Civil Action No. 2019-0881
D.D.C.Jan 15, 2020Background
- Plaintiffs are Saman Didban (a U.S. lawful permanent resident) and his wife Fataneh Rostami (an Iranian national). Rostami’s immigrant visa was refused at a consular interview under Presidential Proclamation 9645, and she applied for a discretionary waiver.
- Rostami’s waiver application has been undergoing administrative/national-security review since December 2017; Plaintiffs filed suit in March 2019 after roughly 15 months of delay (two years by decision date).
- Plaintiffs seek judicial relief only to compel adjudication of the waiver application (not to order issuance of a visa), invoking the Administrative Procedure Act (unreasonable delay) and the Mandamus Act.
- The Government moved to dismiss, arguing lack of jurisdiction based on consular nonreviewability and mootness, and on the merits arguing the delay is not unreasonable and that waiver adjudication is committed to agency discretion.
- The court held it had jurisdiction to review claims about an unadjudicated waiver application (consular nonreviewability applies only after a consular decision) and that the case was not moot because the court can compel a decision.
- Applying the TRAC factors, the court concluded the two-year delay was not unreasonable given national-security concerns, Congress’s broad delegation in immigration, resource/prioritization considerations, and the ongoing processing of many waiver applications; it dismissed both APA and mandamus claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consular nonreviewability bars jurisdiction over claims about delayed waiver adjudication | Consular nonreviewability does not apply because no final consular decision on the waiver has been rendered; suit challenges failure to act, not a consular discretionary denial | Doctrine bars judicial review of visa-related matters and therefore forecloses jurisdiction | Court: Doctrine does not bar review of claims that an agency has unreasonably delayed adjudicating a waiver before any final consular decision |
| Whether the case is moot because the court cannot order issuance of a visa | Plaintiffs seek only compulsion to decide, so relief would affect their rights and is not moot | Government: Relief would be ineffectual because court cannot force visa issuance, so case is moot | Court: Not moot—court may order adjudication (granting/denying) and that can affect rights |
| Whether the Government’s failure to decide Rostami’s waiver is reviewable under the APA or committed to agency discretion | The delay is reviewable and unreasonable under APA §706(1) | Waiver program is presidential/committed to discretion; pace of adjudication is committed to agency discretion and nonreviewable | Court assumed reviewability but found no unreasonable delay on the merits under TRAC; dismissed APA claim |
| Whether mandamus relief is available to compel a decision | Mandamus appropriate to compel agency duty to act because delay is unlawful | Mandamus unavailable because no clear, nondiscretionary duty and delay not unreasonable | Court: Mandamus denied because Plaintiffs failed to show unreasonable delay |
Key Cases Cited
- Trump v. Hawaii, 138 S. Ct. 2392 (Sup. Ct. 2018) (upholding Proclamation and recognizing wide executive discretion over alien admission)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (discussing doctrine of consular nonreviewability)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (establishing the six-factor TRAC test for unreasonable agency delay)
- Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (distinguishing review of a consul’s discretionary denial from review of a consul’s failure to act)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (U.S. 2004) (mandamus and APA limits; reviewability and remedies standards)
- In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) (courts reluctant to reorder agency priorities when relief would merely move a party to the head of the queue)
- Mathews v. Diaz, 426 U.S. 67 (U.S. 1976) (deference to immigration classifications and executive authority over alien admission)