Noori v. Blinken

• Court: District Court, District of Columbia
• Decided: March 5, 2024
• Docket: Civil Action No. 2023-1463
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ATEFEH NOORI et al.,

Plaintiffs,

v. Civil Action No. 23-1463 (TJK) ANTONY J. BLINKEN et al.,

Defendants.

MEMORANDUM OPINION

Atefeh Noori seeks to have her foreign national father, Amanollah Noorijoshaghani, join

her in the United States from Iran. So in April 2022, he filed an immigrant visa application. In

February 2023, he received an interview with the relevant U.S. embassy. But his application was

then refused, pending further administrative processing. Three months later, Noori and her father

sued, arguing that Defendants have unreasonably delayed resolving the visa application, and seek-

ing to compel them to complete that processing and issue a final decision. Defendants move to

dismiss on several grounds. For the reasons explained below, the Court will grant the motion and

dismiss the case for failure to state a claim.

I. Background

A U.S. citizen who wishes to bring her foreign national relative to the United States must

file a Petition for Alien Relative (Form I-130) with the United States Citizenship and Immigration

Services (“USCIS”). See 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1). Upon approval of the petition,

USCIS sends the application to the State Department’s processing center. See 8 C.F.R.

§ 204.2(a)(3). The relative then submits another application (Form DS-260) and appears for an

interview at the embassy with jurisdiction over the foreign relative’s residence. See 22 C.F.R. § 42.62. After the interview, “the consular office must [either] issue [or] refuse the visa.” Id.

§ 42.81(a).

In June 2021, Noori, a U.S. citizen, filed a Form I-130 on behalf of her father, who lives in

Iran. Pet. for Writ of Mandamus (“Pet.”) ¶ 74, ECF No. 1. USCIS approved the application,

leading Noori’s father to file his Form DS-260 in April 2022. Id. ¶ 75–77. In February 2023, a

consular officer at the U.S. Embassy in Yerevan, Armenia interviewed Noori’s father. Id. ¶ 78.

The officer then informed him that the visa application was refused “pending further administrative

processing.” Id. ¶ 80. The application has remained in “administrative processing” ever since. Id.

¶ 84. Among other things, Plaintiffs allege that the delay in adjudicating this application has

caused “severe emotional and financial strain on the Plaintiffs.” Id. ¶ 6.

About three months after the interview, Noori and her father sued Defendants, the Secretary

of State, the Deputy Assistant Secretary for Visa Services, and the Consul General at the Embassy.

See id. ¶ 28–30. Count One of their Petition seeks to compel Defendants to act on the visa appli-

cation pursuant to the Mandamus Act, 28 U.S.C. § 1361. See Pet. ¶ 112–30. Count Two alleges

that Defendants have unlawfully failed to act on the application in violation of the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706(2). See id. ¶ 131–59. Count Three alleges that Defendants

have unlawfully withheld action in violation of the APA’s § 706(1). See id. ¶ 147–58. And Count

Four alleges that Defendants have unlawfully delayed action, also in violation of the APA’s

§ 706(1). See id. ¶ 159–74. Defendants move to dismiss on several grounds. See ECF No. 7.

II. Legal Standard

“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s complaint; it

does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff has

any evidence to back up what is in the complaint.’” Herron v. Fannie Mae, 861 F.3d 160, 173

(D.C. Cir. 2017) (quoting Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In

2 evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff,

who must be granted the benefit of all inferences that can be derived from the facts alleged.’”

Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979)). But a court is not “bound to accept as true a legal conclusion

couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “While a court generally does not consider matters

beyond the pleadings for a motion to dismiss, it may consider ‘the facts alleged in the complaint,

documents attached as exhibits or incorporated by reference in the complaint, or documents upon

which the plaintiff’s complaint necessarily relies even if the document is produced not by the

plaintiff in the complaint but by the defendant in a motion to dismiss.’” Feng Wang v. Pompeo,

No. 18-cv-1732 (TSC), 2020 WL 1451598, at *3 (D.D.C. Mar. 25, 2020) (citation omitted). A

court may also consider matters of which it can take judicial notice. See EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

For the reasons explained below, Plaintiffs’ Petition does not state a claim that the adjudi-

cation of the visa application at issue has been unlawfully withheld or unreasonably delayed, as

alleged in Counts One, Three and Four. 1 And because the Court will dismiss the Petition on that

1 Counts Three and Four, each brought under § 706(1) and seeking to compel agency ac- tion, are subject to the same analysis. Section 706(1) provides a cause of action to compel agency action “unlawfully withheld or unreasonably delayed.” But Plaintiffs have not “provided any legal standard or argument distinguishing between” the two for their purposes here. Tate v. Pompeo, 513 F. Supp. 3d 132, 147 n.6 (D.D.C. 2021). Thus, the “analysis of [Plaintiffs’] claim that agency action was unlawfully delayed . . . addresses the entirety of [their] § 706(1) claims to compel agency action.” Id. Similarly, while Count One is brought under the Mandamus Act, courts eval- uate that claim under the same framework as those brought under § 706(1). Penn v. Blinken, No. 21-cv-1055 (TJK), 2022 WL 910525, at *7 (D.D.C. Mar. 29, 2022) (“The standard for reviewing agency delay is the same under both § 706(1) of the APA and the Mandamus Act.” (cleaned up)).

3 ground, it need not resolve Defendants’ remaining arguments for dismissal. See Dastagir v.

Blinken, 557 F. Supp. 3d 160, 168 n.6 (D.D.C. 2021) (declining to consider Government’s consu-

lar-nonreviewability and redressability arguments after resolving unreasonable-delay case on the

merits); see also Mohammad v. Blinken, 548 F. Supp. 3d 159, 169 n.7 (D.D.C. 2021) (similar).

The APA authorizes a reviewing court to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). Courts review unreasonable-delay claims in pro-

cessing immigration petitions according to “the same [standard] under both § 706(1) of the APA

and the Mandamus Act.” Skalka v. Kelly, 246 F. Supp. 3d 147, 152 (D.D.C. 2017). “There is ‘no

per se rule as to how long is too long’ to wait for agency action.” In re Am. Rivers & Idaho Rivers

United, 372 F.3d 413, 419 (D.C. Cir. 2004) (quoting In re Int’l Chem Workers Union, 958 F.2d

1144, 1149 (D.C. Cir.1992)). Instead, Courts rely on the six “TRAC factors”:

(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 effect of expediting delayed action on agency activities of a higher or com- peting priority; (5) 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.

Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”) (cleaned up).

These factors “are not ‘ironclad,’ but rather are intended to provide ‘useful guidance in assessing

claims of agency delay.’” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting

Count Two fails to state a claim under § 706(2), but for a different reason. Plaintiffs them- selves insist that “[t]here has been no final decision on [their] visa application.” ECF No. 14 at 15. But to state a claim under that section, “the agency action in question must be final agency action.” Am. Anti-Vivisection Soc’y v. USDA, 946 F.3d 615, 620 (D.C. Cir. 2020) (citation omit- ted).

4 TRAC, 750 F.2d at 80). Taken together, the TRAC factors strongly weigh in Defendants’ favor.

Thus, even accepting Plaintiffs’ allegations as true, they are insufficient to state a claim for unrea-

sonable delay. 2

A. TRAC Factors 1 and 2

The first two TRAC factors are typically considered together. Milligan v. Pompeo, 502 F.

Supp. 3d 302, 317 (D.D.C. 2020). And the first is often considered the “most important.” In re

Core Commc’ns, Inc., 531 F.3d at 855. These factors ask the Court to 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).

Both factors favor Defendants. “There is no congressionally imposed timeline” for the

embassy to adjudicate the visa application. Bagherian, 442 F. Supp. 3d at 95. “To the contrary,

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

246 F. Supp. 3d at 153–54. 3 Thus, lacking a “set timeline, the Court looks to case law for

2 Plaintiffs argue that dismissal would be “premature” at this stage because unreasonable- delay claims “require fact-based inquiries.” ECF No. 14 at 22–24. But “[s]o long as a ‘record contains enough facts to evaluate the TRAC factors’ at the motion-to-dismiss stage, ‘then a Court may appropriately decide to do just that.’” Lee v. Blinken, No. 23-cv-1783 (DLF), 2024 WL 639635, at *4 (D.D.C. Feb. 15, 2024) (quoting DaCosta v. Immigr. Inv. Program Off., 643 F. Supp. 3d 1, 12 (D.D.C. 2022)). Thus, in this district, whether an alleged delay is unreasonable is a ques- tion routinely decided as a matter of law. See, e.g., Bagherian v. Pompeo, 442 F. Supp. 3d 87, 95 (D.D.C. 2020); Ghadami v. DHS, No. 19-cv-397 (ABJ), 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020). 3 The Petition repeatedly references language in the State Department’s Foreign Affairs Manual establishing a “policy under which immediate relative . . . visas be processed within 30 days of receipt of the necessary information from the applicant.” 9 FAM § 504.7-2. But this policy is “nonbinding” and “insufficient to displace the significant discretion that Congress pro- vided to the federal agencies tasked with processing immigration applicants and vetting them to protect the national security.” Pourshakouri v. Pompeo, No. 20-cv-402 (RJL), 2021 WL 3552199, at *9 n.11 (D.D.C. Aug. 11, 2021).

5 guidance.” Dastagir, 557 F. Supp. 3d at 165. “District courts have generally found that immigra-

tion delays in excess of five, six, seven years are unreasonable, while those between three to five

years are often not unreasonable.” Lee, 2024 WL 639635, at *5 (quoting Rahman v. Blinken, No.

22-cv-2732 (JEB), 2023 WL 196428, at *4 (D.D.C. Jan. 17, 2023)). And delays of around two

years are usually considered reasonable. See, e.g., Ghadami, 2020 WL 1308376, at *8 (“[M]any

courts evaluating similar delays have declined to find a two-year period to be unreasonable as a

matter of law.”).

Plaintiffs filed their Petition in May 2023. But they did so only thirteen months after Mr.

Noorijoshaghani’s visa application was submitted, and three months after his interview. “Courts

measure the period of delay from the last government action to the issuance of the opinion.” Nus-

rat v. Blinken, No. 21-cv-2801 (TJK), 2022 WL 4103860, at *6 n.6 (D.D.C. Sept. 8, 2022). Here,

that waiting period comes out to just over a year, which does not approach an unreasonable delay

under the relevant case law. Skalka, 246 F. Supp. 3d at 154 (“[A] delay of [about two years] does

not typically require judicial intervention.”). Factors one and two therefore favor Defendants. 4

B. TRAC Factor 4

The fourth TRAC factor considers the effect of expedition on an agency’s competing pri-

orities. TRAC, 750 F.2d at 80. It often favors the agency and “carries the greatest weight in many

cases.” Milligan, 502 F. Supp. 3d at 319. In fact, so substantial is its weight that “[t]his Circuit

has refused to grant relief” based on the fourth factor “even [when] all the other factors considered

4 On top of all that, 8 U.S.C. § 1735(a) requires the Secretary of State to make a finding that an alien “from a country that is a state sponsor of international terrorism . . . does not pose a threat to the safety or national security of the United States.” Iran is such a country. See U.S. Dep’t of State, Determination Pursuant to Section 6(i) of the Export Administration Act of 1979— Iran, 49 Fed. Reg. 2836, Jan. 23, 1984. This requirement further justifies the waiting period in this case.

6 in TRAC favored it.” Id. (cleaned up). That is so because 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.’” Lee, 2024 WL 639635,

at *6 (quoting In re Barr Lab’ys, Inc., 930 F.2d 72, 75–76 (D.C. Cir. 1991)).

In this case, Plaintiffs “ask[] for just that.” Dastagir, 557 F. Supp. 3d at 167. They seek

to compel Defendants to decide the visa application at issue in thirty days. But because consular

“processing capacity is presently a zero-sum game,” Murway v. Blinken, No. 21-cv-1618 (RJL),

2022 WL 493082, at *4 (D.D.C. Feb. 16, 2022) (cleaned up), their requested relief would amount

to a “judicial reordering[] of agency priorities,” Rahman, 2023 WL 196428, at *4. In other words,

Plaintiffs seek to cut to the front of the line. Cf. Dastagir, 557 F. Supp. 3d at 169 (“Dastagir offers

no basis for judicial line-cutting those also waiting their turn.”). And even though “the effect of

an individual case would be minimal, an accumulation of such individual cases being pushed by

judicial fiat to the front of the line would erode the ability of agencies to determine their priorities.”

Tate, 513 F. Supp. 3d at 150. Therefore, the fourth TRAC factor also favors Defendants.

C. TRAC Factors 3 and 5

These factors involve “the interests prejudiced by delay,” including “human health and

welfare.” TRAC, 750 F.3d at 80; see also Didban v. Pompeo, 435 F. Supp. 3d 168, 177 (D.D.C.

2020) (considering the third and fifth factors in tandem). Plaintiffs allege that their entire family

is suffering “severe emotional distress and psychological harm,” Pet. ¶ 93, and that “[t]he separa-

tion has taken a severe toll on Plaintiffs, mentally and emotionally,” id. ¶ 100. But Plaintiffs are

not alone. “While the Court does not doubt that [Plaintiffs] ha[ve] an interest in prompt adjudica-

tion, so too do many others facing similar circumstances.” Palakuru v. Renaud, 521 F. Supp. 3d

46, 53 (D.D.C. 2021). Plaintiffs’ “allegations, standing alone, do not suggest [they] are in a worse

position” than other visa applicants whose lives have been put on hold by a waiting period. Lee,

7 2024 WL 639635, at *7. Thus, these factors largely do not weigh in Plaintiffs’ favor because there

is no reason why their private interests in “health and welfare” deserve special treatment relative

to other visa applicants’ interest in the same. In any event, to the extent these TRAC factors weigh

in Plaintiffs’ favor, it is clear “[t]hey do not ‘overcome the other factors that weigh strongly in the

Government’s favor.’” Dastagir, 557 F. Supp. 3d at 168 (quoting Palakuru, 521 F. Supp. 3d at

53).

D. TRAC Factor 6

The sixth TRAC factor, which provides that “the court need not find any impropriety lurk-

ing behind agency lassitude in order to hold that agency action is ‘unreasonably delayed,’” TRAC,

750 F.2d at 80, weighs against Plaintiffs as well. Although they allege an unreasonable delay, they

do not allege that Defendants have engaged in any bad faith or impropriety. See generally Pet.

Therefore, “‘the good faith of the agency in addressing the delay weighs against’ relief.” Tate,

513 F. Supp. 3d at 150 (quoting Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 120 (D.D.C.

2005)).

* * *

In summary, after weighing the TRAC factors, the Court has little difficulty concluding that

Plaintiffs’ Petition does not state a claim that the adjudication of their visa application has been

unreasonably delayed. In fact—unfortunately—their wait time “pales in comparison to the longer

delays other applicants have unsuccessfully challenged in this district.” Mohammad, 548 F. Supp.

3d at 169. In the end, delays “stemming from resource-allocation decisions simply do not lend

themselves to judicial reordering of agency priorities.” Milligan, 502 F. Supp. 3d at 319 (cleaned

up). And they offer no reason for the Court to bump them to the front of the line.

8 IV. Conclusion

For all these reasons, the Court will grant Defendants’ motion and dismiss the case. A

separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 5, 2024