Azizi v. MayorkasAzizi v. Mayorkas
Plaintiffs, a group of eight Afghan nationals and three U.S. citizen family members, bring this action against defendants Kristi Noem, in her official capacity as Secretary of Homeland Security, and Jennifer Higgins, in her official capacity as Director of Citizenship and Immigration Services. Those individuals are no longer in those roles; the appropriate defendants are now Markwayne Mullin and Joseph Edlow. I will direct the Clerk of Court to substitute their names on the docket. Plaintiffs challenge the adjudicative standards for Afghan humanitarian parole applications and assert that the government has unreasonably delayed its review of their applications. The parties have filed cross motions for summary judgment. For the reasons stated below, plaintiffs’ motion will be denied, and defendants’ motion will be granted.
Background
Plaintiffs challenge the government‘s policies regarding Afghan humanitarian parole applications. The Immigration and Nationality Act (“INA“) vests the Secretary of Homeland
U.S. Citizenship and Immigration Services (“USCIS” or “the Agency“) provides in a 2017 manual that “[p]arole decisions are made on a case-by-case basis, taking into account all factors and considering the totality of the circumstances.” U.S.C.I.S. 65.1 This manual further provides that “[r]easons parole is requested include, but are not limited to: obtaining medical treatment, for family unifiсation or other family-related reasons, to attend legal proceedings, or in extremely limited circumstances, for protection purposes.” U.S.C.I.S. 42.
The Agency‘s policies reflect that “[g]enerally, parole is not authorized for protection reasons” and “[s]hould not be used to bypass refugee processing.” U.S.C.I.S. 324; see U.S.C.I.S. 31 (“Parole is only rarely granted [for protection reasons], even if urgent humanitarian reasons have been established.“) (emphasis omitted). Some estimates indicate that the Agency has typically approved around 13% of applications claiming protection-based needs. U.S.C.I.S. 1214. In determining whether parole should be granted for protection, the Agency considers whether parole is “likely to be temporary” and will only grant parole if the beneficiary can “get to another location for processing if [there is] no U.S. Embassy presence in the country” of origin. U.S.C.I.S. 326. As of September 2021, the Agency “only had three permanent adjudication officers on board to process humanitarian parole cases, as the office received fewer than 2,000 such requests per fiscal year, on average.” U.S.C.I.S. 2576.
On September 1, 2021, the Agency determined that it would “no longer expedite all Afghan parole requests,” since evacuation flights had ended. U.S.C.I.S. 590. The Agency also encountered problems with these applications, including that there were no consular operations in Afghanistan, most requests were protection-related, and it was difficult for applicants to satisfy medical requirements, such as TB screening. U.S.C.I.S. 640, 2233. Accordingly, on September 7, 2021, the Agency temporarily paused the issuance of decisions on Afghan parole applications while it assessed “whether any additional guidance needs to be provided to adjudicators.”4 U.S.C.I.S. 630.
On November 5, 2021, the Agency issued Parole Requests for Afghan Nationals Interim Policies and Procedures (“the Policy“). U.S.C.I.S. 1075. The Policy provided that “each application must be evaluated on its own merits taking into account all the factors unique to the specific parole request and considering the totality of the circumstances.” Id. Regarding protection-based requests, the Policy recognized that this basis was traditionally uncommon for pаrole, and it provided that “USCIS generally approves requests based on protection needs only if there is credible, third-party evidence naming the beneficiary that shows the beneficiary is targeted and at imminent risk of severe harm.” U.S.C.I.S. 1076.
The Policy stated that beneficiaries inside Afghanistan “will be required to leave Afghanistan in order to complete processing of their parole request.” U.S.C.I.S. 1077. The Policy further provided that:
It may be difficult to assess eligibility based purely on protection needs while an individual is still in Afghanistan, as the adjudicator will not know when or how the beneficiary will leave Afghanistan, where the beneficiary will be once outside of Afghanistan, or the protection that may be available to the beneficiary in that location. Therefore, for Afghan nationals in Afghanistan, parole requests based on protection needs, without other factors, such as the beneficiary‘s falling into one of the categories of Afghan nationals prioritized by the interagency, family reunification, or urgent medical needs, genеrally will be denied. Such parole beneficiaries should be given denial notices informing them that 1) their parole applications cannot be approved at this time and that, should they get to a third country, they should contact the United Nations High Commissioner for Refugees (UNHCR) for protection and consideration of refugee resettlement in the United States through
the U.S. Refugee Admissions Program; and 2) should they be at imminent risk of severe harm in that third country or forced return to Afghanistan, they should contact USCIS with information on whether they have contacted UNHCR for protection assistance and include any third-party credible evidence of their risk in that third country.
Further, the Policy dictated that beneficiaries “initially found eligible for parole” were to be issued a notice that their application had been suspended unless and until they informed the Agency that they were able to report to a U.S. embassy or consulate. Id. If a beneficiary indicated that they could report to a U.S. embassy or consulate to continue processing, the Agency would issue a conditional approval notice after, inter alia, the agency verified that the beneficiary remained eligible for parole. U.S.C.I.S. 1083.
By February 21, 2022, over 30,000 parole requests from Afghans remained pending, representing over 70% of all pending requests from around the world. U.S.C.I.S. 1255. The Agency remarked that, as of March 20, 2022, it had “received an average of 1,575 new parole request per week—an amount similar to the annual number of receipts for some years.” U.S.C.I.S. 1262. The Agency observed that it had “capacity to complete approximately 6,400 parole cases a year[,]” but even with “approximately 100 detailees assisting with the effort, the backlog continues to grow.” Id.
On April 28, 2022, the Agency provided updated guidance on protection-based parole requests. U.S.C.I.S. 1480. The Agency emphasized that parole “[s]hould not be used to bypass refugee processing or be inconsistent with U.S. policy regarding refugee admissions” and that “[g]enerally, parole is authorized only in limited circumstances for рrotection reasons.” U.S.C.I.S. 1487. The updated guidance also reduced the evidentiary burden on beneficiaries, providing that adjudicators needed to find evidence of “serious, imminent harm to the beneficiary” by a preponderance of the evidence. See U.S.C.I.S. 1488, 1585. It also provided that serious, imminent harm could be based on “individual threats” or “membership in a ‘targeted group[.]‘” U.S.C.I.S. 1491.
Plaintiffs Mohammad Walid Azizi, Nargis Ghafoori, Azizalrahman Rahmani, Beheshta Rahmani, Husna Rahmani, and Shadab Shahab submitted their parole applications in October 2021, while plaintiffs Shahram Mohammad Azizi and Asayesh Azizi submitted their applications in December 2023. See Each Individual Record at 1.6
Procedural History
Plaintiffs initiated this action in October 2024, alleging that defendants violated the Administrative Procedure Act (“APA“) in the following four ways: (1) the Policy constituted arbitrary and capricious agency action; (2) the Policy failed to comply with the law and agency rules; (3) the Policy failed to comply with notice and comment requirements; and (4) the Agency has unlawfully withheld and delayed action on plaintiffs’ applications.7 ECF No. 1 ¶¶ 78-99.
Defendants also have filed an unopposed request to seal “the entirety of the administrative record produced in this litigation.” ECF No. 27 at 2. Courts have recognized “a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc‘ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to file a document under seal “bears the burden of overcoming this strong presumption by” articulating “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure . . . .” Id. at 1178-79 (cleaned up).
Under the court‘s local rules, “[d]ocuments may be sealed only by written order of the Court, upon the showing required by applicable law.” E.D. Cal. L.R. 141(a). A party seeking to file documents under seal must submit a Request to Seal Documents, which “shall set forth the statutory оr other authority for sealing, the requested duration, the identity, by name or category, of persons to be permitted access to the documents, and all other relevant information.” E.D. Cal. L.R. 141(b).
These reasons are compelling. The individual records of plaintiffs’ applications contain confidential information such as bank statements, personally identifiable information, and copies of government-issued identification. Courts have found that a party‘s privacy interests in sensitive information outweighs the public‘s interest in access. See Bruce v. Azar, 389 F. Supp. 3d 716, 727 (N.D. Cal. 2019), aff‘d, 826 F. App‘x 643 (9th Cir. 2020) (collecting cases); Tocara Invs. v. Johhson, No. 15-cv-0787-JAD-PAL, 2016 WL 11796094, at *1 (D. Nev. Oct. 19, 2016) (granting request to seal where the administrative record contained “sensitive financial and personal information“). Records of the Agency‘s inner-workings also contain sensitive, confidential information, particularly as it relates to the evacuation from Afghanistan. Courts have found that the government‘s national security interests outweigh the public‘s interest in access. See MD Helicopters Inc. v. United States, No. 19-cv-2236-PHX-JAT, 2019 WL 2415285, at *3 (D. Ariz. June 7, 2019) (collecting cases). Moreover, as defendants observe, the record is voluminous such that redacting this information would be extremely difficult, if not impossible. Accordingly, the court will grant defendants’ request to seal, ECF No. 27.
Legal Standard
Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“The moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet its burden, “the moving party must either produce evidence negating an essential element of the nonmoving party‘s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
If the moving party meets this initial burden, the burden then shifts to the non-moving party “to designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle, 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). “[A] district court has no independent duty ‘to scour thе record in search of a genuine issue of triable fact,’ and may ‘rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.‘” Simmons, 609 F.3d at 1017 (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)). Moreover, the non-moving party must “show more than the mere existence of a scintilla of evidence.” In re Oracle, 627 F.3d at 387 (citing Anderson, 477 U.S. at 252). However, the non-moving party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).
Analysis
The court addresses its jurisdiction before analyzing plaintiffs’ APA claims.
I. Jurisdiction
Defendants argue that the court does not have jurisdiction. ECF No. 30-1 at 25-36. Plaintiffs disagree. ECF No. 33 at 11-17. As noted, defendants argued in their motion to dismiss that the court lacked jurisdiction over plaintiffs’ claims, and the court held to the contrary. See ECF No. 15-1 at 19-22; ECF No. 19 at 6.
The APA applies to agency actions “except to the extent that statutes preclude judicial review.”
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
Here, plaintiffs challenge immigration policies, not an individual parole decision. See ECF No. 1 ¶¶ 78-99. Consequently, defendants’ citations to binding precedent are inapposite; the cases cited analyze a court‘s jurisdiction to review an individual decision.8 See ECF No. 30-1 at 26-27 (citing Romero v. Garland, 999 F.3d 656 (9th Cir. 2021), Hassan v. Chertoff, 593 F.3d 785 (9th Cir. 2010), Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020), and Chairez v. Mayorkas, 168 F.4th 1227 (9th Cir. 2026)). In line with the other courts to have addressed this issue, this court
Defendants also argue that there is “no meaningful standard to judge the agency‘s exercise of discretion in the parole context.” ECF No. 30-1 at 31. However, as the court observed in previously dismissing this argument that was presented in defendants’ motion to dismiss, the Supreme Court has held that “DHS mаy exercise its discretion to parole applicants only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. And under the APA, DHS‘s exercise of discretion within that statutory framework must be reasonable and reasonably explained.” See Biden v. Texas, 597 U.S. 785, 806-07 (2022) (internal quotation marks and citations omitted); ECF No. 19 at 6. Defendants identify no intervening case law that disturbs this binding precedent, which provides the standard for reviewing the agency‘s exercise of discretion.
Lastly, defendants assert that the doctrine of consular non-reviewability forbids the court from considering plaintiffs’ claims. ECF No. 30-1 at 33. However, as the Supreme Court held, this doctrine prohibits federal courts from reviewing “a consular officer‘s denial of a visa.” See Dep‘t of State v. Munoz, 602 U.S. 899, 908 (2024). But plaintiffs do not challenge the denial of an individual immigration application; they challenge immigration policies. As such, the doctrine of consular non-reviewability is inapplicable.
Accordingly, the court holds that it has jurisdiction to review plaintiffs’ claims. This holding accords with the strong presumption favoring judicial review of administrative action, Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020), which the Supreme Court has “consistently applied” to immigration laws, Kucana v. Holder, 558 U.S. 233, 251 (2010).
II. APA
A. Failure to Comply with Notice and Comment Requirements
Plaintiffs claim that the Policy failed to comply with the APA‘s notice and comment requirements. ECF No. 1 ¶¶ 91-95. An agency must ordinarily provide notice of a proposed legislative rule that includes “a statement of the time, place, and nature of public rule making
The Court of Appeals has borrowed the D.C. Circuit‘s three-part test for determining whether a rule is legislative. Erringer v. Thompson, 371 F.3d 625, 630 (9th Cir. 2004) (citing Am. Min. Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993)). Under that test, a rule is legislative if: “(1) when, in the absence of the rule, there would not be an adequate legislative basis for enforcement action; (2) when the agency has explicitly invoked its general legislative authority; or (3) when the rule effectively amends a prior legislative rule.” Id.
Plaintiffs present three arguments. First, they assert that the Policy introduced “a categorical prеsumption of denial” and no longer facilitated “case-by-case adjudication.” ECF No. 29-1 at 19. That interpretation is unfounded. As noted, the Policy stated that “each application must be evaluated on its own merits taking into account all the factors unique to the specific parole request and considering the totality of the circumstances.” U.S.C.I.S. 1094. Moreover, while the Policy provided that applications would “generally” be denied for beneficiaries who remained in Afghanistan and did not demonstrate a heightened need for protection, it did not categorically deny such applications, instead entrusting adjudicators to exercise discretion. U.S.C.I.S. 1096. To be sure, plaintiffs do not argue that the Agency lacked statutory authority to issue the Policy. Moreover, the Policy did not create new standards for adjudicating protection-based parole applications; indeed, prior to 2021, the Agency‘s policies stated that “[g]enerally, parole is not authorized for protection reasons” аnd “[s]hould not be used to bypass refugee processing.” See U.S.C.I.S. 324; see also U.S.C.I.S. 31 (“Parole is only rarely granted [for protection reasons], even if urgent humanitarian reasons have been established.“) (emphasis omitted).
Second, plaintiffs argue that the Policy dictated that parole processing be suspended in favor of visa processing. ECF No. 29-1 at 19. Plaintiffs point to the Policy‘s statement that, for a beneficiary who is approved, “the processing of the parole request should be suspended (marked
Lastly, plaintiff asserts that the Policy created a new “bureaucratic status” of continued parole processing. ECF No. 29-1 at 20. Plaintiffs refer to the Policy‘s provision that, if a beneficiary in Afghanistan is eligible for pаrole, “the adjudicator may issue a Parole Notice (Suspension of Processing) stating that the Agency cannot complete processing of the parole request unless and until the beneficiary informs the Agency that they are able to report to a U.S. embassy or consulate.” See U.S.C.I.S. 1096. Plaintiffs do not explain why the creation of this status means the Policy was legislative. Indeed, the guidance states that the status was to be lifted once the beneficiary indicated an ability to report to a U.S. embassy or consulate. See id.
Plaintiffs fail to identify any evidence showing that the Policy lacked “an adequate legislative basis[,]” “explicitly invoked [the Agency‘s] general legislative authority[,]” or “effectively amend[ed] a prior legislative rule.” See Erringer, 371 F.3d at 630. The court finds that the Policy falls under the exception to the notice and comment requirements for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”9 See
B. Arbitrary, Capricious, or Unlawful
Plaintiffs claim that the Agency‘s actions, particularly the Policy, were (1) arbitrary and capricious, and (2) unlawful. ECF No. 1 ¶¶ 78-90. Under the APA, a decision may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
“The agency must articulate a rational connection between the facts found and the choice made” and courts must “uphold a decision of less than ideal clarity if the agency‘s path may reasonably be disсerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). Moreover, “‘[a]gency action is ‘not in accordance with the law’ when it is in conflict with the language of the statute’ relied upon by the agency.” California v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 718 F. Supp. 3d 1060, 1078 (N.D. Cal. 2024) (quoting Nw. Env‘t Advocs. v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008)).
Plaintiffs present five arguments. First, they rehash their arguments addressed above, asserting that the Policy violated the INA‘s mandate to adjudicate applications on a case-by-case basis because it stated that certain protection-based applications would be “generally” denied, and that approved beneficiaries were referred to immigration processing for a visa. ECF No. 29-1 at 21-22. As held above, the Policy did not conflict with the INA; on the contrary, it emphasized that “each application must be evaluated on its own merits taking into account all the factors unique to the specific parole request and considering the totality of the circumstances.” See U.S.C.I.S. 1094. As such, plaintiffs fail to establish that the Policy violated the INA.10
Moreover, plaintiffs’ characterization of the Policy as promoting a categorical denial is belied by the record. “In fiscal year 2023, the approval rate for initial Form I-131 filings on behalf of Afghan national beneficiaries was approximately 43%.” U.S.C.I.S. 2498; see also U.S.C.I.S. 2127 (noting a 61% approval rate between January 2024 and May 2024, “largely due”
Second, plaintiffs assert that the Agency abandoned the practice of conditional approvals “not because it was impossible, but because it chose to.” ECF No. 29-1 at 22. However, plaintiffs seemingly ignore that the Agency decided to no longer grant conditional approvals because, as of September 1, 2021, evacuation flights had ended. See U.S.C.I.S. 590. Indeed, the Agency recognized that the primary motivation behind conditional approval in the first place was to facilitate getting beneficiaries on evacuation flights. U.S.C.I.S. 596. Even if plaintiffs identify alternative policies that the Agency could have implemented at that time, it is not the court‘s task to determine what would have made better policy. See Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43 (“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.“). Rather, the court must “uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” See Bowman Transp., Inc., 419 U.S. at 286.
The court finds that the Agency acted reasonably when it chose to no longer expedite Afghan parole applications because the evacuation had ended. While the Agency issued conditional approvals, the record reveals that this practice lasted for fewer than three weeks and was done in an emergency context. Moreover, the record shows that the Agency considered alternatives but ultimately settled on prioritizing applications for those outside of Afghanistan. See U.S.C.I.S. 693, 698, 863, 876, 954. Plaintiffs fail to identify any evidence showing that the Agency‘s decision to end conditional approval was arbitrary, capricious, or unlawful.12
Third, plaintiffs argue that the Agency “ignored profound reliance interests” in the form of Afghans awaiting review of their parole applications. ECF No. 29-1 at 23. As an initial matter, plaintiffs do not establish that there were protected reliance interests based on the Agency‘s use of conditional approval over the span of fewer than three weeks in August 2021. The Court of Appeals has held that “a government body‘s past practice of granting a government benefit is insufficient to establish a legal entitlement to the benefit.” Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1021 (9th Cir. 2011). Moreover, even if plaintiffs established such interests, they do not identify any evidence showing that the Agency chose to ignore those interests. Indeed, the record reveals that the Agency has focused efforts on reducing the backlog of Afghan parole requests. See U.S.C.I.S. 2059, 1724, 2007. Such efforts are inconsistent with a finding that the Agency ignored the interests of applicants.
Fourth, plaintiffs assert that the Policy was inconsistent with the Agency‘s past practice regarding the issuance of requests for evidence (“RFEs“). ECF No. 29-1 at 23-24. However, plaintiffs fail to identify any portion of the Policy that conflicts with the Agency‘s past practice. A 2017 Agency manual instructed adjudicators to deny an application without first issuing an RFE where “[t]he officer does not believe there is a reasonable possibility that the petitioner can provide the additional evidence needed to adjudicate the parole request.” U.S.C.I.S. 73. Notably, this manual provided the following example of when it was appropriate to deny an application without first issuing an RFE: “the petitioner asserts that she is at risk of harm due to civil conflict in her home country and submits general media articles on the fighting and numerous casualties the fighting has caused.” Id.
This manual is consistent with the Policy‘s provision that “USCIS generally approves requests based on protection needs only if there is credible, third-party evidence naming the beneficiary that shows the beneficiary is targeted and at imminent risk of severe harm.” See U.S.C.I.S. 1076. Plaintiffs fail to identify any examples of the Agency failing to comply with its
Plaintiffs’ final argument is that the Agency‘s actions in September and October 2021 were arbitrary and capricious because they were concealed from Congress. ECF No. 29-1 at 24-25. Plaintiffs rely solely on one email from September 14, 2021, in which the Agency indicated that it had received Congressional inquiries as to the status of Afghan parole applications, and it acknowledged that staffers had internally drafted a “general response” to avoid “sharing that all Afghan [humanitarian parole] requests [were] currently on hold.” See U.S.C.I.S. 665. As noted, by November 5, 2021, the Agency implemented the Policy and resumed reviewing applications. See U.S.C.I.S. 1075.
Plaintiffs neither identify legal authority nor adequately explain why this email supports a finding that the Agency‘s actions in September and October 2021 were arbitrary and capricious. Indeed, beginning in September 2021, the Agency faced the daunting task of determining how to process parole applications when evacuation flights had stopped, consular services were unavailable, most requests were protection-based, and many applicants could not satisfy medical requirements. See U.S.C.I.S. 590, 640, 2233. That the Agency took two months to craft the Policy is neither arbitrary nor capricious, and the court is not persuaded to find otherwise based on only the cited email.
Lastly, it bears mention that the court‘s holdings here are consistent with those by the Roe court, which appears to be the only other court to have addressed these issues.14 See Roe v. Noem, 800 F. Supp. 3d 146, 170 (D. Mass. 2025). In Roe, the court held that the Policy was not arbitrary, capricious, or unlawful. Roe, 800 F. Supp. 3d at 171-79. Specifically, the court found that the Policy‘s language that certain parole application would be “generally” denied was consistent with prior Agency practice. Id. at 172. The court also held that the notice of continued processing did not constitute “an outright refusal” but rather “required the re-evaluation of a beneficiary‘s parole eligibility upon arrival in a third country.” Id. at 173. Moreover, the court found that the limited time period of conditional parole in August 2021 “did not generate a serious reliance interest” on the part of Afghan applicants. Id. at 178. The court also held that the Agency considered alternatives, the Policy mirrored the Agency‘s past practice of requiring a beneficiary to travel to a location with consular services, and the record showed that historically the Agency “rarely granted parole requests based only on protection grounds.” See id. at 176-78.
Further, the Roe court held that:
The fact that USCIS seemingly adapted the adjudication of Afghan parole requests to reflect the extraordinary and unprecedent crisis unfolding in August, [citation], was laudable. It cannot be that emergency measures undertaken in a time of crisis forever obligate the agency to keep those same measures in place as the circumstances change and evolve. Determining otherwise would discourage an agency from responding flexibly and compassionately to a humanitarian emergency. Re-evaluating and re-prioritizing how to expend its efforts, as [the defendants] have done here, is squarely within the agency‘s prerogative.
This court is persuaded by the Roe court‘s reasoning and adopts it in full. Plaintiffs have failed to identify any evidence showing that the Agency‘s actions were arbitrary, capricious, or unlawful, and substantially similar arguments based on nearly identical claims have also been rejected by the Roe court. Accordingly, defendants are entitled to judgment as to plaintiffs’ claims of (1) arbitrary and capricious action and (2) unlawful action.
C. Unreasonable Delay
Finally, plaintiffs claim that the Agency has unreasonably delayed adjudication of their parole applications. ECF No. 1 ¶¶ 96-99. In determining whether an agency action has been unreasonably delayed, courts consider the six “TRAC” factors:
(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 effеct 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.
In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138-39 (9th Cir. 2020) (quoting Telecomms. Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984)).
Although not determinative, the first factor, “rule of reason,” is the most important. In re A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). Courts consider the length of the delay and the cause of the delay in assessing “whether there is any rhyme or reason for the Government‘s delay—in other words, whether the agency‘s response time . . . is governed by an identifiable rationale.” Poursohi v. Blinken, No. 21-cv-1960, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) (cleaned up). Where Congress has not supplied a period for agency action, courts look to case law in assessing whether the agency‘s action is unreasonably delayed. See Sarlak v. Pompeo, No. 20-cv-0035-BAH, 2020 WL 3082018, at *6 (D.D.C. June 10, 2020) (“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.“).
Plaintiffs Mohammad Walid Azizi, Nargis Ghafoori, Azizalrahman Rahmani, Beheshta Rahmani, Husna Rahmani, and Shadab Shahab submitted their parole applications in October 2021, while plaintiffs Shahram Mohammad Azizi and Asayesh Azizi submitted their applications in December 2023. See Each Individual Record at 1. Accordingly, nearly 59 months have elapsed since the earliest of plaintiffs’ applications was received. Generally, courts have found ‘immigration delays in excess of five, six, [and] seven years are unreasonable, while those
Existing case law supports the view that, however burdensome a delay of 59 months in this context may be, such a delay does not violate the APA. See Skalka v. Kelly, 246 F. Supp. 3d 147, 154 (D.D.C. 2017) (citing case law suggesting that even a five- to ten-year delay in the immigration context may be reasonable); Beyene v. Napolitano, No. 12-cv-1149-WHA, 2012 WL 2911838, at *9 (N.D. Cal. July 13, 2012) (holding that while the “case presents a close call,” a delay of nearly five years in adjudicating the plaintiff‘s application for adjustment of immigration status was not unreasonable); Jamal v. Johnson, No 2:15-cv-8088-ODW, 2016 WL 4374773, at *6 (C.D. Cal. Aug. 15, 2016) (noting that delays of four years not unreasonable, but holding that delay of over seven years tо adjudicate the plaintiff‘s application for adjustment of status, combined with the defendants’ unwillingness to indicate if or when the plaintiff‘s petition will be adjudicated, was unreasonable); Ou v. Johnson, No. 15-cv-03936-BLF, 2016 WL 7238850, at *3 (N.D. Cal. Feb. 16, 2016) (noting that “courts in this district have generally found delays of four years or less not to be unreasonable under the APA“); Zhang v. Cissna, No. 18-cv-09696-MWF, 2019 WL 3241187, at *5 (C.D. Cal. Apr. 25, 2019) (“[T]he Court cannot conclude, as a matter of law, that [a four-year] delay in processing [the plaintiff‘s] application was unreasonable.“).
Moreover, courts have held that “[w]hat constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of the particular case.” Gelfer v. Chertoff, No. 06-cv-6724-WHA, 2007 WL 902382, at *2 (N.D. Cal. Mar. 22, 2007). Such consideration depends, in part, “upon the complexity of the task at hand, the significance (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). Here, the reason for the delay is “governed by an identifiable rationale” in that the Agency has received an unusually high number of Afghan humanitarian parole applications. See Poursohi, 2021 WL 5331446, at *4. As noted, between August 1, 2021 and January 23, 2024, the Agency received 53,278 such applications. U.S.C.I.S. 2502. When applications began pouring in, the Agency “only had three permanent adjudication officers on board to process humanitarian parole cases, as the office
For the second TRAC factor, the court considers whether “Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute.” In re Nat. Res. Def. Council, Inc., 956 F.3d at 1138. Congress has not provided a timetable for processing parole applications. See
“The third and fifth factors overlap, requiring the court to consider whether human health and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.” Poursohi, 2021 WL 5331446, at *9. Plaintiffs assert that they “remain in Taliban-controlled Afghanistan” navigating “life and death” situations. ECF No. 29-1 at 27. Considering these allegations, in addition to the instability of Afghanistan, the court finds that this factor cuts in favor of plaintiffs. See Afghan & Iraqi Allies v. Blinken, 643 F. Supp. 3d 148, 156 (D.D.C. 2022),
Under the fourth TRAC factor, the court considers the effect of expediting the adjudication of the beneficiary‘s application on other agency action of higher or competing priority. Kapoor v. Blinken, No. 21-cv-1961-BLF, 2022 WL 181217, at *8 (N.D. Cal. Jan. 20, 2022). This factor favors defendants; plaintiffs are not alone in their circumstances, and ordering defendants to prioritize plaintiffs’ applications only further delays the resolution of other applications.16 See Ali, 2024 WL 2274912, at *6, Throw v. Mayorkas, No. 3:22-CV-05699-DGE, 2023 WL 2787222, at *5 (W.D. Wash. Apr. 5, 2023) (noting many families face delays and ordering the State Department to schedule the beneficiary plaintiff‘s interview would not ameliorate the situation); Jain v. Renaud, No. 21-CV-03115-VKD, 2021 WL 2458356, at *6 (N.D. Cal. June 16, 2021) (“Most courts have found that the fourth TRAC factor weighs heavily in the agency‘s favor when a judicial order putting plaintiffs at the head of the line would simply move all others back one space and produce no net gain.“).
Under the sixth TRAC factor, where a plaintiff has not made cognizable allegations of impropriety, “courts in the Ninth Circuit have found this factor to either weigh in the government‘s favor or to be neutral.” Poursohi, 2021 WL 5331446, at *11. Plaintiffs аssert that the record establishes the Agency‘s “deliberate concealment” of a delay, relying on the aforementioned email from September 2021 in which the Agency indicated that it did not want to reveal to Congress that it had temporarily paused adjudicating Afghan parole applications. See ECF No. 29-1 at 29 (citing U.S.C.I.S. 665). Plaintiffs also assert that “[t]he delay here is not merely a function of volume. It is a direct consequence of the unlawful policies detailed above.” Id. Because these arguments have been considered and rejected, the court finds that plaintiffs cannot establish impropriety on the part of defendants. Indeed, plaintiffs identify no evidence
After considering the TRAC factors, the court finds that plaintiffs’ unreasonable delay claim must fail. Even assuming that the allegations of the complaint are sufficient to satisfy factors three and five, the alleged delay cannоt as a matter of law be considered unreasonable. Accordingly, defendants are entitled to judgment as to this claim.17
Accordingly, it is hereby ORDERED that:
- The Clerk of Court shall substitute Markwayne Mullin and Joseph Edlow as defendants. Kristi Noem and Jennifer Higgins shall be terminated as parties to this action.
- Defendants’ request to seal, ECF No. 27, is GRANTED.
- Plaintiffs’ motion for summary judgment, ECF No. 29, is DENIED.
- Defendants’ motion for summary judgment, ECF NO. 30, is GRANTED.
- The Clerk of Court is ordered to enter judgment accordingly and close this case.
IT IS SO ORDERED.
Dated: August 31, 2026
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE