1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SHREYA KAPOOR, YASH PAL GARG, Case No. 21-cv-01961-BLF and REVA GARG, 8 Plaintiffs, ORDER GRANTING DEFENDANT’S 9 MOTION FOR SUMMARY v. JUDGMENT 10 ANTONY BLINKEN, [Re: ECF 25] 11 Defendant. 12 13 Plaintiffs seek to compel Defendant Antony Blinken, the United States Secretary of State, 14 to adjudicate the immigrant visa applications of Plaintiffs Yash Pal Garg (“Yash”) and Reva Garg 15 (“Reva”), who are nationals of India.1 The applications were filed by Yash and Reva’s daughter, 16 Plaintiff Shreya Kapoor, who is a United States citizen. The applications had been pending for 17 less than a year when Plaintiffs filed the present suit, claiming that Defendant has unreasonably 18 delayed in adjudicating the applications. Plaintiffs seek relief under the Mandamus Act, 28 U.S.C. 19 § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. 20 Defendant moves for summary judgment, asserting that the delay in adjudicating the 21 applications is not unreasonable, particularly in light of the COVID-19 pandemic. Defendant 22 argues that even before the pandemic, the Ninth Circuit routinely found that lengthier delays are 23 not unreasonable. 24 Having considered the parties’ written submissions and the oral argument presented at 25 hearings on October 28, 2021 and November 18, 2021, the Court GRANTS Defendant’s motion 26 for summary judgment. 27 1 I. BACKGROUND2 2 Overview of Immigrant Visa Processing 3 A foreign citizen who wishes to live permanently in the United States must obtain an 4 immigrant visa. See Jeu Decl. Exh. A., ECF 25-4. Immigrant visa applications are processed by 5 the National Visa Center (“NVC”), which is part of the United States Department of State (“State 6 Department”). See Austin Decl. ¶¶ 1-4, 25-2. The NVC ensures that all fees have been paid and 7 that each application is “documentarily complete,” meaning that all required documents have been 8 submitted. See id. Once an application is documentarily complete, the NVC schedules an 9 appointment for the beneficiary of the application to appear for an interview at a United States 10 embassy or consulate overseas. See id. ¶ 4. Each post regularly reports to the NVC how many 11 total visa interview appointments it can accommodate. See id. ¶ 3. Based on that information, the 12 NVC schedules visa interviews at each post. See id. Where the demand for interviews exceeds 13 the post’s capacity, the order of interviews is determined by the date each application became 14 documentarily complete. See id. ¶ 4. Once an interview is scheduled, the NVC sends an 15 appointment letter to the beneficiary and sends the case file to the embassy or consulate. See id. 16 Backlog of Immigrant Visa Applicants Waiting for Interviews 17 The NVC’s ability to process visa applications and schedule interviews has been severely 18 impacted by the COVID-19 pandemic. The State Department suspended all routine visa services, 19 including visa interviews, on March 20, 2020. See Austin Decl. ¶ 7. The State Department began 20 a phased resumption of routine visa services in July 2020. See id. However, embassies and 21 consulates have not been able to process as many immigrant visa applicants during the COVID-19 22 pandemic as were processed prior to the pandemic. See id. ¶ 8. Many posts’ staffing levels have 23 been affected by employees’ illnesses, absence to care for family members, or mandatory 24 quarantine after possible exposure to the virus. See Marwaha Decl. ¶ 4, ECF 25-1. The number of 25 people who can safely be at a post on any given day has been drastically reduced due to COVID- 26 19 safety measures. See id. 27 1 Moreover, former President Donald Trump issued Presidential Proclamation 10014 2 (“Proclamation 10014”) on April 22, 2020, suspending “entry into the United States of aliens as 3 immigrants” for several categories of visa applicants. Proc. 10014, 85 FR 23441. Proclamation 4 10014 was revoked on February 24, 2021, see Proc. 10149, 86 FR 11847, but while it was in 5 effect it restricted issuance of visas to several categories of immigrant applicants, including “IR-5” 6 visas to parents of United States citizens of at least twenty-one years of age, see Grewe Decl. ¶ 6, 7 ECF 42-1. 8 These events contributed to a significant backlog of applicants waiting for immigrant visa 9 appointments. In January 2020, there were approximately 75,000 documentarily qualified 10 applicants worldwide who were waiting to be scheduled for in-person interviews. See Marwaha 11 Decl. ¶ 4. By May 31, 2021, that number had climbed to 536,541. See id. 12 State Department’s Guidance for Prioritizing Immigrant Visa Applications 13 On November 12, 2020, the State Department issued guidance that prioritizes four 14 categories of immigrant visa applications. See Jeu Decl. Exh. F, ECF 25-4. Highest priority is 15 given to immediate relative adoption visas, age-out cases, and Special Immigrant Visas for Afghan 16 and Iraqi nationals working with the U.S. government (Tier One). See id. Immediate relative visa 17 applicants and K-1 fiancées are in Tier Two. See id. Family preference immigrant visa applicants 18 are in Tier Three. See id. All other immigrant visas, including employment preference and 19 diversity visas, are in Tier Four. See id. The State Department’s guidance directs embassies and 20 consulates to accommodate as many Tier Two cases as possible. See id. However, the guidance 21 also directs posts to schedule and adjudicate some cases in Tiers Three and Four each month. See 22 id. 23 Plaintiffs’ Immigrant Visa Applications 24 Reva’s application was filed on May 13, 2020 and was documentarily complete on July 21, 25 2020. See Kapoor Decl. ¶ 6, ECF 27-1; Austin Decl. ¶ 13. Yash’s application was filed on June 26 8, 2020 and was documentarily complete on August 3, 2020. See Kapoor Decl. ¶ 7; Austin Decl. ¶ 27 13. As immediate relatives of a U.S. citizen, Yash and Reva’s applications are under Tier 2 of the 1 U.S. citizen who is at least 21 years old, Yash and Reva’s visa applications are “IR-5” 2 applications. See Jeu Decl. Exh. B, ECF 25-4. 3 Reva and Yash were assigned Mumbai, India as their processing post, which corresponds 4 to their place of residence. See Austin Decl. ¶ 12. Post Mumbai has been hit hard by the 5 COVID-19 pandemic. See Marwaha Decl. ¶¶ 7-8. When visa services were suspended worldwide 6 in March 2020, post Mumbai cancelled approximately 600 IR-5 visa interviews. See Austin Decl. 7 ¶ 12. Upon the resumption of visa services in July 2020, post Mumbai first re-scheduled those 8 visa interviews that were cancelled in Spring 2020. See id. 9 When Proclamation 10014 was revoked in February 2021, post Mumbai also began 10 scheduling new appointments for all the IR-5 applicants whose applications became 11 documentarily complete while Proclamation 10014 was in effect. See Austin Decl. ¶ 12. 12 Unfortunately, worsening health conditions in India caused post Mumbai to suspended visa 13 services for a second time in April 2021. See id. Post Mumbai canceled several hundred 14 immigrant visa interviews, many of which had been rescheduled from Spring 2020. See id. When 15 visa services resumed at post Mumbai, the focus was on rescheduling previously cancelled 16 interviews. See id.; see also Marwaha Decl. ¶ 8. 17 Reva and Yash have not yet been scheduled for visa interviews. Reva will be scheduled 18 for an interview ahead of all other IR-5 cases for post Mumbai that were documentarily complete 19 after July 21, 2020, and Yash will be scheduled for an interview ahead of all other IR-5 cases for 20 post Mumbai that were documentarily complete after August 3, 2020. See Austin Decl. ¶ 13. 21 This Action 22 Plaintiffs filed the present action on March 19, 2021. The complaint contains two claims, 23 the first for a writ of mandamus and the second for declaratory relief under the APA. Plaintiffs 24 seek the same relief under these two alternative theories: “an order compelling the Defendant and 25 those acting under him to perform their duty to complete all steps necessary to adjudicate 26 Plaintiffs’ immigrant visa applications, including any pending background checks and the 27 interview, within twenty-one (21) days of the order.” Compl. Prayer ¶¶ B-C. 1 II. LEGAL STANDARD 2 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 4 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 5 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 6 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 7 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 8 proof at trial, the moving party need only prove that there is an absence of evidence to support the 9 non-moving party’s case.” Id. 10 “Where the moving party meets that burden, the burden then shifts to the non-moving 11 party to designate specific facts demonstrating the existence of genuine issues for trial.” Oracle, 12 627 F.3d at 387. “[T]he non-moving party must come forth with evidence from which a jury 13 could reasonably render a verdict in the non-moving party’s favor.” Id. “The court must view the 14 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 15 nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. “‘Where the record taken as a whole 16 could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 17 trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 18 (1986)). 19 III. DISCUSSION 20 Plaintiffs seek relief under the Mandamus Act and the APA. “In a mandamus action, 21 district courts may ‘compel an officer or employee of the United States or any agency thereof to 22 perform a duty owed to the plaintiff.’” R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 (9th 23 Cir. 1997) (quoting 28 U.S.C. § 1361). In an action under the APA, “a court may compel ‘agency 24 action unlawfully withheld or unreasonably delayed.’” Id. (quoting 5 U.S.C. § 706(1)). The Ninth 25 Circuit has “recognized that mandamus relief and relief under the APA are ‘in essence’ the same.” 26 Id. Thus, where a claim is brought under both the Mandamus Act and the APA, the court may 27 elect to evaluate it under the APA. See id. 1 claims of agency delay brought under the APA.” Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 2 (9th Cir. 1997). The TRAC factors were articulated by the D.C. Circuit in Telecommunications 3 Research & Action v. F.C.C. (“TRAC”) 750 F.2d 70, 79-80 (D.C. Cir. 1984), and subsequently 4 adopted by the Ninth Circuit. See Babbitt, 105 F.3d at 506-07. The TRAC factors are:
5 (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 6 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 7 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 8 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 9 prejudiced by the delay[;] and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably 10 delayed. 11 Babbitt, 105 F.3d at 507 n.7 (quotation marks and citation omitted). 12 A. First TRAC Factor: Rule of Reason 13 The Ninth Circuit has held then when considering the TRAC factors, “[t]he most important 14 is the first factor, the ‘rule of reason,’ though it, like the others, is not itself determinative.” In re 15 A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). The gist of the rule of reason inquiry is 16 “whether there is any rhyme or reason for the Government’s delay – in other words, whether the 17 agency’s response time . . . is governed by an identifiable rationale.” Poursohi v. Blinken, No. 21- 18 CV-01960-TSH, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) (quotation marks and 19 citation omitted). When the alleged delay involves the processing of an immigrant visa 20 application, district courts have examined both the length of the delay and the reasons for the 21 delay. See id. at *4-7 (collecting cases). 22 Reva’s visa application was filed on May 13, 2020 and was documentarily complete on 23 July 21, 2020. See Kapoor Decl. ¶ 6; Austin Decl. ¶ 13. Yash’s visa application was filed on June 24 8, 2020 and was documentarily complete on August 3, 2020. See Kapoor Decl. ¶ 7; Austin Decl. ¶ 25 13. Plaintiffs filed this suit on March 19, 2021, at which time the applications had been pending 26 for less than one year, Reva had been eligible for an interview for approximately eight months, 27 and Yash had been eligible for an interview for approximately seven months. See Compl., ECF 1. 1 and she has been eligible for an interview for approximately eighteen months. Yash’s application 2 has been pending for approximately nineteen months and he has been eligible for an interview for 3 approximately seventeen months. 4 In the immigration context, numerous district courts within the Ninth Circuit have found 5 that lengthier delays were not unreasonable. See, e.g., Zhang v. Cissna, No. 18-cv-09696-MWF, 6 2019 WL 3241187, at *5 (C.D. Cal. Apr. 25, 2019) (Four-year delay in processing asylum 7 application was not unreasonable); Ou v. Johnson, No. 15-cv-03936-BLF, 2016 WL 7238850, at 8 *3 (N.D. Cal. Feb. 16, 2016) (“[C]ourts in this district have generally found delays of four years or 9 less not to be unreasonable under the APA.”); Beyene v. Napolitano, No. 12-CV-1149-WHA, 10 2012 WL 2911838, at *9 (N.D. Cal. July 13, 2012) (delay of nearly five years in adjudicating 11 plaintiff’s application for adjustment of immigration status was not unreasonable); Islam v. 12 Heinauer, No. C 10-04222 JSW, 2011 WL 2066661, at *8 (N.D. Cal. May 25, 2011) (point of 13 unreasonableness had “not yet come” after three-year delay for adjustment of status). 14 Several district courts have specifically addressed delays in processing immigrant visa 15 applications during the COVID-19 pandemic. Those courts uniformly have found that delays as 16 long or longer than those in this case were not unreasonable. See, e.g., Poursohi, 2021 WL 17 5331446, at *6-7 (eighteen-month delay in scheduling interview after visa application was 18 documentarily complete was not unreasonable in light of the impact of the COVID-19 pandemic); 19 Dastagir v. Blinken, No. 1:20-CV-02286 (TNM), 2021 WL 2894645, at *1 (D.D.C. July 9, 2021) 20 (considering impact of COVID-19 pandemic in finding no unreasonable delay where visa 21 application had been pending for five years and interview had been completed for twenty-nine 22 months without decision); Mohammad v. Blinken, No. 1:20-CV-03696 (TNM), 2021 WL 23 2866058, at *4 (D.D.C. July 8, 2021) (finding no unreasonable delay where visa application had 24 been pending for two years “given the circumstances” of the COVID-19 pandemic). 25 Plaintiffs’ reliance on Liang v. Att’y Gen. of U.S., No. C-07-2349 CW, 2007 WL 3225441 26 (N.D. Cal. Oct. 30, 2007), is misplaced. In Liang, the plaintiffs alleged that the U.S. Citizenship 27 and Immigration Services (“USCIS”) had unreasonably delayed in adjudicating their applications 1 of the Federal Bureau of Investigation (“FBI”) to complete a background check on one of the 2 plaintiffs that had been pending for two and a half years. See id. The Liang court found that delay 3 to be unreasonable based on several cases holding that “a delay of approximately two years or 4 longer due to an uncompleted FBI background check is unreasonable as a matter of law.” See id. 5 at *6. The present case does not involve USCIS or an FBI background check. Nor are Plaintiffs’ 6 claims supported by cases holding that similar delays were unreasonable as a matter of law. To 7 the contrary, the relevant cases set forth above held that similar delays were not unreasonable. 8 Defendant has presented substantial evidence that the COVID-19 pandemic has negatively 9 impacted the NVC’s ability to provide visa services both worldwide and at post Mumbai in 10 particular. See Austin Decl. ¶ 12; Marwaha Decl. ¶¶ 7-8. The State Department has tried to 11 address the resulting backlog by categorizing immigrant visa applications into four tiers. See Jeu 12 Decl. Exh. F. The State Department has prioritized visa applications for immediate relatives, 13 categorizing those applications as Tier Two. See id. Unfortunately, the NVC simply has not been 14 able to process immigrant visa applications quickly enough to clear the backlog. See Marwaha 15 Decl. ¶ 4. Moreover, Proclamation 10014 caused additional delay in processing IR-5 applications 16 such as those of Reva and Yash. See Grewe Decl. ¶ 6. This evidence is more than sufficient to 17 show that there is “rhyme or reason” for the delay in adjudicating Yash and Reva’s visa 18 applications. 19 Plaintiffs suggest that the delay in scheduling their interviews is not fully attributable to the 20 COVID-19 pandemic and that discovery is required because the source of the delay is “largely 21 unknown.” Opp. at 15, ECF 27. Federal Rule of Civil Procedure 56(d) provides a mechanism by 22 which the nonmoving party may request additional time to take discovery necessary to oppose a 23 motion for summary judgment. See Fed. R. Civ. P. 56(d). The nonmoving party must “show[ ] by 24 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 25 opposition.” Id. Plaintiffs have not filed a motion for continuance under Rule 56(d). To the 26 extent that Plaintiffs intended to make such a motion in their opposition brief and during oral 27 argument, Plaintiffs have not made an adequate showing that discovery is warranted. “The burden 1 sought exists, and that it would prevent summary judgment.” Chance v. Pac-Tel Teletrac Inc., 2 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). Plaintiffs offer nothing but speculation that discovery 3 might show some basis for relief grounded in Defendant’s processing of immigrant visa 4 applications, as discussed below. 5 At the first hearing on Defendant’s motion, Plaintiffs’ counsel argued that the State 6 Department’s statistics give rise to an inference that IR-5 applications are treated less favorably 7 than other Tier Two applications at post Mumbai. Tier Two includes all immediate relative visas 8 including IR-1 (spouse of U.S. citizen), IR-2 (child of U.S. citizen), lR-5 (parent of U.S. citizen at 9 least 21 years of age), CR-2 (child of U.S. citizen, conditional status), IW (certain spouses of 10 deceased U.S. citizens and their children), IB (self-petition spouse or child of U.S. citizen), and 11 SB-1 (returning resident). See Willy Decl. ¶ 11, ECF 42-2; Jeu Decl. Exh. F, ECF 25-4. 12 Plaintiffs point to statistics showing that for the months January-May 2021, post Mumbai issued 13 far fewer visas to IR-5 applicants than to other Tier Two applicants or, indeed, than to Tier Three 14 and Tier Four applicants. See Opp. at 7-8, ECF 27. In January 2021, February 2021, and May 15 2021, post Mumbai did not issue any IR-5 visas at all. See id. The Court asked Defendant to file 16 a supplemental brief addressing those statistics, granted Plaintiffs leave to file a supplemental 17 response brief, and set the matter for a further hearing. 18 In his supplemental briefing, Defendant provided statistics for post Mumbai for the period 19 June-September 2021. Those statistics show that issuance of IR-5 visas picked up significantly 20 beginning in June 2021, and that in July-September 2021 the number of IR-5 visas exceeded the 21 number of visas issued for all other Tier Two categories combined. See Def.’s Suppl. Br. at 3, 22 ECF 42. Defendant points out that Proclamation 10014 prohibited issuance of IR-5 visas for the 23 period April 22, 2020 through February 24, 2021, but did not prohibit other types of Tier Two 24 visas, for example IR-1 visas (spouse of U.S. citizen) and IR-2 visas (child of U.S. citizen). See 25 Proc. 10014, 85 FR 23441. Visa appointments are scheduled two months in advance. See Austin 26 Decl. ¶ 3. Thus, while post Mumbai presumably resumed scheduling interviews for IR-5 visa 27 applicants in March 2021, those interviews would not have occurred until May 2021 at the 1 sharp increase in IR-5 visas which continued through September 2021. Defendant contends that 2 the low numbers of IR-5 visas issued in January-May 2021 are explained by the impact of 3 Proclamation 10014 and the impact of the COVID-19 pandemic. 4 In their supplemental response brief, and at the second hearing on Defendant’s motion, 5 Plaintiffs argued that Defendant has not adequately explained the dip in IR-5 visas for the months 6 January-May 2021. Plaintiffs assert that discovery is necessary to reveal the true reasons for the 7 post Mumbai statistics and to dispel Plaintiffs’ suspicion that IR-5 applicants are treated less 8 favorably than other Tier Two applicants. The Court finds that Defendant’s explanation regarding 9 the impact of Proclamation 10014, along with Defendant’s statistics showing a drastic increase in 10 IR-5 visas beginning in June 2021, dispel any inference that IR-5 applicants are treated less 11 favorably than other Tier Two applicants. While Plaintiffs insist that they are entitled to more 12 information as to the makeup of Tier Two and how exactly visa applications are processed at post 13 Mumbai, Plaintiffs have not cited any basis for their entitlement to that information. None of the 14 cases addressing delay in processing immigrant visa applications suggest that the type of granular 15 detail Plaintiffs request is necessary or appropriate for a rule of reason inquiry under the first 16 TRAC factor. In Poursohi, another court in this district rejected the plaintiffs’ argument that the 17 source of delay in adjudication of their visa applications was “largely unknown” and denied the 18 plaintiffs’ request for discovery. See Pousohi, 2021 WL 5331446, at *6. 19 Accordingly, to the extent Plaintiffs have made an informal motion for a continuance of 20 Defendant’s summary judgment motion and leave to take discovery, that motion is DENIED. 21 Moreover, the Court finds that Defendant has shown that the delay in adjudicating Yash and 22 Reva’s visa applications comports with the rule of reason. This factor weighs in favor of 23 Defendant’s position. 24 B. Second TRAC Factor: Congressional Timetable 25 “[W]here Congress has provided a timetable or other indication of the speed with which it 26 expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 27 [the] rule of reason” analysis. TRAC, 750 F.2d at 80. Here, Congress has not required that 1 5331446, at *7 (“[T]here is no statutorily mandated timeline for DOS to process Plaintiffs’ family 2 preference immigrant visa application.”); Dastagir, 2021 WL 2894645, at *3 (“[T]here is no 3 deadline for the Moscow Embassy to adjudicate Dastagir’s visa application.”). 4 The complaint contains several allegations suggesting that Congress has imposed timelines 5 for adjudicating immigrant visa applications. Compl. ¶¶ 16, 41, 110, 141. For example, the 6 complaint refers to Section 237 of the Consolidated Appropriations Act, which provides in 7 relevant part that:
8 POLICY. – It shall be the policy of the Department of State to process immigrant visa applications of immediate relatives of United States citizens and nonimmigrant 9 K-1 visa applications of fiances of United States citizens within 30 days of the receipt of all necessary documents from the applicant and the Immigration and 10 Naturalization Service. In the case of an immigrant visa application where the sponsor of such applicant is a relative other than an immediate relative, it should be 11 the policy of the Department of State to process such an application within 60 days of the receipt of all necessary documents from the applicant and the Immigration 12 and Naturalization Service. 13 Consolidated Appropriations Act, 2000, Pub. L. 106-113, November 29, 1999, 113 Stat 1501. 14 The complaint also relies on similar language in the State Department’s Foreign Affairs 15 Manual (“FAM”). Compl. ¶¶ 16, 41. The FAM “contains directives and guidance for Department 16 of State personnel based on statutes, regulations, Executive Orders, Presidential directives, OMB 17 circulars and other sources.” 9 FAM 101.1-1, Jeu Decl. Exh. H, ECF 25-4. Volume 9 of the FAM 18 addresses the adjudication of visa applications, “providing consular officers with the guidance 19 needed to make informed decisions based on U.S. immigration law and regulations.” Id. 20 Finally, the complaint refers to 8 U.S.C. § 1571 (“Section 1571”). Compl. ¶¶ 110, 121. 21 Section 1571 contains the following policy statement: “It is the sense of Congress that the 22 processing of an immigration benefit application should be completed not later than 180 days after 23 the initial filing of the application. . . .” 8 U.S.C. § 1571(b). 24 Defendant argues that these statutes and manuals set forth policy preferences, but do not 25 require adjudication of immigrant visa applications under any particular timeline. Defendant cites 26 numerous decisions addressing the identical provisions referenced in Plaintiffs’ complaint, and 27 determining that those provisions do not create a Congressional timetable for processing 1 arguments that a Congressional timetable for adjudication of visa applications is imposed by 2 Section 237, the FAM, or Section 1571); El Centro Reg’l Med. Ctr. v. Blinken, No. 3:21-cv- 3 00361-DMS-BDD, 2021 WL 3141205, at *4 (S.D. Cal. July 26, 2021) (“[T]he plain text of § 1571 4 indicates that it applies to the processing of immigrant benefit applications by USCIS, not consular 5 officials at the State Department.”); Milligan v. Pompeo, 502 F. Supp. 3d 302, 318 (D.D.C. 2020) 6 (finding that while Congress articulated a policy preference in Section 237 and the FAM, “the 7 legislature did not translate this policy preference into a specific timeline”); Patel v. U.S. Dep’t of 8 State, No. 11-CV-6-WMC, 2013 WL 3989196, at *4 (W.D. Wis. Aug. 2, 2013) (“Because internal 9 guidelines and agency manuals like the Foreign Affairs Manual are not subject to APA 10 rulemaking procedures, they lack the force of law and do not bind agency discretion.”). Based on 11 these decisions, the Court concludes that this case does not involve a Congressional timetable 12 within the meaning of the second TRAC factor. 13 The cases upon which Plaintiffs rely either do not address the particular statutes and 14 manual referenced in the complaint, or address timelines for proceedings other than immigrant 15 visa applicants. For example, Islam involved alleged delay by USCIS in processing an application 16 for adjustment of status. See Islam, 2011 WL 2066661, at *7. Moreover, while the Islam court 17 appeared to accept the plaintiff’s argument that Section 1571 sets a timetable for adjudication of 18 asylum applications, the court ultimately found that the second TRAC factor favored the 19 government, not the plaintiff. See id. Accordingly, Islam does not advance Plaintiffs’ position 20 here. 21 Because Congress has not provided a timetable for adjudication of immigrant visa 22 applications, the Court finds that the second TRAC factor is neutral. See Jain v. Renaud, No. 21- 23 CV-03115-VKD, 2021 WL 2458356, at *5 (N.D. Cal. June 16, 2021) (second TRAC factor was 24 neutral where Congress did not mandate a timeline); see also Poursohi, 2021 WL 5331446, at *9 25 (“[G]iven the absence of a mandatory timetable for adjudication of Plaintiffs’ Application 26 combined with the fact that the delay comports with the rule of reason, the second TRAC factor 27 also weighs in Defendant’s favor or is at least neutral.”). 1 C. Third and Fifth TRAC Factors: Nature of Interests 2 “The third and fifth factors overlap, requiring the court to consider whether human health 3 and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.” 4 Poursohi, 2021 WL 5331446, at *9. Defendant argues that in light of the public health 5 considerations implicated by the COVID-19 pandemic, these factors favor the Government. See 6 El Centro, 2021 WL 3141205, at *4 (“[T]he policies Defendant asserts to justify the delay also 7 implicate human health and welfare because they were designed to slow the transmission of 8 COVID-19.”); Shen v. Pompeo, No. CV 20-1263 (ABJ), 2021 WL 1246025, at *8 (D.D.C. Mar. 9 24, 2021) (finding that third TRAC factor slightly favored government where the COVID-19 10 pandemic gave rise to significant public health considerations). 11 Defendant argues that Reva and Yash Garg are relatively well situated in India based on 12 allegations in the complaint that Yash is a self-employed businessman and Reva is a homemaker. 13 Compl. ¶¶ 65-66. Defendant also discounts the emotional strain caused by prolonged family 14 separation, asserting that Plaintiff Kapoor is highly educated and able to pursue her chosen 15 profession despite the upheaval caused by the delay in processing her parents’ visa applications. 16 Defendant’s arguments are unpersuasive. District courts within the Ninth Circuit have 17 recognized the emotional harm caused by family separation, particularly in the midst of the 18 COVID-19 pandemic. See, e.g., Poursohi, 2021 WL 5331446, at *9. In Poursohi, the district 19 court found that although the State Department’s actions were designed to slow the transmission 20 of COVID-19, the nature of the plaintiffs’ interests tilted the third and fifth factors in their favor. 21 See id. In the present case, Plaintiff Kapoor’s declaration describes in detail the physical and 22 emotional hardship caused by the prolonged separation from her parents. See Kapoor Decl. ¶¶ 10- 23 24, ECF 27-1. The emotional strain of the separation has been exacerbated by Yash’s diagnosis of 24 Acute Viral Encephalitis, a life threatening disease for which he required hospitalization and 25 surgery. See id. 26 This Court, like the Poursohi court, finds that the third and fifth factors weigh in Plaintiffs’ 27 favor. 1 D. Fourth TRAC Factor: Effect of Expediting Delayed Action 2 “The fourth TRAC factor requires the Court to consider the effect of expediting 3 adjudication of plaintiffs’ applications on agency action of a higher or competing priority.” Jain, 4 2021 WL 2458356, at *6 (quotation marks and citation omitted). “Most courts have found that the 5 fourth TRAC factor weighs heavily in the agency’s favor when a judicial order putting plaintiffs at 6 the head of the line would simply move all others back one space and produce no net gain.” Id. 7 (collecting cases). Defendant argues that this is precisely the effect that the requested relief would 8 have in this case. 9 Plaintiffs seek “an order compelling the Defendant and those acting under him to perform 10 their duty to complete all steps necessary to adjudicate Plaintiffs’ immigrant visa applications, 11 including any pending background checks and the interview, within twenty-one (21) days of the 12 order.” Compl. Prayer ¶¶ B-C. The effect of such an order would be to move Reva and Yash to 13 the head of the queue for interviews, ahead of any Tier One applicants awaiting interview, and 14 ahead of any Tier Two applicants whose applications were documentarily complete before Reva 15 and Yash’s applications. “Plaintiffs make no showing that would justify moving them to the head 16 of the queue, or why their petitions should be processed immediately while other similarly- 17 situated petitioners wait their turn.” Jain, 2021 WL 2458356, at *6. 18 Plaintiffs cite Liang for the proposition that “Defendants’ failure to fulfill their statutory 19 duty to other applicants has no bearing on whether they have fulfilled their statutory duty to 20 Plaintiffs, and thus cannot serve as a basis for denying Plaintiffs’ motion.” Liang, 2007 WL 21 3225441, at *7. The Liang court’s statement was made in the context of its determination that the 22 FBI’s failure to complete a plaintiff’s background check for two and a half years was unreasonable 23 as a matter of law. See id. Here, Defendant has shown that thousands of immigrant visa 24 applicants are waiting for interviews to be scheduled at post Mumbai, and that this backlog is the 25 result of factors outside Defendant’s control, such as the COVID-19 pandemic and Proclamation 26 10014. Under these circumstances, this Court will follow Jain rather than Liang. 27 Defendant has demonstrated that the fourth TRAC factor weighs in his favor, because 1 backlog while disadvantaging visa applicants of higher priority or of the same priority but whose 2 applications have been pending longer.” Poursohi, 2021 WL 5331446, at *11. 3 E. Sixth TRAC Factor: Impropriety 4 The sixth TRAC factor requires the Court to consider any allegations of impropriety. 5 Plaintiffs have not made any such allegations in this case. “Under similar circumstances, courts in 6 || the Ninth Circuit have found this factor to either weigh in the government’s favor or to be 7 neutral.” Poursohi, 2021 WL 5331446, at *11. 8 Accordingly, this Court finds the sixth TRAC factor to be neutral. 9 F. Weighing the TRAC Factors 10 As discussed above, the first and fourth TRAC factors weigh against granting Plaintiffs’ 11 request for relief under the APA and Mandamus Act. “[C]ourts routinely afford the most weight” 12 to the first and fourth factors. Poursohi, 2021 WL 5331446, at *11. Consequently, these factors 5 13 outweigh the third and fifth factors, which favor Plaintiffs. The second and sixth factors are 14 || neutral. 15 The Court finds that Defendant has established that he is entitled to summary judgment 16 || based on application of the TRAC factors to the undisputed facts in the record. Plaintiffs have not 3 17 demonstrated the existence of any disputed material facts that would preclude summary judgment. 1 || rv. ORDER 19 (1) Defendant’s motion for summary judgment is GRANTED. 20 (2) This order terminates ECF 25. 21 (3) The Court will issue judgment for Defendant simultaneously with this order. 22 23 || Dated: January 20, 2022 han heh Lh framear) BETH LABSON FREEMAN 25 United States District Judge 26 27 28