Dastagir v. Blinken

557 F.Supp.3d 160

Nahid Ghulam DASTAGIR, Plaintiff,

v.Antony BLINKEN¹ , in his official capacity as U.S. Secretary of State, et al., Defendants.

Case No. 1:20-cv-02286 (TNM)

United States District Court, District of Columbia.

Signed July 9, 2021

Joshua L. Goldstein, Goldstein Immigration Lawyers, Beaverton, OR, for Plaintiff.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Nahid Ghulam Dastagir wants her foreign national husband to join her in the United States. She filed a visa application on his behalf five years ago, and he received an interview with the U.S. embassy in Moscow ("Moscow Embassy") in 2018. The application has since languished in "administrative processing" awaiting adjudication. Frustrated, Dastagir sues various federal officials (collectively, the "Government"). She seeks an order compelling the Government to act on the application. The Government moves to dismiss the petition and Dastagir seeks partial summary judgment. Because there has been no unreasonable delay with Dastagir's visa application, the Court will grant the Government's motion.

I.

A U.S. citizen seeking to bring a foreign national spouse to the United States must file a Form I-130—a Petition for Alien Relative—with the United States Citizenship and Immigration Services ("USCIS"). See 8 U.S.C. § 1154 ; 8 C.F.R. § 204.1(a)(1). If USCIS approves the petition, it sends the application to the State Department's processing center. See 8 C.F.R. § 204.2(a)(3). The foreign spouse then submits another application and appears for an interview at the embassy with jurisdiction over the foreign spouse's residence. 22 C.F.R. § 42.62. After the interview, "the consular office must [either] issue [or] refuse the visa." Id. § 42.81(a).

In January 2016, U.S. citizen Dastagir filed a Form I-130 on behalf of her husband, who apparently lives in Russia. Pet. for Writ of Mandamus ("Pet.") ¶¶ 5, 13, ECF No. 1.² USCIS approved the application the same year. Id. ¶ 12. A consular officer at the Moscow Embassy then interviewed Dastagir's husband in March 2018. Id. ¶ 14. The officer allegedly informed Dastagir's husband that the visa application was being placed in "administrative processing." Id. ¶ 15. And it has remained there since. Id. ¶ 16. Meanwhile, a consular officer has re-interviewed Dastagir's husband.

See Defs.’ Mot. Extension of Time at 1, ECF No. 6. Dastagir claims that the Government's "failure to adjudicate this visa application has had a profound and negative impact on the lives of [her] and her husband." Pet. ¶ 17.

In March 2020, the State Department suspended visa services in all U.S. embassies and consulates around the world in response to the COVID-19 pandemic.³ See U.S. Dep't of State, Bureau of Consular Affairs, Important Announcement on H2 Visas (Mar. 26, 2020), https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html. A "phased resumption of visa services" started four months later on a post-by-post basis as "local conditions and resources allow[ed]." U.S. Dep't of State, Bureau of Consular Affairs, Suspension of Routine Visa Servs. (July 22, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html. Visa services are currently suspended in Russia over a hiring ban imposed by the Russian government. See U.S. Embassy & Consulates in Russia, https://ru.usembassy.gov/message-to-u-s-citizens-u-s-mission-russia-reduction-of-consular-services/. Right now, the Moscow Embassy can only process immigrant visas in "life-or-death emergencies" or "age-out cases." See U.S. Embassy & Consulates in Russia, https://ru.usembassy.gov/visas/. The State Department is "currently making arrangements for alternate processing locations for immigrant visa applicants who do not meet these criteria." Id.

Dastagir petitioned for writ of mandamus seeking to compel the Government to act on her visa application. She sues under the Administrative Procedure Act ("APA") and Mandamus Act, claiming that the Government is "unlawfully withholding or unreasonably delaying action on [her] husband's visa application." Pet. ¶ 18; see also id. ¶¶ 18–34. She also raises a claim involving the Controlled Application Review and Resolution Program ("CARRP")—an internal policy used to "investigate and adjudicate applications deemed to present potential ‘national security concerns.’ " Id. ¶ 37. Dastagir alleges that "on information and belief" the Government is "intentionally delaying this immigration case because of an application of" CARRP. Id. ¶ 39.

The Government moves to dismiss the petition. And Dastagir seeks summary judgment on her APA and Mandamus Act claims. Both motions are ripe for disposition.⁴

II.

To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). The plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In considering a motion to dismiss, the Court "treat[s] the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged."

L. Xia v. Tillerson , 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). The Court, however, need not credit legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. And it can "consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice." Trudeau v. FTC , 456 F.3d 178, 183 (D.C. Cir. 2006) (cleaned up).

III.

Dastagir's three claims rest on the same theory: that the Government unreasonably delayed adjudication of her husband's visa application. See Pet. ¶¶ 18, 28, 32, 39. So the Court starts there. If there was no unreasonable delay, Dastagir's claims fail and the Government's remaining arguments for dismissal fall away.⁵

The APA "imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time,’ and authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed.’ " Mashpee Wampanoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. §§ 555(b), 706(1) ). The "standard for undue delay under the Mandamus Act ... is identical to the APA standard." Kangarloo v. Pompeo , 480 F. Supp. 3d 134, 142 (D.D.C. 2020).

"There is no per se rule as to how long is too long to wait for agency action." In re Am. Rivers & Idaho Rivers United , 372 F.3d 413, 419 (D.C. Cir. 2004). To evaluate an unreasonable delay claim, courts apply six factors ("TRAC Factors"):

1. the time agencies take to make decisions must be governed by a rule of reason;

2. when 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 effect of expediting delayed action on agency activities of a higher or competing priority;

5. 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 , 750 F.2d 70, 80 (D.C. Cir. 1984) (" TRAC ") (cleaned up). These factors are not "ironclad" but offer "useful guidance." Id. Addressing an unreasonable delay claim is "ordinarily a complicated and nuanced task requiring consideration of particular facts and circumstances before the court." Mashpee , 336 F.3d at 1100.

As we will see, the TRAC factors favor the Government here. There is no deadline by which the Government must adjudicate Dastagir's visa application and other courts have found similar wait times not unreasonable. More importantly, granting Dastagir relief would allow her to jump ahead of others with no net benefit to anyone but her. While Dastagir and her family may have experienced hardship during the wait, so too have all applicants whose cases are likewise delayed.

A.

Courts typically consider TRAC factors one and two together. Accord Milligan v. Pompeo , 502 F. Supp. 3d 302, 317 (D.D.C. 2020). The first has been called the "most important." In re Core Commc'ns, Inc. , 531 F.3d 849, 855 (D.C. Cir. 2008). It asks "whether the agency's response time ... is governed by an identifiable rationale." Ctr. for Sci. in the Pub. Int. v. FDA , 74 F. Supp. 3d 295, 300 (D.D.C. 2014). And the second—whether Congress has provided a timetable—"may supply content for th[e] rule of reason." TRAC , 750 F.2d at 80. Both factors strongly favor the Government here.

The parties agree that there is no deadline for the Moscow Embassy to adjudicate Dastagir's visa application. See Defs.’ Mot. Dismiss ("Defs.’ Mot.") at 15, ECF No. 14; Mem. of P. & A. in Opp'n Defs.’ Mot. Dismiss ("Pl.’s Opp'n") at 11, ECF No. 15. Instead, "Congress has given the agencies wide discretion in the area of immigration processing." Skalka v. Kelly , 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017) (noting two-year delays in immigration visa processing "do[ ] not typically require judicial intervention"). "Decisions regarding the admission of foreign nationals are granted an especially wide degree of deference, as they frequently implicate ‘relations with foreign powers, or involve classifications defined in the light of changing political and economic circumstances.’ " Didban v. Pompeo , 435 F. Supp. 3d 168, 176 (D.D.C. 2020) (quoting Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2418–19, 201 L.Ed.2d...