Sunny v. Biden

1

NIKHILA SUNNY, et al., Plaintiffs, v. JOSEPH R. BIDEN JR., et al., Defendants.

VAUGHN WASHINGTON GEORGE WILSON, et al., Plaintiffs, v. JOSEPH R. BIDEN JR., et al., Defendants.

NICOLAS ABREU SANTOS, et al., Plaintiffs, v. JOSEPH R. BIDEN JR., et al., Defendants.

Nos. 21-cv-4662 (BMC), 21-cv-5379 (BMC), 21-cv-5240 (BMC)

United States District Court, E.D. New York

August 29, 2023

MEMORANDUM DECISION AND ORDER

Before the Court is plaintiffs' consolidated motion for leave to file an amended complaint. Plaintiffs seek declaratory and injunctive relief - namely, an order (1) invalidating the Recalibration policy contained in State Department Cable 387 and (2) directing defendants to adjudicate plaintiffs' visa applications in a reasonable time.^[1] Having considered the parties' submissions, the Court denies plaintiffs' motion to amend the complaint as futile. Because all claims in the original complaints tethered to the Tiered Prioritization Scheme are moot and the remaining counts fail to state a claim defendants' motions to dismiss are granted.

BACKGROUND

Plaintiffs are lawful United States citizens and permanent residents who seek to sponsor their foreign national spouses, children, and siblings for immigrant visas (IVs). Plaintiffs' original complaints challenged defendants' “Tiered Prioritization Scheme,” which was a COVID-era policy mandating prioritization of Non-Immigrant Visas (NIVs) over Family Preference visas. After the Tiered Prioritization Scheme was officially rescinded, defendants moved to dismiss plaintiffs' complaints as moot.

Plaintiffs subsequently moved for leave to file a consolidated amended complaint, this time challenging defendants' “Recalibration Policy,” as expressed in State Department Cable 387, which plaintiffs claim is a de facto continuation of the rescinded Tiered Prioritization Scheme. See 21 STATE 115378 (Nov. 16, 2021). Cable 387 is entitled “Recalibration of Consular Services Prioritization at Posts Abroad” and is addressed to “all diplomatic and consular posts.” Plaintiffs' proposed amended complaint alleges that, pursuant to Cable 387, defendants are withholding IVs in favor of NIVs in violation of the Immigration and Nationality Act (“INA”).^[2]

DISCUSSION

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the “court should freely give leave [to amend] when justice so requires.” However, a court may deny leave if “there is a substantial reason to do so, such as excessive delay, prejudice to the opposing party, or futility.” Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000). Plaintiffs' proposed amended complaint alleges: (1) defendants' Recalibration Policy exceeds the authority of the executive branch; (2) defendants are withholding plaintiffs' visa applications in violation of the APA; (3) defendants' Recalibration Policy has unreasonably delayed adjudication of plaintiffs' visas; (4) defendants' Recalibration Policy is arbitrary and capricious; (5) defendants have violated the Accardi doctrine in failing to schedule plaintiffs' visa interviews according to department policy; and (6) defendants have violated the Accardi doctrine in failing to issue as many Family Preference visas as possible. Plaintiffs also seek a writ of mandamus.

Here amendment would be futile as to the claims challenging the Recalibration Policy because plaintiffs lack standing to challenge that policy. The Court agrees with the analyses of various other courts finding that plaintiffs lack standing to challenge the Recalibration Policy because the visa processing delays are not fairly traceable to the Recalibration Policy; rather, they are fairly traceable to the COVID-19 pandemic and the prior Tiered Prioritization Scheme. See, e,g., Avagyan v. Blinken, No. 22-cv-2440, 2022 WL 19762411, at *4 (D.D.C. Sept. 29, 2022) (collecting cases).

Even if plaintiffs did have standing, Cable 387 does not constitute final agency action under the APA and is therefore not subject to judicial review. To be “final,” an agency action must (1) “mark the consummation of the agency's decisionmaking process” and (2) “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (cleaned up).

Plaintiffs argue that the first element is satisfied because Cable 387 rescinded the prior policy (the Tiered Prioritization Scheme) and created a new policy (the Recalibration Policy). Defendants respond that the Recalibration Policy is not “final” because it vests consular officers with the authority to make discretionary decisions based on “ever-shifting factors, needs, and priorities.” Plaintiffs reject this, noting that agencies cannot evade judicial review by directing officers to apply some ever-shifting set of factors and then claim that because those factors are not static, the policy can never be “final.”

Turning to the second element, plaintiffs argue that Cable 387 creates binding obligations on consular officers because it rescinds prior policy and creates legal consequences by instructing consular officers to prioritize NIVs over IVs. I disagree.

Contrary to plaintiffs' assertions, the language of Cable 387 is not binding. Rather, it overwhelmingly consists of “qualification-laden, guideline-offering advice-giving, recommendation-making, [and] discretion-preserving language that courts have held signifies a lack of finality.” Nat. Res. Def. Council, Inc. v. U.S. Dep't of the Interior, 397 F.Supp.3d 430, 446 (S.D.N.Y. 2019). For example, Cable 387 asks consulates to “please bear . . . in mind” certain considerations related to several categories of consular activities, noting that “posts should strive to process immediate relative cases . . . and family preference cases” and “should also prioritize cases raised by the Visa Office.” 21 STATE 115378 at § 6. Although the Cable states that “Special Consular Activities must remain a priority” and “[s]easonal priorities . . . must also be a factor,” no specific instructions are imposed. Id. Plaintiffs claim that the Recalibration Policy mandates “the prioritization of NIVs over family preference applicants,” but the Recalibration Policy does not “mandate” anything. Rather, the Recalibration Policy is riddled with discretion-giving language and does not require consular officers to prioritize NIVs over Family Preference applicants.

Several courts have analyzed whether Cable 387 constitutes final agency action under the APA and have unanimously found that it does not. See, e.g., United Afr. Org. v. Biden, 620 F.Supp.3d 756, 773 (N.D. Ill. 2022) (Cable 387 does not constitute “final agency action” because “[t]he Recalibration Cable bears all the hallmarks of conferring discretion to consular officers rather than binding them.”); Tesfaye v. Blinken, No. 22-cv-411, 2022 WL 4624210, at *9 (D.D.C. Sept. 29, 2022) (“courts have squarely rejected that the [Recalibration Policy] [is a] source of mandatory, non-discretionary duty to adjudicate . . . visa[s].”); Zakon v. Blinken, No. 22-cv-01524, 2022 WL 4474053, at *3 (D.D.C. Sept. 26, 2022) (Cable 387 is not “final agency action” because “[f]ar from cabining discretion . . . [Cable 387] returns discretion to consular officers to set service priorities.”). The COVID-era mandatory Tiered Prioritization Scheme's rigid approach had relegated plaintiffs' visas to prioritization tier three of four (four being the tier of lowest priority). Cable 387 undid that, “rescind[ing] the mandatory prioritization guidance issues during the COVID-19 pandemic” and “return[ing] discretion to consular officers to set service priorities.” Zakon, 2022 WL 4474053, at *3. Because Cable 387 neither confers rights on visa applicants nor imposes obligations on the Department, it is not final agency action subject to judicial review.^[3]

Counts Two and Three of plaintiffs' proposed amended complaint allege unlawful withholding of plaintiffs' visa applications and unreasonable delay in processing their applications. See 5 U.S.C. §§ 555(b), 706(1). The APA authorizes reviewing courts to compel unlawfully withheld or unreasonably delayed agency action. 5 U.S.C. § 706(1).^[4] Unlike claims challenging a specific policy, unreasonable delay claims often require review of “non-final agency action.” See Khamrabaeva v. Blinken, No. 22-cv-1219, 2022 WL 4446387, at *6 (D.D.C. Sept. 24, 2022). Whether a delay is unreasonable “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). To determine whether a particular agency delay is unreasonable, courts look to the six factors from Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”) See Nat. Res. Defense, 710 F.3d at 84 (citing TRAC, 750 F.2d at 79-80).

Because I view the fourth factor as dispositive, I decline to analyze the other five. See Duan v. USCIS, No. 22-cv-01538 2023 WL 4687078, at *4 (E.D.N.Y. July 22, 2023); see also Tetteh v. Blinken, No. 22-cv-02208, 2022 WL 4464999, at *2 (D.D.C. Sept. 26, 2022) (“TRAC factor four is, for all intents and purposes, dispositive”). The fourth TRAC factor asks courts to consider “the effect of expediting delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. “Even when all other TRAC factors lie in a plaintiff's favor, courts have refused to grant relief ‘where a judicial order putting the petitioner at the head of the queue would simply...