ARAB v. BLINKENARAB v. BLINKEN
Plaintiff Mohamed Arab, a U.S. citizen, seeks to compel defendants—various federal officials in their official capacities—to adjudicate his wife‘s visa application, which has been pending without decision for over two years. Compl. ¶¶ 1, 14, ECF No. 1. Plaintiff claims defendants have unreasonably delayed the visa application, in violation of the
Following a brief review of the statutory and regulatory background, the factual history underlying the claims and procedural history of this case are summarized below.
A. Statutory and Regulatory Background
The
B. Factual Background
In October 2018, plaintiff filed a visa petition on his wife‘s behalf with USCIS, hoping to have her join him in the United States as a lawful permanent resident. Compl. ¶¶ 14–15. Although USCIS approved the petition in October 2019, id. ¶ 14, and plaintiff has paid all the requisite fees, id. ¶ 25, the application has yet to be finally adjudicated, id. ¶ 1. The next step in the process is for plaintiff‘s wife to attend a consular interview in Jordan so that her visa application can be finally adjudicated.
In March 2020, the State Department temporarily suspended visa services at all U.S. embassies and consulates, including the embassy in Jordan, due to the onset of the COVID-19 pandemic. Suspension of Routine Visa Services, U.S. DEP‘T OF STATE, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-archive/suspension-of-routine-visa-services.html (July 22, 2020).1 In July 2020, the State Department authorized a phased resumption of visa services. Id. Subsequently, in November 2021, the State Department returned broad discretion to embassies and consulates in determining how to prioritize appointments as safely as possible in all visa categories. Visa Services Operating Update, U.S. DEP‘T OF STATE, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Nov. 19, 2021).
Despite efforts to resume pre-pandemic processing capabilities, many embassies and consulates face substantial backlog of immigrant visa applications. See Briefing, Julie Stufft, Acting Deputy Assistant Secretary, Bureau of Consular Affairs, U.S. Dep‘t of State, Update on U.S. Immigrant Visa Processing at Embassies and Consulates (Mar. 9, 2021), https://www.state.gov/briefings-foreign-press-centers/update-on-u-s-immigrant-visa-processing-at-embassies-and-consulates/. This backlog has caused increased wait times for individual applicants awaiting an appointment date from NVC. Id. According to the State Department‘s website, the U.S. Embassy in Amman, Jordan, much like other embassies around the world, is
Despite plaintiff‘s repeated attempts to contact NVC regarding his case, NVC has yet to provide any meaningful status update or any information on processing times. Compl. ¶¶ 16–17. As a result, plaintiff and his wife have remained separated for three years and six months with no indication as to when the delay in adjudicating the application may be resolved. This prolonged separation has resulted in a “profound and negative impact” on the couple. Id. ¶ 18.
C. Procedural Background
On July 12, 2021, plaintiff commenced this action seeking “to compel the [d]efendants to take action on and adjudicate” his wife‘s visa application and asserting that, in failing to schedule a consular interview, defendants have unreasonably delayed the visa application in violation of the
As noted, pending before the Court is defendants’ motion to dismiss and plaintiff‘s motion for summary judgment on his APA, Mandamus, and CARRP claims. See generally Defs.’ Mot.; Pl.‘s Mot.; Pl.‘s Mem. Opp‘n Defs.’ Mot. Dismiss & Supp. Pl.‘s Mot. Summ. J. (“Pl.‘s Opp‘n”), ECF No. 8. Both motions are now ripe for review.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
“Federal courts are courts of limited jurisdiction,” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)), and “have only the power that is authorized by
When a jurisdictional argument “present[s] a dispute over the factual basis of the court‘s subject matter jurisdiction,” “the court must go beyond the pleadings and resolve” any dispute necessary to the disposition of the motion to dismiss. Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018) (alteration in original) (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). The court must accept as true “material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.‘” Am. Nat‘l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). In addition, however, the “court may properly consider . . . evidentiary material in the record,” again affording the plaintiff “the benefit of all reasonable inferences.” Feldman, 879 F.3d at 351.
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under
III. DISCUSSION
Defendants move to dismiss, under
A. Plaintiff Claims Against Certain Federal Officials Are Moot
Defendants contend that claims asserted against officials from the Department of Homeland Security and its component, USCIS, should be dismissed under
Plaintiff‘s claims against officials from the Department of Homeland Security and USCIS are moot. When plaintiff filed his complaint, USCIS, a component of the Department of Homeland Security, had already approved plaintiff‘s visa petition and forwarded it to NVC for further processing. Compl. ¶¶ 1, 14. Accordingly, the Department of Homeland Security‘s and USCIS’ roles in processing the visa application are complete. For the application process to proceed, the Department of State must schedule a consular interview, after which a consular officer will issue
B. Plaintiff Fails to State a Claim of Intentional Delay Based on CARRP
Plaintiff alleges that defendants are “intentionally delaying this visa application” pursuant to CARRP. Compl. ¶ 39. Specifically, plaintiff alleges that the Department of Homeland Security uses CARRP to “intentionally delay[] the applications of Muslims or those from predominantly Muslim countries due to perceived security concerns.” Id. ¶ 36. In response, defendants asserts
Plaintiff has not set forth sufficient factual allegations to support his CARRP claim, relying instead “on information and belief” that defendants “are intentionally delaying this visa application because of an application of the CARRP program.” Compl. ¶ 39. The complaint, however, contains no allegations to support that USCIS and the Department of Homeland Security are still involved or are using CARRP “to investigate or adjudicate” the visa application at this point in the processing. Id. ¶ 37. Courts “do not assume the truth of legal conclusions, nor do [they] ‘accept inferences that are unsupported by the facts set out in the complaint.‘” Arpaio, 797 F.3d at 19 (internal citation omitted) (quoting Islamic Am. Relief Agency, 477 F.3d at 732). Given the lack of factual support, defendants’ motion to dismiss the CARRP claim is granted. See Ghadami v. U.S. Dep‘t of Homeland Sec., No. 19-cv-00397, 2020 WL 1308376, at *6 (D.D.C. Mar. 19, 2020) (dismissing a similar claim because plaintiffs failed to “set forth any factual allegations to support” the conclusion that defendants intentionally delayed plaintiffs’ visa application pursuant to CARRP); Mahmood, 2021 WL 5998385, at *6 (same); Al-Saadoon v. Barr, 973 F.3d 794, 804 (8th Cir. 2020) (affirming a dismissal of CARRP claims on the same ground).6
Plaintiff‘s only remaining claim is that defendants have unreasonably delayed the processing and adjudication of his wife‘s visa application under the APA and Mandamus Act. Compl. ¶¶ 19, 33. The government contends that plaintiff‘s claim must fail, as a matter of law, because the 30-month delay at issue in this case is not unreasonable. Defs.’ Mot. at 6.7
The
(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984) (internal quotation marks and citations omitted). This standard applies to claims of unreasonable delay under both the Mandamus Act and the APA. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 63–64 (2004); Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Applying the
1. TRAC Factors 1 & 2
The first and second TRAC factors, on balance, weigh in favor of defendants. The first factor is the most important TRAC factor, In re Core Commc‘ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008), and is “typically considered together” with the second TRAC factor, Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020).
As defendants correctly point out, “Congress has established no firm timetable for scheduling the visa interview at issue,” Defs.’ Mot. at 9; see also Mahmood, 2021 WL 5998385, at *7 (finding the same). Instead, Congress has given “agencies wide discretion in the area of immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017) (finding that a two-year delay in processing a visa application “does not typically require judicial intervention”). Looking to “supply content for th[e] rule of reason,” TRAC, 750 F.2d at 80, plaintiff points to
This Court has previously found
“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.” Sarlak v. Pompeo, No. 20-cv-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020); see Skalka, 246 F. Supp. 3d at 154 (collecting cases). No bright lines have been drawn in this context, but “[d]istrict courts have generally found that immigration delays in excess of five, six, seven years are unreasonable, while those between three to five years are often not unreasonable.” Sarlak, 2020 WL 3082018, at *6 (quoting Yavari v. Pompeo, No. 19-cv-02524-SWW-JC, 2019 WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019)); see also Skalka, 246 F. Supp. 3d at 154 (concluding based on “comparable cases” that “a delay of [two years] does not typically require judicial intervention”). Plaintiff cites no persuasive caselaw holding otherwise. Furthermore, a court in this District deemed a longer delay of forty-two months to be reasonable under the first and second
Of course, whether a “rule of reason” exists for agency action “cannot be decided in the abstract, by reference to some number of months or years beyond which agency action is presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significant (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). Defendants explain that “the operational impacts of COVID-19 have delayed scheduling” the consular interview required to adjudicate plaintiff‘s visa application. Defs.’ Mot. at 3, 10. In March 2020, five months after USCIS approved plaintiff‘s petition and forwarded the application to NVC, U.S. embassies and consulates shut down due to the COVID-19 pandemic. Although the State Department authorized a phased resumption of visa services in July 2020, the department gave broad discretion to embassies and consulates to determine how to prioritize visa appointments as safely as possible in all visa categories. The temporary suspension and limited resumption of services has resulted in a substantial backlog at the U.S. Embassy in Jordan. Id. Given this backlog and ongoing public health considerations impacting consular staff operations, the first two TRAC factors tilt decisively in defendants’ favor. See Murway, 2022 WL 493082, at *3 (finding that “operational delays due to the COVID-19 pandemic favor the Government on the first two [TRAC] factors”); Zaman, 2021 WL 5356284, at *6 (same); Khan v. Blinken, No. 21-cv-1683 (JEB), 2021 WL 5356267, at *3 (same); see also Tate v. Pompeo, 513 F. Supp. 3d 132, 151 (D.D.C. 2021)
2. TRAC Factors 3 & 5
The third and fifth factors consider whether “human health and welfare are at stake” and the “nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80. The delay in processing the visa application has exacerbated the prolonged separation endured by plaintiff and his wife, causing a “profound and negative impact” on both their lives. Compl. ¶¶ 1, 18. This Court acknowledges that the “prolonged and indefinite separation” of spouses may place health and welfare at stake. Didban v. Pompeo, 435 F. Supp. 3d 168, 177 (D.D.C. 2020) (finding the third and fifth TRAC factors to weigh in plaintiff‘s favor in light of the prolonged separation of spouses); see also Bagherian v. Pompeo, 442 F. Supp. 3d 87, 95 (D.D.C. 2020) (finding the third and fifth TRAC factors to weigh in plaintiff‘s favor in light of the prolonged separation of an engaged couple); Tate, 513 F. Supp. 3d at 150 (finding the third and fifth TRAC factors to weigh in plaintiffs’ favor in light of the separation of friends, family, and loved ones). Defendants do not argue otherwise but emphasize that scheduling the visa interview “has been delayed further due to measures necessary to prevent the spread of COVID-19 and protect the safety of U.S. officials—and visa applicants—abroad.” Defs.’ Mot. at 14. This point is well-taken, but the nature of plaintiff‘s interests and the prejudice to those interests from delay in processing the visa still weigh in his favor.
3. TRAC Factor 4
The fourth TRAC factor addresses whether expediting a visa application “would harm other agency activities of equal or greater priority.” Sarlak, 2020 WL 3082018, at *6. The D.C. Circuit affords the fourth TRAC factor great weight, Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1100, and it conclusively favors defendants’ position here. As discussed above, defendants face an extraordinary backlog of visas not only in the embassy in Jordan but across the world. Accordingly, deference must be given to the State Department‘s priority-setting and resource-allocation decisions. See Milligan, 502 F. Supp. 3d at 319 (“[D]elays stemming from resource-allocation decisions simply do not lend themselves to ‘judicial “reordering[s] [of] agency priorities.”’ (alterations in original) (quoting Bagherian, 442 F. Supp. 3d at 96); Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 117 (D.D.C. 2005) (“[W]here resource allocation is the source of the delay, courts have declined to expedite action because of the impact on competing priorities.”); Tate, 513 F. Supp. 3d at 149 (“Relief that would simply ‘reorder’ a queue of applications seeking adjudication is generally viewed as inappropriate when ‘no net gain’ in such adjudications is achieved.” (quoting In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991))); see also, e.g., Am. Hosp. Ass‘n, 812 F.3d at 192 (collecting cases that “rejected mandamus claims that would have had the effect of allowing the plaintiffs to jump the line, functionally solving their delay problem at the expense of other similarly situated applicants”).
Plaintiff responds that the idea of a queue is “a fiction,” Pl.‘s Opp‘n at 11, and that he and his family “should not be penalized for a lack of agency resources,” Pl.‘s Reply at 6. First, the website for the U.S. Embassy in Jordan shows that the existence of a queue is a fact and not fiction. It advises that “all applicants whose cases are . . . pending an appointment date from the [NVC] . . . will receive [their] appointment date on a first-in, first-out basis.” Immigrant Visas, U.S. EMBASSY IN JORDAN, https://jo.usembassy.gov/visas/immigrant-visas/ (last visited Apr. 19, 2022) (emphasis in original). Second, despite the significant burdens the pandemic and defendants’ necessary responses impose on blameless applicants, D.C. Circuit precedent recognizes “no basis for reordering agency priorities” when an “agency is in a unique—and authoritative—position to
4. TRAC Factor 6
Finally, the sixth and final factor weighs in defendants’ favor. “[T]he court need not ‘find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.”‘” TRAC, 750 F.2d at 80 (quoting PCHRG v. FDA, 740 F.2d 21, 34 (D.C. Cir. 1984)). Here, however, the government‘s good faith efforts to address processing delays caused by the pandemic weigh against relief. See Tate, 513 F. Supp. 3d at 150 (holding the same (citing Liberty Fund, Inc., 394 F. Supp. 2d at 119–20)). Plaintiff is understandably frustrated that defendants’ lack of resources and response to the pandemic has unfairly resulted in profound hardship for him and his wife, but does not allege any impropriety or dispute that the government “ha[s] acted in good faith to address the delays caused by the pandemic.” Defs.’ Opp‘n at 9; see Pl.‘s Reply at 8.
5. TRAC Factors Considered in their Totality
Considering the six TRAC factors in their totality, plaintiff has not stated a claim under the Mandamus Act or the APA for unreasonable delay. See Zaman, 2021 WL 5356284, at *6–8 (reaching the same conclusion); Mahmood, 2021 WL 5998385, at *9 (same); Milligan, 502 F. Supp. 3d at 320 (same); Murway, 2022 WL 493082, at *5 (same). The Court sympathizes with plaintiff‘s concerns—the delays in visa processing have resulted in a prolonged separation of plaintiff‘s family and challenging hardships. Many other individuals are in similarly trying circumstances, however, and defendants face challenges in determining how best to deploy scarce resources during an unprecedent global pandemic. Taking the factors as a whole, the rule of reason found in the caselaw coupled with “the government‘s interests in balancing its own priorities” and
IV. CONCLUSION
For the reasons given, defendants’ motion to dismiss is granted. Plaintiff‘s motion for summary judgment is denied.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: April 21, 2022
BERYL A. HOWELL
Chief Judge