UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHUN YING LI,
Plaintiff,
v. No. 23-cv-3025 (DLF) LISA K. HELLER, in her official capacity as Consul General, U.S. Consulate General in Guangzhou, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Shun Ying Li seeks to enter the United States to marry her American fiancé
Maxwell Willis Milligan. Li applied for a K-1 visa, but her application was placed in
administrative processing after an interview at the U.S. consulate in Guangzhou. Compl. ¶¶ 2–4,
21, Dkt. 1. Li filed this suit against State Department officials under the Administrative Procedure
Act (APA), 5 U.S.C. §§ 555(b), 706(1), and the Mandamus Act, 28 U.S.C. § 1361, seeking a final
decision on her visa application. Id. ¶¶ 24–36. Li contends that the delay she has experienced has
been unreasonably long. Id. ¶ 27. Before the Court is the defendants’ Motion to Dismiss under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. 8. For the reasons
that follow, the Court will grant the motion and dismiss the complaint under Rule 12(b)(6).
I. BACKGROUND
A. Statutory Framework
A noncitizen who “is the fiancée . . . of a citizen of the United States . . . and who seeks to
enter the United States solely to conclude a valid marriage with the petitioner” may apply for a “K-1” nonimmigrant visa. 8 U.S.C. § 1101(a)(15)(K)(i). The process to obtain a K-1 visa,
however, requires multiple steps. See Bagherian v. Pompeo, 442 F. Supp. 3d 87, 90 (D.D.C. 2020).
First, the noncitizen’s American fiancé(e) must submit a petition, known as a Form I-129F, to the
Department of Homeland Security (DHS). See 8 U.S.C. § 1184(d)(1); I-129F, Petition for Alien
Fiancé(e), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/i-129f
[https://perma.cc/JN2T-JP3L]. Second, after DHS approves the petition, it is forwarded to the
National Visa Center (NVC). See Visas for Fiancé(e)s of U.S. Citizens, U.S. Citizenship &
Immigr. Servs., https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-
citizens [https://perma.cc/Y9RW-UCNB]. Finally, the NVC forwards the visa application to a
U.S. Embassy or consulate where the noncitizen fiancé(e) intends to apply for a K-1 visa. Id. A
consular officer is then responsible for interviewing the noncitizen fiancée, reviewing the
application, determining the couple’s “bona fide intent to establish a life together,” and requesting
any appropriate background check. Id.
After a noncitizen has “properly completed and executed” a “visa application” and
interviewed, a “consular officer must issue the visa, refuse the visa, or, pursuant to an outstanding
order . . . discontinue granting the visa.” 22 C.F.R. § 41.121. “No visa or other documentation
shall be issued” if (1) “it appears to the consular officer . . . 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 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.” 8 U.S.C.
§ 1201(g). If the consular officer believes “additional information from sources other than the
applicant may help establish an applicant’s eligibility,” he may refer the application for
2 “administrative processing.” Administrative Processing Information, Bureau of Consular Affs.,
U.S. Dep't of State, https://travel.state.gov/content/travel/en/us-visas/visa-information-
resources/administrative-processing-information.html [https://perma.cc/RNU3-E3FB]. “The
duration of the administrative processing will vary based on the individual circumstances of each
case.” Id.
B. Factual Background
Maxwell Willis Milligan, a United States citizen, is engaged to Shun Ying Li, a Chinese
national. In October 2021, Milligan filed Form I-129F with USCIS, hoping that Li could enter the
United States to get married. Compl. ¶ 17. “In February 2023, USCIS approved [Milligan’s] visa
petition,” at which point the U.S. Consulate General in Guangzhou scheduled a K-1 visa interview
with Li. Id. ¶¶ 18, 20. “In May 2023, . . . a consular officer reviewed Shun Ying Li’s case” and
interviewed her; following that interview, the officer decided to place Li’s application in
administrative processing. Id. ¶¶ 20–21. In July 2023, shortly after Li’s interview, Milligan’s
Chinese work visa expired, and he returned to the United States. Id. ¶ 7.
The separation has caused Li “significant anxiety and depression.” Id. Li and Milligan
also “used $15,000 of their savings to cover costs” associated with the delay, such as rescheduling
their wedding and airplane tickets. Id. ¶ 9.
In October 2023, approximately four months after her interview, Li filed suit against the
Consul General in Guangzhou Lisa K. Heller, the Deputy Chief of Mission in China David Meale,
and Secretary of State Antony Blinken. See id. ¶ 1. Li contends, see id. ¶ 26, that adjudication of
her visa has been “unreasonably delayed” in violation of the Administrative Procedure Act, see 5
U.S.C. §§ 555(b), 706(1). She also seeks, in the alternative, relief under the Mandamus Act. See
Compl. ¶¶ 30–35. In terms of remedy, Li asks the Court to “[m]andat[e] that Defendants process
3 Plaintiff’s visa application within fifteen (15) calendar days of this order or as soon as reasonably
possible[.]” Id. ¶ 36(b).
II. LEGAL STANDARDS
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts
are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Federal law empowers federal district court judges to hear only certain kinds of cases, and
the party asserting jurisdiction bears the burden of establishing that her case falls within the judge’s
purview. Id. When deciding a Rule 12(b)(1) motion, the Court must “assume the truth of all
material factual allegations in the complaint and construe the complaint liberally, granting plaintiff
the benefit of all inferences that can be derived from the facts alleged, and upon such facts
determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (cleaned up). A court “may undertake an independent investigation” that examines “facts
developed in the record beyond the complaint” to “assure itself of its own subject matter
jurisdiction.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (cleaned up).
A court that lacks jurisdiction must dismiss the action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A facially plausible claim is one that “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Rule 12(b)(6) does not amount to a specific probability requirement, but it does require
4 “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see Twombly, 550 U.S.
at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).
The complaint need not make “detailed factual allegations,” but allegations that are merely a
“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(citations omitted).
III. ANALYSIS
A. Article III Standing
Article III standing has three elements: “a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused
by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). Contrary to the defendants’ suggestions, Reply in
Supp. of Def.’s Mot. to Dismiss at 1–4, Dkt. 10, Li has established each of these elements.
As alleged in her complaint, Li has been separated from her fiancé due to the delay in
processing her visa. See Compl. ¶ 7. This Court has previously held that separation from a loved
one constitutes a concrete harm. See, e.g., Pourabdollah v. Blinken, No. 23-cv-1603, 2024 WL
474523, at *3 (D.D.C. Feb. 7, 2024); see also Trump v. Hawaii, 585 U.S. 667, 698 (2018) (noting
that “a person's interest in being united with his relatives is sufficiently concrete and particularized
to form the basis of an Article III injury in fact” and recognizing, more generally, the weight of
“bona fide relationship[s]” between Americans and “person[s] seeking to enter the country” for
the purposes of establishing Article III standing). So too here: Li’s separation is sufficient to
establish injury in fact. Li also highlights that the delay has caused past and ongoing financial
hardship, Compl. ¶¶ 8–9, and this “readily qualif[ies]” as a concrete pocketbook harm,
TransUnion, 141 S. Ct. at 2204.
5 The defendants invoke Kleindienst v. Mandel, but this case is inapposite. See Reply in
Supp. of Def.’s Mot. to Dismiss at 1–2 (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). In
Mandel, the Supreme Court held that “an unadmitted and nonresident alien[] ha[s] no
constitutional right of entry to this country as a nonimmigrant or otherwise.” 408 U.S at 762. As
the Court explained in Pourabdollah, however, Mandel and its lineage do not diminish Li’s alleged
injury. See Pourabdollah, 2024 WL 474523, at *4. Mandel establishes “an exception to the
doctrine of consular nonreviewability,” but it has nothing to do with Article III standing. Id. Even
putting aside the defendants’ conflation of standing and consular nonreviewability, Li
satisfactorily alleges nonconstitutional injuries. Along with “[h]arms specified by the Constitution
itself,” “traditional tangible harms” and “[v]arious intangible harms . . . with a close relationship
to harms traditionally recognized” can provide a basis for Article III standing. TransUnion, 141
S. Ct. at 2204. For the above stated reasons, Li has alleged harms sufficient for standing under
Article III.
Li’s injuries also fulfill the second and third elements for standing—“causation
(traceability) and redressability.” Whitlock v. U.S. Dep’t of Homeland Sec., No. 21-cv-807, 2022
WL 424983, at *3 (D.D.C. Feb. 11, 2022). Considering traceability first, Li’s injuries were, at
least in part, caused by the defendants. The State Department and its consular officers “alone [are]
responsible” for conducting interviews and rendering decisions on visa applications, and the delay
has prolonged the period of separation and dwindled Li’s savings. Id. True, Li’s “voluntary
decisions” may have exacerbated these injuries. Reply in Supp. of Def.’s Mot. to Dismiss at 18
n.3. But any such contribution was marginal and not alleged on the face of the complaint. Even
assuming wedding and flight costs are not fairly attributable to the delay, surely the prolonged
separation from her fiancé is.
6 And these injuries are redressable. Li alleges that the injuries she faces stem from the State
Department’s unwillingness to provide her with “a final decision on her application[] within a
reasonable time.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 9–10, Dkt. 9. Accordingly, as in
similar cases this Court has considered, the plaintiff’s “injuries may be redressed with an order
[requiring Secretary Blinken and the Guangzhou Consul General Heller] to complete that review
more expeditiously.” Pourabdollah, 2024 WL 474523, at *4 (cleaned up); see Ahmadi v. Scharpf,
No. 23-cv-953, 2024 WL 551542, at *3 (D.D.C. Feb. 12, 2024); Babaei v. United States Dep’t of
State, No. 23-1244, 2024 WL 1178453, at *3 (D.D.C. Mar. 19, 2024); Yaghoubnezhad v. Stufft,
No. 23-cv-03094, 2024 WL 2077551, at *5 (D.D.C. May 9, 2024).
The defendants also argue that since “re-adjudicating [Li’s] refused visa application
now . . . will not definitively remedy this alleged injury,” she lacks standing. Reply in Supp. of
Def.’s Mot. to Dismiss at 3–4 (citing Naveed v. Blinken, No. 22-3579, 2023 WL 4142952, at *1
(D.D.C. Jan. 18, 2023)). But this argument is unpersuasive. The Court must assume the truth of
the allegations contained in the Petition, including the allegation that Li has not received a final
decision on her application. See Compl. ¶¶ 22–23. An order for more expeditious review on the
application would redress injuries incurred due to the delay, including, at the very least, Li’s
separation from her fiancé. See Pourabdollah, 2024 WL 474523, at *4.
The Court will also reject the defendants’ request to “dismiss Defendant Secretary of State
Blinken from this case because he has no role in re-adjudicating the Visa Application.” Mot. to
Dismiss at 5. “While the Secretary of State has no legal authority to control which visa applications
consular officers grant or deny, nothing precludes him from directing them to decide pending
applications within a reasonable time, as the APA requires.” Ahmadi, 2024 WL 551542, at *4
(cleaned up).
7 The Court thus concludes that Li has satisfied Article III’s standing requirements.
B. Consular Non-Reviewability
The Court also rejects the defendants’ argument that consular non-reviewability doctrine
bars Li’s claims. Mot. to Dismiss at 6–10.
The Court has, time and again, rejected this argument in visa-delay cases. See
Pourabdollah, 2024 WL 474523, at *4–5 (detailing the Court’s disagreement with the defendants’
reading of Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020 (D.C. Cir. 2021)). Here, Li alleges that
her application is stuck in “administrative processing,” which she characterizes not as a “final
decision” but rather as a “temporary measure[] signaling that processing is ongoing.” Compl.
¶¶ 21–22. On a motion to dismiss, the Court accepts this allegation as true. See Pourabdollah,
2024 WL 474523, at *4–5; Ahmadi, 2024 WL 551542, at *4; Nine Iraqi Allies Under Serious
Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 283–87
(D.D.C. 2016). “[T]he Court is unable to substitute [Li’s] allegations” that her application is stuck
in administrative processing “with the Secretary's representations that [her] application[] [has]
been ‘refused.’” Pourabdollah, 2024 WL 474523, at *4 (cleaned up).
“[T]he consular nonreviewability doctrine applies only to final decisions.” Ahmadi, 2024
WL 551542, at *4 (quoting Al-Gharawy v. DHS, 617 F. Supp. 3d 1, 11 (D.D.C. 2022)). The
defendants have made no such final decision on Li’s application. Absent such a final decision,
consular nonreviewability falls out of the picture, and “judicial review of [the] consular officer’s
delay” is appropriate. Id.
C. APA & Mandamus Act Claims
Although Li’s claims survive the defendants’ threshold arguments, her APA and
mandamus claims fail to state a claim under Rule 12(b)(6).
8 Under both § 706(1) of the APA and the Mandamus Act, 28 U.S.C. § 1361, two
requirements define unreasonable-delay claims in visa processing petitions. See Skalka v. Kelly,
246 F. Supp. 3d 147, 152 (D.D.C. 2017). A “reviewing court shall . . . compel agency action,” 5
U.S.C. § 706(1), only when: (1) “a plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take,” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004); and,
(2) “the agency's delay is so egregious as to warrant mandamus,” In re Core Commc'ns, Inc., 531
F.3d 849, 855 (D.C. Cir. 2008) (cleaned up).
The Court will assume without deciding that adjudicating Li’s application is a discrete
action the defendants are required to take, see Pourabdollah, 2024 WL 474523, at *6 n.5,
notwithstanding the defendants’ arguments to the contrary, see Mot. to Dismiss at 10–16. The
Court thus turns to the second prong: namely, whether the defendants’ delay in processing Li’s
visa has been unreasonably long. 1 To determine whether an agency’s delay is unreasonable, the
D.C. Circuit has formulated a six-part test synthesized from prior practice:
(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;
1 Plaintiff also argues that, because of the “the fact-intensive nature of the inquiry into whether a delay is unreasonable, . . . it [is] inappropriate to dismiss undue delay claims at the motion to dismiss stage.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 14. As outlined in Pourabdollah v. Blinken, however, “it is not premature to adjudicate [a petitioner’s] unreasonable-delay claim at the motion-to-dismiss stage. Courts in this district have routinely decided whether an agency's delay is unreasonable when processing claims for immigration benefits at this stage.” 2024 WL 474523, at *7 n.6.
9 (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.
In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (cleaned up).
Considering the so-called “TRAC factors” together, the Court finds that the delay has not been
unreasonable.
1. TRAC Factors 1 and 2
“The first two factors are often considered together” because they both concern timing.
Ahmadi, 2024 WL 551542, at *5 (cleaned up). In analyzing these factors, the Court must
determine “whether the agency's response time complies with an existing specified schedule and
whether it is governed by an identifiable rationale.” Ctr. for Sci. in the Pub. Int. v. FDA, 74 F.
Supp. 3d 295, 300 (D.D.C. 2014).
Factors one and two favor the defendants. “Congress has not imposed deadlines for
fiancé(e) visas,” Whitlock, 2022 WL 424983, at *6, and “[a]bsent a congressionally supplied
yardstick, courts typically turn to case law as a guide” to determine the reasonableness of a visa-
application delay, Sarlak v. Pompeo, No. 20-cv-35, 2020 WL 3082018, at *6 (D.D.C. June 10,
2020). Such precedent helps establish a governing “rule of reason.” Id. Specifically in the context
of fiancé visas, the Court has found delays over a year not unreasonable. See, e.g., Whitlock, 2022
WL 424983, at *6 (finding a delay of eighteen months reasonable); Schwartz v. United States
Department of Homeland Security, No. 21-378, 2021 WL 4133618, at *3 (D.D.C. Sept. 10, 2021)
(finding a nineteen-month delay reasonable); see also Mot. to Dismiss at 20–21 (noting that in
various visa categories even longer delays have been held reasonable).
When the complaint was filed here, Li had waited four months (now closer to thirteen
months). See Compl. ¶ 20; Mot. to Dismiss at 20. Finding an unreasonable delay here, when less
10 time has passed than in any of the above examples, would upset the rule prior cases have
established. Indeed, in a recent case, this Court held that a similar four-month delay in a fiancé
visa case was reasonable. See Lee v. Blinken, No. 23-cv-1783, 2024 WL 639635, at *5 (D.D.C.
Feb. 15, 2024). Although Li directs the Court to cases finding particular delays were unreasonable,
see Mem. in Opp’n to Defs.’ Mot. to Dismiss at 17–18, all feature far longer delays than that at
issue here. The delay here was thus not “egregious” under the first and second TRAC factors.
2. TRAC Factor 4
TRAC factor four also carries particular weight. Pourabdollah, 2024 WL 474523, at *7
(citing Da Costa v. Immigr. Inv. Program Off., 643 F. Supp. 3d 1, 15 (D.D.C. 2022), aff'd, 80 F.4th
330 (D.C. Cir. 2023)). “The fourth factor considers the effect of prioritizing one agency action
over others. Courts are generally hesitant to direct agencies which tasks to prioritize, particularly
if such intervention would move the petitioner to the head of the queue and simply move[] all
others back one space.” Ahmadi, 2024 WL 551542, at *6 (cleaned up).
This factor also weighs strongly in favor of the defendants. Contrary to Li’s suggestion,
the Court cannot exclusively “focus on the impact of the delay on the plaintiff before it.” Mem.
in Opp’n to Defs.’ Mot. to Dismiss at 20. Rather, it must also consider the effects of prioritizing
the plaintiff on “agency activities of . . . competing priority.” In re United Mine Workers of Am.
Int'l Union, 190 F.3d at 549 (cleaned up). Here, reordering “the queue of applicants seeking
adjudication would be inappropriate . . . because there would be no demonstrable net gain in visa
processing at large.” Pourabdollah, 2024 WL 474523, at *8 (cleaned up). Placing Li at the front
of the line would constitute the exact sort of “judicial reordering[] of agency priorities” upon which
precedent frowns. Id. (quoting Rahman v. Blinken, No. 22-2732, 2023 WL 196428, at *4 (D.D.C.
2023)). Because expediting the delayed action for Li could simply foist the delay upon other
11 applicants, contrary to the State Department’s priorities, the fourth TRAC factor also weighs in
the defendants’ favor.
3. TRAC Factors 3 and 5
TRAC factors three and five favor Li, but not to so great an extent they outweigh the
remaining factors. Factors three and five concern the “health and welfare . . . at stake” and “the
interests prejudiced by delay.” Telecomms. Rsch. and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.
Cir. 1984). Li alleges the delay has had a significant “negative impact . . . on her life” and “has
put [her], her disabled parents, and [her fiancé] in a precarious economic situation.” Mem. in Opp’n
to Defs.’ Mot. to Dismiss at 19. Assuming their truth, these allegations support the conclusion that
the visa delay has affected Li’s and her fiancé’s health and welfare.
4. TRAC Factor 6
The final TRAC factor requires the Court to “determine whether the agency has acted in
bad faith in delaying action.” Fakhimi v. Dep't of State, No. 23-cv-1127, 2023 WL 6976073, at
*11 (D.D.C. Oct. 23, 2023) (cleaned up). Li concedes that “there is no evidence that defendants
have engaged in any improper conduct.” Mem. in Opp’n to Defs.’ Mot. to Dismiss at 17. But “the
lack of plausible allegations of impropriety does not weigh against [Li],” so the Court treats this
factor as neutral. Fakhimi, 2023 WL 6976073, at *11; see Ahmadi, 2024 WL 551542, at *6.
In aggregate, then, the TRAC factors suggest “the agency’s delay is [not] so egregious as
to warrant mandamus,” meaning Li has also failed to state a claim for unreasonable delay under
the APA and Mandamus Act. In re Core Commc’ns, Inc., 531 F.3d at 855 (cleaned up).
12 CONCLUSION
For the foregoing reasons, the Court will grant the defendants’ Motion to Dismiss, Dkt. 8.
A separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH United States District Judge
July 12, 2024