Infracost Inc v. Blinken

• Court: District Court, S.D. California
• Decided: April 30, 2024
• Docket: 3:23-cv-02226
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 INFRACOST INC.; and HASSAN Case No.: 23-CV-2226 JLS (MSB) KHAJEH HOSSEINI, 12 ORDER (1) DENYING PLAINTIFFS’ Plaintiffs, 13 EX PARTE REQUEST FOR LEAVE v. TO FILE NOTICE OF 14 SUPPLEMENTAL AUTHORITY ANTONY BLINKEN, Secretary of State, 15 AND (2) GRANTING DEFENDANT’S Defendant. MOTION TO DISMISS 16

17 (ECF Nos. 4, 8) 18 Presently before the Court is a Motion to Dismiss (“Mot.,” ECF No. 4) filed by 19 Defendant Antony Blinken. Plaintiffs Infracost Inc. and Hassan Khajeh Hosseini 20 (collectively, “Plaintiffs”) filed an Opposition to the Motion (“Opp’n,” ECF No. 5), and 21 Defendant filed a Reply (“Reply,” ECF No. 6). The Court took the matter under 22 submission without oral argument on March 7, 2024. See ECF No. 7. Plaintiffs then filed 23 an Ex Parte Request for Leave to File Notice of Supplemental Authority (“Req.,” ECF No. 24 8), which Defendant opposed (“Req. Opp’n,” ECF No. 9). Having carefully considered 25 the Complaint (“Compl.,” ECF No. 1), the Parties’ submissions, and the law, the Court 26 DENIES Plaintiffs’ Request and GRANTS Defendant’s Motion. 27 / / / 28 / / / 1 BACKGROUND 2 Infracost Inc. (“Infracost”) is a San-Diego-based, Delaware-incorporated software 3 company that “has received millions of angel and early investments from several U.S. 4 venture capital firms.” Compl. ¶¶ 22, 38. Hosseini, Infracost’s co-founder and chief 5 executive officer (“CEO”), seeks a O-1A nonimmigrant visa1 that would allow him to work 6 and reside within the United States. Id. ¶¶ 23, 25. Per the Complaint, Hosseini’s absence 7 from the United States causes Infracost “financial hardship and loss of opportunities,” as 8 “his leadership and resourcefulness are essential to the company’s success.” Id. ¶ 5. 9 Plaintiffs also allege that Hosseini’s “professional progression” is hindered by his inability 10 to work in the United States, as “he cannot come to the company for face-to-face 11 conversations with his employees and connect with fellow CEOs and clients.” Id. ¶ 58. 12 Without Hosseini in San Diego, Infracost “is at risk of losing the investment in the U.S. 13 and winding down the U.S. operations.” Id. 14 Infracost filed an O-1A petition2 on Hosseini’s behalf in late November of 2022. Id. 15 ¶ 39. The United States Citizenship and Immigration Service (“USCIS”) approved the 16 petition on December 8, 2022, and Hosseini filed his visa application with the United States 17 Embassy in London ten days later. Id. ¶ 3. He attended an interview on February 24, 2023. 18 Id. ¶ 4. 19 Either at the interview or shortly thereafter, the Department of State (“Department”) 20 placed Hosseini’s case in “administrative processing” and requested additional information 21 from Hosseini. Id. ¶¶ 4, 50. Hosseini “provided the requested documents within a week.” 22 Id. ¶ 40. Since then, Hosseini has received “no decision or explanation from the Embassy.” 23 Id. ¶ 41. Instead, the online case status report for his application states “Refused,” indicates 24

25 1 O-1A visas allow noncitizens with “extraordinary ability in the sciences, arts, education, business, or 26 athletics” to “com[e] temporarily to the United States to continue work in the area of extraordinary ability.” 8 C.F.R. § 214.2(o)(1)(ii)(A)(1). 27

28 2 No noncitizen may apply for an O-1A visa until their employer files a petition “for a determination of 1 Hosseini’s “case will remain refused while undergoing . . . processing,” and clarifies that 2 Hosseini “will receive another adjudication once such processing is complete.” Id. 3 Hosseini’s “multiple inquires” to the London Embassy have resulted in only “templated 4 responses” repeating that “administrative processing remains underway,” that “[n]o 5 additional information or documentation is required at this time,” and that he will be 6 “contacted directly as soon as the processing is complete.” Id. ¶ 42; ECF No. 1-3 at 1. 7 This delay in adjudicating Hosseini’s visa application “has placed severe emotional 8 and financial strain on [Hosseini].” See Compl. ¶ 5. Hosseini “has to maintain his 9 residence in the U.S. even though he cannot get the visa to come to the States.” Id. ¶ 8. 10 Moreover, the Complaint states: 11 Plaintiff suffers that trauma [sic], depression, and anxiety caused by this unreasonable delay. These stresses often manifest 12 in “failure to thrive” symptoms—where individuals succumb to 13 losing their will to live. 14 Id. ¶ 59. 15 Plaintiffs commenced this action approximately nine months after the interview, 16 seeking to compel Defendant—sued in his official capacity as Secretary of the 17 Department—to issue a final decision on Hosseini’s visa application. Plaintiffs bring two 18 causes of action. First, Plaintiffs bring a claim under 5 U.S.C. § 706, a provision of the 19 federal Administrative Procedure Act (“APA”). Id. ¶¶ 67–85. Second, Plaintiffs seek 20 relief through the Mandamus Act, 28 U.S.C. § 1361. Id. ¶¶ 86–97. The instant Motion— 21 seeking to dismiss the Complaint in its entirety under Rules 12(b)(1) and 12(b)(6)— 22 followed. 23 REQUEST FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY 24 After the Court took this matter under submission, Plaintiffs sought to direct this 25 Court’s attention to an additional precedent. Req. at 1. Defendant opposed, arguing that 26 the Request advances new arguments outside the pleadings. Req. Opp’n at 1. In the 27 precedent referenced by the Request, a federal district court in the Central District of 28 California denied a motion to dismiss in a case involving similar issues. Req. at 1. 1 A district court may grant a request to supplement authorities where the 2 supplemental authorities control the outcome of the litigation; i.e., are “precedential,” 3 “particularly persuasive,” or “helpful.” Hunt v. Washoe Cnty. Sch. Dist., No. 4 318CV00501LRHWGC, 2019 WL 4262510, at *3 (D. Nev. Sept. 9, 2019). Notices of 5 supplemental authority, however, should not advance additional argument—for example, 6 by “provid[ing] a detailed description of the case’s . . . issues.” Schnellecke Logistics USA 7 LLC v. Lucid USA Inc., No. CV-22-01893-PHX-SMB, 2023 WL 5720242, at *1 (D. Ariz. 8 Apr. 12, 2023). 9 The Court will DENY Plaintiffs’ Request. First, to the extent the Request describes 10 the findings of the proffered authority and analogizes to this case, it improperly advances 11 additional argument. See id. Second, though the proffered authority has persuasive value, 12 it is (1) non-binding and (2) largely duplicative of authority already cited in Plaintiffs’ 13 Opposition, see Opp’n at 9–16. 14 That said, the Court will not ignore the proffered authority, but instead will give it 15 the same consideration it would give any other persuasive authority it discovered through 16 its own research. See EEOC v. Kovacevich “5” Farms, No. 1:06 CV 0165 OWW TAG, 17 2006 WL 3060149, at *2 (E.D. Cal. Oct. 27, 2006) (“Because any decision on a motion 18 should comply with the law, appropriate legal authority should not be disregarded merely 19 because it was not cited in an initial brief.”). 20 MOTION TO DISMISS 21 I. Legal Standards 22 A. Federal Rule of Civil Procedure 12(b)(1) 23 Federal courts are courts of limited jurisdiction and thus have an obligation to 24 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 25 718 F.2d 964, 965–66 (9th Cir. 1983). The burden of establishing subject-matter 26 jurisdiction is on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 27 Am., 511 U.S. 375, 377 (1994). 28 / / / 1 Under Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the 2 defense that the complaint lacks subject-matter jurisdiction and may do so via a facial or 3 factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, 4 the challenger asserts that the allegations contained in a complaint are insufficient on their 5 face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 6 (9th Cir. 2004). A court “resolves a facial attack as it would a motion to dismiss under 7 Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all reasonable 8 inferences in the plaintiff’s favor, the court determines whether the allegations are 9 sufficient . . . to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 10 (9th Cir. 2014). 11 In a factual attack, on the other hand, “the challenger disputes the truth of the 12 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 13 373 F.3d at 1039. In such challenges, courts (1) “may review evidence beyond the 14 complaint without converting the motion to dismiss into a motion for summary judgment,” 15 and (2) “need not presume the truthfulness of the plaintiff’s allegations.” Id. After the 16 moving party evidences the lack of subject-matter jurisdiction, the party opposing the 17 motion must “present affidavits or any other evidence necessary to satisfy its burden of 18 establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City 19 of Chico, 880 F.2d 199, 201 (9th Cir. 1989). 20 Dismissal under Rule 12(b)(1) is warranted “where the alleged claim under the 21 [C]onstitution or federal statutes clearly appears to be immaterial and made solely for the 22 purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and 23 frivolous.” Safe Air, 373 F.3d at 1039 (internal quotation marks omitted) (quoting Bell v. 24 Hood, 327 U.S. 678, 682–83 (1946)). But dismissal under 12(b)(1) is not appropriate when 25 “‘the jurisdictional issue and substantive issues are so intertwined that the question of 26 jurisdiction is dependent on the resolution of factual issues going to the merits’ of an 27 action.” Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983) 28 (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 3 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” A 4 court evaluates whether a complaint states a cognizable legal theory and sufficient facts in 5 light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement 6 of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not 7 require ‘detailed factual allegations,’ . . . it [does] demand more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a 10 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 11 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 12 will not do.” Twombly, 550 U.S. at 555 (alteration in original) (quoting 13 Fed. R. Civ. P. 8(a)). 14 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 15 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 16 at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the facts 17 pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for 18 the misconduct alleged.” Id. That is not to say that the claim must be probable, but there 19 20 21 3 Both Parties invite the Court to consider extra-pleading materials when resolving Defendant’s 12(b)(6) arguments. Defendant submits a declaration by a Department employee. See Decl. Samuel W. McDonald 22 (“McDonald Decl.”), ECF No. 4–1. Plaintiffs in turn submit a slew of material alongside their Opposition, including emails purportedly sent by consular officials to lawyers and declarations purportedly submitted 23 by Department employees in other cases. See Opp’n Exs., ECF Nos. 5-1–5-3. The Court, however, “may 24 not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6)” unless said materials are incorporated by reference into the complaint or are subject to judicial 25 notice. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Defendant offers no argument supporting this Court’s ability to consider the McDonald Declaration. And, though Plaintiffs 26 cite Marciano v. Shulman to suggest that courts may consider materials submitted alongside a plaintiff’s opposition, that case supports only the conclusion that courts may take judicial notice of court records in 27 select circumstances. See No. 09-01499 (HHK), 2010 U.S. Dist. LEXIS 142696, at *2 (D.D.C. Sep. 2, 28 2010). As neither party has persuaded the Court that it may consider their extra-pleading submissions, 1 must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts 2 “‘merely consistent with’ a defendant’s liability” do not demonstrate a plausible 3 entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). 4 Review under Rule 8(a) requires a context-specific analysis involving a court’s 5 “judicial experience and common sense.” Id. at 679. A court must “accept[] all factual 6 allegations in the complaint as true and constru[e] them in the light most favorable to the 7 nonmoving party.” Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 8 2012). That said, the Court need not accept as true “legal conclusions” contained in the 9 complaint. Iqbal, 556 U.S. at 678. 10 If a complaint does not state a plausible claim for relief, a court should grant leave 11 to amend unless it determines that no modified contention “consistent with the challenged 12 pleading could . . . cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 13 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 14 806 F.2d 1393, 1401 (9th Cir. 1986)). “The Ninth Circuit has instructed that the policy 15 favoring amendments ‘is to be applied with extreme liberality.’” Abels v. JBC Legal Grp., 16 P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting Morongo Band of Mission Indians v. 17 Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). 18 DISCUSSION 19 Plaintiffs’ central contention is that Defendant has unreasonably delayed the final 20 adjudication of Hosseini’s visa application in violation of 5 U.S.C. § 706(1) and/or the 21 Mandamus Act. See Opp’n at 12–25. Defendant construes the Complaint as such. See, 22 e.g., Mot. at 5 & n.2. And nowhere in the Opposition do Plaintiffs (1) object to Defendant’s 23 characterization of the Complaint or (2) discuss claims based in other prongs of the APA. 24 Given Plaintiffs’ failure to defend claims other than those sounding in unreasonable delay, 25 the Court deems abandoned any potential claim under 5 U.S.C. § 706(2) (allowing courts 26 / / / 27 / / / 28 / / / 1 to set aside, for enumerated reasons, final agency action). See Rashidian v. Garland, No. 2 CV 1:23-1187 (ACR), 2024 WL 1076810, at *9 (D.D.C. Mar. 8, 2024) (finding that the 3 plaintiff forfeited any § 706(2)(A) claim in identical circumstances); Bortz v. JPMorgan 4 Chase Bank, N.A., No. 21-CV-618 TWR (DEB), 2022 WL 1489832, at *7 (S.D. Cal. May 5 10, 2022), aff’d, No. 22-55582, 2023 WL 4700640 (9th Cir. July 24, 2023). The Court 6 thus addresses only Plaintiffs’ claims under § 706(1) and the Mandamus Act. 7 For the reasons that follow, the Court concludes that Plaintiffs have not stated a 8 plausible claim for relief under either statute. 9 I. Interaction between the APA and Mandamus Act 10 Section 706(1) of the APA allows courts to “compel agency action unlawfully 11 withheld or unreasonably delayed.”5 5 U.S.C. § 706(1). “[A] court may compel [delayed] 12 agency action under the APA when the agency (1) has ‘a clear, certain, and mandatory 13 duty’ and (2) has unreasonably delayed in performing such duty.” Vaz v. Neal, 33 F.4th 14 1131, 1136 (9th Cir. 2022) (citations omitted) (quoting Plaskett v. Wormuth, 18 F.4th 1072, 15 1082 (9th Cir. 2021)). 16

17 4 Even if Plaintiffs had not forfeited such a claim, the Court would dismiss it on the merits, as Plaintiffs 18 have not specified what final agency action they would like the Court to “set aside.” See 5 U.S.C. § 706(2); Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946 F.3d 615, 620 (D.C. Cir. 2020). This flaw is 19 apparent in two respects. First, because Defendant has not yet finally adjudicated Hosseini’s application, 20 see Compl. ¶¶ 5, 37, 41; there is no final agency action with respect to Hosseini’s application for Plaintiffs to challenge under § 706(2). Lee v. Blinken, No. 23-CV-1783 (DLF), 2024 WL 639635, at *7 (D.D.C. 21 Feb. 15, 2024). Second, to the extent Plaintiffs seek to challenge some other form of final agency action— e.g., a regulation—that might be contributing to the alleged delay, the Complaint fails to identify said 22 action. The Complaint’s conclusory reference to Department “policies, procedures, and practices,” Compl. ¶ 82, is insufficient. See, e.g., Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1318–21 (S.D. 23 Cal. 2018) (dismissing § 706(2) claim based on the complaint’s failure to plausibly identify a written or 24 unwritten policy constituting final agency action).

25 5 “[A]n action is ‘unlawfully withheld’ if ‘Congress has specifically provided a deadline for performance’ and the agency has not met that deadline.” Alaska Indus. Dev. & Exp. Auth. v. Biden, No. 3:21-CV-00245- 26 SLG, 2023 WL 5021555, at *27 (D. Alaska Aug. 7, 2023) (quoting Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002)); see also Oregon Nat. Desert Ass’n v. Bushue, 644 F. Supp. 3d 27 813, 838–39 (D. Or. 2022). Plaintiffs concede “there is no deadline” by which Defendant must issue a 28 decision on Hosseini’s application. See Opp’n at 13, 17, 22. So, Plaintiffs cannot state a claim for 1 Relatedly, to compel governmental action under the Mandamus Act, a court must 2 find that “(1) the plaintiff’s claim is clear and certain; (2) the duty is ‘ministerial and so 3 plainly prescribed as to be free from doubt’; and (3) no other adequate remedy is available.” 4 Or. Nat. Res. Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995) (internal quotation 5 marks omitted) (quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)). 6 The Ninth Circuit has recognized that the relief sought under the Mandamus Act and 7 under § 706(1) of the APA is “essentially the same.” Indep. Mining Co. v. Babbitt, 105 8 F.3d 502, 507 (9th Cir. 1997). So, “when a complaint seeks relief under the Mandamus 9 Act and the APA and there is an adequate remedy under the APA, [a court] may elect to 10 analyze the APA claim only.” Vaz, 33 F.4th at 1135. Here, the APA offers the exact 11 remedy Plaintiffs seek under the Mandamus Act—the compulsion of unreasonably delayed 12 agency action. The Court will thus analyze Plaintiffs’ APA claim only. See Shahijani v. 13 Laitinen, No. 223CV03967RGKMRW, 2023 WL 6889774, at *2 (C.D. Cal. Oct. 6, 2023) 14 (“Where, as here, a plaintiff seeks identical relief under the APA and the Mandamus Act, 15 courts routinely elect to analyze both claims under the APA only.”). If Plaintiffs’ APA 16 claim fails, their claim under the Mandamus Act fails as well. See Vaz, 33 F.4th at 17 1138–39. 18 The Court has subject matter jurisdiction over Plaintiffs’ APA claims pursuant to 19 28 U.S.C. § 1331. See id. at 1135. Whether Plaintiffs’ APA claim may proceed, therefore, 20 depends on whether it survives scrutiny under Rule 12(b)(6). See Plaskett, 18 F.4th at 1082 21 (“Any deficiencies as to the APA claim go to the merits of that cause of action rather than 22 to the subject matter jurisdiction of the court to consider it.”). 23 II. Mandatory Duty 24 Defendant first asserts the Department is not subject to a mandatory duty within the 25 meaning of the APA. Courts have split on the issue. 26 27 28 6 The Mandamus Act allows a district court to “compel an officer or employee of the United States or any 1 Some courts have found a non-discretionary duty to adjudicate nonimmigrant visa 2 applications to finality in 8 U.S.C. § 1202(d). See 8 U.S.C. § 1202(d) (stating in relevant 3 part that “[a]ll nonimmigrant visa applications shall be reviewed and adjudicated by a 4 consular officer”); Rai v. Biden, 567 F. Supp. 3d 180, 195 (D.D.C. 2021); Gomez v. Trump, 5 485 F. Supp. 3d 145, 198 n.23 (D.D.C. 2020); Anid Infosoft LLC v. Blinken, No. 1:22-CV- 6 4721-TWT, 2023 WL 7312488, at *4 (N.D. Ga. Nov. 3, 2023). Not all agree, however. 7 See, e.g., Mueller v. Blinken, No. 4:23-CV-24, 2023 WL 4759245, at *2–4 (E.D. Va. July 8 17, 2023) (declining to read a near-identical subsection governing immigrant visas—8 9 U.S.C. § 1202(b)—in this manner). 10 Other courts have found a similar mandatory duty under 22 C.F.R. § 41.121(a) 11 (requiring consular officers to issue or refuse nonimmigrant visas) and/or 22 C.F.R 12 § 41.106 (requiring consular officers to process visa application forms “properly and 13 promptly”). See, e.g., Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400, 421 14 (S.D.N.Y. 2006); Vulupala v. Barr, 438 F. Supp. 3d 93, 100 (D.D.C. 2020). This approach 15 also has its detractors, though. See, e.g., Sawahreh v. U.S. Dep’t of State, 630 F. Supp. 3d 16 155, 157 (D.D.C. 2022) (noting 22 C.F.R. § 41.121(a) requires consular officers only to 17 “make an initial, rather than a final, determination about an applicant’s visa eligibility”); 18 Senobarian v. Blinken, No. 223CV07208ODWMAAX, 2024 WL 897566, at *3 (C.D. Cal. 19 Feb. 29, 2024) (applying doctrine of consular nonreviewability to consular office’s alleged 20 refusal for administrative processing). 21 Finally, many courts have discerned from 5 U.S.C. § 555(b) a general, 22 nondiscretionary duty for administrative agencies to “pass upon a matter presented to 23 [them]” within a reasonable time. See, e.g., Khazaei v. Blinken, No. CV 23-1419 (JEB), 24 2023 WL 6065095, at *6 (D.D.C. Sept. 18, 2023); Iqbal v. Blinken, No. 25 223CV01299KJMKJN, 2023 WL 7418353, at *7 (E.D. Cal. Nov. 9, 2023). These courts 26 reason that visa applications constitute discrete matters upon which the Department—an 27 agency—must pass. 28 / / / 1 Defendant fails to address any of the above three approaches. Instead, Defendant 2 contends that because the Department is not subject to “statutory or regulatory provisions 3 that mandate time limits for consular processing,” it is not subject to a mandatory duty 4 within the meaning of 5 U.S.C. § 706(1). Reply at 2 (emphasis added). But a mandatory 5 duty to act may exist without a mandatory deadline. If that were not so, § 706(1)’s 6 unreasonable-delay prong would be superfluous; in contrast to actions alleging unlawful 7 withholding, actions alleging unreasonable delay by definition involve situations where an 8 agency has a mandatory duty, but has not violated a mandatory deadline. See Bushue, 644 9 F. Supp. 3d at 838–845 (denying relief under § 706(1)’s “unlawfully withheld” prong 10 because the agency was not subject to a binding deadline, but nevertheless providing relief 11 under 706(1)’s “unreasonable delay” prong). 12 Setting Defendant’s failure to engage with relevant precedent aside, the Court need 13 not resolve the issue. Assuming a mandatory duty exists, Plaintiffs have not plausibly 14 alleged unreasonable delay. 15 III. Unreasonable Delay 16 To determine whether an agency has performed its duty within a reasonable time, 17 the Ninth Circuit “use[s] the TRAC factors—the six-factor balancing test announced in 18 Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 19 1984) (“TRAC”).” Vaz, 33 F.4th at 1137. These factors include: 20 (1) the time agencies take to make decisions must be governed by a “rule of reason[”;] 21 (2) where Congress has provided a timetable or other indication 22 of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 23 this rule of reason; 24 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are 25 at stake; 26 (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; 27 (5) the court should also take into account the nature and extent 28 of the interests prejudiced by delay; and 1 (a6g)e nthcye cloaussritt undeee d inn oto r“dfeinr d toan yh oimldp rtohparti eatyg elnucryk inagc tbioenh inids 2 ‘unreasonably delayed.’” 3 4 Id. (alterations in original) (quoting TRAC, 750 F.2d at 80). Though the first factor is “[t]he 5 most important[,] . . . it, like the others, is not itself determinative.” In re A Cmty. Voice, 6 878 F.3d 779, 786 (9th Cir. 2017). A Court should compel action under the TRAC factors 7 only when the agency’s failure to respond is “so egregious” as to warrant relief. TRAC, 8 750 F.2d at 79. 9 Plaintiffs urge the Court to reserve application of the TRAC factors until Plaintiffs 10 have had the opportunity for discovery. See Opp’n at 15–16. True, some courts have 11 recognized that “[a] claim of unreasonable delay is necessarily fact dependent and thus sits 12 uncomfortably at the motion to dismiss stage and should not typically be resolved at that 13 stage.” Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 451 (6th Cir. 2022) 14 (internal quotation marks omitted) (quoting Gonzalez v. Cuccinelli, 985 F.3d 357, 375 (4th 15 Cir 2021)). But plaintiffs in visa-application cases must nevertheless plausibly allege 16 unreasonable delay under the TRAC factors to survive a motion to dismiss. See Da Costa 17 v. Immigr. Inv. Program Off., 80 F.4th 330, 338–40 (D.C. Cir. 2023) (affirming dismissal, 18 under Rule 12(b)(6), of lawsuits alleging that decisions on visa-related petitions had not 19 been issued after approximately four years); Shahijani, 2023 WL 6889774, at *3; Fangfang 20 Xu v. Cissna, 434 F. Supp. 3d 43, 52–53 (S.D.N.Y. 2020). Indeed, authorizing discovery 21 without such a showing would “lead to a substantial imposition on the Government” given 22 “the surfeit of lawsuits challenging delays in processing visa applications.” Rashidi v. U.S. 23 Dep’t of State, No. CV 23-1569 (JEB), 2023 WL 6460030, at *7 (D.D.C. Oct. 4, 2023). 24 Accordingly, the Court will proceed to evaluate the TRAC factors. In the visa 25 context, the “considerations contemplated by the TRAC factors can be grouped into four 26 basic inquiries”: 27 “First, is there any rhyme or reason—congressionally prescribed or otherwise—for [an agency]’s delay (factors one and two)? 28 1 Scoemcopnedl ,t wheh [aat gaerne ctyh]e tcoo ancste (qfuaecntocress tohfr edee laanyd i ffi tvhee) ?C o[Turhti rddo]e, sh noowt 2 might forcing the agency to act thwart its ability to address other 3 priorities (factor four)?” Finally, is the delay intentional or due to any impropriety on the part of the agency (factor six)? 4 5 Sawahreh, 630 F. Supp. 3d at 161 (alterations in original and citation omitted) (quoting 6 Ctr. for Sci. in the Pub. Int. v. U.S. Food & Drug Admin., 74 F. Supp. 3d 295, 300 (D.D.C. 7 2014). 8 1. Factor One: Rule of Reason 9 “In the context of a . . . visa application, the first factor requires courts to consider 10 both the length of the delay and the reasons for the delay.” Shahijani, 2023 WL 6889774, 11 at *3. As noted in Tate v. Pompeo, 12 Whether a “rule of reason” exists for agency action “cannot be decided in the abstract, by reference to some number of months 13 or years beyond which agency inaction is presumed to be 14 unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the 15 outcome, and the resources available to the agency.” 16 17 513 F. Supp. 3d 132, 148 (D.D.C. 2021) (alteration in original) (quoting Mashpee 18 Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)). 19 Where visa applications are concerned, courts often begin with the length of delay, 20 turning to precedent to determine whether a delay’s length renders it plausibly 21 unreasonable. See, e.g., Sawahreh, 630 F. Supp. 3d at 162; Sha v. Blinken, No. 2:23-CV- 22 05126-SVW-AS, 2023 WL 9379189, at *4 (C.D. Cal. Dec. 15, 2023). Here, Plaintiffs filed 23 the Complaint approximately nine months after Hosseini’s application was placed in 24 administrative processing, and this litigation has now been pending for approximately five 25 months. This fourteen-month administrative-processing-related delay is comparable to 26 those considered insufficient to state a plausible claim for relief in analogous cases. See, 27 e.g., Shahijani, 2023 WL 6889774, at *4 (eight-month delay); Davila v. Cohan, No. 23- 28 CV-1532 JLS (BLM), 2024 WL 711618, at *7 (S.D. Cal. Feb. 21, 2024) (ten-month delay); 1 Sawahreh, 630 F. Supp. 3d at 162 (fifteen-month delay); Sharifymoghaddam v. Blinken, 2 No. 23-CV-1472-RCL, 2024 WL 939991, at *5 (D.D.C. Mar. 5, 2024) (same); Fakhimi v. 3 Dep’t of State, No. CV 23-1127 (CKK), 2023 WL 6976073, at *8 (D.D.C. Oct. 23, 2023) 4 (eighteen-month delay). And other courts have deemed much longer delays reasonable. 5 See Yavari v. Pompeo, No. 2:19-CV-02524-SVW-JC, 2019 WL 6720995, at *8 (C.D. Cal. 6 Oct. 10, 2019) (noting immigration delays in excess of five, six, or seven years are 7 generally found unreasonable, those between three and five years are often found 8 reasonable, and that delay of “slightly more than a year is drastically short of what 9 constitutes an unreasonable delay”); Islam v. Heinauer, 32 F. Supp. 3d 1063, 1071 10 (N.D. Cal. 2014) (“In this district, courts have generally found delays of four years or less 11 not to be unreasonable.”); Nusrat v. Blinken, No. CV 21-2801 (TJK), 2022 WL 4103860, 12 at *6 & n.6 (D.D.C. Sept. 8, 2022) (explaining courts generally measure delay from the 13 last government action to the issuance of the court’s opinion and dismissing claim for 14 unreasonable delay where the visa application remained in administrative processing for 15 thirty-two months).7 16 Plaintiffs seek to distinguish many cases on grounds that they were decided during 17 the height of the pandemic. Sharifymoghaddam, however, was decided approximately one 18 month ago, and Yavari entirely predates the pandemic. Moreover, Skalka—another 19 immigration-related case predating the pandemic—found that an approximately two-year 20 delay “does not typically require judicial intervention.” 246 F. Supp. 3d at 154. The 21 cessation of pandemic-related operational hindrances, therefore, does not change the 22 Court’s conclusion that the length of delay in this case is not egregious. 23 Length of delay alone, however, is not dispositive—the Court must also consider the 24 reasons behind the delay. The Complaint alleges that after the interview, the Department 25

26 7 Even if the Court were to measure delay from the date Infracost submitted its petition, the Court’s 27 analysis would not change. Infracost filed the petition on behalf of Hosseini approximately seventeen 28 months ago, see Compl. ¶ 2, which still falls well within the time range generally considered reasonable 1 requested additional information from Hosseini. Compl. ¶ 40. So, this is not a case where 2 there is no identifiable rationale behind Defendant’s delay; the Department appears to have 3 needed additional information to reach a decision. Moreover, the decision to grant a visa 4 frequently implicates “‘relations with foreign powers[]’ or involve[s] ‘classifications 5 defined in the light of changing political and economic circumstances,’” Didban v. 6 Pompeo, 435 F. Supp. 3d 168, 176 (D.D.C. 2020) (internal quotation marks omitted) 7 (quoting Trump v. Hawaii, 585 U.S. 667, 702 (2018)). The Court thus recognizes that 8 making a final determination on a visa application implicates complex matters that fall 9 outside of courts’ typical expertise. See Qureshi v. Napolitano, No. C-11-05814-YGR, 10 2012 WL 2503828, at *4 (N.D. Cal. June 28, 2012) (noting courts consider the complexity 11 of the agency investigation when determining whether a delay is reasonable). Given the 12 sensitive nature of the visa determination, a delay to process additional information about 13 an applicant is not facially unreasonable. See Barazandeh v. U.S. Dep’t of State, No. CV 14 23-1581 (BAH), 2024 WL 341166, at *8 (D.D.C. Jan. 30, 2024). 15 As the alleged delay in Plaintiffs’ case is within the range of delay considered 16 reasonable by courts in visa-application cases, and the cause of the delay does not appear, 17 from the Complaint, to lack reason, the first TRAC factor weighs strongly in Defendant’s 18 favor. 19 2. Factor Two: Congressional Timetable or Indication of Speed 20 The second TRAC factor asks whether Congress has provided “a timetable or other 21 indication of the speed with which it expects the agency to proceed in the enabling statute.” 22 TRAC, 750 F.2d at 80. Plaintiffs argue that this factor favors them, as 8 U.S.C. § 1571(b) 23 states: “It is the sense of Congress that the processing of an immigration benefit application 24 should be completed not later than 180 days after the initial filing of the application . . . .” 25 Because the Ninth Circuit has held that similar “sense of Congress” language is 26 “non-binding, legislative dicta,” Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 961–62 27 (9th Cir. 1999), multiple courts have refused to weigh the second TRAC factor in favor of 28 visa applicants based on § 1571(b). See, e.g., Shahijani, 2023 WL 6889774, at *4; Ortiz v. 1 U.S. Dep’t of State, No. 1:22-CV-00508-AKB, 2023 WL 4407569, at *7–8 (D. Idaho July 2 7, 2023). Other courts, however, have recognized that statutory timelines referenced by 3 Congress, even if aspirational, are due some weight in the TRAC analysis. See, e.g., Da 4 Costa, 80 F.4th at 344. The Court agrees with these latter courts. 5 The weight accorded this factor, however, is slim. See id. (declining to give 6 significant weight to factor two as “the delay has not reached the level of disproportionality 7 [the D.C. Circuit has] previously held sufficient to grant relief”). Indeed, “a contrary 8 conclusion would ignore ‘the overwhelming caselaw rejecting unreasonable delay 9 challenges for applications pending well beyond the 180-day window that Congress 10 contemplated in 8 U.S.C. § 1571(b).’” Ortiz, 2023 WL 4407569, at *7 (quoting 11 Mohammad v. Blinken, 548 F. Supp. 3d 159, 167 (D.D.C. 2021)). 12 3. Factors Three and Five: Nature of Interest Prejudiced by Delay and 13 Whether Health and Human Welfare Are at Stake. 14 Factors three and five—concerning the impact of the delay on Plaintiffs—also help 15 Plaintiffs, but again only slightly. The Court is sympathetic to the anxiety Hosseini is 16 experiencing as this delay continues, see Compl. ¶ 59, and recognizes that Hosseini’s 17 career—and his company—would likely benefit from Hosseini’s in-person presence. See 18 Compl. ¶¶ 57–58. That said, these “financial harms . . . , along with the uncertainty that 19 results any time an individual must continue to wait to secure a benefit, are insufficient to 20 tip TRAC factors three and five in [Plaintiffs’] favor.” Da Costa, 80 F.4th at 345; see also 21 Sharifymoghaddam, 2024 WL 939991, at *6 (recognizing impact of delay on plaintiffs’ 22 career progression, but nevertheless concluding factors three and five are “only slightly 23 beneficial to plaintiffs” because “the alleged adverse effects are relatively minor compared 24 to other employment visa applicants”). 25 4. Factor Four: Effect on Competing Priorities 26 Factor four—whether compelling the agency to act would detract from its higher or 27 competing priorities—weighs strongly in Defendant’s favor. In Vaz, the Ninth Circuit 28 affirmed summary judgment over a plaintiff’s claim of unreasonable delay with respect to 1 an Executive Office for Immigration Review (“EOIR”) investigation, reasoning that, 2 The EOIR has limited resources and has hundreds of pending complaints, many of which were received before [the plaintiff] 3 filed his complaint and presumably some of which the EOIR has 4 determined merit priority. Requiring the EOIR to investigate [the plaintiff]’s complaint would interfere with the EOIR’s 5 discretion in prioritizing its activities and allocating its resources. 6 7 33 F.4th at 1138. In so holding, the Ninth Circuit cited In re Barr Lab’ys, Inc., 930 F.2d 72, 8 75–76 (D.C. Cir. 1991). There, the D.C. Circuit denied relief under the TRAC factors, even 9 though other factors favored relief, when ordering relief would place the petitioner at the 10 head of a queue of agency adjudications without producing a net gain. Id. 11 In numerous cases involving visa applications, courts have applied Barr and 12 concluded that the fourth TRAC factor weighs strongly in favor of the government at the 13 12(b)(6) stage. These courts reason that expediting plaintiffs’ applications would 14 “necessarily come ‘at the expense of other similarly situated applicants.’” Da Costa, 80 15 F.4th at 344 (quoting Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 192 (D.C. Cir. 2016)); see 16 also Skalka, 246 F. Supp. 3d at 154 (concluding processing of visa applications is “the very 17 type of agency action . . . that if compelled would presumably delay other adjudications”). 18 So too where plaintiffs have alleged post-interview delay related to administrative 19 processing. E.g., Shahijani, 2023 WL 6889774, at *5; Davila, 2024 WL 711618, at *8; 20 Sha, 2023 WL 9379189, at *5. 21 Plaintiffs point out that Defendant “has not shown there would be any undue burden 22 on agency resources by ‘expediting’ action on [Hosseini’s] case” and “has provided no 23 evidence as to how many . . . applications have been pending longer than [Hosseini’s] 24 application.” Opp’n at 23. This argument ignores, however, that Plaintiffs must state a 25 plausible claim for relief under the TRAC factors before they can compel discovery from 26 Defendant. Moreover, “one need not unearth the details of the visa-adjudication process 27 at [embassies] and elsewhere to surmise that the relief Plaintiffs seek would reorder 28 [Department] priorities. That outcome is obvious ‘[w]here the agency action sought is one 1 of many similar adjudications that the agency must complete.’” Rashidi, 2023 WL 2 6460030, at *6 (alteration in original) (quoting Skalka, 246 F. Supp. 3d at 153). 3 As Plaintiffs’ requested relief would necessarily (1) impact the processing of 4 similarly situated applicants and (2) reorder Department priorities, factor four strongly 5 favors Defendant. 6 5. Factor Six: Agency Impropriety 7 The sixth factor—which concerns impropriety by the agency—is neutral. As TRAC 8 emphasized that plaintiffs need not assert impropriety to prevail, the absence of impropriety 9 does not weigh against Plaintiffs. 750 F.2d at 80. But neither does the sixth factor weigh 10 in Plaintiffs’ favor. Plaintiffs contend that the mere existence of the delay—and the 11 absence of efforts by Defendant to either expedite Hosseini’s application or provide a 12 substantial update—itself constitutes “extreme bad faith.” Opp’n at 25. This argument 13 misunderstands factor six, which focuses on not on the delay itself, but whether the reason 14 behind the delay is improper (e.g., intentional, motivated by animus). See Sawahreh, 630 15 F. Supp. 3d at 164; Pub. Citizen Health Rsch. Grp. v. Comm’r, Food & Drug Admin., 740 16 F.2d 21, 34 (D.C. Cir. 1984) (implying impropriety—in the form of industry pressure— 17 played a role in the agency’s delay). The Complaint does not plausibly allege such 18 impropriety. See Milligan v. Pompeo, 502 F. Supp. 3d 302, 320 (D.D.C. 2020) (noting that 19 criticism of the defendants “efforts and prioritization” does not constitute allegations of 20 impropriety); Babaei v. U.S. Dep’t of State, No. CV 23-1244 (TJK), 2024 WL 1178453, at 21 *8 (D.D.C. Mar. 19, 2024) (rejecting argument that length of delay creates an appearance 22 of impropriety). 23 In sum, based on Plaintiffs’ allegations, the Court finds that Plaintiffs have not 24 plausibly alleged unreasonable delay. The length of the alleged delay has not yet 25 approached that of delays considered unreasonable by courts, Plaintiffs’ allegations do not 26 suggest that the delay lacks reason, and granting Plaintiffs’ requested relief would both 27 infringe on Defendant’s ability to prioritize Department resources and affect the processing 28 of other applicants. At this stage, these considerations are dispositive. Consequently, the 1 || Court DISMISSES Plaintiffs’ claim for unreasonable delay under the APA and Plaintiffs’ 2 claim under the Mandamus Act. 3 The Court does not take lightly, however, the impact of this delay on Plaintiffs. 4 || Though judicial intervention is not warranted at this juncture, the Court’s calculus could 5 change if the delay continues for a more extended period. 6 CONCLUSION 7 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 8 (ECF No. 4). As the Court concludes that no amendment consistent with Plaintiffs’ 9 || Complaint would change the Court’s conclusion regarding unreasonable delay at this time, 10 Court DISMISSES Plaintiffs’ Complaint WITHOUT LEAVE TO AMEND. See 11 || Shahijani, 2023 WL 6889774, at *5; see also Order, Da Costa v. Immigr. Inv. Program 12 || Off., No. 22-1576 (JEB) (D.D.C. 2022), ECF No. 16 (dismissing entire unreasonable-delay 13 action, without mention of leave to amend, after granting the defendants’ motion to 14 || dismiss), aff'd, 80 F.4th 330 (D.C. Cir. 2023). This dismissal, however, is WITHOUT 15 PREJUDICE to refiling should later circumstances demonstrate an unreasonable delay. 16 || See id. As this concludes the litigation in this matter, the Clerk of the Court SHALL 17 || CLOSE the file. 18 IT IS SO ORDERED. 19 ||Dated: April 30, 2024 jae L. Lo memeaite- 00 on. Janis L. Sammartino United States District Judge

22 23 24 25 26 27 28