Shoaie v. Blinken

1

FARHAD SHOAIE, et al. Plaintiffs, v. ANTONY J. BLINKEN, et al. Defendants.

No. 1:24-cv-01513 (GMH)

United States District Court, District of Columbia

November 6, 2024

MEMORANDUM OPINION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

Plaintiff Farhad Shoaie (“Plaintiff Shoaie”) is a U.S citizen and the petitioner of a Form I-130 Petition for Alien Relative seeking a family-sponsored immigrant visa on behalf of their^[1]sibling, Plaintiff Faramarz Showaii, his wife, Hashemi Shirazi, and their minor children, B.D.S. and R.S.S. (collectively, “Applicant Plaintiffs”) who are Iranian nationals. On January 19, 2023, Applicant Plaintiffs were interviewed concerning their immigrant visa applications by the Consular Section of the U.S. Embassy in Ankara, Turkey. Shortly after the interview, Applicant Plaintiffs were notified that their visa applications were “refused” under the Immigration and Nationality Act Section 221(g) and subject to “administrative processing.” As of the date of this Memorandum Opinion Applicant Plaintiffs' visa applications have not overcome the Section 221(g) refusal.

Plaintiffs bring this suit to compel Defendant Antony J. Blinken, in his official capacity as U.S. Secretary of State, and Defendant Robert Jachim, in his official capacity as Acting Director of the Office of Screening, Analysis, and Coordination within the Department of State, to promptly adjudicate Applicant Plaintiffs' immigrant visa applications. Plaintiffs allege four causes of action arising under the Mandamus Act 28 U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 706(1), 706(2), generally claiming that the delay in processing Applicant Plaintiffs' visa applications is unreasonable and seeking an order compelling the government to adjudicate the applications within 21 days. Defendants filed a motion to dismiss three of the complaint's four counts under Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6), arguing that Plaintiffs' claim that Defendants have failed to act on the visa applications in violation of the Mandamus Act (Count I) and/or have unreasonably delayed their adjudication under the APA (Counts II and IV) are deficient for two threshold reasons and fail to state a claim on the merits. Plaintiffs oppose the motion.

Upon thorough consideration of Defendants' motion and the record,^[2] the motion to dismiss will be granted and Plaintiffs' claims for failure to act on the visa applications under the Mandamus Act (Count I) and for unreasonably delaying their adjudication under the APA (Counts II and IV) will be dismissed for failure to state a claim. Because Defendants' motion makes no argument to dismiss Count III of the complaint, which challenges as arbitrary and capricious under Section 706(2) of the APA Defendants' failure to issue the required number of family-sponsored preference category visas, it will not be dismissed.

I. BACKGROUND

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes consular offices to issue immigrant visas to foreign nationals seeking to enter the United States. See 8 U.S.C. § 1201; 22 C.F.R. § 42.71. One of the primary methods by which immigrants seek to enter the United States is through family-sponsored visas, including visas which may be issued to the sibling of a United States citizen. See 8 U.S.C. §§ 1151, 1153(a)(1)-(4). The sibling seeking a family-sponsored visa is considered a “principal applicant.” 9 Foreign Affairs Manual (“FAM”) 502.1-1(C)(1). The spouse and children of a principal applicant may be entitled to obtain a family-sponsored visa if accompanying the principal applicant or later joining the principal applicant in the U.S. See 8 U.S.C. § 1153(d) (“A spouse or child . . . shall, . . . be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”); 9 FAM 502.1-1(C)(2) (referring to the spouse or child of a principal applicant as a “derivative” applicant).

A family-sponsored immigrant visa application is initiated when a U.S. citizen files a Form I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services (“USCIS”). See Form I-130, Petition for Alien Relative (June 3, 2024), https://www.uscis.gov/i-130 [https://perma.cc/M57W-Z8V2]. The I-130 form is intended to establish that the petitioner has a qualifying relationship with an eligible relative. Id. When the USCIS determines an eligible relationship exists, it “approves” the petition and forwards it to the U.S. Department of State's National Visa Center (“NVC”). U.S. Citizenship and Immigr. Servs., I am a U.S. Citizen How do I help my relative become a U.S. permanent resident? 2 (2013), https://www.uscis.gov/sites/de-fault/files/document/guides/A1en.pdf [https://perma.cc/2SFA-P7KK]. The NVC keeps track of approved petitions and notifies the petitioner and the approved family members when it is time to submit a visa application and schedule an interview with the appropriate consulate office. Id. (“When [the] relative's place in line permits issuance of a visa number, the NVC will notify [petitioner] and [the] relative, inviting him or her and qualifying dependents to apply for immigrant visas.”).

Every person applying for an immigrant visa must submit an application. See 22 C.F.R. § 42.63(a)(1) (“Every alien applying for an immigrant visa must make application, as directed by the consular officer, on Form DS-230, Application for Immigrant Visa and Alien Registration, or on Form DS-260, Electronic Application for Immigrant Visa and Alien Registration.”). The INA places the burden of proof on the applicant to establish eligibility to receive a visa. 8 U.S.C. § 1361. Each applicant must pay a processing fee and submit supporting documentation, including an affidavit and certain police certificates. 9 FAM 504.1-2(b)(2). Once the application and supporting documents have been submitted and fees paid, the petition is “documentarily complete,” and the applicants may schedule a consulate interview. Id. 504.1-2(d). Each applicant must appear before a consular officer to execute the application and undergo an interview. See 22 C.F.R. § 42.62(a) (“Every alien applying for an immigrant visa . . . shall be required to appear personally before a consular officer for the execution of the application . . .”); id. § 42.62(b) (“Every alien executing an immigrant visa application must be interviewed by a consular officer . . .”).

Based on the applicant's representations during the interview and the executed visa application, the consular officer must determine “[t]he applicant's eligibility to receive a visa,” id. § 42.62(b)(1)(ii), and “must either issue the visa or refuse it . . .,” 9 FAM § 504.9-2. Under the FAM, a consular officer “cannot temporarily refuse, suspend . . . or hold the visa for future action.” 9 FAM § 504.9-2. Rather, as relvant here, “[w]hen a visa application has been properly completed and executed before a consular officer . . ., the consular officer must issue the visa, [or] refuse the visa under INA 212(a) or 221(g) or other applicable law ....” See 22 C.F.R. § 42.81(a); see also id. § 40.6 (“A visa can be refused only upon a ground specifically set out in the law or implementing regulations.”). Under INA Section 221(g)-the statutory provision at issue here^[3]-a consular officer shall refuse a visa if it appears that the application does not comply with the INA. See 8 U.S.C. § 1201(g); 9 FAM 301.4-1(b)(14) (characterizing a Section 221(g) refusal as a refusal in which the “[a]pplication does not comply with the INA”). Specifically, a consular officer shall refuse a visa under INA Section 221(g) if (1) based on the application and the papers submitted therewith, the applicant is ineligible to receive a visa under Section 1182 of the INA, which identifies classes of inadmissible aliens; (2) the application itself fails to comply with the INA or its regulations; or (3) “the consular officer knows or has reason to believe that such alien is ineligible to receive a visa . . . under section 1182 [of the INA], or any other provision of law.” 8 U.S.C. § 1201(g); see also id. § 1182. Among other things, Section 1182 permits visas to be refused on health-related grounds, criminal-related grounds, and security-related grounds. See Id. § 1182(a)(1)-(10). Further the FAM permits a consular officer to refuse a visa under Section 221(g) where “[t]he applicant fails to furnish information” necessary for the application or “[t]he application contains a false or incorrect statement.” 9 FAM 302.1-8(B)(a).

Importantly, a refusal under Section 221(g) may be overcome. See 9 FAM 403.10-4 (“[T]he applicant is entitled to present evidence to overcome a presumption or finding of ineligibility. It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa.”); see also 8 U.S.C. § 1361 (“If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa . . . no visa or other document required for entry shall be issued to such person, . . . unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.” (emphasis added)). For example, the FAM directs that a visa refused for failure by the applicant to furnish information “does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations.” 9 FAM 302.1-8(B)(b).

“[W]hen the applicant has presented additional evidence that allows [a consular officer] to re-open and re-adjudicate the case,” the...