UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
OMID RASHIDI, et al.,
Plaintiffs, v. Civil Action No. 23-1569 (JEB)
UNITED STATES DEPARTMENT OF STATE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs are Iranian nationals who applied for non-immigrant visas to attend post-
graduate programs at various U.S. academic institutions this fall. In this suit, they contend that
the six to eight months each of them has waited for a final decision (as of the filing of the
Complaint) constitutes an “unreasonable delay” in violation of the Administrative Procedure Act.
The Government now moves to dismiss, which Plaintiffs oppose; they also move for limited
discovery. At the outset, the Court will dismiss the three Plaintiffs who have since received final
decisions on their visa applications and two Defendants with respect to whom Plaintiffs lack
standing. As to the parties remaining, the Court will grant the Motion to Dismiss on the merits
and deny the Motion for Discovery.
I. Background
A. Legal Background
Foreign students who wish to pursue a “full course of study” in a U.S. academic
institution may apply for an “F-1” non-immigrant visa. See 8 U.S.C. § 1101(a)(15)(F).
Similarly, “exchange visitors” who have been accepted into an approved program to teach or
1 study may apply for a non-immigrant visa under the “J-1” classification. See id.
§ 1101(a)(15)(J). Spouses and minor children can accompany them by applying for a derivative
“F-2” or “J-2” visa. See id. § 1101(a)(15)(F)(ii), (J). Typically, all of these applicants must
appear for an in-person interview with a consular officer to evaluate their eligibility. See id.
§ 1202(h). Absent a visa sanction against the applicant’s country (which may exist under
circumstances not relevant here), the officer must either “issue” or “refuse” the visa. See 22
C.F.R. § 41.121(a).
The visa shall be refused “if (1) it appears to the consular officer from statements in the
application, or in the papers submitted therewith, that [the non-citizen] is ineligible to receive a
visa . . . , (2) the application fails to comply with the [Immigration and Nationality Act], 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.” 8 U.S.C. § 1201(g). In cases where the officer requires
additional information to determine the applicant’s eligibility, however, he may refuse the visa
pending further “administrative processing.” U.S. Dep’t of State, Administrative Processing
Information (last visited Sept. 5, 2023), https://bit.ly/2GO3jEg [https://perma.cc/NK8K-9U8H].
The status of each application is published on the State Department’s website. See U.S. Dep’t of
State, Visa Status Check (last visited Sept. 5, 2023), http://tinyurl.com/52px458z
[https://perma.cc/SBV4-AT2N].
In the wake of the September 11 terrorist attacks, Congress enacted the Enhanced Border
Security and Visa Entry Reform Act of 2002. The Act, among other things, imposed new
restrictions on the issuance of visas and more stringent procedures for monitoring the entry and
exit of foreign students and exchange visitors. See, e.g., 8 U.S.C. §§ 1731–32, 1735, 1761–62.
It provides, as relevant here, that non-immigrant visas may not be issued to a non-citizen from a
2 country that has been designated a state sponsor of terrorism “unless the Secretary of State
determines . . . that [the non-citizen] does not pose a threat to the safety or national security of
the United States.” Id. § 1735. Iran has been so designated since 1984. See U.S. Dep’t of State,
State Sponsors of Terrorism (last visited Sept. 5, 2023), http://tinyurl.com/mtd2aasf
[https://perma.cc/CBT2-2C87].
B. Factual Background
With this statutory and regulatory backdrop in mind, the Court proceeds to the facts,
which it draws from the Complaint, as required at this stage. Plaintiffs are six Iranian F- and J-
visa applicants who seek to attend post-graduate research programs (or accompany an attending
spouse) at universities across the United States. See ECF No. 1 (Compl.), ¶¶ 1, 8–13. All of
them interviewed with consular officers at the U.S. Embassy in Yerevan, Armenia, between
October and November 2022, id., ¶¶ 37, 53, 71, 86, 102, and all were told that their applications
were refused pending further administrative processing. Id., ¶¶ 38, 54, 72, 87, 103. The
Embassy, in each case, followed up with a sheet of supplemental questions or an email
requesting additional background information and documentation, which Plaintiffs, by all
accounts, “prompt[ly]” furnished. Id., ¶¶ 38–39, 55–58, 73–74, 88–89, 104–05.
The specific circumstances of Plaintiffs’ visa-processing delays are as follows: Dr. Omid
Rashidi was offered a position as a research scholar at Washington University in St. Louis, where
he hoped to perform cardiovascular research. Id., ¶ 35. He interviewed on November 22, 2022,
but never received a final decision. Id., ¶¶ 37, 44. His wife, who had separately applied for a J-1
visa to perform research in the same lab at WashU, by contrast, was issued a visa “immediately.”
Id., ¶ 40. Parisa Haghi Cheraghtapeh was admitted to a PhD program in Mechanical Engineering
at Johns Hopkins University. Id., ¶ 51. She and her husband, Amir Hossein Mirzaei, applied for
3 visas and interviewed jointly on November 29, 2022, but were similarly left in limbo. Id., ¶¶ 50–
53, 62. The couple feared that Cheraghtapeh would lose her offer of admission, waiver of
tuition, and other benefits if she was unable to enter the United States in time for the Fall 2023
semester. Id., ¶ 64.
The other Plaintiffs tell a similar story: Mehran Saedi looked forward to attending a PhD
program in Chemical Engineering at the University of Houston and interviewed on October 18,
2022. Id., ¶¶ 69, 71. Mohammadamin Motaharinia and Ehsan Naderi likewise wished to pursue
PhDs in Electrical Engineering at the University of California, Los Angeles, and New Mexico
State University, respectively, and interviewed on separate days in November. Id., ¶¶ 84, 86,
100, 102.
In the ensuing months, Plaintiffs emailed the Embassy at various times requesting an
update on the status of their applications and warning that they might lose their offers of
admission. Id., ¶¶ 42–43, 60–61, 75–76, 90–92, 106–08. These entreaties, however, were met
with silence. Id. Frustrated by the delay, on June 1, 2023, Plaintiffs sued the State Department,
the Department of Homeland Security, their respective heads (Secretaries Antony Blinken and
Alejandro Mayorkas), Consul Stephanie Zakhem of the U.S. Embassy in Yerevan, and several
other unnamed consular officers stationed there. They point to emails by U.S. Embassies in
other countries indicating that administrative processing of F and J visas typically takes place
within 60 to 90 days, id., ¶¶ 46, 65, 80, 96, 112, and argue that the delays at issue here —
roughly six to eight months — are unreasonable in violation of the Administrative Procedure
Act, 5 U.S.C. §§ 555(b), 706(1). Id., ¶¶ 115–65.
Since this action was filed, Cheraghtapeh, Mirzaei, and Saedi all received final decisions
on their visa applications. See ECF No. 11 (Def. MTD) at 14; ECF No. 12 (Pl. Opp. & Mot.) at
4 1 n.1. Defendants now move to dismiss the Complaint in its entirety, and Plaintiffs, in
opposition, move for limited discovery into the visa-application process at Yerevan.
II. Legal Standard
Defendants’ Motion invokes the legal standards for dismissal under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction, “[t]he plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, No. 19-1049, 2020 WL
674778, at *2 (D.D.C. Feb. 11, 2020) (quoting Didban v. Pompeo, 435 F. Supp. 3d 168, 174
(D.D.C. 2020)). The Court “assume[s] the truth of all material factual allegations in the
complaint and ‘construe[s] the complaint liberally, granting plaintiff the benefit of all inferences
that can be derived from the facts alleged.’” Am. Nat’l Ins. Co v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
To survive a motion to dismiss under Rule 12(b)(6), conversely, a complaint must “state
a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552
(2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, id. at 555, “a complaint must contain sufficient factual matter, [if] accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). Though a plaintiff may survive a Rule 12(b)(6) motion
even if “‘recovery is very remote and unlikely,’” the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
5 III. Analysis
As a threshold matter, the parties agree that Saedi, Cheraghtapeh, and Mirzaei’s claims
are now moot because their respective visa applications have been finally adjudicated. See Pl.
Opp. & Mot. at 1 n.1; ECF No. 14 (Def. Reply & Opp.) at 1. The Court will, accordingly,
dismiss these Plaintiffs. The Government raises a number of other preliminary arguments for
dismissal that are by now quite familiar to the Court. After addressing those briefly, the Court
will turn to the merits of Plaintiffs’ unreasonable-delay claims and then their request for
discovery.
A. Preliminary Arguments
The Government contends that the remaining Plaintiffs: (1) lack standing because they
have no right to a visa, their applications have already been refused pursuant to Section 1735,
and they name officials as defendants who cannot provide the requested relief, see Def. MTD at
8–14, 24–26; (2) raise claims that are all non-justiciable, in part because they are barred by the
consular non-reviewability doctrine, id. at 21–24, 26–30; and (3) fail to adequately allege
unreasonable delay because there is no discrete action that Defendants were required to take. Id.
at 15–21. The Court just last month dealt with these precise issues in Khazaei v. Blinken, 2023
WL 6065095 (D.D.C. Sept. 18, 2023), where the Government had raised the same arguments
nearly verbatim. So as not to spill unnecessary ink, the Court here adopts its analysis from that
Opinion. Id. at *3–5. All three of those arguments founder for the reasons stated in Khazaei.
There is, however, a minor wrinkle with respect to standing that did not arise in that case.
Defendants here suggest that Plaintiffs lack standing to bring claims against DHS and Secretary
Mayorkas because they do not show that either was “involved in the refusal of their visa
applications or are playing any ongoing role in Plaintiffs’ requests for visas.” Def. MTD at 24.
6 The Court agrees. To establish constitutional standing, a plaintiff must show, among other
things, that his injury is “causal[ly] connect[ed]” to the defendant’s conduct and can “likely” be
“redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
Plaintiffs have alleged that DHS “is responsible for . . . security and background checks of visa
applicants worldwide,” and that Mayorkas “oversees DHS operations . . . [and] has ultimate
responsibility for ensuring completion of certain security and background checks conducted on
Plaintiffs.” Compl., ¶¶ 17–18. They also cite a 2002 agreement between DHS and State
showing that DHS must be consulted in connection with the Section 1735 security determination
that Plaintiffs (as citizens of Iran) would need to receive a visa. See Pl. Opp. & Mot. at 16.
Absent, however, are facts suggesting that the delays at issue here are caused by such security
screening or that there is any action DHS could take to hasten review of their applications.
Plaintiffs’ insinuation that the agency might be responsible for, and able to remedy, such delays is
simply too speculative a basis for this Court’s jurisdiction. See Defs. of Wildlife, 504 U.S. at 561
(ruling that it “must be ‘likely,’ as opposed to merely ‘speculative,’” that the injury can be
redressed); see also Khoshrou v. Blinken, 2023 WL 4930086, at *3 (D.D.C. Aug. 2, 2023)
(dismissing claims against DHS because “the ‘sheer possibility’ that a defendant played a role in
the delayed processing of a visa is not adequate to establish standing”) (citation omitted);
Siddiqui v. Blinken, 2022 WL 17744079, at *3 (D.D.C. Dec. 14, 2022) (similar).
DHS and Secretary Mayorkas, consequently, shall be dismissed, and the Court may now
turn to the substance of the unreasonable-delay claims against the remaining Defendants.
B. TRAC Factors
When a plaintiff asserts a claim for unreasonable delay under §§ 555(b) and 706(1), the
central inquiry is “whether the agency’s delay is so egregious as to warrant mandamus.”
7 Telecommunications Rsch & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984). The
Court considers the six oft-employed 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 court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Id. at 80 (cleaned up).
These considerations are often grouped into four basic inquiries. “First, is there any
rhyme or reason — congressionally prescribed or otherwise — for an agency’s delay (factors one
and two)? Second, what are the consequences of delay if the Court does not compel the agency
to act (factors three and five)? Third, how might forcing the agency to act thwart its ability to
address other priorities (factor four)? Finally, is the delay intentional or due to any impropriety
on the part of the agency (factor six)?” Rahman v. Blinken, 2023 WL 196428, at *4 (D.D.C. Jan.
17, 2023) (cleaned up).
The first two factors clearly favor Defendants. There is, of course, no statutory timeline
for adjudicating non-immigrant F and J visa applications — a point that Plaintiffs concede. See
Pl. Opp. & Mot. at 30 n.10. “Absent a congressionally supplied yardstick, caselaw guides the
Court’s interpretation.” Whitlock v. U.S. Dep’t of Homeland Sec., 2022 WL 424983, at *6
(D.D.C. Feb. 11, 2022) (cleaned up). Plaintiffs cite no comparable case in which a delay of six
to seven months — the delays the remaining three Plaintiffs experienced (as of the filing of the
Complaint) — was found unreasonable. On the contrary, the courts of this district have
8 dismissed claims, over and over, challenging delays in processing non-immigrant visa requests
substantially longer than that. See, e.g., Sawahreh v. United States Dep’t of State, 630 F. Supp.
3d 155 (D.D.C. 2022) (finding 15-month delay in processing J-1 visa application reasonable);
Penn v. Blinken, 2022 WL 910525 (D.D.C. Mar. 29, 2022) (same as to 22-month delay for non-
immigrant K-1 visa applications); Yacoub v. Blinken, 2022 WL 4598681 (D.D.C. Sept. 30, 2022)
(same as to one-and-a-half- to three-and-a-half-year delay).
Nor is the Court persuaded by the notion that State’s asserted policy of prioritizing
student and exchange-visitor visas — or that the 60- to 90-day timeframe that various embassies
have represented is the typical administrative-processing time — operates as a rule of reason that
State has violated in this case. Contra Pl. Opp. & Mot. at 29–30 & n.10. As in Milligan v.
Blinken, 2021 WL 3931880 (D.D.C. Sept. 2, 2021), Plaintiffs “put forth no compelling reason
why the ‘public facing announcements’ of an agency,” let alone of other embassies, “should be
understood to supply the granular substance of a rule of reason.” Id. at *8. Further, even if the
Court regarded State’s policy and the timeframe announcements in question as constituting such
a rule, Plaintiffs allege nothing to suggest that State has failed to prioritize J and F visas at a
systemic level, or that the 60-to-90-day wait time has become atypical. The guidance on which
they rely, after all, consistently adds that processing time “is difficult to predict” and “can take
significantly longer” in “some instances.” ECF No. 1-1 (Compl. Exhibits) at 4, 16, 19 (Emails
from U.S. Embassy Islamabad); id. at 9, 18 (Emails from U.S. Embassy Kuala Lumpur).
This is not to imply, of course, that there are no possible circumstances under which a
delay of six to eight months would be unreasonable. See Mashpee Wampanoag Trib. Council,
Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003) (noting that whether a delay is unreasonable
“cannot be decided in the abstract, by reference to some number of months or years beyond
9 which agency inaction is presumed to be unlawful”). At the very least, however, the remaining
factors would need to weigh decisively in Plaintiffs’ favor. Here they do not.
Factors three and five favor Plaintiffs, but only to a modest degree. While the Court
acknowledges the substantial disruption to their academic and career plans and the associated
financial benefits at stake in this matter, see Pl. Opp. & Mot. at 34, they fail to plead the kind of
personal hardship that bears significant weight in a TRAC factor analysis. Cf. Da Costa v.
Immigr. Inv. Program Off., 2023 WL 5313526, at *9 (D.C. Cir. Aug. 18, 2023) (“The financial
harms [Plaintiff] alleges, along with the uncertainty that results any time an individual must
continue to wait to secure a benefit, are insufficient to tip TRAC factors three and five in his
favor.”); see also Sawahreh, 630 F. Supp. 3d at 163–64 (dismissing unreasonable-delay claim,
even though delay “jeopardiz[ed]” plaintiff’s career trajectory, among other harms).
Factor four, which is dispositive in some cases, see Norton, 336 F.3d at 1100,
straightforwardly favors Defendants. Plaintiffs seek an order requiring the Government to
“render a decision on [their] J-1, F-1, and F-2 visa applications without further delay.” Compl. at
30. Such an order would necessarily require State to prioritize Plaintiffs’ applications “at the
expense of other similarly situated applicants.” Da Costa, 2023 WL 5313526, at *8 (citation
omitted). The Court may have reached a different conclusion had Plaintiffs plausibly alleged
that they were “singled out for slower adjudication,” but they have not. Id. Indeed, the deluge of
unreasonable-delay suits filed in this district in recent years, and involving F and J visa
applications, would strongly suggest otherwise. See, e.g., Rahman, 2023 WL 196428; Sawahreh,
630 F. Supp. 3d 155; Khazaei, 2023 WL 6065095; Khan v. Blome, 2022 WL 17262219 (D.D.C.
Nov. 29, 2022); Rezaei v. Garland, 2023 WL 5275121 (D.D.C. Aug. 16, 2023).
10 As to factor six, an allegation of bad faith is altogether absent from Plaintiffs’ Complaint.
They suggest that the fact that Defendants have exceeded the standard 60-to-90-day processing
time and have processed some later-interviewed visa applications before Plaintiffs’ creates an
“appearance of impropriety.” Pl. Opp. & Mot. at 34. But as Plaintiffs do not argue — let alone
allege facts suggesting — that this is the result of wrongdoing and not legitimate processing
issues associated with Plaintiffs’ individual applications, this factor does not move the needle.
In short, because Plaintiffs failed to adequately plead that a final decision on their visa
applications has been unreasonably delayed, their Complaint shall be dismissed.
C. Discovery
In a last-ditch effort to stave off dismissal, Plaintiffs suggest that the above analysis is
premature because limited discovery into the Yerevan Embassy’s visa-application-review process
is necessary to assess whether the delay is in fact unreasonable under TRAC. Although
discovery is typically not available in APA cases, see Air Transp. Ass’n of Am., Inc. v. Nat’l
Mediation Bd., 663 F.3d 476, 487 (D.C. Cir. 2011), Plaintiffs urge the Court to permit it here.
They seek to learn, among other things, how Defendants’ policies prioritizing student and
exchange-visitor visas are “carried out” at Yerevan and other consular posts; “statistics and
explanation as to how long [a Section 1735 determination] typically takes,” the steps involved,
and the determination’s effect on the “length and complexity in processing nonimmigrant F-1
and J-1 visa applications”; the “existence and extent of any ‘processing limitations’”; the
existence of a “visa-processing ‘queue’ in Yerevan”; “[a]nomalies” at Yerevan that have “resulted
in later-interviewed applicants” receiving decisions before Plaintiffs; “specific burdens”
Defendants would shoulder if ordered to adjudicate Plaintiffs’ applications; and the “existence or
absence of ‘good faith.’” Pl. Opp. & Mot. at 35–36.
11 The Court acknowledges that these inquiries bear on TRAC factors one, four, and six, but
it need not wait for discovery to assess whether Plaintiffs have plausibly alleged that any of those
factors militate in their favor. See Iqbal, 556 U.S. at 686 (Where plaintiff’s “complaint is
deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”); see also Khan,
2022 WL 17262219, at *4 (concluding that “[i]t is appropriate to [evaluate the TRAC factors] at
the motion-to-dismiss stage”); Sawahreh, 630 F. Supp. 3d at 161 (same); Skalka v. Kelly, 246 F.
Supp. 3d 147, 151 (D.D.C. 2017) (same).
As to factor one, as explained earlier, Plaintiffs have not plausibly alleged that State
violated its own policy of prioritizing F and J visa applications or that it is no longer true that
processing typically takes up to 60 to 90 days — that is, on the dubious assumption that such
statements even constitute a rule of reason. They cite no case, furthermore, in which a court held
that a visa-processing delay of roughly six to seven months was unreasonable. Given these
deficiencies and the sheer brevity of the delays at issue, discovery is unwarranted.
As to factor four, one need not unearth the details of the visa-adjudication process at
Yerevan and elsewhere to surmise that the relief Plaintiffs seek would reorder State’s priorities.
That outcome is obvious “[w]here the agency action sought is one of many similar adjudications
that the agency must complete.” Skalka, 246 F. Supp. 3d at 153 (D.D.C. 2017); see also
Khoshrou, 2023 WL 4930086, at *7 (noting that “prompt adjudication of [the plaintiff’s] visa
application . . . would mean that others waiting for adjudication would be displaced”). Finally,
as to factor six, as previously noted, Plaintiffs allege no facts supporting an inference of bad
faith. Nor have they offered more than rank speculation in their briefs. That too does not suffice
for discovery.
12 Nor do the out-of-circuit cases on which Plaintiffs rely meaningfully advance their
argument. See Pl. Opp. & Mot. at 36–37; ECF No. 16 (Pl. Reply) at 2–3. Barrios Garcia v. U.S.
Department of Homeland Security, 25 F.4th 430 (6th Cir. 2022), and Gonzalez v. Cuccinelli, 985
F.3d 357 (4th Cir. 2021), indeed support the proposition that the TRAC analysis is fact intensive
and “thus sits uncomfortably at the motion to dismiss stage.” Gonzalez, 985 F.3d at 375. Both
courts still found, nevertheless, that the plaintiffs had sufficiently alleged an unreasonable delay
in their Complaint before permitting discovery — and based on facts more compelling than those
asserted here. In each case, the plaintiffs were victims of serious crimes who cooperated with
U.S. law enforcement and, based on that assistance, applied for non-immigrant U-visas. See
Barrios Garcia, 25 F.4th at 435; Gonzalez, 985 F.3d at 360; see also 8 U.S.C. § 1101(a)(15)(U).
They had all waited more than three years for a decision on their visa applications and alleged
sufficient harm to their health and wellness. See Barrios Garcia, 25 F.4th at 452 (plaintiffs’ risk
of being deported, inability to reunite with family living abroad or to obtain ID cards,
employment, and healthcare, inter alia, sufficed to state claim that three-to-five-year delay was
unreasonable); Gonzalez, 985 F.3d at 364, 375 (“Plaintiffs have pled sufficient facts to show that
their interests are weighty, implicate health and welfare, and are harmed by the [more than four-
year] wait.”). The delays at issue here, which lasted roughly six to seven months and risk only
educational and professional opportunities, while serious in their own right, are simply not
comparable.
A final point is worth bearing in mind: Plaintiffs’ requested discovery is rather broad and
arrives in a type of suit in which discovery typically does not occur. Given the surfeit of lawsuits
challenging delays in processing visa applications that is currently swamping our courts,
13 discovery in every such case would lead to a substantial imposition on the Government. The
Court will therefore decline to order discovery without a sturdier basis for doing so.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss and deny
Plaintiffs’ Motion for Discovery. A separate Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: October 4, 2023