Tahavori v. Blinken

1

POUNEH TAHAVORI et al., Plaintiffs, v. ANTONY J. BLINKEN, in his official capacity as Secretary of State, et al., Defendants.

Civil Action No. 23-1460 (JDB)

United States District Court, District of Columbia

March 28, 2024

MEMORANDUM OPINION & ORDER

JOHN D. BATES UNITED STATES DISTRICT JUDGE

Plaintiff Pouneh Tahavori and her foreign-national parents, Saeid Ahmadzadeh and Akram Taham, bring this action under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., to compel certain U.S. State Department officials (collectively, “State”) to adjudicate Ahmadzadeh's and Taham's visa applications. Before the Court are plaintiffs' motion to compel production of the administrative record and State's motion to dismiss. For the reasons that follow, the Court will deny plaintiffs' motion, grant State's motion, and dismiss the case without prejudice.

Background

The following facts are drawn from the complaint and matters of which the court may take judicial notice. See Gun Owners of Am., Inc. v. Fed. Bureau of Investigation, 594 F.Supp.3d 37, 42 (D.D.C. 2022).

Pouneh Tahavori is a U.S. citizen. Pls.' Pet. for Writ of Mandamus & Compl. for Decl. & Inj. Relief [ECF No. 1] (“Compl.”) ¶ 73. Her parents, Saeid Ahmadzadeh and Akram Taham, are Iranian nationals. Id. ¶¶ 73-75. Tahavori seeks to obtain U.S. immigration visas for her parents pursuant to the provisions of the Immigration and Nationality Act, 8 U.S.C § 1101 et seq., that provide for visa issuance to the immediate relatives of U.S citizens. See Compl. ¶¶ 37-39. She initiated this process by filing a Form I-130, Petition for Alien Relative, with U.S. Customs and Immigration Services. Id. ¶¶ 76-77. After the Form I-130 petition was approved, the case was forwarded to the National Visa Center for processing. Id. ¶ 77. On December 16, 2021, plaintiffs submitted a DS-260 Immigrant Visa and Alien Registration Application along with the requisite fees and supporting documentation. Id. ¶ 80.

On January 19, 2023, Ahmadzadeh and Taham interviewed with a consular officer at the U.S. embassy in Yerevan, Armenia. Id. ¶ 81. After the interview, the consular officer gave Ahmadzadeh and Taham a “temporary refusal letter” and informed them that their application would need to go through further administrative processing. Id. ¶¶ 82-83. The consular officer requested that Ahmadzadeh and Taham complete a supplemental form and submit various documentation, which they did. Id. ¶¶ 83-86.

Plaintiffs filed the present suit roughly four months later. See id. at 30. They name as defendants three State Department officials: the Secretary of State, the Acting Deputy Assistant Secretary and Managing Director for Visa Services, and the Consul General of the U.S. Embassy in Yerevan (all in their official capacity). Id. ¶¶ 29-31. Plaintiffs generally allege that State's delay in rendering a final decision on their visa applications is unreasonable, and they assert claims under the Mandamus Act and the APA. See id. ¶¶ 108-70. In support of their claims, plaintiffs allege that the delay has caused them financial strain due to the cost of maintaining two homes, traveling to see each other, and obtaining legal representation. Id. ¶¶ 100-02. They also allege “emotional distress and psychological harm” and point to the inability to be together following Pouneh's “high-risk pregnancy” and the birth of her second child. Id. ¶¶ 97, 99.

State moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss [ECF No. 6] (“Mot.”). Shortly thereafter plaintiffs filed a motion to compel production of the administrative record pursuant to Local Civil Rule 7(n) and to stay further proceedings until such production. See Pls.' Mot. to Compel [ECF No. 10] (“MTC”). Both motions were fully briefed as of September 26, 2023.

On March 19, 2024, the Court issued an order regarding recent developments that had gone unaddressed by the parties. See Mar. 19, 2024 Order [ECF No. 17]. The Court noted that Taham's visa appeared to have been issued on February 21, 2024, and that Ahmadzadeh's visa application remained in a “refused” status but appeared to have been “updated” on February 21, 2024. Id.; see also Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 68 n.23 (1997) (noting counsel's “duty . . . to bring to the [Court's] attention, without delay, facts that may raise a question of mootness” (internal quotation marks omitted)). The Court called for the parties' views on “the impact of these developments on defendants' motion to dismiss and [on the] future course [of] these proceedings.” Mar. 19, 2024 Order. The parties responded by filing a partial stipulation of dismissal as to Taham's visa application. See Stip. of Partial Dismissal [ECF No. 18]. They agreed, however, that the claim as to Ahmadzadeh's visa application was “not moot.” Joint Status Report [ECF No. 19]. Accordingly, the Court will address only Ahmadzadeh's visa application.

Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding such a motion, courts must “accept the [complaint's] factual allegations as true and draw all reasonable inferences in the plaintiff's favor,” Sanchez v. Off. of State Superintendent of Educ., 45 F.4th 388, 395 (D.C. Cir. 2022), but need not credit legal conclusions “couched as factual allegations,” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (per curiam).

Courts also apply the 12(b)(6) standard when assessing a facial (rather than factual) challenge to a complaint's jurisdictional allegations under Rule 12(b)(1). See Simon v. Republic of Hungary, 77 F.4th 1077, 1116 (D.C. Cir. 2023).

Analysis

I. Plaintiffs' Motion to Compel

Plaintiffs move to compel production of the administrative record based on Local Civil Rule 7(n). That rule provides, as relevant here, that “[i]n cases involving the judicial review of administrative agency actions, unless otherwise ordered by the Court, the agency must file a certified list of the contents of the administrative record with the Court . . . simultaneously with the filing of a dispositive motion.” LCvR 7(n). State did not file such a certified list with its motion to dismiss. See Mot. at 16 n.3. Plaintiffs generally argue that the Court should enforce technical compliance with the rule and that the Court cannot act on State's motion to dismiss without the benefit of an administrative record. See MTC at 4-9.

Many plaintiffs raise this Local Civil Rule 7(n) argument in immigration mandamus cases, and courts routinely reject it. Perhaps the most common rationale for doing so-urged here by State-is that the rule refers to “judicial review of administrative agency actions,” and so does not apply to cases such as this that involve allegations of agency inaction. See Defs.' Opp'n to Pls.' Mot. to Compel [ECF No. 14] (“MTC Opp'n”) at 3 (collecting cases). The Court declines to adopt that categorical view, at least on the arguments currently before it. In the administrative law context, “agency action” is generally understood to include the “failure to act.” 5 U.S.C. § 551(13).

And various failure-to-act cases are commonly and properly decided based on an administrative record. See, e.g., Dallas Safari Club v. Bernhardt, 518 F.Supp.3d 535, 540-41 (D.D.C. 2021); Cherokee Nation v. Dep't of Interior, Civ. A. No. 19-2154 (TNM), 2021 WL 3931870, at *2 (D.D.C. Sept. 2, 2021). Indeed, State maintains that this case should be “confined to a record review rather than . . . subject to discovery” if it proceeds further. MTC Opp'n at 5. That admission undermines the argument that agency inaction renders Local Civil Rule 7(n) inapplicable here because “there is no administrative record to produce.” Id. at 3 (internal quotations omitted).

Nonetheless, there is truth to the underlying point that Local Civil Rule 7(n) is an ill fit for many immigration mandamus actions. These actions frequently prompt motions to dismiss on the ground that plaintiffs have failed to plausibly allege unreasonable delay, and an administrative record may not be necessary to assess that threshold legal question. That is the case here. The Court will thus waive compliance with Local Civil Rule 7(n) because “the administrative record is not necessary for the [C]ourt's decision regarding [the] motion to dismiss.” Connecticut v. U.S. Dep't of the Interior, 344 F.Supp.3d 279, 294 (D.D.C. 2018) (cleaned up); see also Arab v. Blinken, 600 F.Supp.3d 59, 65 n.2 (D.D.C. 2022). Accordingly, the Court will deny plaintiffs' motion to compel production of the administrative record.

II. Defendants' Motion to Dismiss

State advances three arguments in its motion to dismiss: (1) the Secretary of State and the Managing Director for Visa Services are improper defendants, (2) the consular non-reviewability doctrine bars judicial review, and (3) the delay in this case is not unreasonable. See Mot. at 3-16. The Court rejects the first two arguments but credits the third.

A. Propriety of Named Defendants

State first argues that the Secretary of State and the Managing Director for Visa Services must be dismissed as defendants because they do not personally have authority to “adjudicate an application for a visa.” Mot. at 3; see Id. at 4.^[1] State latches on to language from Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020 (D.C Cir. 2021), where the D.C. Circuit noted that the Immigration and Nationality Act “grants consular officers ‘exclusive authority to review...