Sedighi v. United States Department of State

• Court: District Court, D. Arizona
• Decided: February 26, 2024
• Docket: 2:24-cv-00126
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Seyedparsa Sedighi, No. CV-24-00126-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 United States Department of State,

13 Defendant. 14 15 16 Pending before the Court is Plaintiff’s Complaint (Doc. 1), Application to Proceed 17 in District Court Without Prepaying Fees or Costs (Doc. 2), and Motion to Allow 18 Electronic Filing by a Party Appearing Without an Attorney and Supporting Information 19 (Doc. 4). Pursuant 28 U.S.C. § 1915(e)(2), Plaintiff’s Complaint is dismissed with leave 20 to amend. Plaintiff’s motions to proceed without prepaying fees (Doc. 2)1 and to file 21 electronically (Doc. 4), however, are granted. 22 BACKGROUND 23 Plaintiff is a citizen of Iran who resides in Spain and seeks issuance of an F-1 student 24 visa. (Doc. 1 at 2.) He intended to attend Arizona State University for the winter term. 25 (Id.) Plaintiff filed for an F-1 student visa. (Id.) On August 17 or 18th, Plaintiff was 26 interviewed. (Id. at 2–3.) “During this interview, [Plaintiff] was requested to provide 27 1 Plaintiff does not have a source of income to pay the costs associated with this proceeding. 28 (Doc. 2 at 1.) 1 additional documentation to clarify [his] exemption from mandatory military service in 2 Iran.” (Id. at 2.) Plaintiff submitted the required information on August 31st. (Id.) On 3 September 20th, Plaintiff further submitted Form DS-5535 to supplement his application. 4 (Id.) Since then, Plaintiff’s application has remained pending. (Id. at 3.) 5 DISCUSSION 6 I. Legal Standard 7 With respect to in forma pauperis cases Congress provided that a district court “shall 8 dismiss the case at any time if the court determines” that the “allegation of poverty is 9 untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on 10 which relief may be granted,” or “seeks monetary relief against a defendant who is immune 11 from such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how prisoners 12 can file proceedings in forma pauperis, § 1915(e) “applies to all in forma pauperis 13 [proceedings], not just those filed by prisoners.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th 14 Cir. 2000). “It is also clear that section 1915(e) not only permits but requires a district 15 court to dismiss an in forma pauperis complaint that fails to state a claim.” Id. at 1127. If 16 the court determines that a pleading could be cured by the allegation of other facts, a pro 17 se litigant is entitled to an opportunity to amend a complaint before the dismissal of the 18 action. See Lopez, 203 F.3d at 1127–29. 19 II. Analysis 20 A. Subject Matter Jurisdiction 21 Federal Rule of Civil Procedure 12(b)(1) requires the court to dismiss an action if 22 the court lacks subject matter jurisdiction over the suit. Fed. R. Civ. P. 12(b)(1). Plaintiff 23 asserts that the Court has jurisdiction pursuant to the (1) the Mandamus Act, 28 U.S.C. 24 § 1361, (2) the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, and 25 (3) federal question jurisdiction, 28 U.S.C. §1331. (Doc. 1 at 1.) 26 1. Mandamus Act, 28 U.S.C. § 1361 27 A writ of mandamus is proper for the purpose of “compel[ing] an officer or 28 employee of the United States or any agency thereof to perform a duty owed to the plaintiff. 1 28 U.S.C. § 1361. “The extraordinary remedy of mandamus . . . will issue only to compel 2 the performance of ‘a clear nondiscretionary duty.’” Pittston Coal Grp. v. Sebben, 488 3 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Plaintiff must 4 show that (1) his “claim is clear and certain; (2) the official’s duty is non-discretionary, 5 ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate 6 remedy is available.” Lucatero v. U.S.I.N.S., 69 F. App’x 836, 838 (9th Cir. 2003). 7 First, Plaintiff’s right to relief is clear and certain. He seeks to compel “the 8 Department of State to expedite the processing of [his] F-1 student visa application.” 9 (Doc. 1 at 2.) Courts have consistently held that delays of student visa applications are 10 concrete injuries that are redressable by the court. See, e.g., Ahmadi v. Scharpf, 11 No. 23-CV-953 (DLF), 2024 WL 551542, at *3 (D.D.C. Feb. 12, 2024) (Plaintiff “has 12 suffered a concrete harm supporting injury in fact,” that is also redressable); Pourabdollah 13 v. Blinken, No. 23-CV-1603 (DLF), 2024 WL 474523, at *2 (D.D.C. Feb. 7, 2024) 14 (Plaintiffs have Article III standing to contest that the “adjudication of their pending visa 15 applications has been unreasonably delayed in violation of 5 U.S.C. §§ 555(b), 706(1).”). 16 And, courts shall “compel agency action unlawfully withheld or unreasonably delayed.” 17 5 U.S.C. § 706(1). Thus, if Defendant has unreasonably delayed adjudication of Plaintiff’s 18 F-1 student visa application, then the APA provides Plaintiff with a clear right to relief. 19 Second, “[w]hen a visa application has been properly completed and executed in 20 accordance with the provisions of the INA and the implementing regulations, the consular 21 officer must issue the visa, refuse the visa, or, pursuant to an outstanding order under INA 22 243(d), discontinue granting the visa.” 22 C.F.R. § 41.121(a) (emphasis added). Cf. Shen 23 v. Pompeo, No. CV 20-1263 (ABJ), 2021 WL 1246025, at *7 (D.D.C. Mar. 24, 2021) 24 (finding that “an alleged failure to” properly and promptly process a visa “within a 25 reasonable time could supply the basis for a mandamus action and is reviewable under the 26 APA”). 27 Third, no other remedy is available to Plaintiff. “Waiting for an agency to act cannot 28 logically be an adequate alternative to an order compelling the agency to act.” Fu v. Reno, 1 No. CIV.A. 3:99-CV-0981L, 2000 WL 1644490, at *4 (N.D. Tex. Nov. 1, 2000). 2 Thus, the Court finds that it has jurisdiction over Plaintiff’s claim under the 3 Mandamus Act. 4 2. Administrative Procedure Act 5 The Court likewise has authority to review Defendant’s actions under the APA. The 6 Act provides “[w]ith due regard for the convenience and necessity of the parties or their 7 representatives and within a reasonable time, each agency shall proceed to conclude a 8 matter presented to it.” 5 U.S.C. § 555(b). Section 706(1) of the APA authorizes a court 9 to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. 10 § 706(1). The APA explicitly exempts from judicial review those actions “committed to 11 agency discretion by law.” 5 U.S.C. § 701(a). As determined above, Defendant has a 12 nondiscretionary duty to adjudicate Plaintiff’s application within a reasonable time. Thus, 13 pursuant to the APA, in conjunction with 28 U.S.C. §1331, the Court has subject matter 14 jurisdiction over Plaintiff’s claim. 15 B. Failure to State a Claim 16 1. Legal Standard 17 Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and 18 plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 19 8(a), so that the defendant receives “fair notice of what the . . . claim is and the grounds 20 upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a 21 motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 22 12(b)(6), a complaint must contain factual allegations sufficient to “raise a right to relief 23 above the speculative level.” Id. When analyzing a complaint for failure to state a claim, 24 “allegations of material fact are taken as true and construed in the light most favorable to 25 the nonmoving party.” Buckey v. Cnty. of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 26 Legal conclusions couched as factual allegations, however, are not given a presumption of 27 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 28 1 sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 2 1998). 3 2. Analysis 4 As discussed in Part II(A)(1)–(2), Defendant has a nondiscretionary duty to 5 adjudicate Plaintiff’s application within reasonable time. However, there are no statutory 6 deadlines for adjudicating F-1 student visa applications. Nonetheless, the APA, directs 7 agencies to “proceed to conclude a matter presented to it” “[w]ith due regard for the 8 convenience and necessity of the parties or their representatives and within a reasonable 9 time.” 5 U.S.C. § 555(b). 10 The Ninth Circuit has adopted the “TRAC” factors, a six-factor test, for determining 11 whether agency delay is unreasonable: 12 (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 13 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[;] 14 (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 15 should consider the effect of expediting delayed action on agency activities 16 of a higher or competing priority[;] (5) the court should also take into account the nature and extent of the interests prejudiced by the delay[;] and (6) the 17 court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” 18 19 Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) (quoting Independence Mining Co. 20 v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir.1997)) (citing Telecomm. Rsch. & Action v. FCC 21 (TRAC), 750 F.2d 70, 80 (D.C.Cir.1984)) (alterations in original). 22 It is unclear when Plaintiff filed his F-1 student visa application. But, according to 23 Plaintiff, his application “has been pending since the interview date of August 17th.” 24 (Doc. 1 at 3.) Plaintiff does not submit nor has the Court found any cases that conclude 25 that a six-month delay in processing a F-1 student visa application is unreasonable. See 26 e.g., Shen, 2021 WL 1246025, at *8 (finding that a twenty-one-month delay was not 27 unreasonable); Yavari v. Pompeo, No. 19-cv-2524, 2019 WL 6720995, at *8 (C.D. Cal. 28 Oct. 10, 2019) (“District courts have generally found that immigration delays in excess of 1 five, six, seven years are unreasonable . . . .”); Ghali v. Radel, No. 18-CV-0508-AJB-RBB, 2 2019 WL 1429583, at *2 (S.D. Cal. Mar. 29, 2019) (finding that a “three plus year delay 3 in processing [plaintiffs] asylum applications” is not unreasonable). While 8 U.S.C. 4 § 1571(b) states that “the processing of an immigration benefit application should be 5 completed not later than 180 days after the initial filing of the application,” this is an 6 aspirational policy, rather than a mandate. Moreover, the same statute expressly recognizes 7 “the current backlog” in processing visa applications. 8 Thus, Plaintiff has failed to “raise the right to relief above the speculative level.” 9 See Twombly, 550 U.S. at 555. 10 III. Leave to Amend 11 Plaintiff will be given an opportunity, if he so chooses, to amend his complaint. In 12 the amended complaint, Plaintiff must state what rights he believes were violated. Fed. R. 13 Civ. P. 8(a)(2). Each claim of an alleged violation must be set forth and labeled in a 14 separate count. The amended complaint must also state why the federal court has 15 jurisdiction over Plaintiff’s claims. Any amended complaint filed by Plaintiff must 16 conform to the requirements of Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil 17 Procedure. 18 Plaintiff is advised that if he elects to file an amended complaint but fails to comply 19 with the Court’s instructions explained in this Order, the action will be dismissed pursuant 20 to 28 U.S.C. § 1915(e) and/or Rule 41(b) of the Federal Rules of Civil Procedure. See 21 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal with prejudice 22 of amended complaint that did not comply with Rule 8(a)); Corcoran v. Yorty, 347 F.2d 23 222, 223 (9th Cir. 1965) (affirming dismissal without leave to amend second complaint 24 that was “so verbose, confused[,] and redundant that its true substance, if any, was [well] 25 disguised”). 26 CONCLUSION 27 IT IS HEREBY ORDERED granting the application for leave to proceed in forma 28 pauperis (Doc. 2), without prepayment of costs or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service by waiver or of the summons and complaint. 3 IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(e)(2), □□□□□□□□□□□ 4|| Complaint (Doc. 1) is DISMISSED for failure to comply with Rule 8, with leave to file an 5 || amended complaint WITHIN 30 DAYS. 6 IT IS FURTHER ORDERED that if Plaintiff elects not to file an amended complaint WITHIN 30 DAYS of the date of this Order, the Clerk of Court shall dismiss 8 || without prejudice and terminate this action without further Order of the Court. 9 IT IS FURTHER ORDERED that if Plaintiff elects to file an amended complaint, 10 || the complaint may not be served until and unless the Court screens the amended complaint 11 || pursuant to 18 U.S.C. § 1915(e)(2). 12 IT IS FURTHER ORDERED that Plaintiff's Motion to Allow Electronic Filing by a Party Appearing Without an Attorney and Supporting Information (Doc. 4) is GRANTED. The party is required to comply with all rules outlined in the U.S. District Court District of Arizona’s Case Management/Electronic Case Filing Administrative || Policies and Procedures Manual, have access to the required equipment and software, have 17 || a personal electronic mailbox of sufficient capacity to send and receive electronic notice 18 || of case related transmissions, be able to electronically transmit documents to the court in □□ .pdf format, register as a subscriber to PACER (Public Access to Electronic Records) 20 || within five (5) days of the date of this Order and comply with the privacy policy of the || Judicial Conference of the United States and the E-Government Act of 2002. Any misuse || of the ECF system will result in immediate discontinuation of this privilege and disabling 23 || of the password assigned to the party. 24 Dated this 23rd day of February, 2024. 25 _ 6 A Whacrsay Sooo é Mer 27 Chief United states’ District Judge 28

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