438 F.Supp.3d 35
D.D.C.2020Background
- Thomas, a U.S. citizen, filed an I-129F petition for his Iranian fiancé Akbar Masoumi; USCIS approved the petition in April 2017 and Masoumi interviewed at the U.S. Embassy in Abu Dhabi on August 16, 2017.
- At the interview the consular officer issued a Form 221(g) pending "administrative processing" and sent detailed questionnaires; the Embassy later informed a senator that the case was under administrative processing to determine waiver eligibility under Presidential Proclamation 9645.
- Proclamation 9645 (Sept. 2017) restricted entry for nationals of certain countries including Iran but provided for case-by-case waivers (three-part test) to be issued by consular officers as part of visa adjudication; State Department guidance instructs consular officers to consider waiver eligibility during visa processing.
- Plaintiffs waited over 19 months without final adjudication and filed suit in April 2019 seeking an order compelling defendants (State Dept., Embassy officials, FBI, Secretary of State, etc.) to complete administrative processing and decide the waiver/visa under the APA or the Mandamus Act.
- Defendants moved to dismiss, arguing consular nonreviewability, mootness, that waiver decisions are committed to agency discretion (non-reviewable), and that plaintiffs failed to state an APA or mandamus claim.
- The Court denied the motion to dismiss: it held consular nonreviewability did not bar review of an unreasonable-delay claim, the case was not moot because waiver eligibility remained pending, and plaintiffs sufficiently pleaded an APA unreasonable-delay claim (resolution on delay merits is fact-intensive and premature).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consular nonreviewability | Thomas asserts claim challenges unreasonable delay to adjudicate waiver, not a consular denial | Consular decisions on visas and waivers are committed to executive and not reviewable | Doctrine does not bar judicial review of claims alleging unreasonable delay absent a final consular decision; jurisdiction remains |
| Mootness | Case is live because waiver eligibility has not been finally adjudicated; relief would affect rights | If the application/waiver is adjudicated, the case would be moot | Not moot: because waiver remains pending, a court order to adjudicate would affect parties' rights |
| APA — committed to agency discretion / unreasonable delay | Plaintiffs say State Dept. guidance and internal policies require consular officers to consider waivers; agency has nondiscretionary duty to adjudicate within a reasonable time | Waiver/visa decisions are discretionary and committed to agency; no statutory timetable; therefore not reviewable or not unreasonably delayed as a matter of law | APA review is available; 701(a)(2) exception inapplicable here; whether delay is unreasonable is fact-specific and premature to decide on motion to dismiss |
| Mandamus | Plaintiffs alternatively seek mandamus to compel adjudication | Mandamus improper if other adequate remedy exists and plaintiffs haven't shown entitlement | Court did not reach mandamus because APA claim provides an adequate remedy; mandamus remains available only if no other remedy exists |
Key Cases Cited
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (establishing and explaining consular nonreviewability doctrine)
- Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (articulating factors for assessing unreasonable delay under the APA)
- Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (agency must follow voluntarily adopted binding policies that limit discretion)
- Franklin v. Massachusetts, 505 U.S. 788 (1992) (presidential actions are generally not subject to APA review)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (Supreme Court upheld Proclamation 9645 as within INA authority)
- Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) (mandamus relief is available only when no other adequate remedy exists)