Giliana v. Blinken

596 F.Supp.3d 13

Dan GILIANA, Plaintiff,

v.Antony BLINKEN, in his official capacity as Secretary of State, et al., Defendants.

Case No. 21-cv-01416 (CRC)

United States District Court, District of Columbia.

Signed March 29, 2022

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

Patricia K. McBride, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Plaintiff Dan Giliana, a United States citizen, seeks to compel the Department of State to adjudicate his Iraqi fiancée's U.S. visa application, which has been pending for nearly four years. He also challenges the Department of Homeland Security's ("DHS") Controlled Application Review and Resolution Program ("CARRP"), an internal agency policy concerning the processing of visa applications that present potential national security concerns. The government has moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Because Giliana has not plausibly alleged that the delay in adjudicating his fiancée's visa application is unreasonable, or that she has been injured in any concrete way by CARRP, the Court will grant the government's motion and dismiss the case.

I. Background

Mr. Giliana is a United States citizen who resides in Arizona. See Compl. ¶ 6, ECF No. 1; Decl. of Dan Giliana ("Giliana Decl.") ¶¶ 1–3, ECF No. 5-1. His fiancée, Sandy Shamon, lives in Iraq. See Compl. ¶¶ 1, 15; see also Giliana Decl. ¶¶ 4, 7, 16.

In January 2018, Giliana filed a visa petition (Form I-129F) with the United States Citizenship and Immigration Services ("USCIS") to obtain lawful permanent resident status for Shamon. Compl. ¶¶ 13–14. USCIS approved that petition in June 2018. Id. ¶ 13. A few months later, in October 2018, a consular officer at the U.S. Embassy in Baghdad, Iraq interviewed Shamon and reviewed her visa application. Id. ¶ 15. Following the interview, according to Giliana, the consular officer informed Shamon that her application was being placed under "administrative processing" and that she needed to answer additional questions about her prior occupations and contact information. See id. ¶ 16; Giliana Decl. ¶¶ 8–9. Since then, Giliana alleges that he and Shamon have repeatedly inquired about the status of her visa application, but the government has provided "no meaningful responses" and does not "publish any information on processing times for [applications in] ‘administrative processing.’ " See Compl. ¶¶ 17–18.

Giliana further alleges "on information and belief" that the government is "intentionally delaying this immigration case" through a program known as CARRP (the Controlled Application Review and Resolution Program). Compl. ¶ 41; id. ¶¶ 37–41. Per the complaint, CARRP is an internal DHS policy that prohibits the approval of any visa application that presents a "national security concern" and directs consular officers to either deny the application or delay adjudication, often indefinitely. Id. ¶¶ 38–39. CARRP allegedly targets applications from predominantly Muslim countries. Id. ¶ 38.

In May 2021, Giliana brought suit against a host of government officials under the Administrative Procedure Act's ("APA") unreasonable delay provision, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. He seeks an order directing the government to process Shamon's visa application within fifteen days and declaratory and injunctive relief as to CARRP. The government moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6) ; Giliana filed an opposition and a motion for summary judgment, attaching a supporting declaration to both. The matter is now ripe for the Court's decision.

II. Legal Standards

When analyzing a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a court "must treat the complaint's factual allegations as true, and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (cleaned up); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). But a court need not accept a plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). When reviewing a challenge under Rule 12(b)(1), "the court may consider documents outside the pleadings to assure itself that it has jurisdiction," Sandoval v. U.S. Dep't of Justice, 322 F. Supp. 3d 101, 104 (D.D.C. 2018) (Cooper, J.), and the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Under Rule 12(b)(6), "a court may ordinarily consider only ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint[,] and matters about which the Court may take judicial notice.’ " Sandoval, 322 F. Supp. 3d at 104 (citation omitted).

Because the Court will grant the government's motion to dismiss, it need not recite the summary judgment standard.

III. Analysis

The Court first will address, and reject, the government's argument that the doctrine of consular non-reviewability precludes the Court from reviewing Giliana's unreasonable delay claim. It then will turn to the merits of that claim. The Court will conclude by briefly addressing Giliana's challenge to CARRP.

A. Consular Non-Reviewability and "Administrative Processing"

Under the doctrine of consular non-reviewability, "courts do not typically have subject-matter jurisdiction to review visa denials because consular officers ‘have complete discretion over issuance and revocation of visas.’ " See Rohrbaugh v. Pompeo, 394 F. Supp. 3d 128, 131 (D.D.C. 2019) (Cooper, J.) (quoting Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 n.2 (D.C. Cir. 1999) ). While the doctrine "clearly applies to final visa determinations, ... it does not apply to challenges regarding decisions that are not yet final." Joorabi v. Pompeo, 464 F. Supp. 3d 93, 100 (D.D.C. 2020).

After an initial interview, a visa application "must be issued or refused," but a refusal is often not final because the application may be subject to "further administrative processing." See 9 FAM 403.10-2(A), 403.10-3(A)(2)(2)(b); Ramirez v. Blinken, No. 21-cv-1099 (CRC), ECF No. 14, slip op. at 10 (D.D.C. Mar. 22, 2022) (Cooper, J.). Administrative processing generally means that additional information is needed before a consular officer can determine whether an applicant is qualified for the visa for which she has applied. See Administrative Processing Information , U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-processing-information.html (last visited Mar. 29, 2022); 9 FAM 306.2-2(A)(a)(2)(a). There is nothing unusual about this practice, but it means that the initial "refusal" is not the end of the process. Accordingly, courts have consistently held that when an " ‘application is still undergoing administrative processing, even where a refusal has been relayed, the decision is not final,’ and thus ‘claims alleging unreasonable delay while a case remains suspended in ‘administrative processing’ are not barred by the doctrine of consular nonreviewability.’ " See Ibrahim v. U.S. Dep't of State, No. 19-cv-610 (BAH), 2020 WL 1703892, at *5 (D.D.C. Apr. 8, 2020) (collecting cases) (quoting Ghadami v. U.S. Dep't of Homeland Sec., No. 19-cv-00397 (ABJ), 2020 WL 1308376, at *5 (D.D.C. Mar. 19, 2020) ). Such is the case here. See Compl. ¶¶ 1, 16, 18, 29.

The government nonetheless insists that Shamon's application has been definitively "refused" and is "not in ‘administrative processing.’ " Mot. Dismiss at 8. It points to the State Department's Consular Electronic Application Center ("CEAC") database, where one can check a visa application's status. The CEAC system indicates that Shamon's application is "refused." Reading further, however, it also states: "If you were informed by the consular officer that your case was refused for administrative processing, your case will remain refused while undergoing such processing. You will receive another adjudication once such processing is complete." See Visa Status Check , U.S. Dep't of State, CEAC, https://ceac.state.gov/ceacstattracker/status.aspx (search for Shamon's case as of Mar. 22, 2022). That is exactly the situation Giliana alleges Shamon is in.¹

The D.C. Circuit's decision in Baan Rao Thai Restaurant v. Pompeo, 985 F.3d 1020 (D.C. Cir. 2021), on which the government relies, is not to the contrary. Baan Rao simply reiterated a line from a prior case that "[c]onsular nonreviewability shields a consular official's decision to issue or withhold a visa from judicial review, at least unless Congress says otherwise." Id. at 1024 (citing Saavedra Bruno, 197 F.3d at 1159 ). It does not mention "administrative processing" at all. And again, Giliana is challenging the delay in rendering a decision, not an actual final decision made by a consular officer. In short, nothing in Baan Rao even hints that it upends the many cases holding that this doctrine does not apply to unreasonable delay claims for visa applications undergoing administrative processing.

B. Unreasonable Delay

Turning to the merits, the Court will assess Giliana's claim that the government's delay in processing Shamon's visa violates the APA and Mandamus Act. The APA "imposes a general but nondiscretionary duty" on agencies "to pass upon a matter presented to it ‘within a reasonable time,’ " Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. § 555(b) ), and it authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). When courts...