Stone v. Blinken

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SCOTT ALAN STONE, Plaintiff, v. ANTONY BLINKEN, RENA BITTER, and MARC D. DILLARD, Defendants.

No. 2:23-cv-12181

United States District Court, E.D. Michigan, Southern Division

July 26, 2024

Anthony P. Patti Mag. Judge

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 9)

Hon Brandy R. McMillion Judge

Before the Court is a Motion to Dismiss (ECF No. 9) filed by Defendants Antony Blinken, Rena Bitter, and Marc D. Dillard (“Defendants”).^[1]They seek dismissal of Plaintiff Scott Alan Stone's Petition for Writ of Mandamus and Complaint for Injunctive Relief (“the Petition”) (ECF No. 1). Having reviewed the parties' briefs, the Court finds oral argument unnecessary. See E.D Mich. LR 7.1(f). Because Plaintiff has not alleged sufficient facts to establish the delay in processing his noncitizen wife's visa application was unreasonable, the Court GRANTS Defendants' Motion to Dismiss.

I.

Under the Immigration and Nationality Act (“INA”), individuals can seek entry to the United States if they are an “immediate relative” of a U.S. citizen. See Hussein v. Beecroft, 782 Fed.Appx. 437, 439 (6th Cir. 2019) (citing 8 U.S.C. § 1151(b)(2)(A)(i)). To start the process, the U.S. citizen files a “Petition for Alien Relative,” with the United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security. Id. Also called an “I-130 Form,” the petition allows the U.S. citizen to seek “immediate relative” status for their noncitizen spouse. Id. (quoting 8 U.S.C. § 1154(a)(1)(A)(i)); see 8 C.F.R. § 204.1(a)(1). Once a petition is filed, USCIS initiates an investigation of the facts in the petition. Ahmed v. Miller, No. 19-11138, 2020 WL 3250214, *3 (E.D. Mich. June 16, 2020).

If approved, USCIS forwards the petition to the State Department's National Visa Center (“NVC”), and the beneficiary then fills out a visa application, also called a DS-260. See Akhter v. Blinken, No. 23-1374, 2024 WL 1173905, *1 (S.D. Ohio Mar. 19, 2024) (citation omitted). The NVC then works with the noncitizen beneficiary to obtain required paperwork and fees, and, once those are collected, the NVC marks the applicant as “documentarily qualified.” Id. (citing 22 C.F.R. § 40.1(h)). Documentarily qualified applicants can then apply for an immigrant visa. Id. (quoting 22 C.F.R. § 40.1(h)). This requires “personally appearing before a consular officer” for an interview. Id. (quoting 22 C.F.R. § 40.1(l)).

After obtaining documentarily qualified status, and the relevant U.S. Embassy has interview availability, the NVC schedules the applicant for a visa interview. Akhter, 2024 WL 1173905 at *2 (citation omitted). Each visa application is “reviewed and adjudicated by a consular officer,” who “must either issue or refuse the visa” once the application is properly completed and executed before the officer. Id. (quoting 8 U.S.C. § 1202(b) and 28 C.F.R. § 42.81(a)). That said, the INA limits the number of family-preference visas that may be issued each year for each “familypreference categor[y] . . . .” Id. The Foreign Affairs Manual further indicates that interviews are “generally scheduled in the chronological order of the documentarily complete applicants.” 9 FAM 504.1-2(d)(1); see Akhter, 2024 WL 1173905 at *2 (citing 9 FAM 504.1-2(d)(1)).

Plaintiff is a United States citizen from Brighton, Michigan. ECF No. 1, PageID.2, ¶ 1. His wife, Janeann Angara Stone, and their young son, KPS (a U.S. citizen), live in Kenya. Id. at PageID.4, ¶ 12. In August 2021, seeking to obtain lawful permanent resident status for Janeann, and to have her join him in the U.S., Plaintiff filed a visa petition with USCIS on Janeann's behalf. Id. at PageID.3, 5-6, ¶¶ 6, 18, 20. In January 2023, USCIS approved the petition. Id. at PageID.3, 5, ¶¶ 7, 19. And in February 2023, the NVC informed Plaintiff that his case was “‘Documentarily Qualified.'” Id. at PageID.6, ¶ 21. This meant that “all necessary documents had been submitted” and “that the visa application is pending to be scheduled for an interview.” Id. Plaintiff is unclear on what steps Defendants have taken on his wife's visa application, but, by all accounts, the application remains pending despite the approval of her petition.^[2]Id. at PageID.3, 6, ¶¶ 7-8, 21-23.

The failure to process Janeann's visa application has put an “indefinite hold” on reunification of this family. ECF No. 1, PageID.3, ¶ 10. The couple has been separated since 2021, causing “significant personal, financial, and emotional hardship.” Id. at PageID.4, ¶ 11. These hardships include: he and his parents missing the chance to spend time with KPS; missing quality time with his wife and not having her around to help him care for his elderly parents; depriving his wife of “many work opportunities”; and costing him thousands of dollars in travel and support. Id. at PageID.4-5, ¶¶ 11-14.

Looking to compel Defendants to act on the application, Plaintiff filed the Petition in late August 2023. ECF No. 1. He raises three claims: one under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), for unreasonable delay; one seeking a writ of mandamus compelling Defendants to process Janeann's application; and one for violating his substantive and procedural due process rights under the Fifth Amendment of the U.S. Constitution. Id. at PageID.6-9. Among other things, Plaintiff asks the Court to enter an order requiring Defendants to process his wife's visa application. Id. at PageID.9, ¶ 9(b).

Defendants moved to dismiss (ECF No. 9) and Plaintiff responded (ECF No. 11). Defendants did not file a reply.

On April 2, 2024, this case was reassigned from the Honorable Terrence G. Berg to the undersigned. Prior to reassignment, Judge Berg gave notice that this motion would be decided without oral argument. ECF No. 10. Having reviewed the parties' briefing, this Court also finds that oral argument is unnecessary and will decide the motion based on the record before it. See E.D. Mich. LR 7.1(f).

II.

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). A motion under 12(b)(1) challenges a court's subject-matter jurisdiction over claims presented. Fed.R.Civ.P. 12(b)(1). Such a motion attacks jurisdiction either facially or factually. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Defendants' challenge to the Court's subject-matter jurisdiction relates to its mandamus argument and does so as a facial attack. A facial challenge requires the Court to accept as true the allegations in the pleadings and to construe them in the light most favorable to the nonmoving party. Id.

In reviewing a 12(b)(6) motion, the Court “accept[s] all of the complaint's factual allegations as true and determine[s] whether these facts sufficiently state a plausible claim for relief.” Fouts v. Warren City Council, 97 F.4th 459, 464 (6th Cir. 2024) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Facial plausibility requires a plaintiff to “plead[] factual content that allows 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) (citation omitted). “[T]he presumption of truth” applicable to factual allegations “is inapplicable to legal conclusions.” Fisher v. Perron, 30 F.4th 289, 294 (6th Cir. 2022).

III.

A. Administrative Procedure Act

Defendants first argue that the Court should dismiss Plaintiff's claim under the APA because he cannot establish an unreasonable delay in adjudicating his wife's visa application. The Court agrees.

1. Applicable Law

The APA states that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). The APA also allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis omitted).

Claims of unreasonable delay are “necessarily fact dependent” and “should not typically be resolved” at the motion-to-dismiss stage. Barrios Garcia v. U.S. Dept' of Homeland Sec., 25 F.4th 430, 451 (6th Cir. 2022) (quotation marks and citation omitted); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court.”). But when evaluating the reasonableness of agency delay, courts look to the six factors from Telecomm. Rsch. and Action Ctr. v. Fed. Commc'n Comm'n, 750 F.2d 70 (D.C. Cir. 1984) (TRAC):

(1) the 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;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action

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