Khoshrou v. Blinken

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BABAK KHOSHROU et al., Plaintiffs, v. ANTONY J. BLINKEN, et al., Defendants.

Civil Action No. 22-2859 (CKK)

United States District Court, District of Columbia

August 2, 2023

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

In this action, Plaintiffs, citizens of Iran, seek declaratory relief ordering officials of the United States Department of Homeland Security (“DHS”) and Department of State (“State Department”) to render decisions on their F-1 student visa applications without further delay, pursuant to the Administrative Procedure Act's (“APA”) bar on “unreasonabl[e] delay.” 5 U.S.C. § 706(1).

Now pending before the Court is Defendants' [12] Motion to Dismiss Plaintiffs' Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). All parties agree that Plaintiffs Matin Alsadat Mostaan, Samaneh Mollaramezani Mohammad Parvin, and Abasali Masoumi received final decisions on their visa applications and therefore their claims are now moot. Pls.' Opp'n at 1; Defs.' Mot. at 9. The only remaining Plaintiff is Babak Khoshrou. Upon review of the briefing,^[1] the relevant legal authority, and the record as a whole, the Court shall DENY AS MOOT Defendants' Motion to Dismiss as to Plaintiffs Matin Alsadat Mostaan, Samaneh Mollaramezani, Mohammad Parvin, and Abasali Masoumi as their visa applications have been resolved and all parties agree their claims are moot; GRANT Defendants' Motion to Dismiss as to Plaintiff Babak Khoshrou; and DISMISS Plaintiffs' [1] Complaint in its entirety.

I. BACKGROUND

A. Procedural History

Plaintiffs initiated this lawsuit in September 2022. Through this action, Plaintiffs seek to compel the Government to decide their various requests for F-1 student visas. See generally Compl. Defendants filed the pending Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. Defs.' Mot. at 1.

This Motion is now fully briefed and ripe for the Court's review. In their opposition, Plaintiffs write that they agree that the claims of Plaintiffs Matin Alsadat Mostaan, Samaneh Mollaramezani, Mohammad Parvin, and Abasali Masoumi are now moot. Pls.' Opp'n at 1. Accordingly, as the Court will grant Defendants' Motion to Dismiss as to those claims, with Plaintiffs' consent, the Court addresses below only the procedural history of the applications of the remaining Plaintiff, Babak Khoshrou.

B. Visa Application of Plaintiff Babak Khoshrou

Plaintiff Babak Khoshrou is a citizen of Iran who seeks issuance of an F-1 student visa. Compl. ¶¶ 8, 31. Mr. Khoshrou was admitted to a master's program at Kettering University in December 2021 and intended to enroll in April 2022. Id. ¶ 32. Mr. Khoshrou completed the DS-160 application form and attended an interview at the U.S. Embassy in Yerevan, Armenia on February 4, 2022. Id. ¶ 33. At the interview, the consular officer reviewing Mr. Khoshrou's documents informed him that his application was “refused under section 221(g) of the U.S. Immigration and Nationality Act” because it was “undergoing administrative processing.” Id. ¶ 35. Later that same day, Mr. Khoshrou received an email request from the Embassy for additional personal information; he submitted answers to those questions on February 6, 2022. Id. ¶¶ 36-37. On February 7, 2022, the Embassy acknowledged receipt and alerted Mr. Khoshrou that his “administrative processing has started.” Id. ¶ 38. Since then, Plaintiff's application has remained in administrative processing. Id. ¶¶ 39-42.

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Jurisdiction

On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, 442 F.Supp.3d 87, 91-92 (D.D.C. 2020) (JDB); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether there is jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).

However, “the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (RMU). A court need not accept as true “‘a legal conclusion couched as a factual allegation'” or an inference “‘unsupported by the facts set out in the complaint.'” Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

B. Motion to Dismiss for Failure to State a Claim

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint is not sufficient if it “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Nat'l Postal Prof'l Nurses v. U.S. Postal Serv., 461 F.Supp.2d 24, 27 (D.D.C. 2006) (PLF).

When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint” or “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted) (quoting Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002) (RBW); Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C. 2009)). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. DISCUSSION

Defendants present various arguments for dismissal of Plaintiff's Complaint. First, they argue that Plaintiffs lack standing as an unadmitted, nonresident non-citizen. They next argue that certain Defendants have no role in adjudicating Mr. Khoshrou's requested visa and, therefore, he lacks standing as against them. Defendants then argue that consular nonreviewability precludes judicial review. Finally, they argue that even if those grounds do not foreclose relief, Plaintiffs' mandamus claims fail on the merits and therefore should be dismissed for failure to state a claim. The Court now addresses these arguments in turn.

A. Standing

To establish Article III standing, a plaintiff must demonstrate an injury in fact that is caused by the defendant's conduct and is redressable by the court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

First, Defendants allege that Mr. Khoshrou lacks standing as an unadmitted, nonresident non-citizen. See Defs.' Mot. at 4-9. It is true that nonresidents lack standing to challenge decisions associated with their visa applications. See Trump v. Hawaii, 138 S.Ct. 2392, 2419 (2018) (“foreign nationals seeking admission have no constitutional right to entry”); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (“[defendant] personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country”). However, unadmitted nonresidents do have standing to challenge delays in the processing of their visa applications. Shen v. Pompeo, No. 20-1263 (ABJ), 2021 WL 1246025, at *6 (D.D.C. Mar. 24, 2021). In the instant case, there has been no decision regarding Mr. Khoshrou's visa application, as evidenced by repeated communications from the Embassy indicating that his visa remains in administrative processing. Compl. ¶¶ 35, 38, 41. Thus, Defendants' reliance on statutes and cases regarding denials of visa applications-as opposed to delays-is not convincing.

Further Defendants assert that Mr. Khoshrou lacks standing because he does not have a legally protected interest, pointing to Supreme Court precedent that noncitizens have no right to a visa. Defs.' Mot. at 9 (citing Kleindienst, 408 U.S. at 762, and De Avilla v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981) (“Visa applicants have no vested right in the issuance of visas”)). But Mr. Khoshrou is not arguing that he has a right to a visa. Rather, he is asserting a right to a final decision on his visa application under the APA. In cases similar to the one at hand, courts have held that plaintiffs who have not received a final decision on their visa application have suffered an injury in fact: “the failure to receive...