*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SAEID MOTEVALI, et al.
Plaintiffs , Civil Action No. 24 - 1029 (SLS) v. Judge Sparkle L. Sooknanan MARCO RUBIO, et al. ,
Defendants . MEMORANDUM OPINION
This case involves a father and son seeking to permanently reunite in the United States. In 2019, American citizen Saeid Motevali filed an I-130 Petition on behalf of his father, Alireza Motevaly Alamouti, an Iranian national. After weaving through a maze of administrative steps, Mr. Alamouti interviewed with a consular officer in Sri Lanka in September 2023. About seventeen months have passed since his interview, and the Plaintiffs have yet to receive a final decision on their visa application. With this lawsuit, they seek to compel Marco Rubio, 1 in his official capacity as Secretary of State, and Robert Jachim, in his official capacity as Acting Director of the Department of State’s Office of Screening, Analysis and Coordination, to order a final decision on their visa application. The Defendants have moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Although the Court is unpersuaded by most of the Defendants’ arguments, it agrees that the Plaintiffs have failed to state a plausible claim of unreasonable delay and therefore grаnts the Defendants’ Motion.
1 Although the Plaintiffs named former Secretary of State Antony J. Blinken as the Defendant in the Complaint, current Secretary of State Marco Rubio “is automatically substituted as a party” in his place pursuant to Federal Rule of Civil Procedure 25(d).
STATUTORY AND REGULATORY BACKGROUND
The Immigration and Nationality Act (INA) was passed in 1952 to, inter alia , “reunite families wherever possible[.]” Fiallo v. Bell 430 U.S. 787, 793 (1977). Pursuant to its goal of family reunification, the INA authorizes consular officers to issue immigrant visas to the “immediate relative[s]” of American citizens. See 8 U.S.C. § 1204; 8 U.S.C. § 1151(b)(2)(A)(i). Under the INA, immediate relatives are defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b)(2)(A)(i). Family reunification continues to be a “guiding principle” in U.S. immigration policy, with Congress providing “clear direction” to the State Department to “adopt a policy of prioritizing immediate relative[s.]” Immigrant Visa Prioritization , U.S. Dep’t of State: Bureau of Consular Affs., https://perma.cc/LK8P-7D5E. The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) and the Department of State jointly administer the INA. See Regulations , U.S. Citizenship & Immigr. Servs., https://perma.cc/U6W5- XDDU; Laws & Regulations , U.S. Dep’t of State: Bureau of Consular Affs., https://рerma.cc/EYN9-SBCE.
An American citizen seeking a visa for an immediate relative must file an I-130 Petition with the USCIS. Niyomwungere v. Blinken , No. 24-cv-1990, 2024 WL 5075827, at *1 (D.D.C. Dec. 11, 2024) (citing 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1)). USCIS then transfers the Petition to the National Visa Center (NVC), which is the visa application processing center of the Department of State. (citing 8 C.F.R. § 204.2(a)(3)). The applicant must then pay a fee and complete additional paperwork, including Form DS-260 (the Electronic Application for Immigrant Visa and Alien Registration). 22 C.F.R. § 42.63. Once the NVC determines that it has the required paperwork, it marks the case “documentarily complete,” 9 Foreign Affs. Manual *3 § 504.1-2(b)–(d), and schedules an interview for the applicant, 22 C.F.R. § 42.62; 9 Foreign Affs. Manual §§ 504.1-2(d)(1), 504.4-6. After the interview, the consular officer “must” either “issue the visa” or “refuse the visa” under INA Sections 212(a), 221(g), or “other applicable law.” 22 C.F.R. § 42.81(a) (acknowledging a third option when there is an outstanding order).
FACTUAL BACKGROUND
The Court draws the facts, accepted as true, from the Complaint and attachments.
Wright
v. Eugene & Agnes E. Meyer Found.
,
Mr. Motevali, an American сitizen, successfully submitted Form I-130 to USCIS on October 1, 2019, on behalf of his father, Mr. Alamouti, an Iranian national. Compl. ¶¶ 70–72. USCIS approved Mr. Alamouti’s I-130 Petition on March 27, 2021, and forwarded it to the NVC, the State Department’s visa application processing center. Id. ¶ 73. Mr. Alamouti then completed form DS-260, which initiates the formal visa application process. Id. ¶¶ 38, 74. After reviewing Mr. Alamouti’s paperwork, the NVC designated it “documentarily complete” on May 17, 2023. Id. ¶¶ 74–75. A consular officer then interviewed Mr. Alamouti at the U.S. Embassy in Colombo, Sri Lanka, on September 5, 2023. Id. ¶ 76. Embassy officials emailed him shortly after, asking him to complete Form DS-5535 (Supplemental Questions for Visa Applicants), which requests fifteen years of background history including addresses, employment, travel, and social media handles. Id . ¶ 78. Mr. Alamouti returned the questionnaire on September 12, 2023.
Since that date, the Plaintiffs have received no direct communication from the State Department and have repeatedly been told that the visa application remains “refused for *4 administrative processing.” Id. ¶ 83. The Plaintiffs are aware of other visa applicants who interviewed at the sаme embassy, some of them after Mr. Alamouti, who were also given non-final Section 221(g) decisions, 2 but who have since been issued visas. Id. ¶ 80. The Plaintiffs have inquired multiple times about the status of their visa application and have been told that the office is “waiting for certain clearances to further process the case.” Id. ¶ 84. Because of the Defendants’ failure to process Mr. Alamouti’s visa application in a timely manner, the Plaintiffs have experienced both tangible and intangible injuries. They live in “ever-increasing fear that they will be separated.” Id. ¶ 89. Mr. Alamouti has yet to meet his grandchild, and the likelihood of him doing so is “decreasing every day.” Id . ¶ 91. This separation is “causing severe emotional distress and psychological harm to the entire family by forcing them to remain separated with no idea when they will be reunited.” Id. ¶ 92. Beyond the mental anguish, the Plaintiffs describe an “immense amount of financial strain” they have undergone while waiting for a final decision, forcing them to spend “thousands of dollars” to maintain a house in both the U.S. and Iran, pay for trips back and forth, and cover the cost of legal representation. Id. ¶¶ 94–95. They have “been forced to spend from their savings and cannot afford any further expenses.” Id. ¶ 94. The Plaintiffs now feel that they are “left in an untenable situation with no apparent end in sight.” ¶ 96.
PROCEDURAL HISTORY
The Plaintiffs filed this action on April 10, 2024, naming the U.S. Secretary of State, Marco Rubio, as well as the Acting Director of the Office of Screening, Analysis, and 2 The Plaintiffs never explicitly state that Mr. Alamouti’s visa was denied on Section 221(g) grounds, nor do the Defendants. But based on the language stating that Mr. Alamouti needed to “provide more details in certаin sections,” this Court will assume it was refused on Section 221(g) grounds. Compl. ¶ 79. A Section 221(g) refusal “means the applicant did not establish eligibility for a visa to the satisfaction of the consular officer.” U.S. Dep’t of State, Administrative Processing Information, Travel.State.Gov, https://perma.cc/Q8EA-TLJA.
Coordination, Robert Jachim, alleging that both have unreasonably delayed the adjudication of Mr. Alamouti’s visa. See Compl, ¶ 6. The Plaintiffs request that the Court “[e]njoin” the Defendants from “any further unreasonable delay in [Mr. Alamouti’s] pending immigration visa application.” Id. , Prayer for Reliеf. They state that the Court has the authority to take this action under the Mandamus Act and three provisions of the Administrative Procedure Act, Sections 706(2), 706(1), and 555(b). ¶¶ 100–18 (Mandamus); ¶¶ 119–34 (§ 706(2) of the APA); ¶¶ 135– 46 (§ 706(1) of the APA); ¶¶ 147–62 (§ 555(b) of the APA). The Defendants moved to dismiss on June 10, 2024, see Defs.’ Mot. to Dismiss (Defs.’ Mot.), ECF No. 5, and the Plaintiffs filed a Memorandum in Opposition on June 24, 2024, See Pls.’ Opp’n, ECF No. 6. The Motion is fully briefed.
LEGAL STANDARDS
“Federal courts are courts of limited jurisdiction.”
Arab
,
To survive a Rule 12(b)(6) challenge, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal
, 556 U.S.
*6
662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly
,
DISCUSSION
The Defendants advance several arguments in support of dismissal, all of which have been raised in many cases in this District. At threshold, they challenge the Plaintiffs’ standing and raise the consular non-reviewability doctrine as a bar to this Court’s review. Defs.’ Mot. at 2–39. On the merits, they argue that the Plaintiffs have failed to plead a plausible claim of unreasonable delay. at 40–47. The Court is unpersuaded by all of the Defendants’ arguments but one. Upon thoughtful review of the record, it concludes that the Plaintiffs have failed to plausibly show that the delay is unreasonable, an incurable error under Rule 12(b)(6). On that ground alone, the Court grants the Defendants’ Motion to Dismiss.
A. Standing
Standing sets the stage, “as it must.”
Ahmed
1. Injury
The Defendants first argue that there is “no legally cognizable injury” because “neither the
procedural harm of alleged delay nor the ultimate harm of an inability to reunite in this country
supports standing in this case.” Defs.’ Mot. at 24–25. But the Plaintiffs allege that they have
suffered both emotional harm and financial harm stemming directly from the delay in receiving a
final decision on Mr. Alamouti’s visa. Compl. ¶ 7. Courts in this District have “consistently
rejected [the] argument” that this type of “procedural injury” does not satisfy standing—finding
that a plaintiff suffers an injury when an unreasonable delay in processing their visa application
“causes financial or other hardship,” such as “separation from family members.”
Ahmed
2024 WL
4903771, at *3. That is what the Plaintiffs allege here, which is sufficient to meet the first prong
of standing, making this “a real controversy with real impact on real persons,”
TransUnion LLC v.
Ramirez
,
2. Redressability
The Defendants next argue that because neither Secretary Rubio nor Director Jachim can
“favorably re-adjudicate an application for a visa,” they should be dismissed as improper
Defendants. 3 Defs.’ Mot. at 5. Turning first to Secretary Rubio, the Defendants argue that the INA
3 Although the Defendants do not explicitly characterize this as a standing argument, the Court
will follow others in this District and “construe” it “as a redressability chаllenge.”
Sharifymoghaddam v. Blinken
, No. 23-CV 1472,
Whether Director Jachim is a proper defendant is newer territory. Mr. Jachim, as the lead of the State Department’s Office of Screening, Analysis, and Coordination (SAC), oversees a team that renders security advisory opinions (SAO) on visas. 1 FAM 254.2-1, https://perma.cc/NA52-WCZC. Consular officers who issue a refusal under Section 221(g) must immediately “request a [security advisory opinion] from SAC.” Compl., Ex. D ¶ 15, ECF No 1- 4. The analyst then “assesses . . . the derogatory information” to determine how to proceed and “prepare[s] a memo . . . [to] provide a recommendation to the consular officer who is responsible for making the final decision.” Id. ¶ 26. These facts suggest that Mr. Jachim plays a major role in overseeing the “administrative processing” of visas refused under Section 221(g). At this stage of the proceedings, the Court concludes that Mr. Jachim is a proper Defendant.
Finally, the Defendants argue that any relief from this Court would not remedy the
Plaintiffs’ injuries. Defs.’ Mot. at 31. Not so. The Plaintiffs’ injuries stem from the limbo that the
*9
State Department’s quаsi-refusal has left them in—unsure whether they can live together as a
family in the United States or not. An order compelling a final decision would certainly alleviate
this uncertainty.
See, e.g.
,
Azeez v. Murphy
, No. 23-cv-1947,
B. Consular Non-Reviewability
Next up is the Defеndants’ argument that the consular non-reviewability doctrine bars this
Court’s review. Defs.’ Mot. at 18–24. For that, they rely on a D.C. Circuit case,
Baan Rao v.
Pompeo
, arguing that it “shields a consular officer’s decision to issue or
withhold
a visa.”
Id.
at 18
(quoting
Baan Rao Thai Rest. v. Pompeo
,
The Defendants nonetheless cling to the notion that the decision is somehow final.
See
Defs.’ Mot. at 23 (arguing that the Court lacks subject matter jurisdiction because “the consular
officer has already rendered a decision on [the] Plaintiff’s Visa Application”). The State
Department elaborates on this so-called final decision on a page curiously titled “Administrative
Processing Information.”
See
Department of State,
Administrative Processing Information
,
https://perma.cc/SG3E-B35C. The Defendants insist that this language merely signals that “the
applicant did not establish their eligibility for the requested visa to the satisfaction of the officer.”
Defs.’ Mot. at 15. But this is, again, at odds with the Department of State’s explanation, which
notes: “It is possible that a consular officer will reconsider a visa application refused under 221(g)
at a later date, based on additional information . . . and determine that the applicant is eligible.”
Dep’t of State, Administrative Processing Information, https://perma.cc/SG3E-B35C. The
words “final” and “reconsider” are inarguably at odds. The Court is thus unpersuaded.
It is not alone. Myriad other decisions from this District, many with nearly identical facts,
have outright rejected the idea that a “refusal” is a final decision.
See, e.g
.,
Al-Gharawy v. U.S.
Dep’t of Homeland Sec.
, 617 F. Supp. 3d 1, 16 (D.D.C. 2022) (holding that while the State
Department “may choose[] to
characterize
a section 221(g) notification as a refusal,” “that magic
*11
word is not a get-out-of-review-free card” (cleaned up));
see also Vulupala v. Barr
, 438 F. Supp.
3d 93, 98 (D.D.C. 2020) (“Defendants . . . hang their hat on the agency’s use of the word
‘refuse’ . . . . But that elevates form over substance. As other courts have found, the focus should
be on what is actually happening[.]”). The timing of a decision and the decision itself are distinct—
one procedural and the other substantive. Because of this, the cloak of protеction that the consular
non-reviewability doctrine affords does not descend until the procedural steps are complete.
See
Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v.
Kerry
,
C. Clear and Non-Discretionary Duty
The Defendants next argue that the Plaintiffs have failed to identify a “clear, non- discretionary duty” under the APA and the Mandamus Act that would require the government to “adjudicate . . . any specific visa application.” See Defs.’ Mot. at 32. Once again, the Defendants tread familiar ground. Many courts in this District have rejected that argument, finding that government officials have a duty to “complete adjudication of visa applicatiоns . . . within a reasonable time” under “the APA and State Department regulations.” Ahmed 2024 WL 4903771, at *4 (collecting cases).
In a Notice of Supplemental Authority, the Defendants argue that the D.C. Circuit’s recent
decision in
Karimova v. Abate
, No. 235178,
In any event, because the Plaintiffs fail to plausibly plead an unreasonable delay, the Court “need not scour [the] Plaintiffs’ complaint and opposition” to find a duty when “their claims fail 4 Like many courts in this district, this Court is reluctant to ascribe significance to a decision the D.C. Circuit chose not to publish. See, e.g. Hajizadeh v. Blinken , No. 23-cv-1766, 2024 WL 3638336, at *3 (D.D.C. Aug. 2, 2024) (declining to follow Karimova because it is an unpublished decision and “a panel’s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition”); see also D.C. Cir. R. 36(e)(2). The Court is also dubious of the government’s argument in Karimova that a “refusal” that sends the visa application into an administrative processing queue is a final decision.
on the merits.”
Motevali v. Blinken
, No. 23-cv-2133,
D. Unreasonable Delay
Turning to the merits, the Defendants argue that the Plaintiffs have failed to state a claim
for unreasonable delay on which relief can be granted. Defs.’ Mot. at 40. The Plaintiffs’ claims
under the APA and the Mandamus Act share the same standards for obtaining relief.
See
Kangarloo v. Pompeo
,
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.
*14
Khazaei
,
1.
TRAC
Factors One and Two
TRAC
factor one, which asks whether thе response time is governed by a “rule of reason,”
is widely understood to be the “most important” aspect of the analysis.
In re Core Commc’ns
,
Inc.
,
*15
TRAC
factors one and two are fact-dependent inquiries that “cannot be decided in the
abstract, by reference to some number of months or years beyond whiсh agency inaction is
presumed to be unlawful.”
Mashpee Wampanoag Tribal Council
,
Inc. v. Norton
,
As an initial matter, while the Plaintiffs understandably characterize their wait time as
approaching five years, this District starts the clock before the last government agency action,
see
Barazandeh v. U.S. Dep’t of State
, No. 23-cv-1581,
2.
TRAC
Factor Four
TRAC
factor four evaluates the effect on “competing agency priorities.”
Da Costa
, 80 F.4th
at 343. This factor “strongly disfavors” plaintiffs whose request is akin to cutting the line of
applications ahead of them, which would “disrupt competing agency priorities with no overall
improvement in the [agency’s] backlog.”
Id.
The appropriate question in this inquiry then is
whether a judicial order putting the Plaintiffs’ request “at the head of the queue” effectively
“moves all others back one space and produces no net gain.”
In re Barr Laboratories
, 930 F.2d
72, 75. (D.C. Cir. 1991). The Plaintiffs allege that the State Department does not resolve
administrative processing requests on a “first-in-first-out-basis.” Pls.’ Opp’n. at 55 (“Since the
administrative processing requests are NOT addressed or resolved on a first-in-first-out basis, it is
evident that no queue exists.”). But this contention seems “entirely speculative” as the Plaintiffs
have “pleaded no facts to support it.”
Niyomwungere
TRAC
factors three and five ask whether the facts here render judicial intervention “more
justified.”
Ahmed
,
4.
TRAC
Factor Six
Finally,
TRAC
factor six asks the court to сonsider “whether there is any impropriety
lurking behind agency lassitude.”
Da Costa
,
***
The Court recognizes the very real injuries Mr. Motevali and Mr. Alamouti have suffered because of the delay in this case. In their own words, the delay has turned what the family intended to be a “very temporary separation” into “a nightmare of living apart for years . ” Compl. ¶ 89. More generally, the Court is troubled by the documented delays and dysfunction in the visa adjudication system. Here, Mr. Motevali initiated the apрlication process on behalf of his father nearly five years ago—a process the State Department currently advertises as one with “no waiting period,” *18 U.S. Citizenship & Immigration Servs., I Am a U.S. Citizen… How Do I Help My Relative Become a U.S. Permanent Resident? , M-555B (Oct. 2013), https://perma.cc/4LND-W32H. But after analyzing the TRAC factors, the Court concludes that the Plaintiffs have not plausibly alleged that the Defendants’ delay is unreasonable. Consequently, the Court dismisses the Complaint.
CONCLUSION
For the foregoing reasons, the Court grants the Defendants’ Motion to Dismiss, ECF No. 5.
A separate order will issue.
SPARKLE L. SOOKNANAN United States District Judge Date: March 21, 2025