘unsupported by the facts set out in the complaint.’” Trudeau v. Fed. Trade Comm’n, 456 F.3d
178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
B. Motion to Dismiss for Failure to State a Claim
Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint
is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must
accept the factual allegations in the complaint as true and draw all reasonable inferences in favor
of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006)
(PLF).
When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint” or
“documents upon which the plaintiff's complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward
v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation
marks omitted) (quoting Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002)
5 (RBW); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). The court may also
consider documents in the public record of which the court may take judicial notice. Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
III. DISCUSSION
Defendants present six arguments for dismissal of Plaintiffs’ Complaint: (1) Plaintiffs
lack standing as unadmitted, nonresident non-citizens; (2) Plaintiffs’ claims are precluded by the
consular non-reviewability doctrine; (3) Plaintiffs’ challenge to a condition of entry presents a
non-justiciable question; (4) Plaintiffs have not identified a non-discretionary duty that
Defendants are required to take; (5) certain Defendants have no role in adjudicating Plaintiffs’
applications; and (6) Plaintiffs’ claims fail on the merits and therefore should be dismissed for
failure to state a claim. The Court now addresses these arguments in turn.
A. Standing
To establish Article III standing, a plaintiff must demonstrate an injury in fact that is
caused by the defendant’s conduct and is redressable by the court. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992).
Defendants allege that Mr. Javaheri lacks standing as an unadmitted, nonresident non-
citizen. See Defs.’ Mot. at 8–14. It is true that nonresidents lack standing to challenge decisions
associated with their visa applications. See Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018)
(“foreign nationals seeking admission have no constitutional right to entry”); Kleindienst v.
Mandel, 408 U.S. 753, 762 (1972) (“[defendant] personally, as an unadmitted and nonresident
alien, had no constitutional right of entry to this country”). However, unadmitted nonresidents
do have standing to challenge delays in the processing of their visa applications. Shen v.
Pompeo, No. 20-1263 (ABJ), 2021 WL 1246025, at *6 (D.D.C. Mar. 24, 2021). In the instant
6 case, there have been no decisions regarding Plaintiff Javaheri’s visa application, as evidenced
by communications from the Embassy indicating that his application remains in administrative
processing. Compl. ¶¶ 71, 73, 76. Thus, Defendants’ reliance on statutes and cases regarding
denials of visa applications––as opposed to delays––is not convincing.
Defendants also assert that Mr. Javaheri lacks standing because he does not have a legally
protected interest, pointing to Supreme Court precedent that noncitizens have no right to a visa.
See Defs.’ Mot. at 13 (citing Kleindienst, 408 U.S. at 762, and De Avilla v. Civiletti, 643 F.2d
471, 477 (7th Cir. 1981) (“Visa applicants have no vested right in the issuance of visas”)). But
Mr. Javaheri is not arguing that he has a right to a visa. Rather, he is asserting a right to a final
decision on his visa application under the APA. See Pls.’ Opp’n at 9. In cases similar to the one
at hand, courts have held that plaintiffs who have not received a final decision on their visa
application have suffered an injury in fact: “the failure to receive final decisions on their…
applications within a reasonable period.” Nine Iraqi Allies Under Serious Threat Because of
Their Faithful Serv. to the U.S. v. Kerry, 168 F. Supp. 3d 268, 282 (D.D.C. 2016) (GK). And as
other courts have likewise found, this Court finds that Mr. Javaheri enjoys a “procedural right to
reasonably expeditious agency action that is tethered to [his] concrete professional and financial
interest in earning an advanced degree.” Rahman v. Blinken, No. 22-2732 (JEB), 2023 WL
196428, at *2 (D.D.C. Jan. 17, 2023). Furthermore, his injuries are redressable. While the
Secretary of State has no legal authority to control which visa applications consular officers grant
or deny, nothing precludes him from directing them to decide pending applications “within a
reasonable time,” as the APA requires. See Khazaei v. Blinken, No. 23-1419 (JEB), 2023 WL
6065095, at *4 (D.D.C. Sept. 18, 2023).
Accordingly, the Court finds that Mr. Javaheri has standing to bring this action, in
7 accordance with numerous decisions made by other courts in this district. See, e.g., Khazaei,
2023 WL 6065095; Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1 (D.D.C.
2022) (RDM).
B. Doctrine of Consular Non-Reviewability
Defendants also argue that Mr. Javaheri’s claims fail under the doctrine of consular non-
reviewability. Defs.’ Mot. at 26–30. This doctrine provides 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 v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). The doctrine of consular non-
reviewability derives from “the political nature of visa determinations and… the lack of any statute
expressly authorizing judicial review of consular officers’ actions.” Id. The scope of the doctrine
also aligns with Congress’s decision to commit the adjudication of visa applications exclusively
to consular officers. See 8 U.S.C. §§ 1201(a) & (g); see also 8 U.S.C. § 1361.
For nearly a century, courts in this jurisdiction have applied the doctrine of consular non-
reviewability and “refused to review visa decisions of consular officials.” Saavedra Bruno, 197
F.3d at 1159–60 (collecting cases). The United States Court of Appeals for the District of
Columbia Circuit recently reaffirmed that the doctrine of “[c]onsular non-reviewability shields a
consular official’s decision to issue or withhold a visa from judicial review.” Baan Rao Thai Rest.
v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021). However, courts of this jurisdiction have held
that the doctrine does not apply where “plaintiffs ‘do not seek judicial review of a consular
decision, but instead seek a final decision on their applications.’” Didban v. Pompeo, 435 F. Supp.
3d 168, 174 (D.D.C. 2020) (CRC) (quoting Afghan & Iraqi Allies Under Serious Threat Because
of Their Faithful Serv. to the United States v. Pompeo, No. 18-01388 (TSC), 2019 WL 367841, at
*10 (D.D.C. Jan. 30, 2019)). This includes where a visa application remains in administrative
8 processing. See, e.g., id. at 172, 174; Vulupala v. Barr, 438 F. Supp. 3d 93, 98–99 (D.D.C. 2020)
(ABJ) (refusing to apply the consular non-reviewability doctrine where the “visa application
remains in administrative processing” where the government actively seeks additional information
from the applicant); Nine Iraqi Allies, 168 F. Supp. 3d at 290 (holding that the consular non-
reviewability doctrine does not apply where the applicant’s tracker status remains in administrative
processing); Al-Gharawy, 617 F. Supp. 3d at 11–17 (collecting cases and holding the same);
Khazaei, 2023 WL 6065095, at *4–5 (holding the same).
Here, the doctrine of consular non-reviewability does not preclude the Court from
reviewing the adjudication of Mr. Javaheri’s visa application as it remains in administrative
processing. At Mr. Javaheri’s interview on April 15, 2022, the consular officer reviewing his
documents handed him a sheet informing him that his visa application was “refused under section
221(g) of the U.S. Immigration and Nationality Act” because his case “is undergoing
administrative processing[.]” Compl. ¶ 71. On April 21, 2022, he received a reply stating that his
“administrative processing has started.” Id. Ex. 10. In August 2022, Mr. Javaheri received an
August 4, 2022 indicating that the Embassy was “not able to provide [him] the approximate date
when [his] Administrative Processing will be finished.” Id. ¶ 76. As in other cases where courts
have deemed the consular non-reviewability doctrine to not apply, Mr. Javaheri’s application
clearly remains in administrative processing per the express language of the consular officials.
Defendants acknowledge case law from the United States District Court for the District of
Columbia holding that the doctrine does not apply in such circumstances but argue that they
“respectfully disagree with these holdings.” Defs.’ Mot. at 28. The Court finds that Defendants
have not offered any persuasive authority or argument to come to that conclusion. Accordingly,
the Court holds that the consular non-reviewability doctrine does not bar judicial review of Mr.
9 Javaheri’s claims.
C. Other Grounds for Non-Justiciability
Defendants also argue that as non-resident noncitizens, Plaintiffs cannot challenge a
condition of entry––that being eligibility under Section 1735––as it is a non-justiciable question.
Defs.’ Mot. at 21. They contend that “it is a fundamental and long-recognized separation-of-
powers principle that the political branches’ decisions relating to the exclusion of noncitizens
abroad are not subject to judicial review.” Id. at 21–22. They continue that a “determination[] of
whether Plaintiffs pose a threat to the safety or national security of the United States… [is]
nonjusticiable.” Id. at 23.
The Court first notes that Defendants’ argument seems to rest in large part on the doctrine
of consular non-reviewability, which Defendants raise as a separate argument in their Motion to
Dismiss and as was discussed above. In addition to citing and quoting case law regarding
consular non-reviewability, see id. at 22 (citing and quoting from Baan Rao Thai Rest., 985 F.3d
at 1024; citing and quoting from Colindres v. Dep’t of State, No. 22-5009, -- F.4th --, 2023 WL
4140277, at *2 (D.C. Cir. June 23, 2023)), Defendants argue that “courts may not review
decisions to exclude noncitizens unless expressly authorized by law,” id. (quotation omitted). As
explained above, the Court rejects Defendants’ contention that the consular non-reviewability
doctrine precludes the Court from reviewing the adjudication of Mr. Javaheri’s visa application.
Furthermore, Defendants’ argument is also premised on the incorrect characterization
that there has been a determination about Mr. Javaheri under Section 1735 and/or that he has
been refused a visa. See, e.g., Defs.’ Mot. at 23. Instead, as Plaintiffs explain, there has not been
a decision made under Section 1735 nor a final refusal of his application; rather, his visa remains
in administrative processing. See Compl. ¶¶ 71, 76. Other courts in this jurisdiction have found
10 that where applications are pending administrative processing, even if such processing was
triggered by Section 1735, the “review of their applications is not complete.” Khazaei, 2023 WL
6065095, at *4. Accordingly, unlike to Defendants’ assertions to the contrary, see Defs.’ Mot. at
23, Plaintiffs are seeking to compel a determination on Mr. Javaheri’s application, not asking the
Court to issue a decision on a refused visa application.
Proceeding with this understanding, “[t]o the extent that the reason for the delay is to
allow the Secretary to determine whether [the] Plaintiff ‘does not pose a threat to the safety or
national security of the United States,’ as required under Section 1735 before a visa can issue,
Plaintiffs’ unreasonable-delay claims are still justiciable.” Khazaei, 2023 WL 6065095, at *5.
Accordingly, the Court finds that Defendants’ arguments here also lack merit.
D. Non-Discretionary Duty
Next, Defendants contend that Plaintiffs’ claims fail because there is no discrete agency
action that a consular officer is required to take. Defs.’ Mot. at 15.
As the Supreme Court has held, “a claim [for unreasonable delay] under § 706(1) 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, 64 (2004) (emphasis in
original). As other courts have held, “[g]ranting or refusing a visa to an applicant who has been
interviewed is clearly a discrete agency action.” Khazaei, 2023 WL 6065095, at *6.
Furthermore, taking such an action is required by both the APA and the Department’s own
regulation, and is to be done within a reasonable time. See Mashpee Wampanoag Tribal
Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (noting that 5 U.S.C. § 555(b)
“imposes a general but nondiscretionary duty upon an administrative agency to pass upon a
matter presented to it ‘within a reasonable time’”); Vulupala, 438 F. Supp. 3d at 100 (concluding
11 that “[g]ranting or refusing a final visa application is a mandatory agency action” under 22
C.F.R. § 41.106).
Therefore, the Court finds that Defendants’ arguments again fail.
E. Improper Defendants
Finally, Defendants also allege that certain named parties have no role in adjudicating Mr.
Javaheri’s requested visa and, therefore, he lacks standing as against them. Defs.’ Mot. at 24.
Defendants first argue that Mr. Javaheri lacks standing to bring claims against the
Department of Homeland Security and its Secretary, as they were not “involved in the refusal of
their visa applications or are [not] playing any ongoing role in Plaintiffs’ requests for visas.” Defs.’
Mot. at 24–25. In response, Plaintiffs do not specify how DHS could redress the delay in
processing Mr. Javaheri’s visa, but instead merely suggest that it is “at least ‘plausible’” that
obtaining a security clearance from DHS is the source of the delay. Pls.’ Opp’n at 15. However,
the “sheer possibility” that a defendant played a role in the delayed processing of a visa is not
adequate to establish standing. Nusrat v. Blinken, No. 21-2801 (TJK), 2022 WL 4103860, at *4
(D.D.C. Sept. 8, 2022). It is unclear what relief DHS or the Secretary of Homeland Security could
provide in the present case given that Mr. Javaheri’s visa application is with U.S. Embassy officials
in Yerevan. See Al-Gharawy, 617 F. Supp. 3d at 9 (“Plaintiffs’ petitions are pending adjudication
before consular officials in the U.S. Embassy in Baghdad, and the Court is unaware of any
mechanism through which DHS or USCIS can exert authority over the timing of that process.”).
Therefore, the Court will dismiss the Complaint as against Defendants DHS and Secretary of
Homeland Security.
Next, Defendants argue that the Department of State and Secretary of State should be
dismissed as those parties cannot adjudicate a visa application. Defs.’ Mot. at 25. In support,
12 Defendants rely on the proposition that “consular officers [have] ‘exclusive authority to review
applications for visas, precluding even the Secretary of State from controlling their
determinations.’” Id. (citing Baan Rao Thai Rest., 985 F.3d at 1024 (quoting Saavedra Bruno,
197 F.3d at 1156)). However, Mr. Javaheri is “not challenging a consular officer’s adjudication
of [his] ... visa application; [he is] challenging the… deprioritizing” of his application in the queue
and the alleged delay. Filazapovich v. Dep’t of State, 560 F. Supp. 3d 203, 233 (D.D.C. 2021)
(APM); see also Al-Gharawy, 617 F. Supp. 3d at 10 (“Control over a consular officer’s
visa determination… is not the same as control over the timing by which the consular officer
considers the applications presented to her.”). The cases Defendants cite do not “require[] suit
against a consular officer to challenge such policy decisions.” Id. Courts in this jurisdiction
routinely reject the same argument that Defendants have raised here. See, e.g., id.; Ramirez v.
Blinken, 594 F. Supp. 3d 76, 90 (D.D.C. 2022) (RC). Therefore, the Court finds that the Secretary
of State and Department of State are properly named defendants.
F. Unreasonable Delay
Finally, Defendants argue that Plaintiffs’ mandamus claims also fail on the merits. Id. at
31. Plaintiffs insist that Defendants have not adjudicated Mr. Javaheri’s application “within a
reasonable time” as required by the Administrative Procedure Act, 5 U.S.C. § 555(b), and that the
Court must “compel [that] agency action [as] unlawfully withheld or unreasonably delayed, id. §
706(1). Although a court may order an agency “to perform a [mandatory] act, [i.e.,] to take action
upon a matter,” a court may not decide “how [the agency] shall act.” Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 62 (2004).
To determine whether a plaintiff has sufficiently alleged that agency action has been
“unreasonably delayed,” courts apply the familiar “TRAC” factors laid out in Telecommunications
13 Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984):
(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) (internal quotation marks omitted); see also Skalka v. Kelly, 246 F. Supp. 3d 147,
152 (D.D.C. 2017) (RJL) (applying TRAC factors to claim for mandamus relief). The D.C. Circuit
has noted the “importance of competing priorities in assessing the reasonableness of an
administrative delay.” Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1102 (internal
citations and quotation marks omitted). Critically here, the Court is bound by clear Circuit
precedent that it may not grant relief where an “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
Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991).
1. TRAC Factors One & Two
The D.C. Circuit has explained that the first TRAC factor—the time agencies take to make
decisions must be governed by a “rule of reason”—is the “most important,” although it is generally
reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc., 531 F.3d 849, 855
14 (D.C. Cir. 2008). The inquiry centers on “whether the agency’s response time… is governed by
an identifiable rationale.” Ctr. for Sci. in the Pub. Interest v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C.
2014) (JEB). Because Congress has provided no statutory timeframe indicating how quickly it
requires the State Department to adjudicate and re-adjudicate visa applications, TRAC factor two
is inapplicable. “To the contrary, Congress has given the agencies wide discretion in the area of
immigration processing.” Skalka, 246 F. Supp. at 153–54 (noting that a two-year delay in
processing an immigration visa “does not typically require judicial intervention”). Further, to the
extent that the delay is caused by the need to make a determination under Section 1735, “Congress
has supplied no timeline for processing” such determinations. Zandieh v. Pompeo, No. 20-919
(JEB), 2020 WL 4346915, at *5 (D.D.C. July 29, 2020) (noting same as to travel-ban exemption).
In general, courts in this jurisdiction have regularly found that the Government applies a
“rule of reason” to the review of visa petitions by adjudicating applications in the order they were
filed. See, e.g., Muvvala v. Wolf, No. 20-cv-02423, 2020 WL 5748104, at *3 (D.D.C. Sept. 25,
2020) (CJN) (“Other federal courts have held that this first-in, first-out method of adjudication
constitutes a ‘rule of reason’ and satisfies the first TRAC factor.”). Simply put, the inquiry begins
and ends with Defendants’ consistent application of the “first-in, first-out” methodology. Courts
of this jurisdiction often look to the length of delay as a rough yardstick to determine whether that
rule is, in fact, being applied.
Plaintiff Javaheri had his interview in April 2022 and his visa application has remained in
administrative processing since. Plaintiffs argue that this delay––just over twelve months at the
time of the filing of Plaintiff’s Complaint, approximately fifteen months at the time of the filing
of Plaintiff’s response brief, and now not quite eighteen months––is unreasonable. Pls.’ Opp’n at
21. However, courts in this jurisdiction routinely find that delays of numerous years are not
15 unreasonable. See, e.g., Zaman v. U.S. Dep’t of Homeland Sec., No. 19-3592 (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”); Pourshakouri v. Pompeo, No. 20-0402 (RJL), 2021
WL 3552199, at *8–9 (D.D.C. Aug. 11, 2021) (finding delay of forty-four months not
unreasonable); Varghese v. Blinken, No. 21-2597 (CRC), 2022 WL 3016741, at *5 (D.D.C. July
29, 2022) (finding delay of “around four years” does “not warrant judicial intervention, standing
alone”); Arab v. Blinken, No. 21-1852 (BAH), 2022 WL 1184551, at *8 (D.D.C. Apr. 21, 2022)
(ruling that a thirty-month delay was not unreasonable); see also Fangfang v. Cissna, 434 F. Supp.
3d 43, 55 (S.D.N.Y. 2020); Yavari v. Pompeo, No. 2:19-cv-02524, 2019 WL 6720995, at *8 (C.D.
Cal. Oct. 10, 2019) (“District 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.”).
Plaintiffs also contend that although “Defendants have prioritized student-visa processing,”
Mr. Javaheri has waited months for “his supposedly-prioritized application.” Pls.’ Opp’n at 23;
see also id. at 21. They point to an email sent from the U.S. Embassy in Yerean to a different
Iranian F-1 student visa applicant stating that “[a]s a student, you are given a priority.” Id. (citing
Pls.’ Opp’n Ex. 5). They later cite to the Department of State’s prioritization of student visas
during the COVID-19 pandemic and Secretary Blinken’s more recent statement that “international
education” and attendant visa processing remain a continued “priority for the Biden
Administration.” Id. at 25 (citing Pls.’ Opp’n Ex. 6). However, as this Court has found before,
such statements do not constitute a rule of reason for the purposes of a TRAC analysis. See
Khoshrou v. Blinken, No. 22-2859 (CKK), 2023 WL 4930086, at *7 (D.D.C. Aug. 2, 2023). There
is “no compelling reason why the ‘public facing announcements’ of an agency should be
16 understood to supply the granular substance of a rule of reason.” Milligan v. Blinken, No. 20-2631
(JEB), 2021 WL 3931880, at *8 (D.D.C. Sept. 2, 2021). Even if the prioritization of students was
to be considered a rule of reason, Mr. Javaheri’s wait would still not be unreasonable, as Plaintiff
has not provided any support for the idea that his F-1 student application was not given such
priority. Furthermore, courts in this Circuit have found similar––and even longer––delays in F-1
visa applications not to be unreasonable. See, e.g., Shen, 2021 WL 1246025, at *8 (finding delay
of twenty-one months in adjudicating F-1 visa not unreasonable).
Plaintiffs also argue that because Mr. Javaheri seeks a nonimmigrant visa, the delay should
be distinguished from cases addressing immigrant visas. Pls.’ Opp’n at 24–25. As Plaintiffs
explain, Mr. Javaheri’s visa is inherently time-sensitive, because opportunities to study in the
United States are fleeting. Id. at 25. Yet Plaintiffs do not offer any legal authority for the
proposition that being exceptionally time-sensitive makes it distinguishable from other types of
visa cases and therefore necessitates a stricter rule of reason. Cf. Sawahreh v. U.S. Dep’t of State,
630 F. Supp. 3d 155, 162 (D.D.C. 2022) (JEB); Shen, 2021 WL 1246025, at *8. They cite to
Washington Alliance of Technology Workers v. United States Department of Homeland Security
for the history of Congress’s creation of the F-1 category to support their idea that “what constitutes
an ‘unreasonable’ delay must differ in the two contexts.” Pl.’s Opp’n at 25–26 (emphasis in
original) (citing 50 F.4th 164, 170 (D.C. Cir. 2022)). However, as other courts have held, “whether
or not the type or length of [Plaintiff’s] visa makes his application more time sensitive than [other
visa applications] is not for Plaintiff or this Court to decide,” but rather is “exactly the kind of
question within the purview of the wide discretion in immigration processing that Congress has
given Defendants.” Sawahreh, 630 F. Supp. 3 at 162–63; see also Shen, 2021 WL 1246025, at *8.
Plaintiffs next state that “the delay has now surpassed [the State Department’s] stated,
17 standard 60-90 day timeframe by 800%.” Pl.’s Opp’n at 21. Although they do not include
additional information in their brief, Plaintiffs mention this timeframe in their Complaint, citing to
the “60- to 90- day administrative-processing timeframe stated in communications from other
[State Department] posts.” Compl. ¶ 123. They then cite to an email from the U.S. Embassy in
Kuala Lumpur to another, unrelated visa applicant that stated that “[a]dministrative processing can
last up to 60 days, but in some instances, it can take significantly longer.” Id. (citing Compl. Ex.
4). This argument is unavailing for two key reasons. First, as Plaintiff’s exhibit clearly shows,
the email states that “it can take significantly longer,” Compl. Ex. 4, indicating that the sixty-to-
ninety day time frame is aspirational, not mandatory, and, in this way, cannot be used as a
meaningful benchmark. Second, the sixty-to-ninety day timeline that Plaintiff references was
communicated by a different consular post than the one at which Mr. Javaheri’s application is
pending and, therefore, is of limited use. See Sawahreh, 630 F. Supp. 3d at 162 (holding the same).
Plaintiffs also argue that the delay shows Defendants’ failure to process applications in
accordance with the first-in, first-out methodology. Pls.’ Opp’n at 27. They point to the
Department of State’s “Visa Status Check” website” that tracks applications, including interview
dates and when they clear administrative processing. Id. at 27–28. Plaintiffs explain that “[o]f
more than 500 cases the Yerevan Embassy completed between May 23, 2023, and July 13, 2023,
fewer than ten of those were interviewed prior to 2023.” Id. at 28. Plaintiffs continue that “more
than 98% of these cleared cases were interviewed after Mr. Javaheri’s.” Id. However, the fact
that others were interviewed after but adjudicated before Mr. Javaheri does not, without other
information, mean that Defendants are not adhering to the first-in, first-out rule, as different
applications may require different time and attention.
In sum, the Court finds that the first and second TRAC factors do not lend credence to
18 Plaintiff Javaheri’s claim.
2. TRAC Factors Three & Five
The third and fifth TRAC factors are often considered together and require the Court to
consider Plaintiff’s interests, health, and welfare. Ghadami v. U.S. Dep’t of Homeland Security,
No. 19-00397, 2020 WL 1308376, at *9 (D.D.C. Mar. 19, 2020) (ABJ).
Plaintiffs allege that “Mr. Javaheri’s entire life has been placed on hold as a result of
Defendants’ delayed processing of his F-1 visa application.” Pls.’ Opp’n at 31. They continue
that this “colors every aspect of his life,” including making him question whether he should
change career paths, abandon higher education plans, relocate, and more. Id. The Court finds
that factor five––regarding Plaintiff’s interests––weighs in his favor, as Mr. Javaheri has
demonstrated he is suffering real hardships related to this uncertain educational and professional
future. Cf. Shen, 2021 WL 1246025, at *8; Rahman, 2023 WL 196428, at *4.
However, Plaintiffs have failed to plead plausible allegations of harm to Mr. Javaheri’s
health and welfare, cf. Shen, 2021 WL 1246025, at *8, that are present in other cases in which
courts have weighed factor three in a plaintiff’s favor, see, e.g., Ghadami, 2020 WL 1308376, at
*9 (weighing third and fifth TRAC factors in favor of visa applicant who alleged that he was
“irrevocably harmed” by separation from his children and wife due to government’s delay in
rendering a decision on whether he was entitled to waiver of immigration restrictions in
Presidential Proclamation 9645); Didban, 435 F. Supp. 3d at 177 (finding plaintiffs’ interests in
having their waiver application adjudicated were “undeniably significant” because they had “to
endure a prolonged and indefinite separation, thereby forcing them to delay beginning their life
as a married coupled”). While the Court recognizes that Mr. Javaheri has an interest in swift
adjudication of his visa application, “so too do many others facing similar
19 circumstances.” Palakuru v. Renaud, 521 F. Supp. 3d 46, 53 (D.D.C. 2021) (TNM).
As such, the third and fifth factors, on balance, do not weigh in favor of either party.
3. TRAC Factor Four
The Court next considers the fourth TRAC factor, which notes “the effect of expediting
delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80.
The Court finds that the fourth TRAC factor weighs against Plaintiffs. First, as the Court
discussed previously, the fact that others were interviewed after and processed before Mr. Javaheri
does not necessarily lead to the conclusions that Plaintiffs draw, as different visa applications vary
in complexity. Additionally, the relief Mr. Javaheri seeks––the prompt adjudication of his visa
application––would mean that others waiting for adjudication would be displaced, which is exactly
what this four counsels against: a “reorder a queue of applicants seeking adjudication,” Tate v.
Pompeo, 513 F. Supp. 3d 132, 149 (D.D.C. 2021) (BAH).
The D.C. Circuit has emphasized the importance of considering “competing priorities” in
assessing the “reasonableness of an administrative delay”–even “refus[ing] to grant relief when all
the other factors considered in TRAC favored it, 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.”
Mashpee Wampanaoag Tribal Council, Inc., 336 F.3d at 1100 (quoting In re Barr, 930 F.2d 72,
75 (D.C. Cir. 1991)); see also Ghadami, 2020 WL 1308376, at *9 (finding that “expediting review
in [the plaintiff’s] case would merely direct government resources from the adjudication of other
waiver applications”). Any such order would plainly 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, 930 F.2d at 76.
Plaintiff posits that “it could be the case that Mr. Javaheri’s application is at the top of the
20 pile, and thus the relief requested would simply compel Defendants to adjudicate his application
without ‘reordering’ any others.” Pls.’ Opp’n at 29. If that were the case, then Defendants would
be adjudicating his application next and there is no need to compel them to do so. Otherwise,
expediting review would merely redirect resources from other cases, which is inappropriate to
compel. Akrayi v. Dep’t of State, Civ. A. No. 22- 1289 (CRC), 2023 WL 2424600, at *4 (D.D.C.
Mar. 9, 2023) (collecting cases). Courts in this jurisdiction routinely decline to grant relief that
would place one prospective visa applicant ahead of others, see, e.g., Xiaobing Liu v. Blinken, 544
F. Supp. 3d 1, 13 (D.D.C. 2021) (TJK) (“This factor not only favors Defendants, but ends up
altogether dooming Plaintiffs’ claims of unreasonable delay.”); Verma v. USCIS, Civil Action No.
20-3419 (RDM), 2020 WL 7495286, at *9 (D.D.C. Dec. 18, 2020), and, based on similar
circumstances, this Court has concluded that this TRAC factor weighs in favor of Defendants, see,
e.g., Dehghanighanatghestani, 2022 WL 4379061, at *7; Pushkar v Blinken, No. 21-2297, 2021
WL 4318116, at *7 (D.D.C. Sept. 23, 2021) (CKK); Desai v. USCIS, No. 20-cv-1005 (CKK), 2021
WL 1110737, at *7 (D.D.C. Mar. 22, 2021); Manzoor v. USCIS, No. 21-2126, 2022 WL 1316427,
at *5–*6. The Court will now do the same here.
4. TRAC Factor Six
Finally, the Court considers the sixth TRAC factor. The sixth TRAC factor states that a
“[c]ourt need not find any impropriety lurking behind agency lassitude in order to hold the agency
action is unreasonably delayed.” Ghadami, 2020 WL 1308376, at *9. A Court “must determine
whether the agency has acted in bad faith in delaying action.” Gona v. U.S. Citizenship & Immigr.
Servs., 20-3680 (RCL), 2021 WL 736810, at *5 (D.D.C. Feb. 25, 2021).
Plaintiff argues that “[f]urther discovery is warranted to determine whether Defendants
have singled out Mr. Javaheri’s application for worse treatment, or if there are more anodyne
21 explanations why other applicants continue to zoom past him.” Pls.’ Opp’n at 32. However,
Plaintiff fails to present any information casting Defendants’ good faith into doubt other than the
fact that they have processed later-interviewed applicants before Mr. Javaheri. See id.
The Court finds that Plaintiff’s allegations on this factor––or lack thereof––are void of the
“factual content that allows the court to draw the reasonable inference” of any bad faith or
impropriety to sway this factor in his favor. Iqbal, 556 U.S. at 678. Rather, Mr. Javaheri fails to
show that the delay is “nefarious or the result of ill will.” Ramirez, 594 F. Supp. 3d at 95. As
TRAC directs, however, the lack of plausible allegations of impropriety does not weigh against
Mr. Javaheri, and therefore does not alter the Court’s analysis. See Palakuru, 521 F. Supp. 3d at
53 (considering the sixth TRAC factor “neutral” even though the plaintiff alleged that the
government had engaged in “purposeful delay” and “artificially inflate[d] [ ] processing times”).
IV. CONCLUSION
For the foregoing reasons, the Court shall DENY AS MOOT Defendants’ [15] Motion to
Dismiss as to Plaintiffs Fakhimi, Mousavi, Ackley, Najdmofarrah, and Irannejad and GRANT
Defendants’ Motion to Dismiss as to Plaintiff Houman Javaheri. The Court shall therefore
DISMISS Plaintiffs’ Complaint in its entirety. An Order will accompany this Memorandum
Opinion.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge