Khan v. Bitter

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MURAD MUNAWAR KHAN, Plaintiff, v. RENA BITTER, et al., Defendants.

Civil Action No. 23-1576

United States District Court, District of Columbia

February 23, 2024

MEMORANDUM OPINION

Beryl A. Howell, United States District Judge

Plaintiff Murad Munawar Khan, a citizen of the United States currently residing in Miami, Florida, seeks to compel defendants, Rena Bitter, Assistant Secretary of the Bureau of Consular Affairs of the U.S. Department of State, Andrew Schofer, Deputy Chief of Mission of the U.S. Embassy in Pakistan, and Antony Blinken, Secretary of the U.S. Department of State (collectively “the Defendants”), in their official capacities, to adjudicate the visa petition of his wife, Fnu Asma, which has now been pending without decision for approximately twenty-nine months since the filing of the visa petition. Petition for Writ of Mandamus and Complaint for Injunctive Relief (“Compl.”) ¶¶ 1-2, 10, 17, ECF No. 1. Plaintiff claims that defendants have unreasonably delayed adjudication of his wife's visa application under the Administrative Procedure Act, 5 U.S.C § 706(1), and the Mandamus Act, 28 U.S.C. § 1361 and violated his due process rights under the Fifth Amendment. Id. ¶¶ 23-39. Defendants now move to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for failure to state a claim under Rule 12(b)(6). Defs.' Mot to Dismiss (“Defs.' Mot.”) at 1, ECF No. 6. For the reasons explained below, defendants' motion is granted.

I. BACKGROUND

A review of the statutory and regulatory background underlying the claims is below, followed by a summary of the factual and procedural history of this case.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., allows for the issuance of immigrant visas, including for relatives of U.S. citizens. See 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1), (b). A U.S. citizen seeking permanent resident status for a spouse or other family member may fill out a Form I-130, Petition for Alien Relative, with U.S. Customs and Immigration Services (“USCIS”). 8 U.S.C. §§ 1154, 1151(b)(2)(A)(i) (defining a spouse as an “immediate relative[]” of a citizen for the purposes of Form I-130 petitioners); 8 C.F.R. § 204.1(a)(1). If USCIS approves the petition, the case is forwarded to the National Visa Center (“NVC”) for processing. 8 C.F.R. § 204.2(a)(3). The NVC serves as the visa application processing center for the U.S. Department of State (“State Department”). Id.

Following approval of the petition, the foreign spouse must submit paperwork and processing fees to the NVC. See 22 C.F.R. § 42.67 (outlining application fees and additional documentation that an applicant must submit to the NVC to complete their application). After processing the requisite materials, the NVC schedules a consular interview for the applicant at the embassy with jurisdiction over the applicant's residence. Id. § 42.62. The consular officer must either issue or refuse the visa following the interview. Id. § 42.81(a).

B. Factual Background

In September 2021, plaintiff filed an I-130 visa petition with USCIS on behalf of his wife, Fnu Asma. See Compl. ¶¶ 1, 17. Plaintiff intended to secure lawful permanent resident status for Ms. Asma, who currently resides in Pakistan, to enable her to join him in the United States. See id. ¶¶ 8, 19. In May 2022, USCIS approved plaintiff's wife's visa petition and transferred it to the NVC. See id. ¶¶ 18, 20. In November 2022, the NVC notified plaintiff and indicated that the visa petition for Ms. Asma was “Documentarily Qualified,” “meaning that all necessary documents had been submitted” and that the “visa application is pending to be scheduled for an interview.” Id. ¶ 20. Ms. Asma's case, according to the Department of State Consular Electronic Application Center (CEAC), is currently “at [the] NVC.” id. ¶ 21 (alteration in original). Plaintiff contends that since 2022, when USCIS approved plaintiff's I-130 petition, he has received no meaningful updates about the status of his wife's visa application. id. ¶ 22.

Plaintiff alleges that, as a result, he and his wife have suffered “significant personal, financial, and emotional hardship” due to the delay of their reunification. id. ¶ 6. Plaintiff and his wife were married in August 2021 and have been separated since shortly after. id. ¶ 8. They have been unable to plan for their future, have children, and start a family. id. Plaintiff states that he has trouble focusing on his work and studies, which “has a negative impact on his career and future earning potential.” id. The delay has also hindered his wife's pursuit of her education and acquisition of a job in Pakistan or the United States, and placed significant financial strain on plaintiff, who must support his wife and pay her expenses. id. ¶ 9.

C. Procedural History

On June 2, 2023, approximately eight months after his last notification from the NVC stating that the visa petition for Ms. Asma was “Documentarily Qualified” and awaiting scheduling of an interview, Plaintiff filed a petition with three causes of action to “compel [d]efendants to take action on and adjudicate his wife's . . . I-130 visa application.” Compl. ¶ 1. Plaintiff maintains that the defendants retain jurisdiction over his wife's visa application and that defendants have “a nondiscretionary duty to review and adjudicate” visa applications within a “reasonable time,” which duty he seeks to enforce with relief under the Administrative Procedure Act (“APA”) and the Mandamus Act. id. ¶¶ 24-35. Plaintiff additionally alleges that the delay is “egregious” and “without any rational justification,” and that he has suffered deprivation of his due process rights under the Fifth Amendment. id. ¶¶ 38-39. Plaintiff requests a writ of mandamus directing defendants to adjudicate his wife's visa petition within fifteen calendar days or as soon as reasonably possible, along with attorneys' fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504, et seq., and 28 U.S.C. § 2412, et seq., and any other relief that may be appropriate. Compl. ¶ 40.

In August 2023, defendants moved to dismiss plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.' Mot. at 1. With briefing complete, see Pl.'s Opp'n Defs.' Mot. Dismiss (“Pl.'s Opp'n”), ECF No. 7; Defs.' Reply Supp. Mot. Dismiss (“Defs.' Reply”), ECF No. 9, defendants' motion is ripe for resolution.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 572 U.S. 744, 757-58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely consistent with' a defendant's liability” but “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint, accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555. Courts do not, however, “assume the truth of legal conclusions . . . nor . . . ‘accept inferences that are unsupported by the facts set out in the complaint.'” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal citation omitted) (quoting Islamic Am. Relief Agency v. Gonzalez, 477 F.3d 728, 732 (D.C. Cir. 2007)). “In determining whether a complaint fails to state a claim,” a court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [courts] may take judicial notice.” Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)).

III. DISCUSSION

Defendants argue that dismissal of the complaint is required because plaintiff's claimed delay in the adjudication of his wife's visa is not unreasonable “as a matter of law under the factors identified in Telecommunications Research & Action Center,” Defs.' Mot. at 1-2 (citing Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984)), and does not support any claimed violation of plaintiff's due process rights, id. at 26.^[1] Defendants are correct.

A. Unreasonable Delay

Defendants contend that plaintiff's allegations about the delay in adjudicating his wife's visa application, even if assumed to be true, are insufficient to state a plausible claim for relief. Defs.' Mot. at 14-26. The law is well-settled that the APA requires agencies to “proceed to conclude a matter presented to [them]” in a “reasonable time,” 5 U.S.C. § 555(b), and authorizes reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). In determining whether a delay in agency action is unreasonable, the D.C. Circuit has enumerated six so-called “TRAC” factors for consideration:

(1) [T]he 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;

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