Raha Momeni v. Antony J. Blinken

• Court: District Court, C.D. California
• Decided: December 13, 2024
• Docket: 2:24-cv-04879
• Status: Unknown

Opinion

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8 United States District Court 9 Central District of California

11 RAHA MOMENI et al., Case № 2:24-cv-04879-ODW (AGRx)

12 Plaintiffs, ORDER DENYING 13 v. 14 A NTONY J. BLINKEN et al., MOTION TO DISMISS [12]

15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiffs Raha Momeni, Faraz Momeni, Mozhgan Khorrami, Tara Momeni, 19 and Ali Momeni (“Plaintiffs”) bring this mandamus action against Defendants Antony 20 J. Blinken, as U.S. Secretary of State, and Robert Jachim, as Acting Director of the 21 Office of Screening, Analysis, and Coordination (“Defendants”).1 (Pet. ¶¶ 16–22, 22 ECF No. 1.) Plaintiffs seek to compel Defendants to adjudicate their pending 23 family-based immigrant visa applications. (Id. ¶ 11.) Defendants move to dismiss 24 Plaintiffs’ Petition. (Mot. Dismiss (“Motion” or “Mot.”), ECF No. 12.) For the 25 reasons below, the Court DENIES the Motion.2 26

1 Plaintiffs noticed the substitution of Robert Jachim for Carson Wu, pursuant to Federal Rule of 27 Civil Procedure 25(d). (Pls.’ Substitution, ECF No. 10.) 28 2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND3 2 In 2007, Raha Momeni, a United States citizen, filed a family-based I-130 3 Petition for Alien Relative to sponsor her brother, Faraz Momeni, an Iranian national, 4 and his derivative spouse and children, Mozhgan Khorrami, Tara Momeni, and Ali 5 Momeni, for immigrant status. (Pet. ¶¶ 54–57.) In 2012, U.S. Citizenship and 6 Immigration Services (“USCIS”) approved Raha’s4 I-130 petition, and in 2019, Faraz, 7 Mozhgan, Tara, and Ali were permitted to and timely filed their DS-260 immigrant 8 visa applications. (Id. ¶¶ 58–60.) 9 On June 20, 2023, Faraz, Mozhgan, Tara, and Ali were interviewed by the 10 Consular Section of the U.S. Embassy in Ankara, Turkey. (Id. ¶ 61.) At the 11 conclusion of the interview, the consular officer informed Faraz, Mozhgan, Tara, and 12 Ali that “the application would have to undergo mandatory administrative processing 13 which would be completed in a few months.” (Id. ¶ 62.) The consular officer 14 provided a notice informing them that the “visa application is temporarily refused 15 under section 221(g) of the Immigration and Nationality Act,” (“INA”), and “this 16 refusal may be overcome once the missing documentation and/or administrative 17 processing have been met.” (Id. Ex. D (“§ 221(g) Notice”), ECF No. 1-4.) The 18 Embassy emailed Faraz and requested that he complete additional Form DS-5535, 19 Supplemental Questions for Visa Applicants, and Faraz provided the requested fifteen 20 years of detailed history on June 21, 2023. (Pet. ¶¶ 64–65.) On July 11, 2023, the 21 Embassy confirmed receipt of Faraz’s completed DS-5535 questionnaire, and 22 informed him “that the [c]ase is currently in administrative processing. If we need 23 additional information, we will contact you again.” (Id. ¶ 66.) 24 Since then, the status of Faraz and his family’s applications remains unchanged. 25 The Consular Electronic Application Center (“CEAC”) website shows the case is 26

3 All factual references derive from Plaintiffs’ Petition or attached exhibits, unless otherwise noted, 27 and well-pleaded factual allegations are accepted as true for purposes of this Motion. See Ashcroft v. 28 Iqbal, 556 U.S. 662, 678 (2009). 4 The Court respectfully uses first names for clarity. 1 “Refused,” and states that applications “refused for administrative processing . . . will 2 remain refused while undergoing such processing,” and such applications “will 3 receive another adjudication once such processing is complete.” (Id. ¶ 68, Ex. B 4 (“CEAC Status”), ECF No. 1-2.) Plaintiffs have inquired multiple times as to the 5 status of their visa applications and have received no new or useful information. (Pet. 6 ¶ 70.) As of February 5, 2024, “the case [wa]s still undergoing the required 7 administrative processing.” (Pet. ¶ 71, Ex. E (“Embassy Corr.”) 4, ECF No. 1-5.) 8 Plaintiffs were advised that Faraz’s family’s derivative applications cannot be 9 adjudicated “before [Faraz’s] principal applica[tion’s] administrative processing is 10 complete.” (Pet. ¶ 73.) To date, Plaintiffs have not received a final decision on the 11 pending visa applications, and Faraz’s principal application (“Application”) remains 12 in an indefinite state of additional “administrative processing.” (Id. ¶¶ 74–75.) 13 On June 10, 2024, Plaintiffs filed the Petition alleging that Defendants have 14 unreasonably delayed adjudicating their visa applications, and seeking to compel 15 Defendants to adjudicate their applications and issue a final decision. (Id. ¶¶ 10–11.) 16 Plaintiffs seek relief under the Mandamus Act, 28 U.S.C. § 1361, and the 17 Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 706(1), 706(2). (Id. 18 ¶¶ 133–96.) 19 Defendants move for dismissal under Federal Rules of Civil Procedure 20 (“Rule”) 12(b)(1), for lack of subject matter jurisdiction,5 and 12(b)(6), for failure to 21 state a claim. (See Mot. 1–3, 4.) The Motion is fully briefed. (See Opp’n, ECF 22 No. 13; Reply, ECF No. 14.) 23 24 5 Defendants’ arguments for dismissal under Rule 12(b)(1) are misplaced. “The Ninth Circuit has 25 held that federal courts have subject matter jurisdiction over APA claims pursuant to 28 U.S.C. § 1331.” Aminzadeh v. Blinken, No. 2:24-cv-02025-DSF (MRWx), 2024 WL 3811153, at *2 n.2 26 (C.D. Cal. Aug. 9, 2024) (citing Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022)). “[T]he requirements for obtaining relief under the APA go to the merits, not to subject matter jurisdiction.” 27 Vaz, 33 F.4th at 1135. As such, Defendants’ Rule 12(b)(1) arguments “go not to jurisdiction, but to 28 the sufficiency of Plaintiffs’ complaint.” Aminzadeh, 2024 WL 3811153, at *2 n.2. The Court evaluates Defendants’ Motion accordingly. 1 In connection with the Motion, Defendants request that the Court take judicial 2 notice of “government websites cited in” the Motion. (Mot. 2 n.1.) Plaintiffs oppose 3 Defendants’ request, and in turn seek judicial notice of “information submitted with 4 the complaint as well as those submitted with” the Opposition. (Opp’n 1 n.1, 2 n.3 5 (internal citation omitted).) To the extent the identified materials may be incorporated 6 by reference in Plaintiffs’ Petition, the Court considers but does not judicially notice 7 them. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) 8 (providing that a court may, but is not required to, consider evidence incorporated by 9 reference into a complaint); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 10 2003) (explaining that a document “may be incorporated by reference into a complaint 11 if the plaintiff refers extensively to the document or the document forms the basis of 12 the plaintiff’s claim”). The Court declines to take judicial notice of the parties’ other 13 requested materials, which lack support in argument or analysis, have not been 14 properly presented to the Court, or are not appropriate for consideration on a 15 Rule 12(b)(6) motion to dismiss. See Fed. R. Evid. 201. 16 III. LEGAL STANDARD 17 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 18 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 19 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 20 survive a dismissal motion, the factual “allegations must be enough to raise a right to 21 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 22 (2007). That is, the complaint must “contain sufficient factual matter, accepted as 23 true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 24 (internal quotation marks omitted). 25 The determination of whether a complaint satisfies the plausibility standard is a 26 “context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. at 679. A court is generally limited to the 28 pleadings and must construe all “factual allegations set forth in the complaint . . . as 1 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 2 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 3 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 4 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 5 IV. DISCUSSION 6 Plaintiffs allege that Defendants have unreasonably delayed adjudication of 7 Faraz’s immigrant visa Application in violation of APA § 555(b), and ask the Court to 8 compel adjudication under APA §§ 706(1), 706(2), and the Mandamus Act. (See Pet. 9 ¶¶ 133–96.) 10 Defendants argue that Plaintiffs’ claims must be dismissed because 11 (1) Defendants refused the Application and have no mandatory, non-discretionary duty 12 to re-adjudicate refused visa applications; (2) the doctrine of consular 13 nonreviewability precludes the Court’s review; (3) Secretary Blinken cannot provide 14 the requested relief; and (4) Plaintiffs fail to state a plausible claim for unreasonable 15 delay. (Mot. 4–5.) 16 A. APA and Mandamus Act 17 Section 706(1) of the APA allows a court to “compel agency action unlawfully 18 withheld or unreasonably delayed,” whereas APA § 706(2) allows a court to “hold 19 unlawful and set aside agency action, findings, and conclusions.” Durham v. Blinken, 20 No. 2:24-cv-02868-PSG (MRWx), 2024 WL 3811146, at *4 (C.D. Cal. Aug. 8, 2024). 21 “A challenge to an agency’s alleged failure to act,” such as Plaintiffs assert here, “is 22 more appropriately channeled through Section 706(1),” and the Court thus properly 23 evaluates the claim under APA § 706(1), not § 706(2).6 See id. (quoting Al Otro Lado, 24 6 Defendants move to dismiss Plaintiffs’ APA §§ 706(2) and 555(b) claims because they should be 25 evaluated under APA § 706(1). (Mot. 21–23.) The Court agrees with Defendants that Plaintiffs fail to state an APA § 706(2) claim because Plaintiffs do not challenge a final agency action. See 26 Durham, 2024 WL 3811146, at *4 n.5. However, APA § 555(b) interrelates with APA § 706(1) to the extent § 706(1) allows a court to compel agency action unreasonably delayed. Id. (finding 27 §§706(1) and 555(b) interrelated and relevant to APA and Mandamus claims for unreasonable 28 delay). According, the Court GRANTS Defendants’ Motion in part and dismisses the APA § 706(2) claim. However, the Court does not dismiss the APA § 555(b) claim on this basis. 1 Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1309 (S.D. Cal. 2018)). Further, the standards 2 for challenging agency inaction under the APA and the Mandamus Act are “in 3 essence” the same, so the Court elects to analyze Plaintiffs’ Mandamus claim under 4 the APA. Vaz, 33 F.4th at 1135 (making similar election). 5 Under the APA, an administrative agency is required to adjudicate “a matter 6 presented to it” within a “reasonable time.” 5 U.S.C. § 555(b). Where an agency fails 7 to do so, a “reviewing court shall . . . compel agency action unlawfully withheld or 8 unreasonably delayed.” Id. § 706(1). However, “a claim under § 706(1) can proceed 9 only where a plaintiff asserts that an agency failed to take a discrete agency action that 10 it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004); see 11 Vietnam Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) 12 (“A court can compel agency action under this section only if there is ‘a specific, 13 unequivocal command’ placed on the agency to take a ‘discrete agency action,’ and 14 the agency has failed to take that action.”). 15 B. Mandatory Non-Discretionary Duty 16 Defendants move to dismiss the Petition on the grounds that refusal under INA 17 § 221(g) for administrative processing satisfies Defendants’ duty to adjudicate Faraz’s 18 visa Application, and Defendants do not have a mandatory, non-discretionary duty to 19 re-adjudicate the Application. (Mot. 6–10.) 20 The INA requires that “[a]ll immigrant visa applications shall be reviewed and 21 adjudicated by a consular officer.” 8 U.S.C. § 1202(b). Under 22 C.F.R. § 42.81(a), 22 applicable here, “when a consular officer receives a properly completed and executed 23 visa application, the officer must (a) ‘issue the visa,” (b) “refuse the visa under INA 24 [§§] 212(a) or 221(g),” or (c) ‘discontinue granting the visa.’” Shahijani v. Laitinen, 25 No. 2:23-cv-03967-RGK (MRWx), 2023 WL 6889774, at *2 (C.D. Cal. Oct. 6, 2023) 26 (quoting 22 C.F.R. § 42.81(a)). Thus, “the State Department is ‘required by law to act 27 on visa applications.’” Aminzadeh, 2024 WL 3811153, at *4 (quoting Patel v. Reno, 28 134 F.3d 929, 932 (9th Cir. 1997)). 1 The Ninth Circuit has ruled that a “purported ‘refusal’ of a visa application ‘is 2 not a refusal within the meaning of 22 C.F.R. § 42.81’ if ‘it is not a final decision.’” 3 Shahijani, 2023 WL 6889774, at *3 (quoting Patel, 134 F.3d at 932). Thus, merely 4 characterizing an application as “refused” does not necessarily mean it is finally 5 adjudicated. Durham, 2024 WL 3811146, at *5 (“[C]haracterizing an INA § 221(g) 6 notification as a ‘refusal is not a ‘get-out-of review-free card.’” (quoting Al-Gharawy 7 v. Dep’t of Homeland Sec., 617 F. Supp. 3d 1, 16 (D.D.C. 2022))). Instead, courts 8 must consider “what is actually happening” in the case. Aminzadeh, 2024 WL 9 3811153, at *4 (quoting Vulupala v. Barr, 438 F. Supp. 3d 93, 98 (D.D.C. 2020)). 10 Some courts in the Central District, including this Court, have previously found 11 that a refusal for administrative processing under INA § 221(g) fulfills the consulate’s 12 duty to “issue” or “refuse” a visa application. See Senobarian v. Blinken, No. 2:23-cv- 13 07208-ODW (MAAx), 2024 WL 897566, at *3 (C.D. Cal. Feb. 29, 2024) (finding the 14 consular officer’s § 221(g) refusal for administrative processing of a non-immigrant 15 visa application satisfied the consulate’s duty to adjudicate the application under 16 22 C.F.R. § 41.121); OC Modeling, LLC v. Pompeo, No. 2:20-cv-01687-PA (MAAx), 17 2020 WL 7263278, at *3 (C.D. Cal. Oct. 7, 2020) (same). 18 “However, other courts have found that refusal for administrative processing is 19 not a final decision and therefore does not discharge the agency’s obligation to 20 adjudicate visa applications.” Aminzadeh, 2024 WL 3811153, at *4 (collecting cases). 21 Indeed, “[c]ourts in this district” and elsewhere “have repeatedly held that a refusal for 22 ‘administrative processing’ is not a final decision.” Shahijani, 2023 WL 6889774, 23 at *3; see, e.g., Tamjidi v. Blinken, No. 8:24-cv-00403-HDV (JDEx), 2024 WL 24 4328813, at *3 (C.D. Cal. Aug. 27, 2024) (collecting cases recognizing “that the 25 government cannot sidestep its duties by simply labeling an ongoing case a refusal”); 26 Morales v. Mayorkas, No. 23-cv-1758 BEN (MSB), 2024 WL 2884554, at *3 27 (S.D. Cal. June 7, 2024) (holding that “an initial consular refusal setting the stage for 28 1 additional administrative processing . . . is not a final decision”); Vulupala, 438 F. 2 Supp. 3d at 99 (holding that “an interim decision is not sufficiently final”). 3 Having carefully examined these decisions, and upon further consideration, the 4 Court is persuaded by the reasoning of its sister courts that have found a refusal for 5 administrative processing is not a final adjudication. “A refusal for administrative 6 processing that indicates another adjudication is forthcoming pending additional 7 document submission and review hardly appears to be a final decision.” Alam v. 8 Blinken, No. 2:24-cv-01103-DJC-CKD, 2024 WL 4804557, at *5 (E.D. Cal. Nov. 15, 9 2024). Permitting it to masquerade as one impermissibly “elevates form over 10 substance.” Tamjidi, 2024 WL 4328813, at *1. Rather than simply accepting the label 11 of “Refused,” courts should consider “what is actually happening” in a specific case to 12 determine whether an agency has discharged its duty. Vulupala, 438 F. Supp 3d at 98. 13 Accordingly, the Court joins the prevailing position among California district courts in 14 holding that a soft refusal for administrative processing is not a final decision, and 15 therefore does not discharge an agency’s mandatory non-discretionary obligation to 16 adjudicate a visa application. 17 Turning to the present case, Plaintiffs’ allegations support their contention that 18 “what is actually happening” is the consulate has not yet adjudicated their 19 applications. Immediately after “temporarily refus[ing]” Faraz’s Application for 20 administrative processing, (Pet. ¶ 62), the consulate requested that he complete and 21 submit Form DS-5535, which required Faraz to submit fifteen years of detailed 22 history including addresses, employment, travel, and social media handles, (id. ¶ 65). 23 Courts have found that a consular official’s request for Form DS-5535 “suggests the 24 consular official did not reach a final decision . . . but instead kept [the application] 25 under consideration” pending the additional requested information. See Alam, 26 2024 WL 4804557, at *5; see also Aminzadeh, 2024 WL 3811153, at *4 (finding the 27 request for more information indicated that another adjudication was forthcoming). 28 1 Additionally, Plaintiffs received a § 221(g) Notice informing them that the “visa 2 [A]pplication is temporarily refused” and that this refusal may be overcome following 3 administrative processing. (Pet. ¶ 62 (emphasis added); § 221(g) Notice 1.) Plaintiffs 4 have inquired repeatedly regarding the status of their visa applications and have been 5 informed that the case remains in “the required administrative processing.” (Pet. 6 ¶¶ 70–72.) And although the CEAC website shows that the Application is “Refused,” 7 it also informs those who have been “refused for administrative processing,” like 8 Plaintiffs here, that they “will receive another adjudication once such processing is 9 complete.” (CEAC Status.) This ongoing “required administrative processing” 10 supports Plaintiffs’ assertion that the preliminary refusal was not a final adjudication, 11 (Opp’n 11–13; see Pet. ¶¶ 169–80), and instead functions as a “‘placeholder’ 12 designation that the agency uses on applications that have not officially been denied,” 13 Li v. Blinken, No. 8:23-cv-02142-DOC (KESx), 2024 WL 2107341, at *3 (C.D. Cal. 14 Apr. 4, 2024). Thus, Plaintiffs plausibly allege Defendants have not discharged their 15 mandatory non-discretionary duty to finally adjudicate Plaintiffs’ visa applications.7 16 Defendants have a mandatory non-discretionary duty to adjudicate Plaintiffs’ 17 visa applications, and Plaintiffs sufficiently allege that Defendants have failed to do 18 so. Accordingly, the Court denies the Motion as to this basis for dismissal. 19 C. Consular Nonreviewability Doctrine 20 Defendants’ next argue that the doctrine of consular nonreviewability precludes 21 judicial review of Plaintiffs’ claims because Plaintiffs challenge the consular officer’s 22 denial of the Application. (Mot. 11–14.) 23 Although a consular official’s discretionary decision to grant or deny a visa 24 petition is not generally subject to judicial review, jurisdiction exists over suits 25 challenging the authority of the consul to take or fail to take an action. Patel, 134 F.3d 26

7 Defendants’ argument, that they have no mandatory non-discretionary duty to re-adjudicate the 27 Application, is unpersuasive and inapposite. (Mot. 6–11.) Plaintiffs do not argue Defendants have a 28 duty to re-adjudicate the Application; rather, Plaintiffs assert Defendants have failed or unreasonably delayed issuing a final determination at all. 1 at 931–32; see also Nwansi v. Rice, No. C 06-0003 TEH, 2006 WL 2032578, at *3 2 (N.D. Cal. July 18, 2006) (“[W]here a consular officer has a nondiscretionary duty to 3 act but refuses to do so, the court can grant mandamus relief and force the consulate to 4 issue a decision (though importantly, in issuing the writ, the court may not direct the 5 agency how to act).”). 6 As explained above, the consular officer’s refusal of Faraz’s Application was a 7 placeholder and temporary refusal for “further administrative processing”; it was not a 8 final adjudication. As “[t]he doctrine of consular nonreviewability is not triggered 9 until a consular officer has made a decision with respect to a particular visa 10 application,” Nine Iraqi Allies v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016) 11 (citing Patel, 134 F.3d at 932), the doctrine does not apply here, where no such 12 decision has been made, see, e.g., Aminzadeh, 2024 WL 3811153, at *4 (finding 13 consular nonreviewability doctrine did not bar suit where plaintiffs sought 14 adjudication, not reconsideration); Durham, 2024 WL 3811146, at *5 (same). 15 Accordingly, the Court denies the Motion as to consular nonreviewability. 16 D. Proper Defendants 17 Defendants also argue the Court should dismiss Defendant Secretary Blinken 18 because “he has no role in re-adjudicating the visa application in question.” (Mot. 5.) 19 Defendants cite two D.C. Circuit cases for the proposition that the INA “grants 20 consular officers ‘exclusive authority to review applications for visas, precluding even 21 the Secretary of State from controlling their determinations.’” Baan Rao Thai Rest. v. 22 Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (quoting Saavedra Bruno v. Albright, 23 197 F.3d 1153, 1156 (D.C. Cir. 1999)); (see Mot. 5). 24 Defendants are correct that “Congress specifically exempted the exercise of [the 25 authority to issue or deny visas] from review by the Secretary of State.” Li Hing of 26 Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). However, Secretary 27 Blinken is the U.S. Secretary of State, with supervisory authority over the U.S. 28 embassies and consulates and the offices responsible for visa application processing. 1 Aminzadeh, 2024 WL 3811153, at *3; 22 U.S.C. § 2651a(a)(3)(A) (providing that the 2 Secretary of State “shall administer, coordinate, and direct the Foreign Service of the 3 United States and the personnel of the Department of State”); (Pet. ¶ 21 (alleging 4 Secretary Blinken oversees operations of U.S. embassies and consulates)). 5 Plaintiffs do not challenge a consular officer’s determination, but rather 6 challenge Defendants’ failure or unreasonable delay in making a determination. As 7 such, the Court is not persuaded that Secretary Blinken is unable to provide the relief 8 Plaintiffs seek by, for instance, directing the consular officers to decide pending 9 applications within a reasonable time. See Al-Gharawy, 617 F. Supp. 3d at 10 10 (“[N]othing in Baan Rao or Saavedra Bruno precludes the Secretary . . . from 11 directing consular officers ‘to conclude matters presented to them’ ‘within a 12 reasonable time.’”) (cleaned up) (quoting 5 U.S.C. § 555(b)). Accordingly, the Court 13 denies the Motion as to Secretary Blinken. 14 E. Unreasonable Delay 15 Finally, Defendants argue that Plaintiffs fail to state a plausible claim for 16 unreasonable delay under the APA based on the twelve-month delay in this case. 17 (Mot. 15–21.) 18 “To determine whether an agency’s delay is unreasonable, courts in the Ninth 19 Circuit apply the six-factor test articulated in Telecommunications Research and 20 Action Center v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984), commonly referred to as the 21 ‘TRAC test.’” Tamjidi, 2024 WL 4328813, at *5; Vaz, 33 F.4th at 1137 (applying 22 TRAC factors). The TRAC-factors are fact-intensive, and many district courts have 23 found it inappropriate and premature to weigh them on a motion to dismiss. See, e.g., 24 Tamjidi, 2024 WL 4328813, at *5 (C.D. Cal. Aug. 8, 2024) (collecting cases declining 25 to conduct TRAC analysis at motion-to-dismiss stage). Other district courts have 26 proceeded with the TRAC analysis on a motion to dismiss. See, e.g., Aminzadeh, 27 2024 WL 3811153, at *6–8 (evaluating and balancing the TRAC factors in ruling on 28 motion to dismiss). The Court agrees with the former reasoning and saves the TRAC 1 || test for a later day—the Court declines to rule as a matter of law whether the TRAC 2 || test is satisfied at this early stage. 3 As such, Plaintiffs need only to allege a legally cognizable theory and offer 4|| non-conclusory factual allegations sufficient to support that theory. Jgbal, 556 U.S. 5|| 681. Plaintiffs have done so. Plaintiffs allege they were advised the mandatory 6 || additional administrative processing would be completed in a few months, (Pet. § 62), 7 || but the processing of Faraz’s Application has taken more than four times longer than 8 | advised with no explanation. Thus, Plaintiffs adequately allege that Defendants have 9 || unreasonably delayed processing Plaintiffs’ applications. See Li, 2024 WL 2107341, 10 || at *3 (finding plaintiff plausibly alleged unreasonable delay outside of TRAC where 11 || processing of visa application took six months longer than defendants represented). 12 Accordingly, the Court denies the Motion as to unreasonable delay. 13 Vv. CONCLUSION 14 For the reasons discussed above, the Court GRANTS IN PART AND 15 | DENIES IN PART Defendants’ Motion to Dismiss. (ECF No. 12.) Specifically, the 16 | Court dismisses Plaintiffs’ APA § 706(2) cause of action without leave to amend, 17 || because amendment would be futile. Carrico v. City & County of San Francisco, 18 || 656 F.3d 1002, 1008 (9th Cir. 2011). The Court denies Defendants’ Motion in all 19 || other respects. Defendants have fourteen days to file an answer to Plaintiffs’ Petition. 20 21 IT IS SO ORDERED. 22 23 December 13, 2024 Seat ey 24 died Mie At 5 OTIS D. IGHT, II UNITED STATES DISTRICT JUDGE

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