496 F.Supp.3d 462
D.D.C.2020Background
- Sanaz Ashtari (U.S. citizen) filed immigrant-petition paperwork in 2015 to bring her Iranian parents to the U.S.; Abdollah Ashtari (father) had his consular interview in Ankara (Aug. 24, 2016) and received a 221(g) refusal for "administrative processing."
- While his case remained in processing, Presidential Proclamation 9645 (Sept. 2017) imposed country-based entry restrictions but authorized case-by-case waivers under §3(c); the State Department issued implementing guidance requiring waiver consideration before refusing visa applicants.
- In March 2018 the Embassy requested supplemental vetting (DS-5535); the Embassy later informed the family a consular officer had proposed a waiver, but no final waiver decision was issued for years despite the State Department’s later representations that new automated vetting could produce decisions in days.
- Plaintiffs sued (Dec. 2019) seeking mandamus or APA relief to compel a waiver decision; Ms. Mozaffari’s claim was later voluntarily dismissed after she obtained a visa; Mr. Ashtari’s waiver decision remained pending.
- The government moved to dismiss under Rules 12(b)(1) and 12(b)(6); plaintiffs cross-moved for summary judgment. The court denied both motions, allowing the APA unreasonable-delay claim to proceed but denying summary judgment to plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is barred by mootness or consular nonreviewability | Ashtari argues he seeks a waiver decision, not review of a consular denial, so the court can address delay | Defendants say a consular officer already refused the visa, invoking consular nonreviewability and mootness | Court: Not barred — waiver determination remains pending and consular nonreviewability does not foreclose review of alleged unreasonable delay in making a waiver decision |
| Whether the APA permits review of delay in making a waiver decision under Proclamation 9645 | Ashtari: challenge is to State Department inaction and departure from its own guidance, not to the President’s Proclamation | Defendants: waiver program stems from the Proclamation (presidential action) and is therefore non-reviewable under the APA; Sec. 9(c) disclaims rights or benefits | Court: APA review allowed — plaintiffs challenge agency inaction and adherence to internal guidance, and Accardi principles bind agency to its own policies |
| Whether the delay is reviewable or committed to agency discretion | Ashtari: guidance requires waiver consideration; delay is a discrete agency action subject to §706(1) | Defendants: decision to grant/deny a waiver is committed to agency discretion and thus nonreviewable | Court: Reviewable — while substantive waiver decisions are discretionary, agency must at least decide waiver applications; the claim of unreasonable delay is cognizable under APA |
| Whether plaintiffs are entitled to relief now (unreasonable delay / summary judgment) | Ashtari: long multi‑year delay is unreasonable; State Dept. has tools to decide quickly | Defendants: large backlog (14,000+), competing priorities, and complexity justify delay; court should not reorder queue | Held: Plaintiffs plausibly plead unreasonable delay (survive 12(b)(6)), but summary judgment denied — factual development required (TRAC factors, competing priorities, resources, queue concerns) |
Key Cases Cited
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (articulating consular nonreviewability principle)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA §706(1) applies only where an agency failed to take a discrete action it is required to take)
- Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (establishing six-factor TRAC test for unreasonable delay)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agencies must follow their own binding rules and procedures)
- Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (applying TRAC and the rule‑of‑reason analysis)
- In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) (courts should not simply put a plaintiff at head of the agency queue)
- Moghaddam v. Pompeo, 424 F. Supp. 3d 104 (D.D.C. 2020) (district court holding waiver determinations and delay reviewable under APA when agency guidance requires consideration)
- Didban v. Pompeo, 435 F. Supp. 3d 168 (D.D.C. 2020) (similar holding that unreasonable-delay claims re: waiver decisions are reviewable)