Ahmed v. Blinken

1

MUHIN AHMED, and MST MAISHA ANY, Plaintiffs, v. ANTHONY JOHN BLINKEN, ALEJANDRO MAYORKAS, and NATHAN FLOOK, Defendants.

No. 23-11860

United States District Court, E.D. Michigan, Southern Division

September 12, 2024

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [4]

LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE

Muhin Ahmed is a permanent resident of the United States living in Detroit, Michigan. (ECF No. 1, PageID.4.) Ahmed's wife Mst Maisha Any is a Bengali national residing in Bangladesh. (Id.) Ahmed and Any hoped to start a family together in the United States, so Ahmed filed a Relative Alien Petition for Any on February 3, 2017. (Id. at PageID.5-6.) Any's visa application was approved by the United States Citizenship and Immigration Services agency in December 2018 and a visa became available to her in April 2019. (Id. at PageID.5.) Over four years passed without the State Department scheduling an immigrant visa interview for Any at the United States Embassy in Bangladesh-the necessary next step in the visa application process. (Id.)

So Ahmed and Any filed this suit against the Unites States Secretary of State, the United States Secretary of Homeland Security, and the Counsel General of the United States Embassy in Dhaka, Bangladesh. (Id. at PageID.4.) Plaintiffs seek a ruling that Defendants have unreasonably delayed adjudication of the visa application in violation of the Administrative Procedure Act, 5 U.S.C § 706(1), and a writ of mandamus compelling Defendants to act on the application. (Id. at PageID.6-7.)

Before the Court is Defendants' motion to dismiss all claims for failure to state a claim and lack of jurisdiction. (ECF No 4.) The motion is fully briefed (see ECF Nos. 4, 6 7) and does not require further argument, see E.D. Mich. LR 7.1(f). For the reasons that follow, the Court GRANTS Defendants' motion.

I.

Before addressing Plaintiffs' specific allegations, some background information is helpful.

Generally, a foreign national wishing to enter the United States must first obtain a visa from the Department of State. A visa is “a travel document that allows its holder to travel to a port of entry and request permission to enter the United States, but it does not guarantee the right to enter the country.” Gomez v. Trump, 485 F.Supp.3d 145, 158 (D.D.C.), amended in part on other grounds, 486 F.Supp.3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v. Biden, No. 20-01419, 2021 WL 1037866 (D.D.C. Feb. 19, 2021); see also 8 U.S.C. § 1201(h). Congress created three types of immigrant visas: (1) family based; (2) employment based; and (3) diversity based. See 8 U.S.C. § 1153. This case concerns a family-based visa.

To obtain a family-based immigrant visa, a United States citizen or lawful permanent resident must first file a Form I-130 Petition for Alien Relative with USCIS to classify the intended beneficiary under one of the family-based categories established by the Immigration and Nationality Act. See 8 U.S.C. §§ 1153(a)(1)-(4), 1154(a)(1)(A)(i). If USCIS approves the petition, the agency forwards a copy to the Department of State, which is responsible for adjudicating applications for immigrant visas at United States embassies and consulates overseas. See 8 U.S.C. §§ 1154(b), 1201, 1202.

The State Department's National Visa Center then initiates the process of collecting the fees and documents necessary before an immigrant visa application may be made. See 8 C.F.R. § 204.2(g)(3). After the NVC receives the necessary documentation and fees, the case is considered “documentarily complete” and the NVC works with the appropriate embassy or consulate to schedule an immigrant visa interview for the applicant. See Immigrant Visa Process, Step 9, U.S. Dep't of State, https://perma.cc/3ZLC-R2CZ. The embassy or consulate tells the NVC what their daily interviewing capacity is, and the NVC fills these appointments in a first-in, first-out manner. Id. After the interview, the consular officer is then required to issue or refuse the visa. See 22 C.F.R. § 42.81(a). No specific timeframes are mandated for the completion of these steps.

Applying this framework to the facts alleged in this case, Ahmed filed a Petition for Alien Relative form for Any on February 3, 2017. (ECF No. 1, PageID.4.) Any's visa application was approved by USCIS on December 7, 2018. (Id. at PageID.5.) The visa application was then forwarded to the Department of State and processed by the NVC. (Id.) Plaintiffs say “an immigrant visa became available to Any in April 2019.” (Id. (citing The Visa Bulletin, U.S. Dep't of State, https://perma.cc/2WAE-JHQJ).) On September 19, 2019, NVC notified Plaintiffs that the application was documentarily complete and ready for interview. (ECF No. 6, PageID.55.) Despite Plaintiffs' repeated inquiries, the Department has failed to take any action to arrange a visa interview for Any. (ECF No. 1, PageID.5.) Without an interview, Any's visa application essentially remains in limbo.

Claiming unreasonable delay under the APA, Plaintiffs now seek Court intervention in the form of a writ of mandamus to compel the Defendants to adjudicate Any's visa application. (Id. at PageID.6-7.) Plaintiffs say that the Defendants' “delay has caused [them] to be separated from each other for over 4 years. During this time, [they have] been unable to live as a married couple or start a family life together.” (Id. at PageID.6.) And, say Plaintiffs, the “failure to adjudicate [Any's] immigrant visa has contributed to emotional stress for the Plaintiffs.” (Id.)

Defendants moved to dismiss the APA claim under Federal Rule of Civil Procedure 12(b)(6) and the mandamus request under Rule 12(b)(1). The Court analyzes each claim in turn.

II.

First, the standard. In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court “construes the complaint in the light most favorable” to the Plaintiffs and determines whether their “complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” See Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over the subject matter.” A motion to dismiss under Rule 12(b)(1) “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Crugher v. Prelesnik, 761 F.3d 610, 613 (6th Cir. 2014) (citing Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005)). A facial attack, as here, tests the pleading's sufficiency, not the veracity of its allegations. Stout v. United States, 721 Fed.Appx. 462, 465 (6th Cir. 2018).

III. APA Claim

The APA requires each administrative agency to “proceed to conclude a matter presented to it” within a “reasonable time,” 5 U.S.C. § 555(b), and permits reviewing courts to compel agency action that has been “unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1). To be entitled to relief under the APA, a plaintiff must show either that the agency unlawfully withheld action it was required to take, such as when an agency fails to meet a congressionally set deadline, or that the agency unreasonably delayed taking “a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004).

To evaluate whether agency delay is unreasonable, the Sixth Circuit applies the six-factor test articulated by the D.C. Circuit in Telecommunications Research & Action Center (TRAC) v. FCC, 750 F.2d 70 (D.C. Cir. 1984). See Barrios Garcia v. U.S. Dep't of Homeland Sec., 25 F.4th 430, 451 (6th Cir. 2022). The six TRAC factors include:

(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.

TRAC, 750 F.2d at 80 (quotation marks omitted).

These six factors “are not ‘ironclad,' but rather are intended to provide ‘useful guidance in assessing claims of agency delay.'” In re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting TRAC, 750 F.2d at 80). “Each case must be analyzed according to its own unique circumstances,” as each “will present its own slightly different set of factors to consider.” Air Line Pilots Ass'n, Int'l v. C.A.B., 750 F.2d 81, 86 (D.C. Cir. 1984). Whether a delay is unreasonable “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). Rather, reasonableness “depend[s] in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Id.

A. Application of TRAC factors at the Motion to Dismiss Stage

The Court begins by addressing Plaintiffs' threshold argument that the application of the TRAC factors is inappropriate at the motion to dismiss stage of the litigation. (ECF No. 6, PageID.58....