Al Ihsan Al-Gharawy v. United States Department of Homeland Security
617 F. Supp. 3d 1
| D.D.C. | 2022Background
- Marwah Al‑Gharawy (U.S. citizen) filed I‑130 petitions for her parents (Iraqi citizens) in January 2013; USCIS approved the petitions in August 2013 and forwarded them to the State Department/NVC.
- Beneficiaries filed DS‑260s (2013 and 2015) and interviewed at the U.S. Embassy in Baghdad on October 3, 2016; consular staff issued a 221(g) notice for "administrative processing," retained passports initially, and told applicants processing remained pending.
- Plaintiffs made repeated status inquiries over the ensuing years; Embassy responses cited administrative processing, an attack on the facility (Jan. 2020), and COVID‑19 suspensions of routine visa services.
- Plaintiffs sued (June 4, 2021) under the APA and Mandamus Act to compel adjudication and separately alleged a Fifth Amendment due‑process violation; they named DHS/USCIS and State Department defendants among others.
- Defendants moved to dismiss for lack of standing as to DHS/USCIS officials, on consular nonreviewability grounds, and for failure to state a due‑process claim.
- Court: granted dismissal for DHS, USCIS, and their officials for lack of standing; denied dismissal as to State Department, Secretary of State, U.S. Embassy in Iraq, and Ambassador; held consular nonreviewability did not bar claims because no final consular decision had been made; dismissed the Fifth Amendment claim; unreasonable‑delay merits reserved for later factual development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of DHS/USCIS and their heads | Plaintiffs seek relief for delay and can sue agencies involved in visa processing | DHS/USCIS completed their roles in 2013; they cannot redress consular delay | Dismissed for lack of standing (USCIS/DHS had no present role to remedy delay) |
| Standing of Secretary of State/State Department | Relief against Secretary can redress delay by directing consular action/timing | INA gives consular officers exclusive control; Secretary cannot control outcomes | Denied dismissal; plaintiffs have standing against Secretary/State Dept (may address timing) |
| Consular nonreviewability doctrine | Plaintiffs seek only to compel issuance of a decision (not to review denial) | Doctrine bars judicial interference with visa decisions, including alleged withholdings | Doctrine does not bar suit here: no final consular decision; interim 221(g) administrative processing is reviewable for delay |
| Unreasonable‑delay (APA/Mandamus) | Eight+ years of pending administrative processing is egregious and warrants mandamus | Delay justified by Embassy security concerns and COVID‑19 operational suspensions | Motion to dismiss denied as to remaining State defendants; merits require factual record and TRAC factor analysis |
| Fifth Amendment due process | Delay and failure to act deprived plaintiffs of fundamental fairness in adjudication | Visa applicants at threshold of entry have no greater due‑process rights; statutory procedures suffice | Dismissed for failure to state a cognizable due‑process claim |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury, causation, redressability)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (courts can compel discrete agency action unlawfully withheld)
- Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir.) (TRAC factors for unreasonable‑delay review)
- Patel v. Reno, 134 F.3d 929 (9th Cir.) (mandamus to compel consular action where refusal was provisional)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir.) (consular visa decisions generally not judicially reviewable)
- Baan Rao Thai Restaurant v. Pompeo, 985 F.3d 1020 (D.C. Cir.) (consular decisions to deny visas shielded from review where final)
- United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (judicial review limited over executive exclusion of aliens)
- In re Core Communications, Inc., 531 F.3d 849 (D.C. Cir.) (mandamus/APA standards for agency delay)
- Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094 (rule of reason for agency timing; fact‑specific TRAC inquiry)
- Vietnam Veterans of America v. Shinseki, 599 F.3d 654 (D.C. Cir.) (APA and Mandamus standards essentially the same in delay suits)