Zadeh v. Blinken

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AZAD ZADEH and YAVAR YARAHMADI, Plaintiffs, v. ANTONY J. BLINKEN, RENA BITTER, and JONATHAN WEBSTER, Defendants.

No. 23-cv-3721

United States District Court, N.D. Illinois, Eastern Division

May 20, 2024

MEMORANDUM OPINION AND ORDER

Steven C. Seeger United States District Judge

Azad Zadeh, a United States citizen, lives in Illinois. In 2021 she met Yavar Yarahmadi, an Iranian national, in Iran. Love quickly blossomed, and a month later, they got engaged.

Yarahmadi lives in Iran. But he wants to move to the U.S. to join Zadeh. Zadeh and Yarahmadi began planning for married life in the U.S. The couple also began the process of obtaining a K-1 fiance visa for Yarahmadi.

Yarahmadi sat for an interview at the U.S. Embassy in Abu Dhabi in February 2023, roughly 15 months ago. But he hasn't received a final adjudication on his visa application. In the meantime, Zadeh and Yarahmadi felt frustrated with the passage of time.

Like countless people around the globe, Yarahmadi wants to come to the United States. He wants an invitation to live here. And he wants the United States government to make a decision on his application, sooner rather than later. He believes that the federal government is taking too long to make up its mind.

Zadeh and Yarahmadi filed this lawsuit in June 2023, only five months after the interview. They sued the United States to force the federal government to hurry up and decide whether to invite Yarahmadi to the United States. They wants a decision about an invitation, faster. They want to jump the line ahead of other applicants, too.

They ask this Court to force the hand of the Executive Branch, and compel Uncle Sam to give a thumb's up or a thumb's down to the application. They brought a mandamus claim and claims under the Administrative Procedure Act.

Zadeh and Yarahmadi sued three federal officials in their official capacities: Secretary of State Antony J. Blinken, Assistant Secretary for Consular Affairs of the Department of State Rena Bitter, and Consul General of the U.S. Embassy in Abu Dhabi Jonathan Webster. Defendants, in turn, moved to dismiss.

For the following reasons, Defendants' motion to dismiss is granted.

Background

This case is about a K-1 fiance visa application. See Cplt., at ¶ 1 (Dckt. No. 1).

Plaintiff Azad Zadeh, a U.S. citizen, is seeking a K-1 fiance visa for her fiance, Plaintiff Yavar Yarahmadi. Id. at ¶ 2.

A K-1 visa is a temporary nonimmigrant visa. Id. at ¶ 37. It is valid for a limited time, only. Id. But at its core, a K-1 visa is like a spousal visa. Id. It offers a path for permanent immigration to the U.S Id. at ¶ 38. It is processed like an immigrant visa, too. Id. at ¶ 37. It is viewed as an immigrant or “quasi-immigrant” visa. Id. at ¶ 38.

Zadeh is a U.S. citizen and wants Yarahmadi, her fiance, to join her here. Yarahmadi is a national of Iran. Id. at ¶ 80. Zadeh lives in Illinois and works as a cardiovascular sonographer.^[1]Id. at ¶ 79. She has been a U.S. citizen since 2013. Id. at ¶ 78.

Zadeh and Yarahmadi met in 2021, when Zadeh was visiting family and friends in Iran. Id. at ¶ 81. A month after they met, they became engaged. Id. The couple made plans for Yarahmadi to join Zadeh in the United States so that they could begin their life together. Id. at ¶ 82.

After the engagement, Zadeh filed a Form I-129F petition on Yarahmadi's behalf. Id. at ¶ 84. A Form I-129F is step one toward obtaining a K-1 fiance visa. When filing a Form I-129F petition, a petitioner must show that both parties are free to marry and plan to do so within 90 days of the foreign national's admission to the U.S. on a K-1 visa. Id. at ¶ 39. Generally, the couple must have met in person during the two years before they filed the petition. Id.

After receiving a Form I-129F, U.S. Citizenship and Immigration Services verifies that the petitioner and the beneficiary have a qualifying relationship and that they intend to marry within 90 days of the beneficiary moving to the U.S Id. at ¶ 41.

In August 2022, USCIS approved the I-129F petition that Zadeh filed for Yarahmadi. Id. at ¶ 87. But, again, the I-129F is only step one in the process of getting a visa. After approval of the I-129F, the petition is sent to the National Visa Center, and then to the Embassy. Id. at ¶ 44. At the Embassy, the foreign fiance will apply for a K-1 visa and any qualifying dependents can file for a K-2 visa. Id.

The fiance can then begin the formal visa application process by filing the DS-160 Online Nonimmigrant Visa Application. Id. After the fiance fills out the DS-160, files supporting documentation, completes a medical exam, and pays the applicable fees, the visa application will be sent to the applicable U.S. embassy or consulate. Id. at ¶ 45.

In November 2022, Zadeh and Yarahmadi received notice that “National Visa Center (NVC) received [the] fiance (e)'s/spouse's approved I-129F petition from U.S. Citizenship and Immigration Services (USCIS) [and that the] NVC [would] now forward the petition to the U.S. Embassy or Consulate in Abu Dhabi, United Arab Emirates.” Id. at ¶ 89.

Zadeh and Yarahmadi immediately paid the applicable processing fees and timely submitted the DS-160 application, along with supporting documentation. Id. at ¶ 91. They began prepping for their anticipated interview. Id.

Yarahmadi's interview took place in February 2023, at the U.S. Embassy in Abu Dhabi. Id. at ¶ 92. After the interview, he was informed that his application “would have to undergo mandatory administrative processing.” Id. at ¶ 93.

The consular officer gave Yarahmadi a temporary refusal letter under section 221(g) of the U.S. Immigration and Nationality Act, 8 U.S.C. § 1201(g). Id. The letter stated that the “visa application was temporarily refused under section 221(g).” Id.

But the Embassy did not slam the door shut. The letter left it open, at least a crack. “[T]his refusal may be overcome once the missing documentation and/or administrative processing is completed,” and “you will be contacted by the Embassy once the processing is complete.” Id.

Along with the temporary refusal letter, the Embassy sent Yarahmadi a Form DS-5535. Id. at ¶ 94. That form includes supplemental questions for visa applicants. Id. It requested that Yarahmadi send 15 years of detailed history including his addresses, employment, travel, and social media handles. Id. He promptly completed the form and submitted a detailed response to the questionnaire. Id.

The State Department website shows that Yarahmadi's visa application case is “Refused.” Id. at ¶ 97. The website says that his case was “refused for administrative processing, [that his] case will remain refused while undergoing such processing [and] will receive another adjudication once such processing is complete [...] you will be contacted if additional information is needed.” Id.

Zadeh and Yarahmadi have inquired about his visa status on their own and through congressional representatives. Id. at ¶ 98. The only response that they have received is that the “case is still pending administrative processing,” that the government is “unable to predict the length of time required for the completion of the required administrative processing,” and that “no additional documents are needed at this time.” Id.

Zadeh and Yarahmadi haven't received a request for additional documents, and Yarahmadi's online case status has not changed. Id. at ¶ 99; see also id. at ¶ 122. In the couple's view, the government has relegated Yarahmadi's application to “an indefinite state of administrative processing.” Id. at ¶ 125.

Frustrated by perceived delays in the visa process, Zadeh and Yarahmadi went to the federal courthouse and filed a complaint. Zadeh and Yarahmadi sued three government officials in their official capacity. Id. at ¶¶ 29-31. They sued Secretary of State Antony J. Blinken, Assistant Secretary for Consular Affairs of the Department of State Rena Bitter, and Consul General of the U.S. Embassy in Abu Dhabi Jonathan Webster. Id.

They were quick on the draw in complaining about the government being slow on the draw. They filed a complaint on June 13, 2023, only four months after the interview in February 2023.

The complaint includes four counts.

Count I is a mandamus claim under 28 U.S.C. § 1361. Id. at ¶¶ 130-48. It alleges that Defendants have unreasonably delayed adjudication of Yarahmadi's visa application. Id.

Counts II, III, and IV assert that Defendants violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq. See id. at ¶¶ 149-92. Count II alleges “unlawful withholding and unreasonable delay” in adjudicating Yarahmadi's visa application, in violation of 5 U.S.C. § 706(2). Id. at ¶ 157. Counts III and IV request that the Court compel Defendants to act on Yarahmadi's application, under 5 U.S.C. § 706(1). Id. at ¶¶ 165-92.

Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defs.' Mtn. to Dismiss (Dckt. No. 13). They contend that the case is moot because the consular office already rejected Yarahmadi's visa application in May 2023. See Defs.' Mem. in Support of Mtn. to Dismiss, at 7 (Dckt. No. 14). Id. at 11. They also believe that the doctrine of consular nonreviewability applies. Alternatively, Defendants argue that Zadeh and Yarahmadi's claims fail on the merits. Id. at 13-15.

Legal Standard

A motion to dismiss under Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. Courts “must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in plaintiff's favor, unless standing is challenged as a factual matter.” Laurens v. Volvo Cars of N. Am LLC, 868 F.3d 622, 624 (7th Cir. 2017) (quoting Remijas v. Neiman Marcus Grp., LLC, 794...