Geiger v. U.S. Dep't of State

1

TARA LYNN BOWNESS GEIGER, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, et al., Defendants.

No. 1:22-cv-02986 (TNM)

United States District Court, District of Columbia

March 31, 2023

MEMORANDUM OPINION

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

Tara Lynn Bowness Geiger and Nathan Marc Geiger are married Canadians seeking permanent residency in the United States. In January 2021, Mrs. Geiger applied for an employment-based visa for herself and her husband. To date, the Government has not finished processing their applications. The Geigers seek a writ of mandamus compelling the Government to process and approve their visas. The Government now moves to dismiss for failure to state a claim. The Court will grant the Government's motion. Plaintiffs have not pled facts suggesting the delay is unreasonable or that it violates their due process rights.

I.

The Geigers applied for a visa allowing some foreign citizens to reside permanently in the United States if they can show they have employment in the United States or are employable. See generally Employment-Based Immigrant Visas, DOS https://perma.cc/Y42N-VQYN.^[1] Mrs. Geiger applied for the visa with her husband as a derivative. See Pet. ¶ 10.

The process goes like this: First, the alien or the alien's employer must file a petition with U.S. Citizenship and Immigration Services (USCIS). See Khushnood v USCIS, No. 21-cv-02166, 2022 WL 407152, at *1 (D.D.C. Feb. 10, 2022). If USCIS approves the petition, USCIS sends it to the National Visa Center (NVC). See id. NVC then forwards the approved petition to the U.S. embassy or consulate where the alien lives. See id. A local consular officer is then responsible for interviewing the alien. See id.

This is where the Geigers are stuck. See Pet. ¶ 15. Mrs. Geiger filed her I-140 application on January 26, 2021. See id. ¶ 10. And NVC has considered her case ready for review since July 6, 2021. See id. ¶ 14. But the embassy has yet to schedule a consular interview. See id. ¶ 15. Fed up with waiting, the Geigers sued the Government under the Administrative Procedure Act (APA) and Due Process Clause of the Fifth Amendment. See Id. ¶¶ 17, 25; Pls.' Opp'n to Defs.' Mot. to Dismiss (Opp'n) at 7, 10-11, ECF No 7. They petition for a writ of mandamus compelling the Government to issue their visas and “complete all administrative processing” within 60 days. See Pet. at 6-7. The Government has moved to dismiss. See Mot. to Dismiss (MTD), ECF No. 5. The Court has jurisdiction under 28 U.S.C. § 1331 and will grant the motion.

II.

A plaintiff must “state a claim to relief that is plausible on its face” to survive a motion to dismiss under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). To do that, she must plead facts “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In ruling on a motion to dismiss, courts treats the complaint's factual allegations as true and reads inferences in the plaintiff's favor. See L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017). Courts may consider facts alleged in the complaint, documents attached to the complaint, and matters of which it may take judicial notice. See Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006).

III.

The Government asks the Court to dismiss for two reasons. First, it says there has been no unreasonable delay. Second, it says that its actions did not violate the Geigers' due process rights. The Government is correct on both scores.

A.

The Geigers argue that the Government has unreasonably delayed scheduling their consular interview. See Pet. ¶¶ 17-18. That delay, they claim, violates the APA, which requires the Government to act “within a reasonable time.” Id. ¶ 17 (quoting 5 U.S.C. § 555(b)). The Government counters that any delay in processing the application is not unreasonable. See MTD at 5. The Court agrees.

“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) (cleaned up). Addressing an unreasonable delay claim is “ordinarily a complicated and nuanced task requiring consideration of particular facts and circumstances before the court.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). So courts in this circuit consider the so-called TRAC factors, which serve as guides:

(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).

Applying the TRAC factors, the Court finds that the Geigers have not stated a plausible claim that the Government unreasonably delayed their consular interview.

1.

The first and second TRAC factors assess “whether the agency's response time complies with an existing specified schedule and whether it 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). These two factors are “typically considered together,” Milligan v. Pompeo, 502 F.Supp.3d 302, 317 (D.D.C. 2020), though the first has been called the “most important,” In re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008).

Congress has not supplied a timeline for processing visas. See Mohammad v. Blinken, 548 F.Supp.3d 159, 165 (D.D.C. 2021). So the Court “turn[s] to case law as a guide” to what constitutes unreasonable delay. Milligan, 502 F.Supp.3d at 318.

While courts have generally found immigration delays in excess of five, six, or seven years unreasonable, they have “declined to find a two-year period to be unreasonable as a matter of law.” Mohammad, 548 F.Supp.3d at 165. And less than 21 months have elapsed since the Geigers' case has been ready for a consular interview. See Rahman v. Blinken, No. 22-cv-2732, 2023 WL 196428, at *1, *4 (D.D.C. Jan. 17, 2023) (calculating time of delay as period between last action and time of opinion); Arab v. Blinken, 600 F.Supp.3d 59, 63, 70 (D.D.C. 2022) (same). That delay is not unreasonable. See also Bagherian v. Pompeo, 442 F.Supp.3d 87, 95 (D.D.C. 2020) (holding 25-month delay not unreasonable).

The Geigers levy two counterarguments. First, they claim that “it is sufficient . . . to allege specific facts that indicate unreasonable delay” and “they need not prove unreasonable delay at the motion to dismiss phase.” Opp'n at 8. This does little more than recite the pleading standard. And the Geigers have not plead facts suggesting the delay here is unlawful. As noted, courts in this district have routinely found lengthier delays than the one here not unreasonable as a matter of law. See, e.g., Ghadani v. DHS, No. 19-cv-397, 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020) (collecting cases declining to hold delays of more than 25 months unreasonable as a matter of law).

Second, the Geigers rely on three old, unpublished Northern District of California decisions finding “similar delays unreasonable.” See Opp'n at 8. These cases are unpersuasive, and they are distinguishable. Most importantly, those cases do not apply TRAC, which is binding in this circuit. More, those cases hold that a delay greater than two years is presumptively unreasonable as a matter of law. The Geigers do not allege that length of delay here. So the Court is unmoved by the Geigers' out-of-circuit authorities.

The Court thus finds that the first and second TRAC factors favor the Government.

2.

Next up is the fourth TRAC factor, or the “effect of expediting delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. “This factor carries the greatest weight in many cases.” Dastagir v. Blinken, 557 F.Supp.3d 160, 167 (D.D.C. 2021) (cleaned up). The Court must consider “competing priorities for limited resources.” Mashpee, 336 F.3d at 1100-02 (cleaned up). Indeed, the D.C. Circuit has “refused to grant relief' when “a judicial order putting the petitioner at the head of the queue would simply move all others back one space and produce no net gain.' Id.

So too here. The Geigers ask the Court to adjudicate their petition or compel the Government to schedule a consular interview. See Pet. at 6-7. But the Court may not let them “skip the line and . . . move all others back one space.' Mohammad, 548 F.Supp.3d at 167 (cleaned up). To be sure, the effect of expediting the Geigers' vias may be minimal, but many “such individual cases being pushed by judicial fiat to the front of the line would erode the ability of agencies to determine their priorities.' Tate v. Pompeo, 513 F.Supp.3d 132, 150 (D.D.C. 2021).

The Geigers push back. First, they warn that siding with the Government would establish a rule presumptively weighing the fourth TRAC factor for the Government when “the plaintiff is not the first person in ‘line' for adjudication.' Opp'n at 9. This is not correct. See, e.g., Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Pompeo, No. 18-cv-1388, 2019 WL 4575565, at *10-11 (D.D.C. Sept. 20, 2019) (agreeing with plaintiff on the fourth factor). For example, when a...