435 F.Supp.3d 168
D.D.C.2020Background
- Plaintiffs: Saman Didban (U.S. legal permanent resident) and his wife Fataneh Rostami (Iranian national). Didban filed an I-130 in 2015; Rostami completed a DS-260 and was interviewed in Ankara on Dec. 28, 2017.
- At the interview, the consular officer refused Rostami’s visa under Presidential Proclamation 9645 but referred her for a discretionary waiver review; the waiver has remained in "administrative processing" for ~two years.
- Plaintiffs sued in March 2019 seeking an order compelling the Government to adjudicate (not to grant) the waiver, invoking the APA (unreasonable delay) and the Mandamus Act.
- The Government moved to dismiss, arguing (1) consular non-reviewability (no judicial review of visa decisions), (2) mootness, (3) that waiver adjudication is committed to agency discretion or otherwise not unreasonably delayed.
- The Court assumed reviewability for purposes of the APA claim but applied the TRAC six-factor test and concluded the two-year delay was not unreasonable given national-security concerns, resource allocation, and ongoing processing of thousands of waiver applications.
- Result: Court granted defendants’ motion to dismiss; APA and mandamus claims failed for lack of unreasonable delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether doctrine of consular non-reviewability bars the suit | Didban: suit challenges delay in adjudicating waiver, not visa denial, so review is permitted | Pompeo: consular decisions are nonreviewable and bar this action | Court: Non-reviewability does not bar a claim seeking to compel adjudication (no final consular decision on waiver yet) |
| Whether case is moot because court cannot order issuance of visa | Didban: Court can order adjudication even if it cannot order grant | Pompeo: no relief available; case therefore moot | Court: Not moot—ordering adjudication could affect rights; relief is meaningful |
| Whether APA provides review for unreasonable delay in waiver adjudication | Didban: two-year delay is unreasonable under APA/TRAC | Pompeo: waiver process is committed to agency discretion and/or delay is reasonable given Proclamation and national-security vetting | Court: Assumed reviewable but on the merits held delay not unreasonable under TRAC given complexity, competing priorities, and volume of cases |
| Whether mandamus relief is available | Didban: mandamus can compel performance of duty to decide waiver | Pompeo: no ministerial duty breached; discretionary, and delay not unreasonable | Court: Mandamus denied because plaintiffs failed to show unreasonable delay necessary for relief |
Key Cases Cited
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (Supreme Court upheld presidential authority to restrict entry of certain aliens)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (discussing consular nonreviewability of visa decisions)
- Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (establishing six-factor test for assessing unreasonable agency delay)
- In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) (courts should consider impact of expediting one matter on agency's resource allocation)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (mandamus and APA limits where action is committed to agency discretion)
- Mathews v. Diaz, 426 U.S. 67 (1976) (deference to political branches in immigration and admission decisions)
- Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (assessing reasonableness of agency delay in light of task complexity and competing priorities)