Pacheco Quiros v. Amador

• Court: District Court, District of Columbia
• Decided: July 6, 2023
• Docket: Civil Action No. 2021-2433
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHERINE DANIELA PACHECO QUIROS, et al., Plaintiffs, Civil Action No. 21-02433 (CKK) v.

MOLLY AMADOR, et al., Defendants.

MEMORANDUM OPINION (July 6, 2023)

In this action, twenty-three Plaintiffs sought injunctive and mandamus relief ordering

officials of the United States Department of State (“State Department”), the Secretary of the United

States Department of Homeland Security (“DHS”), and the United States Department of Justice

(“DOJ”) to act on and grant their immigration visa applications and set aside various State

Department policies and regulations.

Now pending before the Court is Defendants’ [27] Motion to Dismiss Plaintiffs’ Amended

Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), in which they also

move for summary judgment under Rule 56 and, in the alternative, to sever Plaintiffs’ claims under

Rule 21. Upon consideration of the briefing1, the relevant authorities, and the record as a whole,

the Court will GRANT Defendants’ Motion and DISMISS Plaintiffs’ [15] Amended Complaint

in its entirety. As Plaintiffs consent to their dismissal, the Court shall dismiss Counts II, III, and

IV, and Count I as to all Plaintiffs but Gulshan Karimova and the A. Davila Rivero Family. The

1 The Court’s consideration has focused on Defendants’ Motion to Dismiss (Defs.’ Mot. to Dismiss), ECF No. 27; Plaintiff’s Memorandum In Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n.”), ECF No. 30; Defendants’ Reply in Support of the Motion to Dismiss (Defs.’ Reply), ECF No. 31; and Plaintiffs’ Amended Complaint (Am. Compl.), ECF No. 15.

1 Court shall dismiss Count I of the Amended Complaint as to Gulshan Karimova and the A. Davila

Rivero Family on the merits. The Court will DENY AS MOOT Defendants’ Motion in so far as

Defendants move for summary judgment and to sever Plaintiffs’ claims.

I. BACKGROUND

A. Procedural History

Plaintiffs initiated this lawsuit in September 2019 and filed an Amended Complaint on

December 18, 2021. Through this action, Plaintiffs seek to compel the Government to decide their

various requests for immigrant visas. See generally Am. Compl.

Defendants filed the pending Motion to Dismiss Plaintiffs’ Amended Complaint pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and also moved for summary judgment.

Defs.’ Mot. at 1. They also moved, in the alternative, to sever Plaintiffs’ claims under Federal

Rule of Civil Procedure 21. Id.

This Motion is now fully briefed and ripe for the Court’s review. In their opposition,

Plaintiffs write that they “agree that Counts II, III and IV of the First Amended Complaint are

moot” and that Count I is moot as to all Plaintiffs other than Gulshan Karimova and the A. Davila

Rivero Family. Pls.’ Opp’n at 5. Accordingly, as the Court will grant Defendants’ Motion to

Dismiss as to those claims, with Plaintiffs’ consent, the Court addresses below only the procedural

history of the applications of Plaintiffs Gulshan Karimova and the A. Davila Rivero Family.

B. Visa Application of Plaintiff Karimova and A. Davila Rivero Family

A Form I-140, Petition for Alien Worker, on behalf of Plaintiff Gulshan Karimova was

approved on October 2, 2019. Defs.’ Mot. at 4. On January 22, 2020, Ms. Karimova appeared for

an interview at the U.S. Embassy in Tbilisi, Georgia, and applied for an immigrant visa. Id. The

consular officer refused her visa application under the Immigration and Nationality Act (“INA”)

2 § 221(g). Id. at 10. The Department of State’s Consular Electronic Application Center Visa Status

Check system for her application displays a message stating that “[a] U.S. consular officer has

adjudicated and refused your visa application.… If you were informed by the consular officer that

your case was refused for administrative processing, your case will remain refused while

undergoing such processing. You will receive another adjudication once such processing is

complete.” Id. at 4–5. Ms. Karimova then followed up with the officer on November 29, 2022,

who replied confirming that her application “is pending the completing of administration

processing in order to verify qualifications for this visa” and that “[a] decision on this cannot be

made until the Consular Section finishes its review.” Pls.’ Opp’n Ex. A.

C. Visa Application of Plaintiff A. Davila Rivero Family

A Form I-140, Petition for Alien Worker, on behalf of Plaintiff Alvaro Jose Davila Rivero

was approved on April 16, 2019. Defs.’ Mot. at 9. This case includes a derivative spouse and

derivative children (collectively, “A. Davila Rivero Family” or “Family”). Id. On October 22,

2019, the U.S. Embassy in Colombia provided the Family’s legal counsel “instructions for

applying for an immigrant visa interview.” Pls.’ Opp’n at 16. On November 6, 2019, Mr. Davila

Rivero was scheduled to appeared for an interview at the U.S. Embassy in Bogota, Colombia and

apply for an immigrant visa. Defs.’ Mot. at 9. All parties agree that Mr. Davila Rivero did not

appear and therefore did not execute an immigrant visa application. Id.; Pls.’ Opp’n Ex. 3 at 9;

Defs.’ Reply at 7. Plaintiffs contend that between November 7, 2019 and February 19, 2020, the

Family’s counsel “continuously attempted to follow the instructions provided by the Embassy,” as

described above, “but [was] unable to schedule an immigrant visa interview by following those

instructions.” Pls.’ Opp’n at 16. On February 25, 2020, the Embassy sent instructions to pick a

tentative date for a new interview, to which the Family’s counsel responded with a date in March

3 2020. Pls.’ Opp’n at 16. The Embassy responded notifying them that visa appointments were

cancelled, id., which was due to the COVID-19 pandemic, Defs.’ Reply at 8. Plaintiffs state that

the Family’s “counsel never received any further communication from the consulate regarding

their visa applications,” Pls.’ Opp’n at 16, although Defendants state that they were issued a notice

in July 2021 that their petition risked termination under INA § 203(g), Defs.’ Reply at 8. On July

11, 2022, the consular section sent Plaintiffs a notice that their petition was terminated under INA

§ 203(g) because they failed to apply for an immigrant visa for more than one year following notice

of its availability and had failed to show, in the year after, that failure to apply for an immigrant

visa was for circumstances beyond their control. Id.

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Jurisdiction

On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a

preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C. 2020)

(JDB); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether

there is jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court's

resolution of disputed facts.’” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197

(D.C. Cir. 1992)). Courts must accept as true all factual allegations in the complaint and construe

the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from

the facts alleged. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).

However, “the factual allegations in the complaint “will bear closer scrutiny in resolving a

12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of

4 Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (RMU). A court

need not accept as true “‘a legal conclusion couched as a factual allegation’” or an inference

“‘unsupported by the facts set out in the complaint.’” Trudeau v. Fed. Trade Comm’n, 456 F.3d

178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

B. Motion to Dismiss for Failure to State a Claim

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint

is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must

accept the factual allegations in the complaint as true and draw all reasonable inferences in favor

of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006)

(PLF).

When considering a Rule 12(b)(6) motion, courts 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.” Ward

v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation

marks omitted) (quoting Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002)

5 (RBW); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). The court may also

consider documents in the public record of which the court may take judicial notice. Abhe &

Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. DISCUSSION

As discussed above, the Court will grant Defendants’ Motion to Dismiss Counts II, III, and

IV, and Count I as to all Plaintiffs but Gulshan Karimova and the A. Davila Rivero Family, as

Plaintiffs consent to their dismissal. See Pls.’ Opp’n at 5. For the reasons set forth below, the

Court will also dismiss Count I as to Plaintiffs Karimova and A. Davila Rivero Family on the

merits.

The Court finds that the doctrine of consular non-reviewability doctrine does not apply to

Plaintiff Karimova, but that her claims nevertheless fail as she has not experienced an unreasonable

delay within the meaning of the Administrative Procedure Act (“APA”). The Court therefore

grants Defendants’ Motion to Dismiss as to Plaintiff Karimova.

As for Plaintiff A. Davila Rivero Family, the Court finds that there is no agency action to

be compelled because the Family’s registration was terminated and, furthermore, there was no

unreasonable delay. Accordingly, the Court also grants Defendants’ Motion to Dismiss as to

Plaintiff A. Davila Rivero Family.

Finally, as the Court is granting Defendants’ Motion to Dismiss in its entirety, the Court

will deny as moot Defendant’s motion in so far as they seek summary judgment, as well as their

motion to sever in the alternative.

6 A. Plaintiff Karimova

i. Doctrine of Consular Non-Reviewability

Defendants argue that Plaintiff Karimova’s claims fail under the doctrine of consular non-

reviewability. This doctrine provides that “a consular official’s decision to issue or withhold a

visa is not subject to judicial review, at least unless Congress says otherwise.” Saavedra Bruno v.

Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). The doctrine of consular non-reviewability

derives from “the political nature of visa determinations and… the lack of any statute expressly

authorizing judicial review of consular officers’ actions.” Id. The scope of the doctrine also aligns

with Congress’s decision to commit the adjudication of visa applications exclusively to consular

officers. See 8 U.S.C. §§ 1201(a) & (g); see also 8 U.S.C. § 1361.

For nearly a century, courts in this jurisdiction have applied the doctrine of consular non-

reviewability and “refused to review visa decisions of consular officials.” Saavedra Bruno, 197

F.3d at 1159–60 (collecting cases). The United States Court of Appeals for the District of

Columbia Circuit recently reaffirmed that the doctrine of “[c]onsular non-reviewability shields a

consular official’s decision to issue or withhold a visa from judicial review.” Baan Rao Thai Rest.

v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021). However, courts of this jurisdiction have held

that the doctrine does not apply where “plaintiffs ‘do not seek judicial review of a consular

decision, but instead seek a final decision on their applications.’” Didban v. Pompeo, 435 F. Supp.

3d 168, 174 (D.D.C. 2020) (CRC) (quoting Afghan & Iraqi Allies Under Serious Threat Because

of Their Faithful Serv. to the United States v. Pompeo, No. 18-CV-01388-TSC, 2019 WL 367841,

at *10 (D.D.C. Jan. 30, 2019)). This includes where a visa application remains in administrative

processing. See, e.g., id. at 172, 174; Vulupala v. Barr, 438 F. Supp. 3d 93, 98–99 (D.D.C. 2020)

(ABJ) (refusing to apply the consular non-reviewability doctrine where the “visa application

7 remains in administrative processing” where the government actively seeks additional information

from the applicant); Nine Iraqi Allies, 168 F. Supp. 3d at 290 (holding that the consular non-

reviewability doctrine does not apply where the applicant’s tracker status remains in administrative

processing); Al-Gharawy v. Dep’t of Homeland Sec., Civ. A. No. 21-1521 (RDM), 2022 WL

2966333, at *11, *16 (D.D.C. July 27, 2022) (collecting cases and holding the same).

Here, the doctrine of consular non-reviewability does not preclude the Court from

reviewing the adjudication of Ms. Karimova’s visa application as it remains in administrative

processing. After filing and having her Form I-140 approved, Ms. Karimova was interviewed at

the U.S. Embassy in Tbilisi, Georgia and applied for an immigrant visa. Defs.’ Mot. at 4. The

consular officer refused her visa application under INA § 221(g); more specifically, the

Department of State’s Consular Electronic Application Center Visa Status Check system for her

application displays a message stating that “[a] U.S. consular officer has adjudicated and refused

your visa application.… If you were informed by the consular officer that your case was refused

for administrative processing, your case will remain refused while undergoing such processing.

You will receive another adjudication once such processing is complete.” Id. at 4–5. Ms.

Karimova then followed up with the officer, who replied confirming that her application “is

pending the completing of administration processing in order to verify qualifications for this visa”

and that “[a] decision on this cannot be made until the Consular Section finishes its review.” Pls.’

Opp’n Ex A. As in other cases where courts have deemed the consular non-reviewability doctrine

to not apply, Ms. Karimova’s application clearly remains in administrative processing per the

express language of the consular officials. Defendants acknowledge case law from the United

States District Court for the District of Columbia holding that the doctrine does not apply in such

circumstances but argue that they “respectfully disagree with these holdings.” Defs.’ Mot. at 14–

8 15. The Court finds that Defendants have not offered any persuasive authority or argument to

come to that conclusion. Accordingly, the Court holds that the consular non-reviewability doctrine

does not bar judicial review of Ms. Karimova’s claims.

ii. Unreasonable Delay

Defendants argue that even if consular non-reviewability does not foreclose relief,

Plaintiffs’ mandamus claims fail on the merits. Id. at 17. Plaintiffs insist that Defendants have

not adjudicated Ms. Karimova’s application “within a reasonable time” as required by the

Administrative Procedure Act, 5 U.S.C. § 555(b), and that the Court must “compel [that] agency

action [as] unlawfully withheld or unreasonably delayed, id. § 706(1). Although a court may order

an agency “to perform a [mandatory] act, [i.e.,] to take action upon a matter,” a court may not

decide “how [the agency] shall act.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004).

To determine whether a plaintiff has sufficiently alleged that agency action has been

“unreasonably delayed,” courts apply the familiar “TRAC” factors laid out in Telecommunications

Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984):

(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.

9 In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC,

750 F.2d at 80) (internal quotation marks omitted); see also Skalka v. Kelly, 246 F. Supp. 3d 147,

152 (D.D.C. 2017) (RJL) (applying TRAC factors to claim for mandamus relief). Whether a delay

is unreasonable “cannot be decided in the abstract, by reference to some number of months or

years beyond which agency inaction is presumed to be unlawful, but will depend in large part…

upon the complexity of the task at hand, the significance (and permanence) of the outcome, and

the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336

F.3d 1094, 1102 (D.C. Cir. 2003). Moreover, the D.C. Circuit has noted the “importance of

competing priorities in assessing the reasonableness of an administrative delay.” Id. (internal

citations and quotation marks omitted). Critically here, the Court is bound by clear Circuit

precedent that it may not grant relief where an “order putting [the petitioner] at the head of the

queue [would] simply move[ ] all others back one space and produce[ ] no net gain.” In re Barr

Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991).

1. TRAC Factors One & Two

The D.C. Circuit has explained that the first TRAC factor—the time agencies take to make

decisions must be governed by a “rule of reason”—is the “most important,” although it is generally

reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc., 531 F.3d 849, 855

(D.C. Cir. 2008). The inquiry centers on “whether the agency’s response time… is governed by

an identifiable rationale.” Ctr. for Sci. in the Pub. Interest v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C.

2014) (JEB). Because Congress has provided no statutory timeframe indicating how quickly it

requires the State Department to adjudicate and re-adjudicate visa applications, TRAC factor two

is inapplicable. “To the contrary, Congress has given the agencies wide discretion in the area of

10 immigration processing.” Skalka, 246 F. Supp. at 153–54 (noting that a two-year delay in

processing an immigration visa “does not typically require judicial intervention”).

In general, courts in this jurisdiction have regularly found that the Government applies a

“rule of reason” to the review of visa petitions by adjudicating applications in the order they were

filed. See, e.g., Muvvala v. Wolf, No. 20-cv-02423, 2020 WL 5748104, at *3 (D.D.C. Sept. 25,

2020) (CJN) (“Other federal courts have held that this first-in, first-out method of adjudication

constitutes a ‘rule of reason’ and satisfies the first TRAC factor.”). Simply put, the inquiry begins

and ends with Defendants’ consistent application of the “first-in, first-out” methodology. Courts

of this jurisdiction often look to the length of delay as a rough yardstick to determine whether that

rule is, in fact, being applied.

Plaintiff Karimova already had her interview in January 2020 and her visa application was

refused; her application now remains in administrative processing. See Pls.’ Opp’n at 12; Pls.’

Opp’n Ex. A. Plaintiffs speculate that that “it is a virtual certainty that Ms. Karimova’s application

was not processed according to the ‘First In First Out’ method,” Pls.’ Opp’n at 12, but their only

support is the length of time period between January 2020 and today. Case law is clear that the

reasonableness of this period “cannot be decided in the abstract, by reference to some number of

months or years beyond which agency inaction is presumed to be unlawful.” Ghadami v. U.S.

Dep’t of Homeland Security, Civ. A. No. 19-00397, 2020 WL 1308376, at *8 (D.D.C. Mar. 19,

2020) (ABJ) (quoting Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102

(D.C. Cir. 2003)). More specifically, delays of over three years have been found to not be

unreasonable. See, e.g., Zaman v. U.S. Dep’t of Homeland Sec., No. 19-3592 (ABJ), 2021 WL

5356284, at *6 (D.D.C. Nov. 16, 2021) (finding that a delay of forty-two months was “insufficient

to warrant emergency relief in this district”); Pourshakouri v. Pompeo, No. 20-0402 (RJL), 2021

11 WL 3552199, at *8–9 (D.D.C. Aug. 11, 2021) (finding delay of forty-four months not

unreasonable); Varghese v. Blinken, No. 21-2597 (CRC), 2022 WL 3016741, at *5 (D.D.C. July

29, 2022) (finding delay of “around four years” does “not warrant judicial intervention, standing

alone”); Arab v. Blinken, No. 21-1852 (BAH), 2022 WL 1184551, at *8 (D.D.C. Apr. 21, 2022)

(ruling that a thirty-month delay was not unreasonable); see also Fangfang v. Cissna, 434 F. Supp.

3d 43, 55 (S.D.N.Y. 2020); Yavari v. Pompeo, No. 2:19-cv-02524, 2019 WL 6720995, at *8 (C.D.

Cal. Oct. 10, 2019) (“District 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.”). The Court also acknowledges the impact of the COVID-19 pandemic on this

process as responsible for extending time periods of adjudication. See Xiaobing v. Blinken, 544 F.

Supp. 3d 1, 11–12 (D.D.C. 2021) (TJK) (holding that effects of COVID-19 made delay in visa

adjudication reasonable).

Therefore, the Court finds that the first and second TRAC factors do not lend credence to

Plaintiff Karimova’s claim, as she has had an interview and her application was refused just over

three years ago, which included COVID-19-caused delays—within the time period that numerous

other courts have found to be reasonable.

2. TRAC Factors Three & Five

The third and fifth TRAC factors are often considered together and require the Court to

consider Plaintiff’s interests, health, and welfare. Ghadami, 2020 WL 1308376, at *9. Plaintiffs

have not alleged any individualized health and welfare concern specific to Ms. Karimova but point

to the “intensive fighting involving Azerbaijan, Armenia, and Armenia-supported separatists,”

explaining that she is “a national and resident of Azerbaijan.” Pls.’ Opp’n at 14. They also state

that “as a woman in Azerbaijan, Ms. Karimova suffers from systemic discrimination.” Id.

12 Although the Court is sympathetic to these concerns, it must also be mindful that “many others

face similarly difficult circumstances as they await adjudication of their visa applications.”

Mohammed v. Blinken, Civ. A. No. 20-3696, 2021 WL 2866058, at *6 (D.D.C. July 8, 2021)

(TNM). An order compelling Defendants to process Plaintiff Karimova’s visa application would

merely move her application ahead of other visa petitioners in lieu of other visa applicants who

may be facing similar, or even worse, circumstances. Therefore, as above, the third and fifth TRAC

factors do not indicate unreasonable delay.

3. TRAC Factors Four and Six

Finally, the Court considers the fourth and sixth TRAC factors. The fourth factor notes “the

effect of expediting delayed action on agency activities of a higher or competing priority.” TRAC,

750 F.2d at 80. The sixth TRAC factor states that a “[c]ourt need not find any impropriety lurking

behind agency lassitude in order to hold the agency action is unreasonably delayed.” Ghadami,

2020 WL 1308376, at *9. Plaintiff concedes that both factors are neutral at best. Pls.’ Opp’n at

13.

The Court finds that the fourth TRAC factor weighs strongly against Plaintiffs. Granting

Ms. Karimova the relief she seeks would merely “reorder a queue of applicants seeking

adjudication.” Tate v. Pompeo, 513 F. Supp. 3d 132, 149 (D.D.C. 2021) (BAH). The D.C. Circuit

has emphasized the importance of considering “competing priorities” in assessing the

“reasonableness of an administrative delay”–even “refus[ing] to grant relief when all the other

factors considered in TRAC favored it, where a judicial order putting the petitioner at the head of

the queue [would] simply move[ ] all others back one space and produce[ ] no net gain.” Mashpee

Wampanaoag Tribal Council, Inc. v. Norton, 336 F.3d at 1100 (quoting In re Barr, 930 F.2d 72,

75 (D.C. Cir. 1991)); see also Ghadami, 2020 WL 1308376, at *9 (finding that “expediting review

13 in [the plaintiff’s] case would merely direct government resources from the adjudication of other

waiver applications”). Any such order would plainly interfere with the agency’s “unique – and

authoritative – position to view its projects as a whole, estimate the prospects for each, and allocate

its resources in the optimal way.” In re Barr, 930 F.2d at 76. Courts in this jurisdiction routinely

decline to grant relief that would place one prospective visa applicant ahead of others, see, e.g.,

Xiaobing Liu v. Blinken, 544 F. Supp. 3d 1, 13 (D.D.C. 2021) (TJK) (“This factor not only favors

Defendants, but ends up altogether dooming Plaintiffs’ claims of unreasonable delay.”); Verma v.

USCIS, Civil Action No. 20-3419 (RDM), 2020 WL 7495286, at *9 (D.D.C. Dec. 18, 2020), and,

based on similar circumstances, this Court has concluded that this TRAC factor weighs in favor of

Defendants, see, e.g., Dehghanighanatghestani, 2022 WL 4379061, at *7; Pushkar v Blinken, No.

21-2297, 2021 WL 4318116, at *7 (D.D.C. Sept. 23, 2021) (CKK); Desai v. USCIS, No. 20-cv-

1005 (CKK), 2021 WL 1110737, at *7 (D.D.C. Mar. 22, 2021); Manzoor, No. 21-2126, 2022 WL

1316427, at *5–*6. The Court will now do the same here.

As for TRAC factor six, Plaintiffs do not allege any bad faith on the part of the State

Department, see generally Am. Compl., and they concede that it is a neutral factor, see Pls.’

Opp’n at 20.

* * *

While Plaintiffs are correct that the doctrine of consular reviewability does not bar judicial

review of Ms. Karimova’s claims, they have not demonstrated unreasonable delay of her visa

application under the TRAC factors. Accordingly, the Court will grant Defendants’ Motion to

Dismiss as to Plaintiff Karimova.

14 B. A. Davila Rivero Family

i. Termination of Registration

Defendants argue that because the visa registration of the A. Davila Rivero Family was

terminated and their immigrant petition automatically revoked, there is no “delay of any discrete

agency action that Defendants were required to take” and therefore Plaintiffs’ claim must fail as

to the Family. Defs.’ Mot. at 19. In response, Plaintiffs argue that they “were prevented from

[applying for an immigrant visa] by the consulate,” and “therefore there is no evidence to support

the claim that their visa registration was properly terminated. Pls.’ Opp’n at 17. As Defendants

argue, Plaintiffs’ Complaint alleges “that the consulate has unreasonably delayed the

adjudication of their requests or visas – it is not a claim that the State Department improperly

terminated their registrations,” and therefore, “[b]ecause the State Department has terminated the

registration – whether rightly or wrongly – there is no longer pending before it any request to

adjudicate a visa.” Defs.’ Reply at 6–7. The Court holds that because the A. Davila Rivero

Family’s registration was in fact terminated, there is no further action for the agency to take and

therefore their claim for unreasonable delay fails on the merits.

As explained above, the A. Davila Rivero Family did not appear for their scheduled

interview on November 6, 2019 “due to unforeseen personal circumstances,” Pls.’ Opp’n Ex. 3 at

9, and therefore did not apply for an immigrant visa, Defs.’ Mot. at 9; Defs.’ Reply at 7.

Personal appearance at an interview before a consular officer is required as part of the process

and to execute an immigrant visa application. 22 C.F.R. § 42.62.

A consular officer provided the Family’s counsel with instructions for scheduling a new

interview. This email warned that “if you do not reschedule your new interview within the period

of one year from your first appointment, your case will be closed and your petition will be

15 cancelled.” Pls.’ Opp’n Ex. 3 at 7–8. Plaintiffs contend that the Family’s counsel attempted to

schedule a new appointment over the next few months but that no appointments were available.

Id. at 4–6. Then in February 2020, the Embassy sent instructions to pick a tentative date for a new

interview the following month, to which the Family’s counsel responded with a date in March

2020. Pls.’ Opp’n at 16; see also Pls.’ Opp’n Ex. 3 at 3–4. The Embassy responded notifying

them that visa appointments were cancelled, id. at 2, which was due to the COVID-19 pandemic,

Defs.’ Reply at 8. A few months later in July 2020, “[a] phased resumption of visa services

started… on a post-by-post basis as local conditions and resources allowed.” Dastagir v. Blinken,

557 F. Supp. 3d 160, 163 (D.D.C. 2021) (TNM) (cleaned up).

Plaintiffs state that they “never received any further communication from the consulate

regarding this matter,” Pls.’ Opp’n at 16, although Defendants claim the Family was issued a notice

in July 2021 that their petition risked termination under INA § 203(g), Defs.’ Reply at 8.

Regardless, there is no evidence that Plaintiffs took affirmative action after this point to schedule

an interview.

On July 11, 2022—much longer than one year after the originally scheduled interview in

November 2019—the consular section sent Plaintiff A. Davila Rivero Family a notice that their

petition was terminated because they failed to apply for an immigrant visa for more than one year

and had failed to show, in the year after, that failure to apply for an immigrant visa was for

circumstances beyond their control. See Defs.’ Mot. at 9. The Department of State’s Consular

Electronic Application Center Visa Status Check system for their case displays a message stating

that “your registration for an immigrant visa was cancelled” and that the Family “failed” to

“establish that [their] failure to pursue [their] immigrant visa application was due to circumstances

beyond [their] control.” Defs.’ Reply at 6. Upon the facts provided, this is in adherence with the

16 law, as the Secretary of State is required to “terminate the registration of any [non-citizen] who

fails to apply for an immigrant visa within one year following notification to the [non-citizen] of

the availability of such visa.” 8 U.S.C. § 1153(g); see also 8 C.F.R. § 42.83.

With no pending registration or application upon which an agency to act, there can be no

unreasonable delay of action. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004)

(holding that a mandamus claim can only be maintained when there is a delay of “a discrete agency

action that it is required to take”). Therefore, the Court finds that as the Family’s registration was

terminated, there is no longer any pending request to adjudicate a visa and therefore there can be

no claim of unreasonable delay in violation of the APA. The Court could dismiss Plaintiff A.

Davila Rivero Family’s claims on these grounds alone, but nonetheless continues to conduct

further analysis.

Plaintiffs argue that Defendants did not adjudicate the A. Davila Rivero Family’s

application “within a reasonable time” as required by the APA, 5 U.S.C. § 555(b), and that the

Court must “compel [that] agency action [as] unlawfully withheld or unreasonably delayed.” Id. §

706(1).

The Court incorporates its explanation of the TRAC factors stated above.

Here, the Court finds that TRAC factors one and two weigh strongly in favor of Defendants.

As explained above, the A. Davila Rivero Family did not appear for their scheduled interview in

November 2019 nor did they schedule a new interview, leading to the termination of their

registration and automatic revocation of their immigrant petition in July 2022. Defs.’ Mot. at 9,

19. Plaintiffs argue that Defendants “prevented” them from applying for an immigrant visa but

17 present no discrete agency action that Defendants were required to take under these circumstances.

See generally Pls.’ Opp’n at 17. Rather, as the Court found above, the A. Davila Romero Family

is not experiencing any delay at all, as there is no action for the Embassy to take.

Plaintiffs also speculate that “there is virtual certainty that the Davila Romeros’

applications were not processed according to the ‘First In First Out’ method,” Pls.’ Opp’n at 18,

but their only support is the length of time period between November 2019 and today, during

which time, again, it was Plaintiffs who failed to take necessary actions. Additionally, as discussed

in greater detail regarding Plaintiff Karimova, a delay of this length is not necessarily

unreasonable. See, e.g., Pourshakouri v. Pompeo, 2021 WL 3552199, at *8–9; Varghese, 2022

WL 3016741, at *5; Yavari, 2019 WL 6720995, at *8. Therefore, the Court finds that TRAC

factors one and two do not lend credence to Plaintiffs’ claim.

Next, TRAC factors three and five also do not lend support to Plaintiffs’ claims.

Plaintiffs have not alleged any individualized health and welfare concern specific to the A.

Davila Romero Family but point to the “incredibly bleak portrait of the state of human rights in

Venezuela.” Pls.’ Opp’n at 19; see also Defs.’ Reply at 14. Although the Court is sympathetic

to their concerns about Venezuela, an order compelling Defendants to process Plaintiffs’ visa

applications would merely move their applications ahead of other visa petitioners to the front of

the queue to the detriment of other visa applicants who may be facing similar (or even more dire)

circumstances. Therefore, TRAC factors three and five do not counsel a finding of unreasonable

delay for the A. Davila Romero Family.

18 3. TRAC Factors Four and Six

Finally, the Court considers the fourth and sixth TRAC factors. Plaintiff concedes that both

factors are neutral at best. Pls.’ Opp’n at 13. However, the Court finds that Factor Four weighs

strongly against Plaintiffs. Granting the A. Davila Romero Family the relief they seek would

merely “reorder a queue of applicants seeking adjudication,” Tate v. Pompeo, 513 F. Supp. 3d 132,

149 (D.D.C. 2021), as discussed in greater detail above. As for TRAC factor six, Plaintiffs do not

allege any bad faith on the part of the State Department. See generally Am. Compl.

Accordingly, neither of these factors support Plaintiffs’ claims of unreasonable delay.

Altogether, the Court finds that the A. Davila Romero Family’s registration was terminated

and there is no agency action to be taken; therefore, their claim of unreasonable delay must fail.

Even if the Court were to apply the TRAC factors, the Family’s claim would still fail.

IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT Defendants’ [27] Motion to Dismiss

and DISMISS Plaintiff’s [15] Amended Complaint in its entirety. The Court will DENY AS

MOOT Defendants’ Motion in so far as Defendants move for summary judgment and to sever

Plaintiffs’ claims.

An Order will accompany this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge