UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SINA KESHTKAR JAFARI, ) et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:19-cv-1819-RCL ) MICHAEL R. POMPEO, ) et al., ) ) Defendants. ) _______________________________________)
MEMORANDUM OPINION
Plaintiffs Sina Keshtkar Jafari and Golriz Akhyani have brought suit against defendants
Michael R. Pompeo (in his official capacity as U.S. Secretary of State), William P. Barr (in his
official capacity as U.S. Attorney General), Carl C. Risch (in his official capacity as Assistant
Secretary of the Bureau of Consular Affairs), Robert W. Thomas (in his official capacity as
Consul General of the U.S. Consulate in Canada), and John Doe (in his official capacity as
Consular Officer of the U.S. Consulate in Canada). Plaintiffs allege that defendants have failed
to adjudicate Ms. Akhyani’s immigrant visa application in a timely manner and have therefore
violated the Administrative Procedures Act (“APA”), 5. U.S.C. § 701 et seq. See generally ECF
No. 1. Plaintiffs seek a writ of mandamus under 18 U.S.C. § 1361 compelling defendants to act
on Ms. Akhyani’s application. Id. Defendants have filed a Motion to Dismiss (ECF No. 10) for
lack of subject-matter jurisdiction under Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and
for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Upon
consideration of the motion, opposition (ECF No. 11), and reply (ECF No. 16), the Court will
GRANT defendants’ Motion to Dismiss and ORDER that this case is dismissed with prejudice.
1 BACKGROUND
I. PRESIDENTIAL PROCLAMATION 9645
The Immigration and Nationality Act (“INA”) governs admission of aliens into the
United States and normally requires a valid visa for entry. See 8 U.S.C. §§ 1181-1182, 1203. The
person seeking a visa bears the burden of establishing that she “is not inadmissible” and “is
entitled to the nonimmigrant, immigrant or refugee status claimed.” 22 C.F.R. § 1361. Once a
visa application is “completed and executed before a consular officer,” the consular officer must
either issue or refuse the visa. 22 C.F.R. § 42.81(a).
The INA gives the President broad authority to exclude aliens, providing:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). Pursuant to Section 1182(f), the President signed Presidential Proclamation
9645 (“Proclamation”). 82 Fed. Reg. 45161 (2017). This Proclamation resulted in entry
restrictions on Iran due to inadequate information-sharing practices. The Proclamation does
provide for waivers on a case-by-case basis if a foreign national demonstrates that (i) denying
entry would cause undue hardship; (ii) entry would be in the national interest; and (iii) entry
would not pose a threat to the national security or public safety. Proclamation § 3(c)(i)(A)-(C).
The applicant bears the burden of proving that she is entitled to this waiver. 82 Fed. Reg. at
45168, § 3(c).
The third prong of the test is necessary to prevent “foreign nationals who may commit,
aid, or support acts of terrorism, or otherwise pose a safety threat” from obtaining a waiver. Id. at
45162, § 1. This involves lengthy security checks, which are quite time consuming. According to
2 a report from the Department of State, more than 12,000 waiver applications have been found to
meet the first two provisions of the test and are now under review to determine whether they
meet the third provision. See Dep’t of State Report: Implementation of Presidential Proclamation
9645 – December 8, 2017 to March 31, 2019 at 3.
II. MS. AKHYANI’S VISA AND WAIVER APPLICATIONS
Mr. Jafari is a U.S. permanent resident whose wife, Ms. Akhyani, is an Iranian citizen
currently residing in Canada. ECF No. 1 at 2-3. Mr. Jafari filed an I-130 Petition for Ms.
Akhyani in 2016, and she was interviewed by a consular officer in Montreal on October 29,
2018. Id. at 4-5. After this interview, defendant John Doe notified her that her visa application
was refused pursuant to 8 U.S.C. § 1182(f) and Presidential Proclamation 9645. Id. at 5.
Defendants are currently considering her eligibility (along with the eligibility of thousands of
other applicants) for a waiver under Presidential Proclamation 9645. Id. The U.S. Consulate in
Montreal made a request for information from Ms. Akhyani, to which she responded in
November of 2018. Id. The status of her waiver request is “administrative processing.” Id. Of the
thousands of waiver applications that are currently pending, it is unclear how many were filed
before Ms. Akhyani’s. Plaintiffs believe that the government’s adjudication of her waiver request
has been unreasonably delayed and seek a writ of mandamus compelling defendants to make a
final decision about her eligibility for this waiver.
LEGAL STANDARDS
Rule 12(b)(1) requires courts to dismiss any case over which they lack subject-matter
jurisdiction. Federal courts are courts of limited jurisdiction and only have power that is
3 expressly granted to them. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
It is the plaintiff’s burden to establish that the Court has subject-matter jurisdiction. Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
Rule 12(b)(6) requires courts to dismiss any case wherein the plaintiff has failed to state a
legal claim upon which relief can be granted. To survive a motion to dismiss for failure to state a
claim, 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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When deciding a motion to dismiss under
12(b)(6), courts must construe the pleadings broadly and assume that the facts are as plaintiff
alleges; however, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. Additionally, courts are not obligated to
“accept as true a legal conclusion couched as a factual allegation.” Papsan v. Allain, 478 U.S.
265, 286 (1986).
ANALYSIS
As a preliminary matter, plaintiffs attempt to argue that although Ms. Akhyani’s
underlying visa application was denied, her entire visa application technically remains open
because her waiver request is still being adjudicated. This argument fundamentally
misunderstands the application process. The government already denied Ms. Akhyani’s
underlying visa application on October 29, 2018 due to the Proclamation. Although that denial
triggers the application process for obtaining a waiver of the Proclamation, that waiver request is
separate from the underlying visa application. If the President wanted to make the waiver request
process part of the underlying visa application, he could have written the Proclamation so as to
4 have the agency wait to make any determination about the underlying application until it had
also processed the waiver request. Instead, however, it is only necessary to go through the waiver
process if one’s underlying visa application is first denied. The Court thus finds that Ms.
Akhyani’s underlying visa application is distinct from her waiver application. While plaintiffs
explain in their opposition that they only challenge the visa application as a whole because they
believe that the entire process is still open due to the waiver, a liberal reading of the Complaint
could suggest that the underlying application is also being challenged. Therefore, each of the
government’s arguments about why this case should be dismissed must be separated into two
categories: (i) the underlying visa application; and (ii) the waiver process. The Court finds that
the doctrine of consular nonreviewability clearly bars review of the underlying visa application
but does not bar review of the government’s ongoing adjudication of the waiver request.
Although the doctrine of consular nonreviewability does not bar review of the waiver request,
plaintiffs have still failed to state a legally cognizable claim in regards to the waiver request
under the APA or any other statute, meaning that the entire case must be dismissed.
I. DOCTRINE OF CONSULAR NONREVIEWABILITY
The doctrine of consular nonreviewability recognizes that Congress has empowered
consular officers with the exclusive authority to review a proper application for a visa when
made overseas. See 8 U.S.C. §§ 1104(a), 1201(a), 1201(g). The Supreme Court clearly upheld
the President’s statutory authority to issue the Proclamation under 8 U.S.C. § 1182(f). Trump v.
Hawaii, 138 S. Ct. 2392, 2408 (2018) (holding that the statute’s “plain language . . . grants the
President broad discretion to suspend the entry of aliens into the United States . . . based on his
findings . . . that entry of the covered aliens would be detrimental to the national interest”).
5 Because the underlying Proclamation is valid, the question becomes whether the doctrine of
consular nonreviewability prevents the Court from reviewing decisions made pursuant to that
Proclamation. The D.C. Circuit has explained the doctrine of consular nonreviewability as
follows:
In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers’ actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999).
In Mostofi v. Napolitano, this Court dismissed a similar case based on the doctrine of
consular nonreviewability. 841 F. Supp. 2d 208, 209 (D.D.C. 2012). In both cases, a consular
officer abroad refused the plaintiff’s visa application and reviewed the plaintiff’s eligibility for a
waiver. In Mostofi, the consular officer was located outside the U.S. in Australia, just as the
consular officer in this case was located outside the U.S. in Canada. Like Ms. Akhyani, the
person seeking a visa was an Iranian citizen. The Court determined that the consular officer’s
final decision with regards to the visa application was not reviewable under this doctrine. The
same is true in this case with respect to Ms. Akhyani’s underlying visa application—Congress
has not expressly authorized judicial review of consular officers’ visa determinations in this
context, and thus the doctrine of consular nonreviewability prevents this Court from reviewing
the government’s denial of Ms. Akhyani’s underlying visa application.
The government argues that the doctrine of consular nonreviewability applies not only to
the underlying denial of Ms. Akhyani’s visa application, but also to any allegations of
unreasonable delay in its adjudication of her waiver application.1 The cases that the government
1 As previously explained, although both the underlying visa application and the waiver process can result in a visa, they are two distinct processes. Even if an open waiver request did mean that the entire visa process was still open,
6 cites in support of this argument, however, all involve final visa decisions. See ECF No. 10 at
10-11 (listing cases). As explained above, the doctrine of consular nonreviewability clearly
applies to final visa determinations, but it does not apply to challenges regarding decisions that
are not yet final. The consular nonreviewability doctrine “is not triggered until a consular officer
has made a decision with respect to a particular visa application.” Nine Iraqi Allies v. Kerry, 168
F. Supp. 3d 268, 290 (D.D.C. 2016).2 This is because a nonfinal decision is not an exercise of the
government’s “prerogative to grant or deny applications.” Id. at 290-91. By defendants’ own
admission, Ms. Akhyani’s waiver application is still in “administrative processing,” meaning that
no final decision has been made. Therefore, the doctrine of consular nonreviewability has not yet
been triggered.
II. APA
Defendants argue that regardless of whether the doctrine of consular nonreviewability
applies, plaintiffs have failed to state a cognizable claim under the APA, and thus this case must
be dismissed under Rule 12(b)(6). The APA does not provide a valid cause of action if another
statute precludes judicial review through its “express language, . . . the structure of the statutory
scheme, its objectives, its legislative history, [or] the nature of the administrative action
involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984); see 5 U.S.C. § 701(a)(1).
The APA also preserves “other limitations on judicial review” that predated the APA, including
the doctrine of consular nonreviewability.3 Saavedra Bruno, 197 F.3d at 1158.
however, plaintiffs have still failed to state a legally cognizable claim under the APA, meaning that the Court would still dismiss the case under Rule 12(b)(6). 2 Defendants argue that this case is non-binding and thus is not applicable. The Court, however, finds Judge Kessler’s reasoning persuasive and agrees with the logic of her Opinion. 3 As previously discussed, however, the doctrine of consular nonreviewability only applies to the government’s underlying denial of Ms. Akhyani’s visa application and not to the waiver request that is still in progress.
7 Congress has made it clear that aliens cannot seek review of their exclusion orders under
the APA. When the Supreme Court ruled that aliens could seek judicial review of exclusion
orders under the APA if they were physically present in the United States (but not if they were
physically outside of the United States), see Brownell v. Tom We Shung, 352 U.S. 180, 184-86
(1956), Congress responded by passing a statute barring judicial review of exclusion orders
under the APA regardless of an alien’s physical location, see Act of Sept. 26, 1961, Pub. L. No.
87-301, § 5(a), 75 Stat. 650, 651-53. The accompanying House Report explained that APA suits
would “give recognition to a fallacious doctrine that an alien has a ‘right’ to enter this country
which he [or she] may litigate in the courts of the United States[.]” H.R. Rep. No. 87-1086, at 33
(1961). Congress has also expressly foreclosed judicial review of visa revocations. 8 U.S.C. §
1201(i). Essentially, Congress has been clear on numerous occasions that it does not want courts
reviewing agencies’ visa determinations.
The APA’s ban on judicial review extends beyond instances where such review has been
expressly or impliedly prohibited. The APA also specifically exempts from judicial review
“agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In this
case, there is no separate statute giving an applicant the right to a waiver or the right to have a
waiver application adjudicated in a certain manner. Instead, waivers are governed solely by the
Proclamation. The APA “does not expressly allow review of the President’s actions,” Franklin v.
Massachusetts, 505 U.S. 788, 801 (1992), and “there is no private right of action to enforce
obligations imposed on executive branch officials by executive orders.” Chai v. Carroll, 48 F.3d
1331, 1338 (4th Cir. 1995). Put another way, the Supreme Court made clear in Trump v. Hawaii
that the President had the authority to issue this Proclamation under 8 U.S.C. § 1182(f), and the
President was under no obligation to allow for waivers at all, as no separate statute or regulation
8 requires waivers. The logical inference is that any right to have a waiver request adjudicated in a
specific manner must be found in the Proclamation itself. The Proclamation, however, makes it
abundantly clear that it does not create “any right or benefit, substantive or procedural” against
the government. 82 Fed. Reg. at 45172, § 9(c). This means that plaintiffs have no right to have
the waiver adjudicated in any specific amount of time, and thus plaintiffs have failed to state a
legally cognizable claim.4 The Proclamation commits the waiver process to the agency’s
discretion, and it does not impose on the agency any timing requirements for adjudicating a
waiver request, meaning that there would be no judicially manageable standard for the Court to
apply in determining whether the government has engaged in an unreasonable delay.5 Under the
APA, a plaintiff may not seek judicial review if the court “would have no meaningful standard
against which to judge the agency’s exercise of discretion.” Heckler v. Cheney, 470 U.S. 821,
830 (1985).
Plaintiffs nonetheless argue in their opposition that the Court does have a standard by
which to judge whether there has been an unreasonable delay: the TRAC factors. In
Telecommunications Research & Action Center v. FCC, the D.C. Circuit set forth factors to use
in determining whether an administrative delay is unreasonable. 750 F.2d 70, 77-78 (D.C. Cir.
1984). Those factors are: (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 of a statute, that statutory scheme
4 Plaintiffs argue that because consideration for a waiver after denial of a visa under the Proclamation is mandatory and automatic, defendants cannot “refuse” to consider Ms. Akhyani’s waiver application. This represents a fundamental misunderstanding of their own factual allegations. The government has not “refused” to consider Ms. Akhyani for a waiver; rather, her waiver request is in progress. Just because plaintiffs are unhappy with the amount of time that her waiver request has been pending does not mean that the government has “refused” to consider it, nor have plaintiffs properly alleged that the government has “refused” to consider it. 5 Although the APA favors reviewability, that is not true where there are no judicially manageable standards for the Court to apply.
9 may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of
economic regulation are less tolerable when human health and welfare are at stake; (4) the court
should consider the effect of expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account the nature and extent of the
interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind
agency lassitude in order to hold that the agency action is “unreasonably delayed.” Id. at 79-80.
For the reasons already explained, however, the Proclamation itself governs defendants’
handling of the waiver request, meaning that the TRAC factors are irrelevant here due to the
Proclamation’s express refusal to create any substantive or procedural rights. Moreover, even if
the TRAC factors did apply, plaintiffs still could not demonstrate that the government has
engaged in unreasonable delay. The third waiver requirement involves complex and high-stakes
considerations regarding national security. There are thousands of waiver applications pending, 6
and it does not matter how many of those applications are ahead of or behind Ms. Akhyani’s—
the Proclamation has entrusted to the agency an important determination regarding national
security, and the TRAC factors would account for the gravity of that decision. It is thus not for
the Court to tell the agency that a year and a half is too long for a waiver request to remain
pending, nor is it the Court’s place to tell agency how to prioritize its thousands of pending
applications. Plaintiffs seem to forget that Ms. Akhyani has no right to a waiver; instead, it is her
responsibility to prove that she deserves a waiver. There is no statute requiring the government to
adjudicate waiver requests in a certain order or within a certain amount of time, and thus no “rule
6 Plaintiffs do not appear to contest the fact that thousands of applications are pending; rather, they argue that defendants have presented no evidence regarding how many of those applications are ahead of or behind Ms. Akhyani’s. See ECF No. 11 at 3-4. The order that these applications were filed in, however, does not necessarily matter, as the Court does not have the authority to tell the agency how to process these requests or in what order to do so. Furthermore, even if there were not thousands of applications pending, the Court would still dismiss this case for failure to state a claim, so any argument about the number of pending applications is not dispositive of the motion to dismiss.
10 of reason” has been violated. Therefore, even if the TRAC factors did apply to the waiver
request, plaintiffs have not set forth sufficient evidence to demonstrate that defendants have
engaged in an unreasonable delay, and plaintiffs’ claim would still fail as a matter of law.
As previously explained, Ms. Akhyani’s underlying visa application is distinct from her
waiver request. Therefore, plaintiffs’ reliance on 5 U.S.C. § 555(b) (requiring the agency to
make a decision within a “reasonable time”) and 22 C.F.R. § 42.81(a) (requiring the consular
officer to “either issue or refuse the visa” once the application is completed) is misplaced—the
consular officer in this case already met those requirements by denying Ms. Akhyani’s
underlying visa application in October of 2018.7 Any claim with respect to the underlying visa
application itself is thus moot, as the government already made a final decision about that
application. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (explaining that a case is
moot when “the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome”). Ms. Akhyani’s open waiver request is separate from her initial visa
request and thus is not moot (but for the reasons explained above, there are no judicially
manageable standards by which the Court can assess the government’s handling of that waiver
request).
It should also be noted that plaintiffs’ requested relief—a writ of mandamus—is an
“extraordinary remedy” that is only appropriate “to compel the performance of a clear
nondiscretionary duty.” Pittson Coal Grp. v. Sebben, 488 U.S. 105, 121 (1988) (emphasis
added). Because plaintiffs have no clear legal entitlement to a waiver or to have the waiver
7 Even if 5 U.S.C. § 555(b) were applicable to the waiver request itself, that provision still would not create a judicially manageable standard, as the phrase “reasonable time” is exceeding vague and implies that the agency has a great deal of discretion. Likewise, even if 22 C.F.R. § 42.81(a) applied to the waiver request, that regulation does not provide any timing requirements for a final decision, meaning that it provides no judicially manageable standards for the Court to apply.
11 request adjudicated within any specific timeframe, there is no “clear and nondiscretionary duty”
that can give rise to the writ of mandamus that plaintiffs seek. This would be true even if the
Court were to find that the TRAC factors applied, as those factors involve a great deal of
discretion as well as the balancing of different interests; the TRAC factors thus do not impose the
kind of “clear and nondiscretionary duty” required for a Court to issue a writ of mandamus in
this case. Similarly, even if the APA provisions and regulations that plaintiffs cite did apply to
the waiver request, they fail to impose a clear and precise duty worthy of a writ of mandamus for
the same reasons that they fail to create a judicially manageable standard of review. When “there
is no clear and compelling duty under the statute” requiring the government to act, the Court may
not issue a writ of mandamus and must dismiss the action. In re Cheney, 406 F.3d 723, 729 (D.C.
Cir. 2005). Therefore, even when construing the allegations liberally, plaintiffs have failed to
make a legally cognizable claim that would entitle them to a writ of mandamus, meaning that the
Court must dismiss the case with prejudice.
CONCLUSION
Based on the foregoing, the Court will GRANT defendants’ Motion to Dismiss (ECF No.
10).
It will be ORDERED that this case is DISMISSED with prejudice.
A separate Order accompanies this Memorandum Opinion.
Date: May 3, 2020 sssssssssssssss/s/sssssssssssssssss Royce C. Lamberth United States District Court Judge