Salarian v. Blinken

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MANI SALARIAN; FIROOZ SALARIAN, Plaintiffs, v. ANTONY J. BLINKEN, U.S. Secretary of State, Defendant.

No. 23cv1315-LL-BJC

United States District Court, S.D. California

August 30, 2024

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

[ECF NO. 4]

Linda Lopez, United States District Judge

Before the Court is Defendant Antony J. Blinken's (“Defendant”) Motion to Dismiss Plaintiffs Mani Salarian's and Firooz Salarian's (collectively “Plaintiffs”) Complaint. ECF No. 4 (“Motion” or “Mot.”). Defendant's Motion has been fully briefed, and the Court deems it suitable for submission without oral argument. S.D. Cal CivLR 7.1(d). For the reasons stated below, the Court DENIES Defendant's Motion to Dismiss.

I. BACKGROUND

A. Plaintiffs' Complaint

Plaintiff Mani Salarian, a United States citizen, filed an I-130 visa petition with U.S. Citizenship and Immigration Services (“USCIS”) on behalf of his father, Plaintiff Firooz Salarian. ECF No. 1 (“Complaint” or “Compl.”) ¶ 67. Plaintiff Firooz Salarian is an Iranian national and currently lives in Iran. Id. ¶ 68. USCIS approved Plaintiffs' I-130 petition and forwarded the petition to the National Visa Center (“NVC”) for pre-processing. Id. ¶ 70. On September 1, 2022, Plaintiffs filed Form DS-260 to the NVC. Id. ¶ 2. On May 22, 2023, Plaintiff Firooz Salarian was interviewed by the consular section of the U.S. Embassy in Yerevan. Id. ¶ 73. Following the interview, Plaintiff Firooz Salarian completed and submitted Form DS-5535, which requested “15 years of detailed history including addresses, employment, travel, and social media handles.” Id. ¶ 76. On May 30, 2023, the Embassy confirmed receipt of Form DS-5535. Id. ¶ 77. Plaintiff Firooz Salarian's application was then placed in “an indefinite state of additional administrative processing with no timeline for completion.” Id. ¶ 82. Plaintiffs contacted the U.S. Embassy numerous times following the interview to inquire about the status of Plaintiff Firooz Salarian's application. Id. ¶ 81. Plaintiff Firooz Salarian's application, however, remains pending. Id. ¶ 82.

As a result of the “unreasonable delay in adjudication,” “Plaintiffs have been separated from one another” and are “faced with the prospect of being separated indefinitely.” Id. ¶ 8. Plaintiffs allege the delay in the adjudication of Plaintiff Firooz Salarian's application has placed a severe emotional and financial strain on the Plaintiffs. Id. ¶¶ 88, 93. Both Plaintiffs are concerned about Plaintiff Firooz Salarian's health because he has advanced stage Parkinson's disease. Id. ¶¶ 6, 90, 91.

On July 17, 2023, Plaintiffs filed this action seeking declaratory and injunctive relief and a writ of mandamus to compel the State Department to adjudicate Plaintiff Firooz Salarian's visa application. See generally id. On September 18, 2023, Defendants moved to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction and/or failure to state a claim. See Mot. On October 5, 2023, Plaintiffs filed an Opposition to the Motion. ECF No. 5 (“Opposition” or “Oppo.”). On October 16, 2023, Defendant filed its Reply in support of the Motion. ECF No. 6 (“Reply”).

On November 11, 2023, Plaintiffs filed an Ex Parte Request for Leave to File Notice of Supplemental Authority. ECF No. 7. Further, on December 17, 2023, Plaintiffs filed a Second Ex Parte Request for Leave to File Notice of Supplemental Authority. ECF No. 8.

On December 19, 2023, Defendant filed an opposition to the previous Ex Parte Requests. ECF No. 9. On January 22, 2024, Plaintiffs filed an Ex Parte Request for Leave to File a Declaration from Carson Wu. ECF No. 10. Defendant filed an opposition to this request on January 23, 2024. ECF No. 11.^[1] On April 5, 2024, Plaintiffs filed a Third Ex Parte Request for Leave to File Notice of Supplemental Authority. ECF No. 12. Defendant filed an opposition to this request on April 7, 2024. ECF No. 13. On August 25, 2024, Plaintiff filed a Fourth Ex Parte Request for Leave to File Notice of Supplementary Authority. ECF No. 16. On August 26, 2024, Defendant filed an opposition to this request. ECF No. 17.^[2]

B. Declaration of Matthew McNeil

A declaration provided in support of the Defendant's Motion provides information from the Consular Consolidated Database (“CCD”) regarding Plaintiff Mani Salarian's petition on behalf of his father, Plaintiff Firooz Salarian, and information regarding Plaintiff Firooz Salarian's visa application. See ECF No. 4-1, Declaration of Matthew McNeil (“McNeil Decl.”).

Consistent with Plaintiffs' Complaint, the CCD records indicate that Plaintiff Mani Salarian filed an I-130 petition on behalf of his father, Plaintiff Firooz Salarian. Id. ¶ 4. On April 29, 2022, USCIS approved the I-130 petition. Id. The NVC received the approved petition, and on May 5, 2022, NVC created a case file, assigned a case number, and on February 28, 2023, transmitted it to the U.S. Embassy in Yerevan, Armenia. Id. ¶¶ 5-6. On May 22, 2023, Plaintiff Firooz Salarian appeared for his consular interview and applied for an immigrant visa. Id. ¶ 8. Also on May 22, 2023, consular staff sent a request to Plaintiff Firooz Salarian for additional information consistent with Form DS-5535, Supplemental Questions for Visa Applications. Id. On May 30, 2023, the U.S. Embassy in Yerevan received Plaintiff Firooz Salarian's completed responses to Form DS-5535. Id. ¶ 9. “On August 11, 2023, the consular officer entered a refusal of Firooz Salarian's visa application under INA § 221(g), 8 U.S.C. § 1201(g), into the Department's visa application record.” Id ¶ 10. The additional security screening for Plaintiff Firooz Salarian's visa application remains ongoing. Id ¶ 11.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction,” possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint based on a court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992); Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir. 2006) (citation omitted).

Rule 12(b)(1) motions can challenge a court's subject matter jurisdiction on either facial or factual grounds. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “A facial attack accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). (internal quotation marks and citation omitted). Conversely, a factual attack “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Id. (citations omitted); see also St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (noting that a Rule 12(b)(1) motion challenging a court's subject matter jurisdiction on factual grounds may “rely on affidavits or any other evidence properly before the court”).

B. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must plead sufficient factual allegations to “state a claim to relief that is plausible on its face.” Id. at 570. A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A court may accept all factual allegations as true, but it need not accept legal conclusions as true. Id.; Twombly, 550 U.S. at 555.

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A court may grant a Rule 12(b)(6) dismissal when the plaintiff fails to present a cognizable legal theory or allege sufficient facts to support a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). While a complaint “does not require ‘detailed factual allegations,'” to avoid a Rule 12(b)(6) motion to dismiss, it does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted).

III. DISCUSSION

Defendant has moved to dismiss Plaintiffs' Mandamus and APA claims under Rule 12(b)(1) and Rule 12(b)(6). When a complaint seeks identical relief under the APA and the Mandamus Act, courts routinely elect to only analyze the APA claims. See Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022) (citation omitted); Salihi v. Blinken, No. 23-CV-718-MMA-AHG, 2023 WL 8007348, at *6 (S.D. Cal. Nov. 17, 2023). The Court therefore only addresses Plaintiffs' APA claims.

Defendant argues that Plaintiffs fail to allege sufficient facts to state that Defendant has unreasonably delayed adjudication of Plaintiff Firooz Salarian's visa application under Rule 12(b)(6...