Khushnood v. United States Citizenship and Immigration Services

• Court: District Court, District of Columbia
• Decided: February 10, 2022
• Docket: Civil Action No. 2021-2166
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UMAIR KHUSHNOOD,

Plaintiff,

v. Civil Action No. 21-2166 (FYP)

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Umair Khushnood is a citizen of Pakistan and resident of Vancouver, Canada.

See ECF No. 1 (Complaint), ¶¶ 2–3. On January 8, 2020, Plaintiff’s employer filed an I-140

form with the United States Citizen and Immigration Services (“USCIS”) to initiate the process

of obtaining a worker’s visa for Khushnood. Id., ¶ 12. The application process, however, has

been stalled for over two years, prompting Khushnood to file this lawsuit to obtain his visa. He

alleges that the delayed processing of his visa application constitutes a violation of the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 706(1), and the Due Process Clause

of the United States Constitution. Id., ¶¶ 22–24, 31–32. Khushnood seeks a writ of mandamus

compelling Defendants to process and approve his visa. Id. at 7. Defendants now move to

dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See generally

ECF No. 5 (Defendants’ Motion to Dismiss).1 The Court agrees that Khushnood fails to state a

claim and will therefore grant Defendants’ Motion to Dismiss.

1 Plaintiff filed an Opposition, see ECF No. 7 (Plaintiff’s Opposition), and Defendants filed a Reply, see ECF No. 8 (Defendants’ Reply). BACKGROUND

Khushnood’s employer filed a petition with USCIS for Khushnood’s I-140 worker’s visa

on January 8, 2020, after obtaining a required certification from the U.S. Department of Labor.2

See Compl., ¶¶ 12, 15. USCIS approved Khushnood’s petition on February 4, 2020, and sent it

to the National Visa Center (“NVC”) for further processing. Id., ¶¶ 17–18.

The NVC forwarded the petition to the U.S. Consulate in Montreal, Canada, which must

schedule an interview with Khushnood before his visa petition can be approved. Id., ¶¶ 18–19.

During the pendency of Khushnood’s visa petition, the COVID-19 global pandemic

“significantly disrupted the State Department’s ability to interview applications and issue visas.”

See Def. Mot. at 3. In March 2020, the State Department suspended visa services around the

world. Id. The agency has since resumed some activities, but the disruption caused by the

pandemic has resulted in “substantial backlogs” and “increased wait times for all services.” Id.

(citing Consular Operations Update, https://ca.usembassy.gov/embassy-consulates/consular-

operations/updates); see also id. at 4 (noting that before the full onset of the pandemic, the State

Department issued 43,136 visas in January 2020; but that the State Department issued only

11,880 visas in January 2021).

Although the U.S. Consulate in Montreal is processing visa petitions based on a tiered

immigrant-prioritization system, Khushnood’s interview has not yet been scheduled, and his visa

therefore cannot be approved. See Compl., ¶ 19; see Def. Mot. at 3 (first citing Consular

Operations Update, https://ca.usembassy.gov/embassy-consulates/consular-operations-updates/;

2 To obtain a worker’s visa, a sponsoring employer must first apply to the Department of Labor for labor certification approval, attesting to the availability and compensation of the prospective employee’s job. See 20 C.F.R. § 656.10. 2 and then citing https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-

prioritization.html). Khushnood contacted the consulate and the NVC multiple times to advance

his case but received no response. See Compl., ¶ 20; Pl. Opp. at 3. Eighteen months after

USCIS approved the I-140 form, Khushnood filed the instant Complaint on August 12, 2021.

Id., ¶ 17. He named several U.S. agencies and their heads as Defendants — namely, USCIS, the

Department of State, and the U.S. Consulate in Montreal. Id., ¶¶ 3–8. Khushnood alleges that

Defendants’ delay in processing his visa is unreasonable under the APA, id., ¶¶ 21–29, and

unconstitutional under the Due Process Clause of the Fifth Amendment, id., ¶¶ 30–34. As relief,

Plaintiff requests that this Court (1) issue a writ of mandamus compelling Defendants to conduct

Khushnood’s interview, complete processing of his visa petition within 60 days, issue a visa to

him, and explain the reason for the delay; and (2) take jurisdiction to adjudicate his petition

pursuant to the Court’s declaratory-judgment authority. Id. at 7. Defendants now move to

dismiss, arguing that Khushnood has failed to state a cognizable claim under either the APA or

the Constitution. See Def. Mot. at 7, 16.

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon

which relief can be granted.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 552 (2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id.

at 555, “a 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

Twombly, 550 U.S. at 570).

3 When considering a motion to dismiss, a court must construe a complaint liberally in the

plaintiff’s favor, “treat[ing] the complaint’s factual allegations as true” and granting the plaintiff

“the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations and quotation marks

omitted); see also Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

Although a plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and

unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555–56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)).

ANALYSIS

Defendants move to dismiss on several grounds. First, Defendants assert that

Khushnood’s claims against certain defendants are moot because those defendants cannot

provide the relief that he seeks. See Def. Mot. at 5–6. Second, Defendants contend that

Khushnood’s APA claim should be dismissed because the delay in adjudicating his visa petition

is not unreasonable as a matter of law. See Def. Mot. at 7. Finally, Defendants argue that

Khushnood fails to state a cognizable constitutional claim. See Def. Mot. at 16. The Court will

address each argument in turn.

A. Mootness

Defendants argue that the claims against USCIS, USCIS Director Ur Jaddou, and

Secretary of State Antony Blinken are moot and should be dismissed. See Def. Mot. at 5–6. As

to the claims against USCIS and USCIS Director Jaddou, Defendants argue that those defendants

have already done their part to process Khushnood’s visa, and Khushnood therefore cannot

4 obtain any relief from them. See Def. Mot. at 5–6. “Federal courts lack jurisdiction to decide

moot cases because their constitutional authority extends only to actual cases or controversies.”

Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow

Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)). Here, as Khushnood acknowledges, USCIS

and its officials fully processed Khushnood’s visa application and forwarded it to the NVC. See

Compl., ¶ 17; Pl. Mot. at 3. There is nothing more that these defendants can do. As a result, the

claims against USCIS and its officials are moot and must be dismissed. See Khanom v. Kerry,

37 F. Supp. 3d 567, 574 (E.D.N.Y. 2014).

Defendants also assert that the claim against Secretary of State Antony Blinken is moot

because Defendant Blinken cannot adjudicate Khushnood’s petition. See Def. Mot. at 6. “The

Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., grants consular officers ‘exclusive

authority to review applications for visas, precluding even the Secretary of State from controlling

their determinations.’” See Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir.

2021). Because consular officers have exclusive authority to provide the relief that Khushnood

seeks, Khushnood’s claims against Secretary Blinken are also moot and must be dismissed.

B. APA Claim

Defendants next argue that Khushnood has failed to state a cognizable claim under the

APA. See Def. Mot. at 7 (citing 5 U.S.C. § 706(1)). Khushnood alleges that Defendants’ delay

in processing his visa violates the APA’s requirement that agencies “conclude” matters presented

to them “[w]ith due regard for the convenience and necessity of the parties . . . and within a

reasonable time.” See 5 U.S.C. § 555(b); see Compl., ¶ 22. When an agency fails to comply

with this requirement, the APA authorizes courts to “compel agency action unlawfully withheld

5 or unreasonably delayed.” See 5 U.S.C. § 706(1); Bagherian v. Pompeo, 442 F. Supp. 3d 87, 93

(D.D.C. 2020).

In Telecommunications Research and Action Center (TRAC) v. Federal Communications

Commission, 750 F.2d 70 (D.C. Cir. 1984), the D.C. Circuit provided “useful guidance” for

assessing claims of unreasonable agency delay, noting the following considerations:

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

Id. at 80 (citations omitted). Courts in this jurisdiction have applied these so-called “TRAC

factors” in numerous cases involving the delayed processing of visas. See, e.g., Palakuru v.

Renaud, 521 F. Supp. 3d 46, 49 (D.D.C. 2021) (applying TRAC factors at motion-to-dismiss

stage to determine if an employment-based immigrant visa application was unreasonably

delayed); see also Sarlak v. Pompeo, No. 20-cv-35, 2020 WL 3082018, at *5 (D.D.C. June 10,

6 2020) (same) (collecting cases). Here, application of the TRAC factors leads the Court to

conclude that the delay in processing Khushnood’s visa is not unreasonable as a matter of law.

1. TRAC Factors One and Two

The first two TRAC factors — focusing on the reasonableness of the delay and whether

Congress has set a timeline for completion of the action in question — favor Defendants.

Congress has not set any statutory deadline or timeframe for the processing of visas; “[t]o the

contrary, Congress has given agencies wide discretion in the area of immigration processing.”

Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349, 1353 (D.C.

Cir. 1997); Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017). Congress granted the

State Department the authority to process visa applications in broad terms, specifically omitting

“substantive standards against which the Secretary’s determination could be measured.” Legal

Assistance for Vietnamese Asylum Seekers, 104 F.3d at 1353; see 8 U.S.C. § 1202.

In cases like this where there is no “congressionally supplied yardstick, courts typically

turn to case law as a guide.” Sarlak, 2020 WL 3082018, at *6. While there is no bright-line rule

in this realm, “[d]istrict courts have generally found that immigration delays in excess of five,

six, seven years are unreasonable, while those between three to five years are often not

unreasonable.” Id. (citation omitted) (collecting cases). Indeed, many courts have “declined to

find a two-year period to be unreasonable as a matter of law,” particularly when the agency has

given a reasonable explanation for the delay and “regularly revisit[s] the question” of whether

they can proceed with visa processing. Ghadami v. Dep’t of Homeland Sec., No. 19-cv-397,

2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020) (collecting cases); Skalka, 246 F. Supp. 3d at

154 (collecting cases).

7 In this case, the relevant period of delay is approximately eighteen months — calculated

from the earliest possible time that Khushnood’s interview could have been scheduled. Although

Khushnood’s employer filed his initial visa petition in January 2020, see Compl., ¶ 12,

Khushnood does not challenge the initial steps that Defendants took to process the visa. Rather,

Khushnood seeks to compel the State Department to conduct his final interview, and any delay

should be measured from the time when the interview could have been scheduled, i.e., when

USCIS approved Khushnood’s petition and forwarded it to the NVC on February 4, 2020. Id.,

¶ 17; Def. Mot. at 1. The delay between that last government action and the filing of this suit

was approximately eighteen months.3

Although Plaintiff relies on several cases to support his argument that this eighteen-

month delay is unreasonable, he cites only out-of-circuit opinions that predate the COVID-19

pandemic. See Pl. Opp. at 9–10. Khushnood has ignored the chorus of cases from this

jurisdiction that have found visa delays greater than eighteen months reasonable, given the

impact of the pandemic. See, e.g., Mahmood v. Dep’t of Homeland Sec., No. 21-cv-1262, 2021

WL 5998385, at *2 (D.D.C. Dec. 20, 2021); see also Ghadami, 2020 WL 1308376, at *8

(collecting cases). As another court in this District recently held, “[i]ssues like a pandemic and

local government restrictions are out of the control of the Government and are justifications for

delay that the Court is ill-equipped to second guess.” Dastagir v. Blinken, No. 1:20-cv-02286,

2021 WL 2894645, at *5 (D.D.C. July 9, 2021).

3 The Court acknowledges that more time has passed since Plaintiff filed this case. Khushnood has now waited approximately two years for the State Department to schedule his interview. But even a two-year delay does not constitute an unreasonable delay under the applicable case law. Ghadami, 2020 WL 1308376, at *8 (collecting cases where courts have declined to find a two-year delay unreasonable). 8 Defendants attribute the delay in processing Khushnood’s visa petition to the “substantial

backlogs” caused by “the ‘Secretary of State’s decision to reduce consular processing [in order

to] protect the health of consular officers and the public’ in light of the COVID-19 pandemic.”

See Def. Mot. at 11 (quoting Tate v. Pompeo, 513 F. Supp. 3d 132, 149 (D.D.C. 2021) (quoting

agency declaration)) (alterations in original). The COVID-19 pandemic “significantly disrupted

the State Department’s ability to interview applicants and issue visas on a worldwide basis.” See

id. at 3. Under the conditions of a global pandemic, an eighteen-month delay is not “so

egregious as to warrant mandamus.” In re Core Commc’ns., Inc., 531 F.3d 849, 855 (D.C. Cir.

2008) (quoting TRAC, 750 F.2d at 79). Given the complications of the pandemic and the fact

that eighteen-month delays are routinely found to be reasonable, the Court finds that the first two

TRAC factors weigh in favor Defendants. See, e.g., Mahmood, 2021 WL 2894645, at *2.

2. TRAC Factors Three and Five

The third and fifth TRAC factors also favor Defendants. These factors “overlap,” as the

effects of delay on “human health and welfare” and “the interests prejudiced by delay” share

commonalities. See TRAC, 750 F.2d at 80. “Welfare” generally involves a “significant risk of

material impairment,” where there is current and actual danger to the health of the individual and

“the health of their progeny.” Cf. In re United Mine Workers Intern. Union, 190 F.3d 545, 563

(D.C. Cir. 1999) (assessing welfare by examining whether the regulatory scheme was

“negatively impacting a significant risk of material impairment”); see also Oil, Chemical and

Atomic Workers Intern. Union v. Zegeer, 768 F.2d 1480, 1487–88 (D.C. Cir. 1985) (discussing

“human life and health” when examining the third TRAC factor). Merely stating that a delay will

negatively impact the life of the applicant and put “the lives of his family members on hold” is

9 insufficient. Palakuru, 521 F. Supp. 3d at 53 (finding the third and fifth TRAC factor weighed in

favor of defendants when plaintiff asserted only that the delay put “his life ‘and the lives of his

family members . . . on hold”); see also Hulli v. Mayorkas, No. 21-cv-902, 2021 WL 2843203, at

*5 (D.D.C. June 29, 2021) (finding the third and fifth TRAC factors to favor defendants when the

plaintiff alleged that the delay caused him and his family “significant financial, economic, and

personal hardships” after investing their life savings).

Here, Khushnood alleges that the start of his employment has been delayed; and as a

result, he has been “irrevocably harmed . . . by [the] stalling of his professional career.” Compl.,

¶ 34; see also Pl. Opp. at 11 (stating the “length of the delay has harmed [Plaintiff] and his

family”). While Khushnood’s situation is unfortunate, the prejudice to him appears to be

financial, and he does not allege any effects on his health or physical welfare. While Khushnood

also states that the delay “has harmed him and his family,” he does not elaborate on this

contention. See Pl. Opp. at 11. By contrast, Defendants represent that the delay in processing

visas worldwide, including Khushnood’s visa, is attributable to the government’s efforts to

protect the health and safety of consular and diplomatic officials during the COVID-19

pandemic. See Def. Mot. at 15. Therefore, the third and fifth TRAC factors weigh in favor of

3. TRAC Factor Four

The fourth TRAC factor requires an assessment of the impact that expediting the delayed

action would have on other agency priorities — a consideration that firmly tips the scales toward

Defendants. The D.C. Circuit has held that court intervention is unwarranted where “a judicial

order putting [the petitioner] at the head of the queue [would] simply move[] all others back one

10 space and produce[] no net gain.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336

F.3d 1094, 1100 (D.C. Cir. 2003) (quoting In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir.

1991)). Judicial intervention would create just that scenario here. Although Khushnood

contends that he should not be individually penalized for delays caused by the pandemic, the

relief he requests “would simply ‘reorder’ a queue of applicants seeking adjudication,” Tate, 513

F. Supp. 3d at 149, during a time of “competing priorities for limited resources,” Mashpee

Wampanoag Tribal Council, 336 F.3d at 1101. Indeed, other applicants in the queue may face

even more significant hardships due to the State Department’s delays, and there is no net gain in

prioritizing Khushnood at their expense. As noted, the contrary authorities on which Khushnood

relies are out-of-circuit opinions that do not consider the unique hardships caused by the

pandemic. See Pl. Opp. at 10–11. Accordingly, the fourth TRAC factor heavily favors

4. TRAC Factor Six

The last TRAC factor favors neither party. Khushnood does not allege any impropriety in

the government’s actions beyond the delay itself, and the D.C. Circuit has instructed that a “court

need not find any impropriety” to find a delay to be unreasonable. TRAC, 750 F.2d at 80.

Khushnood’s lack of such allegations “does not count against [him] here.” Ghadami, 2020 WL

1308376, at *9.

Considering all six TRAC factors together, the Court concludes that Khushnood has not

stated a claim of unreasonable delay under the APA. Under the present circumstances,

Defendants’ interest in balancing agency priorities outweighs Khushnood’s interest in promptly

entering the country to work. See Sarlak, 2020 WL 3082018, at *6. Even treating all of

11 Khushnood’s allegations as true and drawing all inferences in his favor, the Court cannot find

that a delay of eighteen months in scheduling a visa interview is unreasonable, particularly

during a global pandemic. Khushnood’s APA claim, therefore, must be dismissed.

C. Due Process Claim

In his Complaint, Khushnood asserts his right to “fundamental fairness in administrative

adjudication” that allegedly has been violated by Defendants’ delay and failure “to provide a

reasonable and just framework of adjudication.” See Compl., ¶¶ 31–32.4 Defendants argue that

Khushnood fails to state a constitutional claim under the Due Process Clause of the Fifth

Amendment. See Def. Mot. at 16. The Court agrees with Defendants.

Plaintiff cites no authority that confers a constitutional right on a Canadian resident and

Pakistani citizen who seeks authorization to enter the United States to pursue an employment

opportunity. To the contrary, the Supreme Court “long ago held that Congress is entitled to set

the conditions for [a noncitizen’s] lawful entry into this country and that, as a result, [a

noncitizen] at the threshold of initial entry cannot claim any greater rights under the Due Process

Clause.” Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) (citing

Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)). In short, “the only procedural rights

of [a noncitizen] seeking to enter the country are those conferred by statute,” id. at 1977;

executive and administrative decisions regarding a noncitizen’s entry into the United States that

are made within the powers “expressly conferred by Congress” are themselves considered to be

4 Khushnood did not specify in his initial Complaint whether he was alleging a substantive or a procedural due process claim. See generally Compl. After Defendants addressed both in their Motion to Dismiss, Khushnood discussed only the procedural due process claim in his Opposition. See Pl. Opp. at 11–12. Because Khushnood did not address the substantive due process claim in his Opposition, the Court will treat Defendants’ arguments regarding that claim as conceded. See New Vision Photography Program, Inc. v. District of Columbia, 54 F. Supp. 3d 12, 24 (D.D.C. 2014) (treating claims “Plaintiffs never addressed” as conceded). 12 “due process of law.” Nishimura Ekiu, 142 U.S. at 660. The Supreme Court has repeatedly

upheld such decisions and has underscored this fundamental principle of immigration law.

Thuraissigiam, 140 S. Ct. at 1982; see also, e.g., United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process

as far as a[ noncitizen] denied entry is concerned”); Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 212 (1953) (same); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has

long held that a[ noncitizen] seeking initial admission to the United States requests a privilege

and has no constitutional rights regarding his application, for the power to admit or exclude

[noncitizens] is a sovereign prerogative”).

Here, Khushnood is a noncitizen who does not reside in the United States and merely

seeks a visa to work in this country. He has availed himself of the statutory process to obtain the

desired visa, and the Court has determined, supra, that the delay about which he complains is not

unreasonable as a matter of law. Khushnood thus fails to state a cognizable constitutional claim;

and that claim must be dismissed.

CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A separate

Order will issue this day.

____________________________ FLORENCE Y. PAN United States District Judge

Date: February 10, 2022