Baygan v. Blinken

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MONA BAYGAN, Plaintiff, v. ANTONY J. BLINKEN, Secretary of State, U.S. Department of State; and JEFFRY LANE FLAKE, U.S. Ambassador to Turkey, Defendants.

Civil Action No. 23-2840 (JDB)

United States District Court, District of Columbia

August 8, 2024

MEMORANDUM OPINION & ORDER

JOHN D. BATES, UNITED STATES DISTRICT JUDGE

Plaintiff Mona Baygan brings suit under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706(1) alleging that the U.S. Secretary of State and the U.S Ambassador to Turkey (collectively, the “State Department”) unreasonably delayed the adjudication of her I-130 visa application. Before the Court is the State Department's motion to dismiss and Baygan's motion to strike the State Department's motion. For the following reasons, the Court will deny Baygan's motion to strike and grant the State Department's motion to dismiss.

Background

The following facts are drawn from the complaint and matters of which the Court may take judicial notice. See Gun Owners of Am., Inc. v. FBI, 594 F.Supp.3d 37, 42 (D.D.C. 2022).

Mona Baygan is a non-citizen, Iranian national currently residing in Turkey awaiting processing of her immigrant visa application. Compl. for Declaratory Relief to Compel Admin Action [ECF No. 1] (“Compl.”) ¶¶ 1, 7 32. Along with her two daughters, Baygan unlawfully entered the United States via the U.S.-Mexico border in March 2009. Id. ¶ 9. In November 2009, Baygan filed an I-589, Application for Asylum and Withholding of Removal, with the U.S. Citizenship and Immigration Services (“USCIS”), seeking asylum on the grounds that she faced persecution-and potentially death-in Iran based on her conversion from Islam to another religion. Id. ¶ 10. That December, USCIS began removal proceedings against Baygan and her daughters. Id. ¶ 11. Just under a year later, Baygan married Hamed Shabani Fard, who was then a lawful, permanent U.S. resident. Id. ¶ 12. In February 2015, following his naturalization, Fard filed I-130s, Petitions for Alien Relative, with USCIS seeking immigrant visas for Baygan and her daughters. Id. ¶¶ 13-14. After being approved by USCIS and transferred to the National Visa Center, the I-130 petitions were assigned for processing at the U.S. Embassy in Ankara, Turkey- the site of the required in-person immigrant visa interview. Id. ¶¶ 15, 18. This interview was scheduled for January 2023. Id. ¶ 18. Prior to leaving the United States for the interview, Baygan and her daughters filed I-601A forms seeking to waive the statutory 10-year bar on reentry, which had been triggered by the accrual of over a year of unlawful presence in the United States. Id. ¶ 17; see 8 U.S.C. § 1182(a)(9)(B)(i), (v). In February 2017, USCIS approved Baygan's and her daughters' I-601A forms. Compl. ¶ 17. The presiding judge in the removal proceedings granted Baygan and her daughters voluntary departure under 8 U.S.C. § 1229c(a). Compl. ¶ 19.

On January 26, 2023, Baygan and her daughters appeared at the U.S. Embassy in Ankara for the interview. Id. ¶ 21. At the conclusion of the interview, their visa applications were “temporarily refused under section 221(g) of the U.S. Immigration and Nationality Act” for “Administrative Processing.” Id. After Baygan provided additional, requested forms and documentation, the Embassy approved both of her daughters' visa applications in April 2023, enabling her daughters to return to the United States. Id. ¶ 27. However, Baygan's own application remained in administrative processing. Id. Unable to return to the United States or gain work authorization in Turkey, Baygan experienced isolation in an unfamiliar country, financial strain resulting from her family now supporting two households, and emotional turmoil. Id. ¶ 32. Baygan alleges that she has begun “rationing her meals” and “wakes up in the middle of the night crippled with anxiety and unable to breath[e].” Id.

Baygan filed the present suit against the U.S. Secretary of State and U.S. Ambassador to Turkey (in their official capacities) in September 2023-nine months after her interview at the Embassy. Id. ¶ 32. Baygan contends that the State Department's delay in processing her visa application is unlawful under sections 702 and 706(1) of the APA. See id. ¶ 37. She argues that the allegedly unlawful delay in adjudicating her application has caused and continues to cause severe harm. Id. ¶ 42. She seeks injunctive relief in the form of a court order compelling the State Department to adjudicate her visa application within fourteen days of the order. Id. ¶ 37.

The State Department moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss & Mem. in Supp. Thereof [ECF No. 9] (“Mot.”). Baygan filed a response and a cross-motion seeking to strike the State Department's motion as untimely pursuant to Federal Rule of Civil Procedure 12(a)(2) and as violative of Local Civil Rule 7(n). See Pl.'s Opp'n to Mot. & Cross-Mot. to Strike Mot. [ECF No. 10-11] (“Opp'n”). The State Department filed a reply opposing the cross-motion and supporting dismissal. See Reply in Further Supp. of Mot. & Opp'n to Pl.'s Mot. to Strike [ECF No. 15] (“Reply”). The State Department subsequently filed a notice of supplemental authority, to which Baygan responded. First Notice of Suppl. Auth. [ECF No. 16]; Pl.'s Resp. to Defs.' Notice of Suppl. Auth. [ECF No. 17]. Pursuant to this Court's order, the parties also filed supplemental responses relating to the timeliness of the State Department's motion. See July 15, 2024 Order [ECF No. 18]; Resp. to Court Order [ECF No. 20] (“Timeliness Resp.”); Pl.'s Resp. to Defs.' Resp. to Court Order [ECF No. 21].

The State Department then filed another notice of supplemental authority. Second Notice of Suppl. Auth. [ECF No. 22]. The motions are now fully briefed and ripe for decision.

Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “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. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At the motion to dismiss stage, courts must “accept the [complaint's] factual allegations as true and draw all reasonable inferences in the plaintiff's favor,” Sanchez v. Off. Of State Superintendent of Educ., 45 F.4th 388, 395 (D.C. Cir. 2022), but need not credit “legal conclusions couched as factual allegations,” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (per curiam).

Courts also apply the 12(b)(6) standard when assessing a facial (rather than factual) challenge to a complaint's jurisdictional allegations under Rule 12(b)(1). See Simon v. Republic of Hungary, 77 F.4th 1077, 1116 (D.C. Cir. 2023).

Analysis

I. Plaintiff's Motion to Strike

Baygan moves to strike the State Department's motion to dismiss on two grounds. First, Baygan contends that the State Department violated Federal Rule of Civil Procedure 12(a)(2) by filing its motion to dismiss one day late. Opp'n at 45. The State Department responds that its motion was timely because Baygan's return of service affidavit reflects service on a “central Justice Department mail facility” rather than the U.S. Attorney's Office's civil process clerks (the legally relevant entity), who did not receive and process Baygan's service package until the following day. Timeliness Resp. at 4. In the alternative, the State Department moves for a one- day extension of time. Id. at 4 n.1. The Court need not address the parties' technical dispute over Justice Department mail-processing practices. Even assuming that Baygan is correct, the State Department's reliance on what it understood to be the correct service date, see id. at 1-3 (collecting authorities), was excusable neglect. Hence, the Court exercises its discretion to grant the State Department's post hoc motion for a one-day extension of time. See Fed.R.Civ.P. 6(b)(1)(B).

Baygan also argues that the State Department's motion should be struck for failure to comply with Local Civil Rule 7(n)(1). Opp'n at 46. Rule 7(n)(1) provides that in “cases involving the judicial review of administrative agency actions . . . the agency must file a certified list of the contents of the administrative record . . . simultaneously with the filing of a dispositive motion.” LCvR 7(n). The State Department disputes Rule 7(n)'s applicability to this case, arguing that the Rule does not apply because Baygan challenges agency inaction rather than agency action. See Mot. at 33 n.3. The Court has previously expressed skepticism regarding this line of reasoning, see Tahavori v. Blinken, Civ. A. No. 23-1460 (JDB), 2024 WL 1328546, at *2 (D.D.C. Mar. 28, 2024), and again declines to adopt the State Department's categorical position. However, the Court will waive compliance with Rule 7(n) because “the administrative record is not necessary for the Court's decision regarding the motion to dismiss.” Id. (cleaned up); see also Bromfman v. U.S. Citizenship & Immigr. Servs., Civ. A. No. 21-571 (BAH), 2021 WL 5014436, at *3 n.2 (D.D.C. Oct. 28, 2021).

II. State Department's Motion to Dismiss

The State Department advances five arguments in support of its motion to dismiss: (1) Baygan improperly named the Secretary of State as a party, (2) Baygan lacks standing to challenge the alleged delay because she has not suffered a legally cognizable injury and a court order will not redress any alleged injury, (3) the consular nonreviewability doctrine precludes judicial review (4) the law does not require a consular officer to take any discrete agency action, and (5) Baygan fails to plausibly claim an unreasonable delay as a matter of law. See Mot. at 5-33. The...