UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHAHNAZ HAERI MEHNEH, et al.,
Plaintiffs, v. No. 24-cv-1374-ZMF ANTONY J. BLINKEN, et al.,
Defendants.
MEMORANDUM OPINION
Nearly eighty-seven months ago, Plaintiff Shahnaz Haeri Mehneh (“Haeri Mehneh”), a
U.S. citizen, filed an immigration visa application on behalf of her foreign husband, Plaintiff
Aliasghar Nejat (“Nejat”), an Iranian national. See Compl. ¶¶ 64–65, ECF No. 1. About twenty-
three months ago, Nejat completed his visa interview. See Compl. ¶ 71. Plaintiffs have yet to
receive a final adjudication of Nejat’s visa application. They ask this Court to compel Defendants
to make a decision. For the reasons below, the undersigned GRANTS Defendants’ motion to
dismiss this case.
I. BACKGROUND
A. Legal Background
The Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1101 et seq., governs
the issuance of visas to immigrants seeking admittance into the United States. See 8 U.S.C. § 1201.
A U.S. citizen or lawful permanent resident seeking lawful permanent resident status for their
spouse must first file a Form I-130, Petition for Alien Relative (“Form I-130”) with the U.S.
Citizenship and Immigration Services (“USCIS”). See 8 C.F.R. § 204.1(a)(1) (2024). If USCIS
approves the Form I-130, the case is then sent to the National Visa Center (“NVC”). See 8 C.F.R.
1 § 204.2(a)(3). The foreign spouse must then submit an application to the NVC and await an
interview with a consular officer. See 22 C.F.R. §§ 42.61–62 (2024). After the interview, the
consular officer will either issue the visa or deny the application. See 22 C.F.R. § 42.81(a). If a
consular officer determines that an applicant lacks sufficient information to establish visa
eligibility, the officer may refuse the application under Section 221(g) of the INA—the statutory
provision at issue here. Section 221(g) provides that “no visa . . . shall be issued to an alien if (1)
it appears to the consular officer, from statements in the application, or in the papers submitted
therewith, that such alien is ineligible to receive a visa . . . (2) the application fails to comply with
the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer
knows or has reason to believe that such alien is ineligible to receive a visa or such other
documentation under section 1182 of this title, or any other provision of law.” 8 U.S.C. § 1201(g).
B. Factual Background
Haeri Mehneh and Nejat have been married for fifty years. See Compl. ¶ 1. On September
22, 2017, Haeri Mehneh filed a Form I-130 for Nejat. See id. ¶ 66. After USCIS approved the
Form I-130, it forwarded Nejat’s petition to the NVC. See id. ¶ 67. On April 8, 2022, the NVC
notified Nejat that his case was documentarily complete. See id. ¶ 70.
On January 23, 2023, Nejat completed his interview. See Pls.’ Resp. Opp’n Defs.’ Mot.
Dismiss (“Pls.’ Opp’n”) 2, ECF No. 11. USCIS then placed his application into mandatory
administrative processing. See Compl. ¶ 72. On January 23, 2023, the Consular Section requested
additional information from Nejat via a questionnaire mirroring Form DS-5535, Supplemental
Questions for Visa Applications (“DS-5535”). See id. ¶ 73. On January 25, 2023, Nejat submitted
his response. See id. ¶ 74.
2 Since then, Nejat’s visa application status on the State Department website has remained
“[r]efused.” See id. ¶ 76. In response to Plaintiffs’ inquiries, the State Department has stated that
Nejat’s case is undergoing additional administrative processing. See id. ¶¶ 76–79. Plaintiffs allege
severe emotional distress, psychological harm, and financial strain because of their separation. See
id. ¶¶ 85–89.
C. Procedural Background
On May 11, 2024, Plaintiffs filed this action against Antony J. Blinken, in his official
capacity as U.S. Secretary of State (“Secretary Blinken”), and Carson Wu, in his official capacity
as Acting Director of the Office of Screening, Analysis, and Coordination (“SAC”) (collectively,
“Defendants”). See generally id.1 Plaintiffs allege that Defendants have unreasonably delayed the
adjudication of Nejat’s visa application and seek to compel adjudication under 5 U.S.C. §§ 555(b),
706(1)–(2) of the Administrative Procedure Act (“APA”) and the Mandamus Act, 28 U.S.C. §
1361. See id. ¶¶ 93–154.2
On July 30, 2024, Defendants filed a motion to dismiss. See Mot. Dismiss 1, ECF No. 7.
On August 15, 2024, Plaintiffs filed their opposition. See Pls.’ Opp’n at 1. On August 22, 2024,
Defendants filed their reply. See Reply Supp. Defs.’ Mot. Dismiss (“Defs.’ Reply”) 1, ECF No.
12.
1 Robert Jachim has since assumed the role of Acting Director of SAC, see Pls.’ Moti. Substitute Party ¶¶ 1–2, ECF No. 9, and is substituted as Defendant in this case pursuant to Federal Rule of Civil Procedure 25(d)(1). See Min. Order (Aug. 28, 2024). 2 Plaintiffs also assert a Fifth Amendment claim, alleging that Haeri Mehneh’s “[c]onstitutional [r]ight to [d]ue [p]rocess” was violated when Defendants failed to “timely provide a final adjudication of her husband’s visa application.” Compl. ¶ 158. However, Haeri Mehneh does not possess procedural due process rights in connection with her noncitizen husband’s visa application because U.S. citizens do “not have a fundamental liberty interest in [their] noncitizen spouse[s] being admitted to the country.” Dep’t of State v. Muñoz, 602 U.S. 899, 909 (2024). Accordingly, Plaintiffs’ Fifth Amendment claim will be dismissed.
3 II. LEGAL STANDARD
A court must dismiss a complaint that “lack[s] . . . subject-matter jurisdiction.” Fed. R. Civ.
P. 12(b)(1). On a motion to dismiss, the plaintiff bears the burden of establishing subject-matter
jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–61 (1992). The court will “assume
the truth of all 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. 2011) (quoting Thomas v. Principi, 394
F.3d 970, 972 (D.C. Cir. 2005)).
Separately, a court must dismiss a complaint that “fail[s] to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. at 678. A court
must “treat the complaint’s factual allegations as true . . . and . . . grant plaintiff the benefit of all
inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000) (internal citations and quotation marks omitted). “However, the court
need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set
out in the complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
4 III. DISCUSSION
A. Improper Defendants
Defendants first move to dismiss the case under Rule 12(b)(1) because Secretary Blinken
and Robert Jachim are not proper defendants. See Mot. Dismiss at 7–9. Defendants argue that
Secretary Blinken and Robert Jachim have “no role and no authority” to re-adjudicate Nejat’s visa
application and are not “involved in the alleged delay.” Mot. Dismiss at 1, 7.
1. Secretary of State
The INA “grants consular officers ‘exclusive authority to review applications for visas,
precluding even the Secretary of State from controlling their determinations.’” Baan Rao Thai Rest.
v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (quoting Saavedra Bruno v. Albright, 197 F.3d
1153, 1156 (D.C. Cir. 1999)). However, “[c]ontrol over a consular officer’s visa determinations . . .
is not the same as control over the timing by which the consular officer considers the applications
presented to her.” Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617 F. Supp. 3d 1, 10 (D.D.C.
2022). Here, “[t]he Secretary of State can provide relief [to Plaintiffs] by directing consular officers
to adjudicate pending visa applications ‘within a reasonable time,’ 5 U.S.C. § 555(b).”
Mashaghzadehfard v. Blinken, No. 23-cv-3164, 2024 WL 4198689, at *3 (D.D.C. Sept. 16, 2024).
Such an order would redress Plaintiffs’ harms. See, e.g., Hajizadeh v. Blinken, No. 23-cv-1766,
2024 WL 3638336, at *3 (D.D.C. Aug. 2, 2024).3
3 Defendants relied on Yaghoubnezhad v. Stufft, No. 23-cv-3094, 2024 WL 2077551 (D.D.C. May 9, 2024), to argue that Secretary Blinken cannot redress the relief requested. See Mot. Dismiss at 8. Yaghoubnezhad involved interpretation of 8 U.S.C. § 1104(a). See Yaghoubnezhad, 2024 WL 2077551, at *5. Judge McFadden concluded that given the “clear textual limitation,” he would not assume that the Secretary of State has “residual authority to control the timing by which consular officers consider applications presented to them.” Id.; see also Zakeri v. Blinken, No. 23-cv-3162, 2024 WL 3273418, at *3 & n.3 (D.D.C. July 2, 2024) (following Yaghoubnezhad). However, Judge Moss disagreed with Yaghoubnezhad in Janay v. Blinken, No. 23-cv-3737, 2024 WL 3432379 (D.D.C. July 16, 2024). Judge Moss concluded that “the Court can discern no ‘clear
5 2. Director of SAC
Robert Jachim is the Acting Director of SAC. Pls.’ Moti. Substitute Party ¶ 2. SAC
influences both the outcome and the timeline of consular officers’ visa application decisions. See
generally Compl., Ex. A, Decl. Carson Wu, ECF No. 1-1. SAC has the “primary responsibility for
screening noncitizens who apply for U.S. visas for potential security-related grounds of visa
ineligibility.” Id. ¶ 2. “SAC analysts provide consular officers with Security Advisory Opinions
(“SAO”) responses related to grounds of visa ineligibility and inadmissibility under [S]ection
212(a)(3) of the [INA].” Id. ¶ 2. If the consular officer determines that a visa application is
ineligible under INA Section 212(a)(3), “then the officer is required to refuse the application under
INA [S]ection 221(g) and to request a SAO from SAC, which initiates an interagency security
review.” Id. ¶ 15. “In any case in which a SAO is required, a consular officer must wait for a
response, which will provide a recommendation on whether sufficient information exists to support
a security-related ineligibility finding.” Id. ¶ 19. “[C]ompletion of SAO responses depends on . . .
a variety of . . . factors . . . [, and] SAO requests can be neither addressed nor resolved in a first-
in-first-out basis.” Id. ¶ 27.
Nejat’s application went through such process. The consular officer refused Nejat’s visa
application under Section 221(g) and used Nejat’s response to Form DS-5535 to request a SAO.
textual limitation,’ on the face of 8 U.S.C. § 1104(a), which would bar the Secretary of State from directing consular officers to conclude matters presented to them ‘within a reasonable time[.]’” Janay, 2024 WL 3432379, at *7 (internal citations omitted). This Court finds Janay persuasive. Section 1104(a) of the INA does narrowly limit the Secretary of State’s broad authority regarding consular officers’ discretion to issue immigrant visas to properly applying individuals. But Section 1104(a) does not otherwise limit the Secretary’s expansive regulatory and enforcement powers under the INA. See id. Numerous judges in this District have similarly concluded that the Secretary of State is a proper defendant. See, e.g., Khazaei v. Blinken, No. 23-cv-1419, 2023 WL 6065095, at *4 (D.D.C. Sept. 18, 2023); Bahrami v. Blinken, No. 23-cv-1477, 2024 WL 3638200, at *2 (D.D.C. June 28, 2024).
6 See Compl. ¶ 73–76. Because Nejat’s visa application involves a SAO, Robert Jachim has
authority over adjudication of the application and the power to grant the relief requested.
B. Consular Nonreviewability Doctrine and Clear and Non-Discretionary Duty
Next, Defendants raise two related threshold challenges: that (1) the doctrine of consular
nonreviewability bars Plaintiffs’ claims, see Mot. Dismiss at 9–20, and (2) Plaintiffs fail to identify
a discrete agency action that a consular officer is required to take, see id. at 20–29.
Consular Nonreviewability Doctrine
“Consular nonreviewability shields a consular official’s decision to issue or withhold a visa
from judicial review, at least unless Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo,
985 F.3d 1020, 1024 (D.C. Cir. 2021). “The [INA] does not authorize judicial review of a consular
officer’s denial of a visa; thus, as a rule, the federal courts cannot review those decisions.” Dep’t
of State v. Muñoz, 602 U.S. 899, 908 (2024).
However, “a long line of decisions from this Court have held that the consular
nonreviewability doctrine applies only to final decisions and thus does not bar judicial review of a
consular officer’s delay when a visa application has been provisionally refused pending a final
decision.” Al-Gharawy, 617 F. Supp. 3d at 11 (emphasis added). That is, “when an application is
still undergoing administrative processing, even where a refusal has been relayed, the decision is
not final, and thus claims alleging unreasonable delay while a case remains suspended in
administrative processing are not barred by the doctrine of consular nonreviewability.” Giliana v.
Blinken, 596 F. Supp. 3d 13, 18 (D.D.C. 2022) (quotations marks omitted). “As other courts have
found, the focus should be on what is actually happening; even if the the State Department chooses
to characterize a [S]ection 221(g) notification as a ‘refusal,’ an interim decision is not sufficiently
7 final to warrant the application of the doctrine [of consular nonreviewability].” Vulupala v. Barr,
438 F. Supp. 3d 93, 98 (D.D.C. 2020).
Defendants argue that the nonreviewability doctrine applies because the consular officer
“has refused” Nejat’s visa. Mot. Dismiss at 18. But a § 221(g) refusal is not the State Department’s
final answer. “[T]he U.S. Embassy . . . [has] confirmed that [Nejat’s] case remains in
administrative processing.” Compl., Ex. C, Email from Senator Moran’s office 1, ECF No. 1-3.
This processing involves active investigating. For example, after “refusing” Nejat’s visa
application, the Consular Section requested a form mirroring Form DS-5535 from Nejat. See
Compl. ¶ 73. In addition, the language of the “refusal” itself suggests continued consideration:
“your case will remain refused while undergoing [administrative] processing. You will receive
another adjudication once such processing is complete.” Compl., Ex. D, Immigrant Visa
Application: Refused 1, ECF No. 1-4 (emphasis added). “In similar cases, the consular
nonreviewability doctrine has been found inapplicable where, as here, a consular officer’s refusal
under 8 U.S.C. § 1201(g) places a visa application in administrative processing for further
consideration.” Sereshti v. Gaudiosi, No. 24-cv-1288, 2024 WL 4625802, at *4 (D.D.C. Oct. 30,
2024).
Defendants respond that the D.C. Circuit has recently determined that a § 221(g) refusal is
a final decision. See Karimova v. Abate, No. 23-cv-5178, 2024 WL 3517852, at *4 (D.C. Cir. July
24, 2024). But Karimova is unpublished. See id. And “a panel’s decision to issue an unpublished
disposition means that the panel sees no precedential value in that disposition.” D.C. Cir.
R. 36(e)(2); see also U.S. Ct. App. D.C. Cir., Handbook of Practice and Internal Procedures
(Rule 36(e)(2) means “there is [] no need for counsel to base their arguments on unpublished
dispositions” and that an unpublished decision “does not add anything to the body of law already
8 established and explained in the Court’s published precedents.”). Indeed, “because the panel
issuing [an unpublished] disposition must unanimously agree that it does not ‘alter[], modif[y], or
significantly clarif[y] a rule of law,’ these decisions are frequently announced in a way that makes
them not suitable for governing future cases.” In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011)
(internal citations and quotation marks omitted).
Judges in this District are split as to following Karimova. Two judges have refused. See
Baygan v. Blinken, No. 23-cv-2840, 2024 WL 3723714, at *5 n.1 (D.D.C. Aug. 8, 2024);
Hajizadeh, 2024 WL 3638336, at *3 n.3. Others have followed, some only begrudgingly. Judge
Jackson followed but described Karimova’s holding as “troubl[ing]” and “extremely difficult to
square . . . with the communications that visa applicants actually receive from various consulates.”
Ibrahim v. Spera, No. 23-cv-3563, 2024 WL 4103702, at *3 & n.2 (D.D.C. Sept. 6, 2024). This
Court joins others in finding Karimova nonbinding.
The State Department must conclude its consideration process for its decision to be final.
The definition of final demonstrates this: “[m]arking the last stage of a process; leaving nothing to
be looked for or expected.” Final, Oxford English Dictionary, (2d ed. 1989); Cf. United States v.
Clawson, 842 F. Supp. 428, 432 (D. Or. 1994) (“Conversely, a non-final conviction is by definition
one where a direct appeal is pending in the state courts.”). But Nejat is not in the last stage of the
process. The State Department explicitly directed Nejat to look for or expect “another adjudication
once such processing is complete.” Immigrant Visa Application: Refused 1. To treat this as a final
decision would create a perverse incentive for the State Department to refuse applications out of
hand and then begin the true deliberation process thereafter. Under this paradigm, there would be
no possibility for judicial oversight of untimely decision making. That is unacceptable. As
Defendants acknowledge, judicial oversight is permitted for “procedural considerations [such as]
9 the pace of discretionary administrative processing.” Mot. Dismiss at 10 (quotation marks omitted)
(citing Al-Gharawy, 617 F. Supp. 3d at 12). Here, Plaintiffs permissibly challenge procedural
aspects of the ongoing review of Nejat’s visa application. See Al-Gharawy, 617 F. Supp. 3d at 12.
Accordingly, the doctrine of consular nonreviewability does not bar Plaintiffs’ claims.
Clear and Non-Discretionary Duty
“To state a claim for unreasonable delay [under the APA], [the p]laintiffs must . . . allege
that the agency ‘failed to take a discrete agency action that it is required to take[.]’” Da Costa v.
Immigr. Inv. Program Off., 80 F.4th 330, 340 (D.C. Cir. 2023) (quoting Norton v. S. Utah
Wilderness All., 542 U.S. 55, 64 (2004)). To obtain a writ of mandamus, the plaintiffs must show
“(1) a clear and indisputable right to relief; (2) that the government agency or official is violating
a clear duty to act, and (3) that no adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell,
812 F.3d 183, 189 (D.C. Cir. 2016). Therefore, “to proceed under either the APA or the Mandamus
Act based on a claim of ‘an agency’s unreasonable delay . . . , a plaintiff must allege that an agency
has a clear non-discretionary duty to take a specific action and that the agency failed to take that
action.’” Sharifishourabi v. Blinken, No. 23-cv-3382, 2024 WL 3566226, at *5 (D.D.C. July 29,
2024) (quoting Arabzada v. Donis, 725 F. Supp. 3d 1, 11 (D.D.C. 2024)).
“Granting or refusing a visa to [a plaintiff] who has been interviewed is clearly a discrete
agency action . . . required by both the APA and the Department’s own regulation.” Khazaei v.
Blinken, No. 23-cv-1419, 2023 WL 6065095, at *6 (D.D.C. Sept. 18, 2023). 4 “Issuing a final
4 Some courts assume without deciding that there is a clear and non-discretionary duty under either the APA or INA to adjudicate their applications within a reasonable time. See, e.g., Dalmar v. Blinken, No. 23-cv-3315, 2024 WL 3967289, at *3 (D.D.C. Aug. 26, 2024) (“The Court will assume without deciding that the plaintiffs have alleged that the defendants are subject to a discrete, required duty.”); Giza v. Blinken, No. 23-cv-1641, 2024 WL 3967284, at *4 (D.D.C. Aug. 27, 2024) (“The Court need not decide whether the INA or its regulations impose this duty because,
10 decision on a visa application is plainly a discrete agency action, and it is required by both the
APA and federal regulations.” Hajizadeh, 2024 WL 3638336, *3. The APA “imposes a general
but nondiscretionary duty upon the [the State Department] to pass upon a matter presented to it
‘within a reasonable time,’ 5 U.S.C. § 555(b), and authorizes [this Court] to ‘compel agency action
unlawfully withheld or unreasonably delayed,’ id. § 706(1).” Mashpee Wampanoag Tribal
Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003). “[The INA r]egulations require that
a consular officer ‘must . . . properly and promptly’ process a visa application, 22 C.F.R. § 41.106,
and either ‘issue” or “refuse’ a completed visa application[, i]d. § 41.121(a).” Vulupala, 438 F.
Supp. 3d at 100. Moreover, Section 42.81(e) of the INA creates a nondiscretionary duty requiring
consular officers to reconsider within a reasonable time visa applications refused under Section
221(g) and placed under administrative processing. See Ghannad-Rezaie v. Laitinen, No. 24-cv-
11665, 2024 WL 4849587, at *3 (D. Mass. Nov. 21, 2024). But see Yaghoubnezhad v. Stufft, No.
23-cv-3094, 2024 WL 2077551, at *8 (D.D.C. May 9, 2024) (concluding that the State
Department’s nondiscretionary duty is “discharged” after the consular officer refused the visa
applications under Section 221(g)). Thus, Plaintiffs have identified a clear, non-discretionary duty
requiring a consular officer to adjudicate Nejat’s visa application.
Defendants again turn to Karimova to find otherwise. See Mot. Dismiss at 25. The
Karimova court held that the plaintiff did not show a clear, nondiscretionary duty or discrete action
that the defendants failed to perform. See 2024 WL 3517852, at *3. And again, this Court does not
follow the unpublished Karimova decision. See supra Part III.B.1. Moreover, the narrow scope of
Karimova makes it inapplicable. Karimova focused solely on “Section 555(b) of the APA as the
either way, the [plaintiffs] have not plausibly alleged that the delay in adjudicating their visa applications is unreasonable.”). This Court will note make that assumption.
11 source of the consular officer’s alleged duty to act.” Karimova, 2024 WL 3517852, at *3. Plaintiffs
here also bring claims under Section 706(1)–(2) and assert a series of duties under the INA and its
implementing regulations. See Pls.’ Opp’n at 21–30. Karimova did not consider these sources. But
this Court does, and it finds that they create a duty to act. See Norton, 336 F.3d at 1099; Vulupala,
438 F. Supp. 3d at 100; Ghannad-Rezaie, 2024 WL 4849587, at *3.
C. Unreasonable Delay5
“Courts review claims of unreasonable delay in processing immigration petitions according
to ‘the same [standard] under both § 706(1) of the APA and the Mandamus Act, 28 U.S.C.
§ 1361.’” Ahmadi v. Scharpf, No. 23-cv-953, 2024 WL 551542, at *4 (D.D.C. Feb. 12, 2024)
(quoting Skalka v. Kelly, 246 F. Supp. 3d 147, 152 (D.D.C. 2017)). “The central question in
evaluating ‘a claim of unreasonable delay’ is ‘whether the agency’s delay is so egregious as to
warrant mandamus.’” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting
Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir. 1984)).
To determine unreasonably delay, this Court must analyze the six “TRAC factors”:
(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
5 Plaintiffs contend that addressing the unreasonable delay claim is inappropriate at the motion-to- dismiss stage because it involves a factual question. See Pls.’ Opp’n at 31. However, it is appropriate to decide the claim now “because ‘this record contains enough facts to evaluate the TRAC factors now.’” Sawahreh v. U.S. Dep’t of State, 630 F. Supp. 3d 155, 161 (D.D.C. 2022) (quoting Sarlak v. Pompeo, No. 20-cv-35, 2020 WL 3082018, at *5 (D.D.C. June 10, 2020)).
12 court need not find any impropriety lurking behind agency lassitude to hold that agency action is unreasonably delayed.
See TRAC, 750 F.2d at 79–80 (internal citations and quotations omitted).
First and Second TRAC Factors
Courts typically consider the first two factors together. See Milligan v. Pompeo, 502 F.
Supp. 3d 302, 317 (D.D.C. 2020). Those factors evaluate “‘whether the agency’s response time
complies with an existing specified schedule and whether it is governed by an identifiable
rationale.’” Sawahreh v. U.S. Dep’t of State, 630 F. Supp. 3d 155, 161–62 (D.D.C. 2022) (quoting
Ctr. for Sci. in the Pub. Int. v. U.S. Food & Drug Admin., 74 F. Supp. 3d 295, 300 (D.D.C. 2014)).
Plaintiffs filed suit sixteen months after Nejat’s interview. See, e.g., Compl. ¶ 14.6 Plaintiffs
allege a Congressional timetable exists because 8 U.S.C. § 1571(b) states that “[i]t is the sense of
Congress that the processing of an immigration benefit application should be completed not later
than 180 days after the initial filing of the application.” See Pls.’ Opp’n at 38 (citing 8 U.S.C.
1571(b)). However, “[t]he 180-day period cited by Plaintiff is no more than an ‘aspirational
statement’ that does not establish a firm timetable.” Khan v. Bitter, No. 23-cv-3046, 2024 WL
3887378, at *3 (D.D.C. Aug. 20, 2024) (quoting Da Costa v. Immigr. Inv. Program Off., 80 F.4th
6 In their complaint, Plaintiffs allege that USCIS delayed the visa application adjudication sixteen months after the interview on January 13, 2023. See, e.g., Compl. ¶ 4, 14. In their opposition, Plaintiffs reference other start dates for counting the delay: when Nejat became documentarily qualified on April 28, 2022, amounting to twenty-eight months, see Pls.’ Opp’n at 1, and when Nejat submitted the I-130 petition on September 22, 2017, amounting to eighty-two months, see id.
The Court calculates the delay to be sixteen months, as alleged in the Complaint. See Arab v. Blinken, 600 F. Supp. 3d 59, 62 (D.D.C. 2022) (calculating delay for visa application by relying on date in the complaint). Even if the Court calculated the delay off these other dates, the outcome would be the same.
13 330, 344 (D.C. Cir. 2023)). Plaintiffs themselves concede that the language in the provision is
“merely precatory.” Pls.’ Opp’n at 38.7
In fact, “Congress has supplied no timeline for processing waiver applications.” Didban v.
Pompeo, 435 F. Supp. 3d 168, 176 (D.D.C. 2020). “Absent a congressionally supplied yardstick,
courts typically turn to case law as a guide.” Sarlak v. Pompeo, No. 20-cv-35, 2020 WL 3082018,
at *6 (D.D.C. June 10, 2020). “[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.” Id. at *6 (citation omitted) (collecting cases). In addition, “many courts
evaluating similar delays have declined to find a two-year period to be unreasonable as a matter of
law.” Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-cv-00397, 2020 WL 1308376, at *8 (D.D.C.
Mar. 19, 2020). Thus, Plaintiffs’ sixteen-month delay is not unreasonable by comparison. See, e.g.,
Arab v. Blinken, 600 F. Supp. 3d 59, 70 (D.D.C. 2022) (finding thirty months not unreasonable);
Dastagir v. Blinken, 557 F. Supp. 3d 160, 165 (D.D.C. 2021) (finding twenty-nine months not
unreasonable). Accordingly, the first and second TRAC factors favors Defendants.
Third and Fifth TRAC Factors
TRAC factors three and five concern the delay’s impacts on a plaintiff’s health, welfare,
and interests prejudiced. See TRAC, 750 F.2d at 79–80. The effects of a long and indefinite
separation on the physical and mental health of spouses are a valid interest considered under these
7 Plaintiffs also cite to 9 FAM 504.7-2(b), which is titled “Timeliness of Interview.” See Pls.’ Opp’n at 38–39. Section 504.7-2(b) states “immediate relative (and fiancé(e)) visas [should] be processed within 30 days of receipt of the necessary information from the applicant and the Department of Homeland Security.” However, this provision has no bearing on the delay in question. This provision “merely requires that the Department ‘process’ the applications within 30 days, but it does not require a final adjudication of the application within that period. . . . indeed, [Nejat] has already been interviewed.” Janay, 2024 WL 3432379, at *12.
14 factors. See Eljalabi v. Blinken, No. 21-cv-1730, 2022 WL 2752613, at *7 (D.D.C. July 14, 2022)
(collecting cases).
Plaintiffs have pleaded sufficient facts to establish the psychological, emotional, and
financial harm they have suffered due to the delay in visa adjudication. See Compl. ¶¶ 83–89. This
delay has resulted in family separation and uncertainty about reunification. See id.; see also
Eljalabi, 2022 WL 2752613, at *7 (factors three and five weigh in the plaintiff’s favor due to
negative impact of the delay on the plaintiff’s marriage). “This Court acknowledges that the
prolonged and indefinite separation of [Haeri Mehneh and Nejat] may place [their] health and
welfare at stake.” Arab, 600 F. Supp. 3d at 71; see Compl. ¶¶ 83–89. As such, the third and fifth
TRAC factors weigh in Plaintiffs’ favor. See id.8
Fourth TRAC Factor
The fourth TRAC factor requires courts to consider the effects of expedited action on the
agency’s “higher or competing” priorities. TRAC, 750 F.2d at 79–80. It “carries the greatest weight
in many cases.” Sawahreh, 630 F. Supp. 3d at 163 (quoting Milligan, 502 F. Supp. 3d at 319).
Plaintiffs seek an order compelling Defendants to adjudicate Nejat’s immigrant visa
application “immediately.” Compl. ¶ 15. Plaintiffs argue that Nejat deserves priority given the
length of the delay and the fact that he is the spouse of a U.S. citizen. See Pls.’ Opp’n at 40.
Consular “processing capacity is presently a zero-sum game.” Murway v. Blinken, No. 21-
cv-1618, 2022 WL 493082, at *4 (D.D.C. Feb. 16, 2022). Granting Plaintiffs relief would require
“putting [Nejat] at the head of the queue” and moving other applicants, many of whom are likely
facing similar or perhaps worse harms, back with “no net gain.” Mashpee Wampanoag Tribal
8 Defendants assert that prioritizing Plaintiffs’ visa application could divert resources from other similar cases, thereby prejudicing other noncitizens. See Mot. Dismiss at 38. This argument, however, is more appropriately addressed under the fourth TRAC factor.
15 Council, Inc., 336 F.3d at 1100. “Federal agencies, not the Court, are best positioned to manage
the backlog of immigration cases.” Dastagir, 557 F. Supp. 3d at 167. Hence, “judicial
‘reordering[s] [of] agency priorities’ are inappropriate where ‘[t]he agency is in a unique—and
authoritative—position to view its projects as a whole, estimate the prospects for each, and allocate
its resources in the optimal way.’” Ghadami, 2020 WL 1308376, at *9 (quoting In re Barr Lab’ys.,
Inc., 930 F.2d 72, 76 (D.C. Cir. 1991)). “While the effect of an individual case would be minimal,
an accumulation of such individual cases being pushed by judicial fiat to the front of the line would
erode the ability of agencies to determine their priorities.” Tate v. Pompeo, 513 F. Supp. 3d 132,
150 (D.D.C. 2021). Following other courts, this Court will not engage in judicial reordering by
allowing Plaintiffs to skip the line. See, e.g., Arab, 600 F. Supp. 3d at 71 (deferring to “the State
Department’s priority-setting and resource-allocation” in I-130 visa application adjudication);
Mashaghzadehfard, 2024 WL 4198689, at *5 (rejecting judicial intervention to reorder priority in
an I-130 visa application adjudication). Thus, the fourth TRAC factor weighs in Defendants’ favor.
Sixth TRAC Factor
The sixth TRAC factor requires courts to consider “whether the agency’s bad faith caused
the delay.” Sawahreh, 630 F. Supp. 3d at 164. “[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 (quotation marks omitted).
Plaintiffs allege that Defendants’ failure to adjudicate Nejat’s visa application is alone “an
act of extreme bad faith.” Pls.’ Opp’n at 44. However, “this conclusory statement does not
evidence the type of agency misconduct this factor seeks to identify.” Mashaghzadehfard, 2024
WL 4198689, at *6 (quotation marks omitted). “As TRAC directs, . . . the lack of plausible
allegations of impropriety does not weigh against [Plaintiffs], but instead is neutral in the analysis.”
16 Hajizadeh, 2024 WL 3638336, at *6 (quoting Fakhimi v. Dep’t of State, No. 23-cv-1127, 2023
WL 6976073, at *11 (D.D.C. Oct. 23, 2023)). Thus, the sixth TRAC factor does not favor either
side.
Taken together, the TRAC factors weigh in favor of Defendants. Thus, Plaintiffs have “not
plausibly allege[d] an unreasonable delay.” Azeez v. Murphy, No. 23-cv-1947, 2024 WL 3924565,
at *6 (D.D.C. Aug. 23, 2024). As such, Plaintiff have failed to state a claim. See id. (dismissing
similar case for failing to state a claim where the first, second, and fourth TRAC factors favored
the defendant).
IV. CONCLUSION
The Court is sympathetic to the suffering Plaintiffs have experienced due to the delay in
final adjudication. But that consideration cannot justify allowing this case to proceed where the
law requires dismissal.
Zia Digitally signed by Zia M.Faruqui Date: December 16, 2024 M.Faruqui Date: 2024.12.16 17:05:55 -05'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE