Rahimian v. Blinken

1

YOUSOF RAHIMIAN, Plaintiff, v. ANTONY J. BLINKEN, in his official capacity as Secretary of State, et al., Defendants.

Civil Action No. 22-785 (BAH)

United States District Court, District of Columbia

January 10, 2023

MEMORANDUM OPINION

BERYL A. HOWELL Chief Judge.

Plaintiff Yousof Rahimian, a U.S. citizen, seeks to compel defendants-various federal officials in their official capacities-to adjudicate his wife's visa application which has been pending without decision for over three years. Amended Compl. (“Am. Compl.”) ¶ 14, ECF No 2. Plaintiff claims defendants have unreasonably delayed the visa application in violation of the Administrative Procedure Act (“APA”), id. ¶ 14-29, and the Mandamus Act, id. ¶ 30-34, and have done so intentionally by applying the policies of the Controlled Application Review and Resolution Program (“CARRP”) to their review of the visa application, id. ¶ 35-39, in violation of the Immigration and National Act (“INA”), 8 U.S.C § 1101 et seq., Article 1, Section 8, Clause 4 of the U.S. Constitution, the Fifth Amendment of the U.S. Constitution, and the APA, id. ¶ 40. Defendants have moved to dismiss this case 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. Dismiss & Mem. Supp. Mot. Dismiss (“Defs.' Mot.”) at 1, ECF No. 8. For the reasons set forth below, defendants' motion to dismiss is granted.

I. BACKGROUND

Following a brief review of the statutory and regulatory background, the factual history underlying the claims and procedural history of this case are summarized below.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes the issuance of visas to different categories of immigrants, including relatives of U.S. citizens. 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1), (b). A U.S. citizen seeking to obtain lawful permanent resident status for an immediate relative, including a spouse, must file 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”), which is the U.S. Department of State (“State Department”) visa application processing center. Id. § 204.2(a)(3). The foreign spouse must then submit additional paperwork and fees to NVC. See 22 C.F.R. § 42.67 (outlining application fees and additional documentation that an applicant must submit to NVC to complete the application, including an oath and a signature on Forms DS-230 and 260, a “[f]orm of attestation for certain repeat applications due to COVID-19,” registration requirements, and fingerprints). After processing the requisite materials, NVC schedules an interview for the applicant with a consular officer at the embassy with jurisdiction over the applicant's residence. Id. § 42.62. Following the interview, the consular officer must either issue or refuse the visa. Id. § 42.81(a).

B. Factual Background

In February 2018, plaintiff filed an I-130 visa petition on his wife's behalf with USCIS, hoping to have her join him in the United States as a lawful permanent resident. Am. Compl. ¶¶ 1, 14. USCIS approved plaintiff's petition on July 24, 2019, and forwarded the application to NVC on November 6, 2019, id. (showing plaintiff's USCIS receipt number); Case Status Online, U.S. Citizenship & Immigration Servs., https://egov.uscis.gov/casestatus/landing.do (last visited on Jan. 9, 2023) (showing plaintiff's USCIS case status, based on the provided receipt number, as “Case Was Approved”), and plaintiff has paid all the requisite fees, Am. Compl. ¶¶ 25, 31. Unfortunately, and very frustrating to plaintiff and his spouse, the application has yet to be adjudicated. Id. ¶ 1. The next step in the process is for plaintiff's wife to attend a consular interview in Turkey, where she currently resides, so that her visa application can be finally adjudicated. 22 C.F.R. § 42.62; see Am. Compl. ¶ 1 (identifying plaintiff's State Department application number); Visa Status Check, U.S. DEP'T OF STATE, https://ceac.state.gov/CEACStatTracker/Status.aspx (last visited on Jan. 9, 2023) (showing plaintiff's case status, based on the provided application number, as “At NVC”).

In March 2020, the State Department temporarily suspended visa services at all U.S. embassies and consulates, including the embassy in Turkey, due to the onset of the COVID-19 pandemic. Suspension of Routine Visa Services, U.S. DEP'T OF STATE, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-archive/suspension-of-routine-visa-services.html (July 22, 2020).^[1]In July 2020, the State Department authorized a phased resumption of visa services. Id. Subsequently, in November 2021, the State Department returned broad discretion to embassies and consulates in determining how to prioritize appointments as safely as possible in all visa categories. Visa Services Operating Status Update, U.S. DEP'T OF STATE, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Nov. 19, 2021).

Despite efforts to resume pre-pandemic processing capabilities, many embassies and consulates face a substantial backlog of immigrant visa applications. See National Visa Center (NVC) Immigrant Visa Backlog Report, U.S. DEP'T OF STATE, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html (last visited Jan. 9, 2023); see also Briefing, Julie M. Stufft, Acting Deputy Assistant Secretary, Bureau of Consular Affairs, U.S. DEP'T OF STATE, Update on U.S. Immigrant Visa Processing at Embassies and Consulates (Mar. 9, 2021), https://www.state.gov/briefmgs-foreign-press-centers/update-on-u-s-immigrant-visa-processing-at-embassies-and-consulates/. This backlog has caused increased wait times for individual applicants awaiting an appointment date from NVC. Id. According to the State Department's website, the U.S. Embassy in Ankara, Turkey, much like other embassies around the world, is experiencing a substantial pandemic-related backlog in every visa category, resulting in significant delays in the scheduling of consular interviews. See Immigrant Visas, U.S. Embassy in Turkey, https://tr.usembassy.gov/visas/immigrant-visas/ (last visited Jan. 9, 2023). Nonetheless, the State Department has publicly committed “to resolve backlogs and process visas as quickly and efficiently as [it] can” while also ensuring that the “health and safety of [its] personnel and [its] clients coming into [the] consular sections abroad” remain “the department's highest priority during the pandemic.” Briefing, Julie Stufft.

Despite plaintiff's repeated attempts to contact NVC regarding his case, NVC has yet to provide any meaningful status update or any information on processing times. After USCIS approved plaintiff's petition on July 24, 2019, plaintiff sent multiple requests to USCIS and NVC inquiring as to the status of his petition. Declaration of Yousof Rahimian (“Rahimian Decl.”) at 1, ECF No. 9-2. Then, on December 8, 2020, NVC approved plaintiff's application and responded to his previous inquiries, informing him that the application had been approved. Pl.'s Opp'n Defs.' Mot. Dismiss (“Pl.'s Opp'n”) at 5, ECF No. 9. Plaintiff was then informed that his “case status had been moved to the final stage whereby an appointment would be scheduled at the U.S. Embassy in Turkey.” Id. at 5. On April 3 and 7, 2021, plaintiff sent expedite requests to NVC and explained “the strenuous circumstances [plaintiff's] wife was living under.” Rahimian Decl. ¶¶ 10-11. NVC responded on August 3, 2021, informing plaintiff that the embassy in Turkey would not grant plaintiff's wife an interview at that time. Id. ¶ 12. Plaintiff then requested that the case be transferred to the U.S. embassy in Abu-Dhabi, but the request was denied on September 8, 2021. Id. ¶ 12-13. Since then, plaintiff contacted NVC three times requesting updates and expedition of his application, but the Turkish embassy has not yet scheduled an interview for plaintiff's wife. Id. ¶¶ 14-17.

As a result, plaintiff and his wife have remained separated for more than five years with no indication as to when the delay in adjudicating the application may be resolved. Pl.'s Opp'n at 5-6. This prolonged separation “has caused significant personal and emotional hardship” for the couple. Am. Compl. ¶ 1. In plaintiff's words, “[i]n Muslim culture, once a woman is married, she is supposed to leave her parents and move in with her husband.” Id. Plaintiff's wife “moved out in November 2021,” and she “has been living alone in Turkey without support, waiting for the visa application to be issued.” Id. This delay has also placed significant financial strain on plaintiff, has delayed his wife's pursuit of her Ph.D., and has derailed plaintiff and his wife's plan to start a family. Id.

C. Procedural Background

On March 23, 2022, plaintiff filed this case “to compel the [d]efendants to take action on and adjudicate his wife's [] visa application.” Am. Compl. ¶ 1.^[2]Plaintiff alleges that “[d]efendants owe a non-discretionary duty to adjudicate this immigration case,” which duty he seeks to enforce with relief under the APA and the Mandamus Act. Id. ¶ 2. Plaintiff also claims that defendants have unlawfully delayed his wife's visa application, pursuant to the Controlled Application Review and Resolution Program (“CARRP”), a Department of Homeland Security program “which intentionally delays the applications of Muslims or those...