5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 NO. 2:24-cv-1227 AFSHAN KHOSRAVI, et al., 8 Plaintiffs, ORDER (1) GRANTING DEFENDANTS’ MOTION TO 9 v. DISMISS AND (2) DENYING MARCO RUBIO, et al., PLAINTIFFS’ MOTION FOR 10 Defendants SUMMARY JUDGMENT
11 12 I. INTRODUCTION 13 This matter comes before the Court on (1) a Motion to Dismiss filed by Defendants Marco 14 Rubio,1 U.S. Secretary of State, and Robert Jachim, Acting Director of the Office of Screening, 15 Analysis, and Coordination within the Bureau of Consular Affairs’ Visa Service Office 16 (“Defendants”); and (2) a Motion for Summary Judgment filed by Plaintiffs Afshan Khosravi, a 17 U.S. citizen living in Washington, and her father, Hossein Khosravi, 80 years old, an Iranian 18 national residing in Iran. Plaintiffs seek an order directing Defendants to adjudicate Mr. 19 Khosravi’s visa application. Defendants seek dismissal of Plaintiffs’ claims. Having reviewed the 20
21 1 Marco Rubio, successor to the original Defendant, Antony Blinken, as U.S. Secretary of State, is automatically substituted per Fed. R. Civ. P. 25(d). 22
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 the Court finds and rules as follows.
3 II. BACKGROUND 4 In June 2021, Plaintiff Afshan Khosravi initiated the process of obtaining immigrant visas 5 for her Iranian national parents so that they might travel to, and ultimately remain in, the U.S. for 6 the remainder of their lives. Am. Compl., ¶ 64. On November 3, 2023, Plaintiff Hossein Khosravi 7 and his wife (Afshan’s mother), submitted their visa applications and were interviewed at the U.S. 8 Embassy in Ankara, Turkey. Id. Following the interview, the consular officer issued a visa to 9 Mrs. Khosravi, who proceeded to enter the U.S. and was granted U.S. permanent resident status. 10 Id., ¶ 65. However, Mr. Khosravi received a form advising him of the following: 11 A U.S. consular officer refused your visa application pursuant to section 221(g) of the U.S. Immigration and Nationality Act[2] for the reason or reasons selected 12 below. This constitutes a final adjudication of your visa application. However, this refusal may be overcome if missing documentation is provided and/or 13 administrative processing is concluded. Id., Ex. D.
14 The “reason or reasons selected below” provided, “Administrative Processing: We will 15 contact you by e-mail when your processing is completed.” Id. Khosravi was instructed to submit 16 additional information within 20 days, “[b]efore we can continue processing your visa 17 application,” and advised that “[l]ate responses may cause additional delays in processing your 18
19 2 That section, codified at 8 U.S.C. § 1202(g), provides in relevant part “Nonissuance of visas or other documents. No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in 20 the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa . . . under section 1182* of this title, or any other provision of law, (2) the application fails to comply with the provisions of this 21 chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law.” *Section 1182 enumerates several grounds for ineligibility, including health-related grounds, 22 criminal grounds, and security grounds.
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 Mr. Khosravi submitted the requested information approximately ten days later, on or
3 about November 13, 2023. Am. Compl., ¶ 67; Ex. D. In response, the embassy sent him a 4 message stating “[w]e received your form(s). Case is currently in administrative processing. If we 5 need additional information, we will contact you again.” Id. Since receiving this message, 6 Plaintiffs have not had word of any change in the status of Mr. Khosravi’s visa application. 7 According to DoS’s Consular Electronic Application Center (“CEAC”) “Visa Status Check” 8 website, Khosravi’s current application status is “Refused.” See 9 https://ceac.state.gov/CEACStatTracker/Status.aspx (last visited 3/3/2025). Additional 10 information on that website provides, “[a] U.S. consular officer has adjudicated and refused your 11 visa application. . . . If you were informed by the consular officer that your case was refused for
12 administrative processing, your case will remain refused while undergoing such processing. You 13 will receive another adjudication once such processing is complete.” Id. 14 Plaintiffs filed the instant lawsuit on August 12, 2024, approximately nine months after 15 Khosravi’s final submission to the embassy. They allege that this delay has caused them “extreme 16 emotional and psychological harm due to the uncertainty of their family’s future.” Am. Compl., ¶ 17 79. The Amended Complaint includes claims under the Administrative Procedures Act (“APA”), 18 5 U.S.C. §§ 706(1), 706(2)3, and 555(b); and the Mandamus Act, 28 U.S.C. § 1361. Am. Compl., 19
20 3 Defendants have moved for dismissal of Count I, Plaintiffs’ claim brought under § 706(2). See MTD at 12-13. That provision of the APA grants a court authority to set aside as arbitrary and capricious only a “final agency action.” 21 Plaintiffs have not identified any “final agency action” (and in fact, as discussed below, have argued that the agency has failed to take a final action), and Plaintiffs do not address Defendants’ argument for dismissal of Plaintiffs’ claim under 706(2). The Court takes this silence as a concession that it fails to state a claim, and accordingly, 22 summarily dismisses Count I.
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 directing Defendants to adjudicate Mr. Khosravi’s visa application, arguing that they have a
3 “mandatory duty” that they have not fulfilled, and that the 16-month (and counting) period since 4 the “refusal” constitutes an “unreasonable delay” prohibited under the APA. 5 III. DISCUSSION 6 A. Standards on Motions to Dismiss and for Summary Judgment 7 1. Motion to Dismiss 8 A defendant may move to dismiss a claim that “fail[s] to state a claim upon which relief 9 can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint “must 10 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
12 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that 13 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Iqbal, 556 U.S. at 678. This standard is a “context specific task that requires the 15 reviewing court to draw on its judicial experience and common sense,” Iqbal, 556 U.S. at 679, 16 and to “draw all reasonable inferences in favor of the nonmoving party.” Boquist v. Courtney, 32 17 F.4th 764, 773 (9th Cir. 2022) (citations omitted). At Defendants’ request, for purposes of 18 deciding this motion, the Court takes judicial notice of the government websites referenced in the 19 parties’ briefing. 20 2. Motion for Summary Judgment 21 Summary judgment is appropriate when the moving party has shown “that there is no
22 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
3 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets its burden, 4 the burden then shifts to the non-moving party to “designate specific facts showing a genuine 5 issue for trial.” Celotex Corp., 477 U.S. at 324 (quotation marks omitted). In deciding a summary 6 judgment motion, the Court must view the evidence in the light most favorable to the nonmoving 7 party and draw all justifiable inferences in its favor. Messick v. Novartis Pharm. Corp., 747 F.3d 8 1193, 1199 (9th Cir. 2014) (citing Scott v. Harris, 550 U.S. 372, 378 (2007)). 9 B. Whether Plaintiffs State a Claim Under APA and/or Mandamus Act 10 As noted above, Plaintiffs bring claims under the APA and the Mandamus Act. Because 11 “mandamus relief and relief under the APA are ‘in essence’ the same, when a complaint seeks
12 relief under the Mandamus Act and the APA and there is an adequate remedy under the APA, we 13 may elect to analyze the APA claim only.” Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022) 14 (quoting R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 (9th Cir. 1997)); see also Indep. 15 Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (The Supreme Court “has construed a 16 claim seeking mandamus under the [Mandamus Act] ‘in essence,’ as one for relief under § 706 of 17 the APA.”) (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986)). 18 Under Section 706(1) of the APA, a court has authority to compel an “unreasonably 19 delayed” agency action, but “only if there is a specific, unequivocal command placed on the 20 agency to take a discrete agency action, and the agency has failed to take that action.” Vietnam 21 Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (internal marks and
22 citation omitted); see Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (“[A] claim under
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 action that it is required to take.”). Thus, a court may compel agency action under the APA when
3 the agency (1) has “a clear, certain, and mandatory duty,” and (2) has unreasonably delayed in 4 performing such duty. Plaskett v. Wormuth, 18 F.4th 1072, 1082 (9th Cir. 2021); see 5 U.S.C. § 5 706(1). The Court addresses each issue in turn. 6 1. Whether Defendants Have a “Clear, Certain, and Mandatory Duty” to Adjudicate Mr. Khosravi’s Visa Application 7 a. Plaintiffs Have Identified Statutory and Regulatory Sources of a Mandatory 8 Duty
9 The court finds that Plaintiffs have sufficiently alleged that Defendants have a “clear, 10 certain, and mandatory duty” to act, rooted in two distinct statutory sources. First, Section 555(b) 11 of the APA provides, in relevant part, that “[w]ith due regard for the convenience and necessity of 12 the parties or their representatives and within a reasonable time, each agency shall proceed to 13 conclude a matter presented to it.” 5 U.S.C. § 555(b); see Am. Compl., ¶¶ 37, 92. Second, the 14 Immigration and Nationality Act (“INA”) provides “[a]ll immigrant visa applications shall be 15 reviewed and adjudicated by a consular officer.” 8 U.S.C.A. § 1202. Implementing regulations 16 further provide, “[w]hen a visa application has been properly completed and executed before a 17 consular officer . . . the consular officer must issue the visa (or) refuse the visa.” 22 C.F.R. § 18 42.81(a). As the Ninth Circuit has observed, under these provisions, “[a] consular office is 19 required by law to act on visa applications.” Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997). The 20 law imposes a non-discretionary duty to “review and adjudicate” such applications. Id. 21 Defendants do not directly dispute that these statutes and implementing regulations 22 impose on them a “clear, certain, and mandatory duty” to act, arguing only that they have fulfilled
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 Ninth Circuit) have concluded “that both the APA and State Department regulations create a clear
3 duty to adjudicate visa applications within a reasonable time.” Rashidian v. Garland, No. 23-CV- 4 1187, 2024 WL 1076810, at *5 (D.D.C. Mar. 8, 2024); see also R2 Technologies Corp. v. Rubio, 5 2025 WL 436306, at *4 (D.D.C. Feb. 7, 2025) (agreeing with “the majority view” that “[i]ssuing 6 a final decision on a visa application is plainly a discrete agency action ... required by both the 7 APA and federal regulations”); Sheikhalizadehjahed v. Gaudiosi, No. 2:24-cv-1136 SCR, 2024 8 WL 4505648, at *7 (E.D. Cal. Oct. 15, 2024) (“Absent binding precedent, the Court is persuaded 9 that § 1202(b) imposes a non-discretionary duty to review and adjudicate visa applications.”). 10 This court concludes that issuing a final decision on a visa application is a “clear, certain, and 11 mandatory duty” required by the APA and INA and implementing federal regulations.4
12 13
14 4 The Court acknowledges that other courts have come to a different conclusion. Two such cases in this Western District relied on Karimova v. Blinken, 2024 WL 3517852 (D.C. Cir. July 24, 2024), an unpublished decision from the Circuit Court for the District of Columbia, which held under circumstances similar to those here that there is no 15 mandatory duty to “readjudicate” a visa application after a Section 1201(g) refusal. See Beygi v. U.S. Dep’t of State, No. 24-cv-504-TSZ, 2024 WL 4871377, at *2-3 (W.D. Wash. Nov. 22, 2024); Hosseininejad v. Blinken, No. 24-cv- 16 794-TSZ, 2024 WL 4858444, at *2 (W.D. Wash. Nov. 21, 2024). Several other courts within the Ninth Circuit, however, have expressly rejected Karimova’s reasoning. See, e.g., Daneshvar v. Blinken, No. 8:24-CV-00838-FWS- DFM, 2024 WL 5410448, at *5 (C.D. Cal. Nov. 21, 2024) (Karimova “is not binding, and the court finds it lacks 17 precedential or persuasive value to the case at bar.”); Maadarani v. Mayorkas, 2024 WL 4674703, at *8 (E.D. Cal. Oct. 31, 2024) (“The Court is not persuaded by Defendants’ reliance on Karimova’s holding regarding § 555(b). 18 Karimova primarily relied on the Foreign Affairs Manual (FAM) to determine that an initial visa refusal constitutes a final decision” but “the FAM “lack[s] the force of law” in the Ninth Circuit.”) (citations omitted). 19 Indeed, several decisions issued by the District Court of the District of Columbia have expressly declined to follow Karimova. See, e.g., Hajizadeh v. Blinken, No. CV 23-1766, 2024 WL 3638336, at *3 (D.D.C. Aug. 2, 2024) 20 (“Karimova is an unpublished opinion, and ‘a panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition.’ D.C. Cir. R. 36(e)(2). This court has considered Karimova but 21 declines to follow it.”). Under Patel, and for the reasons articulated above, this Court concludes that the APA and INA impose on Defendants here a clear, mandatory duty.
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 Finding that Defendants have a mandatory duty to adjudicate Khosravi’s visa application
3 does not end the inquiry. Defendants argue that assuming a duty exists, they have fulfilled that 4 duty by reviewing Khosravi’s application and issuing a “refusal.” Whatever action on the 5 application they may take from that point on, Defendants argue, is merely discretionary and 6 therefore, not reviewable under the APA. 7 The Court disagrees, and finds that Plaintiffs have adequately alleged that Defendants 8 have not, to date, fulfilled the mandatory duty outlined above. While nominally “refused,” 9 Khosravi’s application is, by most other indications, still in the adjudicative process. First, the 10 notice Khosravi received from the embassy does not comply with the regulations governing a visa 11 application refusal. Specifically, it does not appear to have been “signed and dated by the consular
12 officer,” as required under 22 C.F.R. § 42.81(b), and it did not inform Khosravi, as further 13 required, “of any statutory provision of law or implementing regulation under which 14 administrative relief is available.” Am. Compl., Ex. D; see Patel, 134 F.3d at 932 (failure to 15 comply with “refusal procedure” prescribed in 22 C.F.R. § 42.81(b) indicated consular officer’s 16 action was not a refusal as required by law).5 In addition, the message Khosravi received clearly 17 (and repeatedly) indicated that the application—while purportedly “refused”—was in fact still in 18
19 5 Patel, the Ninth Circuit authority most relevant to the issues before the Court, was a mandamus action challenging a consulate’s unreasonable delay in processing plaintiff’s visa application, the issue that is essentially raised in this 20 case. Patel is not entirely on point with the facts here, however. In Patel, the defendant conceded that after plaintiff submitted her application, it was put “in abeyance,” pending resolution of issues related to the plaintiff’s eligibility. 21 134 F.3d at 932. The application at issue in Patel was not, as here, refused and then placed in “administrative processing,” which Defendants here argue constitutes a final adjudication. Thus, while Patel squarely held that a “consular office is required by law to act on visa applications,” it does not resolve the question of whether or not the 22 office has in this case met that requirement.
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 is completed” and requesting additional information “[b]efore we can continue processing your
3 visa application”). Further supporting the conclusion that the application has not actually been 4 adjudicated, as noted above, the CEAC “Visa Status Check” website clearly states that Khosravi’s 5 visa application is currently “undergoing [administrative] processing” and that Khosravi “will 6 receive another adjudication once such processing is complete.” 7 https://ceac.state.gov/CEACStatTracker/Status.aspx (last visited 3/3/2025). 8 As one district court in this circuit recently stated, “[r]ather than simply accepting the label 9 of “Refused,” courts should consider “what is actually happening” in a specific case to determine 10 whether an agency has discharged its duty. Momeni v. Blinken, No. 2:24-CV-04879-ODW 11 (AGRX), 2024 WL 5112234, at *4 (C.D. Cal. Dec. 13, 2024) (joining “the prevailing position
12 among California district courts in holding that a soft refusal for administrative processing is not a 13 final decision, and therefore does not discharge an agency’s mandatory non-discretionary 14 obligation to adjudicate a visa application.”); see also Mahonak v. Rubio, No. 8:24-CV-01443- 15 FWS-DFM, 2025 WL 449044, at *14 (C.D. Cal. Feb. 10, 2025) (“[T]he initial refusal of 16 Plaintiffs’ visa applications pending ‘administrative processing’ did not discharge [defendant’s] 17 duty because there was no final adjudication.”); Hassan v. Dillard, 2024 WL 4979476, at *5 (D. 18 Minn. Dec. 4, 2024) (“Simply describing the decision as final does not make it so.”); Aminzadeh 19 v. Blinken, 2024 WL 3811153, at *4 (C.D. Cal. Aug. 9, 2024) (“The mere fact that the 20 Department has chosen to characterize this action as a “refusal” does not necessarily make it a 21 final decision; ‘the focus should be on what is actually happening[.]’”) (citing Vulupala v. Barr,
22 438 F. Supp. 3d 93, 98 (D.D.C. 2020)). This conclusion is consistent with Ninth Circuit authority
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 to comply with these requirements it must be a “final decision.” Patel, 134 F.3d at 932 (citing 8
3 U.S.C. § 1201(g) (INA § 221(g)). 4 Again, the Court acknowledges that courts have come to opposing conclusions on this 5 issue. See supra, n. 4 and cases cited therein. However, the “majority view”—and the more 6 persuasive one—is that the initial refusal of a visa application pending “administrative 7 processing” does not discharge the consular duty to adjudicate a visa application. See R2 8 Technologies Corp., 2025 WL 436306, at *4 (D.D.C. Feb. 7, 2025) (agreeing with “the majority 9 view” that a provisional refusal pending administrative processing is not a final decision); Alam v. 10 Blinken, 2024 WL 4804557, at *5 (E.D. Cal. Nov. 15, 2024) (“[The prevailing position among 11 district courts is that a refusal for administrative processing is not a final decision and therefore
12 does not discharge the agency’s obligation to adjudicate visa applications.”); Sheikhalizadehjahed 13 v. Gaudiosi, 2024 WL 4505648, at *7 (E.D. Cal. Oct. 16, 2024) (“Absent binding precedent, the 14 Court is persuaded that § 1202(b) imposes a non-discretionary duty to review and adjudicate visa 15 applications. The initial refusal of Plaintiff's father’s visa application while placing it in 16 “administrative processing” does not dispense with this duty because there has been no final 17 adjudication. Any other conclusion about § 1202(b) and circumstances like these would allow 18 DOS to evade any judicial review of delayed adjudications by issuing pro forma refusals while 19 continuing to administratively process cases. The Court is unwilling to adopt statutory 20 interpretations which would produce absurd results.”) (citation omitted). For the reasons stated 21 above, the Court concludes that Plaintiffs have sufficiently established that Defendants have not
22 met their mandatory duty to adjudicate Khosravi’s visa application.
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 Having determined that Defendants have a non-discretionary, mandatory duty to
3 adjudicate Khosravi’s application, and that they have not fulfilled that duty, the Court next turns 4 to the question on the merits: to wit, whether the delay—to date, 16 months and counting—is 5 unreasonable.6 Defendants argue that Plaintiffs’ allegations fail to support their claim of 6 unreasonableness and must be dismissed; Plaintiffs seek a ruling that the delay has been 7 unreasonable and that they are, as a matter of law, entitled to an order compelling Defendants to 8 adjudicate the application. 9 As noted above, the APA requires an administrative agency to adjudicate “a matter 10 presented to it” “within a reasonable time.” 5 U.S.C. § 555(b). When determining whether an 11 agency’s delay is unreasonable, courts in the Ninth Circuit consider six factors, articulated in
12 Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) 13 (“TRAC”); see In re Pesticide Action Network N. Am., 798 F.3d 809, 813 (9th Cir. 2015). These 14 considerations include: 15 (1) the time agencies take to make decisions must be governed by a rule of reason;
16 (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory 17 scheme may supply content for this rule of reason;
18 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; 19 20 6 Plaintiffs urge this Court to consider that they began the process of obtaining visas nearly four years ago, but 21 “[c]ourts measure the period of delay from the last government action to the issuance of the opinion.” Nusrat v. Blinken, 2022 WL 4103860, at *6 (D.D.C. Sept. 8, 2022). By this measurement, the length of time in this case has been, so far, approximately 16 months. 22
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 activities of a higher or competing priority; 2 (5) the court should also take into account the nature and extent of the interests 3 prejudiced by delay; and
4 (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. Id. (quoting TRAC, 750 F.2d 5 at 80) (citations and quotations omitted).
6 Under this review, the Court concludes that Plaintiffs have failed to demonstrate that the 7 delay in this case has been unreasonable. The first factor—“whether the time for agency action 8 has been reasonable”—is considered the most important. See Vaz v. Neal, 33 F.4th 1131, 1138 9 (9th Cir. 2022) (citations omitted).7 “In the immigration context, numerous district courts within 10 the Ninth Circuit have found that lengthier delays” than the one at issue here “were not 11 unreasonable.” Kapoor v. Blinken, 2022 WL 181217, at *4 (N.D. Cal. Jan. 20, 2022) (noting that, 12 with respect to applicants awaiting scheduling of interview for 18-20 months, “courts uniformly 13 have found that delays as long or longer than those in this case were not unreasonable”); see also 14 15 7 While under some circumstances the second factor may provide useful context in evaluating the first, it does not do 16 so in this case; as numerous courts have recognized, Congress has not prescribed a timetable for processing immigrant visa adjudications, and instead “has given the agencies wide discretion in the area of immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153-54 (D.D.C. 2017). “Absent a congressionally supplied 17 yardstick, courts typically turn to case law as a guide.” Arab v. Blinken, 600 F. Supp. 3d 59, 70 (D.D.C. 2022) (citations and internal quotation marks omitted). 18 Plaintiffs contend that Congress supplied a timetable in 8 U.S.C. § 1571, which states that “[i]t is the sense of 19 Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). The Court rejects Plaintiffs’ attempt to rely on this provision. As a sister court recently observed, “this argument is unavailing both because the Ninth Circuit has 20 interpreted similar statutory ‘sense of Congress’ language to be non-binding legislative dicta, and because Plaintiffs have failed to identify any authority suggesting this provision applies to the State Department’s processing of visa 21 applications, as opposed to USCIS’s processing of immigrant benefit applications.” Mahonak, 2025 WL 449044, at *16 (cleaned up, citing Mohsenzadeh v. Kelly, 276 F. Supp. 3d 1007, 1014 (S.D. Cal. 2017); Yang v. Cal. Dep’t of Soc. Serv., 183 F.3d 953, 961 (9th Cir. 1999); Arab, 600 F. Supp. 3d at 69-70.) 22
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 are unreasonable and those between three and five years are often not). More specifically, and
3 critically for purposes of Defendants’ motion, numerous courts have found comparable 4 allegations of delay to be insufficient to state a claim at the motion-to-dismiss stage. See, e.g., 5 Infracost Inc. v. Blinken, 732 F. Supp. 3d 1240, 1254 (S.D. Cal. 2024) (“This fourteen-month 6 administrative-processing-related delay is comparable to those considered insufficient to state a 7 plausible claim for relief in analogous cases.”); Barazandeh v. U.S. Dep't of State, 2024 WL 8 341166, at *8 (D.D.C. Jan. 30, 2024) (noting “district courts have generally found that 9 immigration delays of two to three years are reasonable” and finding twenty-month delay due to 10 administrative processing reasonable); Isse v. Whitman, 2023 WL 4174357, at *6 (D.D.C. June 11 26, 2023) (dismissing under Federal Rule 12(b)(6) visa applicant’s claim based on 40-month
12 delay due to administrative processing); Nusrat, 2022 WL 4103860, at *6 (finding 32-month 13 delay due to administrative processing reasonable and dismissing claim). The first TRAC factor 14 weighs heavily in favor of Defendants. 15 “The third and fifth factors require the [c]ourt to assess whether human health and welfare 16 are at stake and whether the nature and extent of those interests are prejudiced by the delay.” 17 Ghalambor v. Blinken, 2024 WL 653377, at *6 (C.D. Cal. Feb. 1, 2024). Courts typically 18 consider these factors together. See, e.g., Najafi v. Pompeo, 2019 WL 6612222, at *7 (N.D. Cal. 19 Dec. 5, 2019); Islam v. Heinauer, 32 F. Supp. 3d 1063, 1073 (N.D. Cal. 2014). The Court has 20 reviewed Plaintiffs’ allegations and acknowledges the hardship that Plaintiffs and their family are 21 experiencing due to the delay in processing Khosravi’s visa. See, e.g., Am. Compl., ¶ 79
22 (Plaintiffs “are suffering from extreme emotional and psychological harm due to the uncertainty
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 conclusory terms—while far from trivial—are nearly always presented by delays in processing
3 immediate-family visa applications. This factor weighs in Plaintiffs’ favor, though not enough to 4 tip the balance in relation to the other TRAC factors. 5 Finally, the fourth TRAC factor heavily favors Defendants.8 Under this factor, the court 6 considers “whether compelling the agency to act would detract from its higher or competing 7 priorities.” Vaz, 33 F.4th at 1138. Courts have “refused to grant relief, even though all the other 8 factors considered in TRAC favored it, where a judicial order putting the petitioner at the head of 9 the queue would simply move all others back one space and produce no net gain.” Mashpee 10 Wampanoag Tribal Council, 336 F.3d at 1102 (cleaned up). In this case, an order requiring 11 Defendants to adjudicate Khosravi’s application would both prioritize him at the expense of
12 similarly situated applicants, and interfere with Defendants’ “discretion in prioritizing its 13 activities and allocating its resources.” Vaz, 33 F.4th at 1138 (citation omitted). Plaintiffs argue 14 that there is no evidence that there is a “queue,” or that applications are necessarily processed in 15 the order they are received. Nevertheless, “granting the relief Plaintiff[s] seek[ ] would [still] push 16 others, some of whom may not have the resources to commence litigation, further back in the 17 18 8 The sixth factor is “not really a ‘factor,’ but merely a confirmation that agency delay need not be intentional to be 19 unreasonable.” Feng v. Beers, 2014 WL 1028371, at *5 (E.D. Cal. Mar. 14, 2014). Plaintiffs argue, without evidence, that this factor favors them because Defendants have made no attempt to hire more staff to process applications more expeditiously. There is no evidence (or allegation) that Defendants have the ability to hire more 20 staff, that more staff would result in the faster processing of applications generally, or that faster processing of applications would have any effect on the adjudication of Khosravi’s application specifically. The sixth factor favors 21 neither side. R. v. U.S. Citizenship & Immigr. Servs., 2023 WL 9197564, at *5 (C.D. Cal. Dec. 6, 2023) (citation omitted) (“In absence of any allegations of impropriety, the sixth TRAC factor typically is either neutral or weighs in the government’s favor.”). 22
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 2 Furthermore, where, as here, “[t]he agency is in a unique—and authoritative—position to view its
3 projects as a whole, estimate the prospects for each, and allocate its resources in the optimal 4 way,” there is “no basis for reordering agency priorities.” In re Barr Lab'ys, 930 F.2d at 76; see 5 also Arab, 600 F. Supp. 3d at 71 (“[D]eference must be given to the State Department's priority- 6 setting and resource-allocation decisions.”) (collecting cases). 7 Under the foregoing TRAC analysis, the Court concludes that Plaintiffs have failed to 8 allege that the delay they have experienced in this case is unreasonable. The Court again 9 acknowledges that other courts have come to a different conclusion, finding that questions of 10 unreasonable delay may be fact-intensive and therefore, not appropriate for disposition at the 11 motion-to-dismiss stage. See, e.g., Barrios Garcia v. U.S. Dep't of Homeland Sec., 25 F.4th 430,
12 451 (6th Cir. 2022) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and 13 nuanced task requiring consideration of the particular facts and circumstances before the court.”). 14 In this case, however, Plaintiffs have not argued that discovery is necessary to further develop a 15 record that might support their claim of unreasonableness. Instead, they have moved the Court to 16 find on the sparse record before it that, as a matter of law, the 16-month delay at issue is 17 unreasonable. The Court declines to do so and finds that, to the contrary, the TRAC factors weigh 18 heavily in favor of finding that the length of delay, to date, is not unreasonable. 19 This dismissal is without leave to amend, which Plaintiffs have neither requested nor 20 demonstrated they are entitled to; but it is without prejudice. Should later circumstances develop 21 that support a finding of unreasonable delay, the Court is prepared to direct Defendants to
22 adjudicate Khosravi’s application, especially considering his advanced age. See, e.g. Infracost
23 ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24
25 1 v. Blinken, 732 F. Supp. 3d 1240, 1258 (S.D. Cal. 2024) (dismissing unreasonable delay 2 ||claims “WITHOUT LEAVE TO AMEND,” but “WITHOUT PREJUDICE to refiling should later 3 || circumstances demonstrate an unreasonable delay”); Aminzadeh, 2024 WL 3811153, at *9 4 (same); Shahijani v. Laitinen, 2023 WL 6889774, at *6 (C.D. Cal. Oct. 6, 2023) (same). 5 IV. CONCLUSION 6 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss and 7 || DENIES Plaintiffs’ Motion for Summary Judgment. This matter is DISMISSED without leave to 8 || amend but without prejudice, as outlined above. 9 DATED this 14th day of March, 2025. 10 Asner eu, Barbara Jacobs Rothstein 12 U.S. District Court Judge 13 14 15 16 17 18 19 20 21 22 23, |] ORDER GRANTING DEFS.’ MOTION TO DISMISS AND DENYING PLS.’ MOTION FOR SUMMARY JUDGMENT 24 25 - 16