1
MD ZAHIDUZ ZAMAN, a U.S. Citizen, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
Civil Action No. 19-3592 (ABJ)
United States District Court, District of Columbia
November 16, 2021
MEMORANDUM OPINION
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE
On November 29, 2019, Md Zahiduz Zaman, an American citizen, filed a complaint seeking to compel defendants - the United States Department of Homeland Security (“DHS”); the United States Citizenship and Immigration Services (“USCIS”); the United States Department of State (“DOS”); the United States “Consulate” in Dhaka, Bangladesh; Secretary of DHS, Alejandro Mayorkas; Director of USCIS, Ur Mendoza Jaddou; Secretary of State Antony J. Blinken; and the United States Ambassador to Bangladesh, Earl Miller[1] - to adjudicate the immigration visas he filed on behalf of his mother, Zahanara Habib, and his father, Md Habibur Rahman.[2] Compl. [Dkt. # 1] ¶¶ 1-12; Compl., Req. for Relief ¶¶ 1-10. The complaint includes two causes of action: Count One alleges that the decisions on the visa applications have been unreasonably delayed in
2
contravention of law, and Count Two alleges that the failure to act violates plaintiff's due process rights under the Fifth Amendment to the U.S. Constitution. Compl. ¶¶ 41-44, 52-59.
Plaintiff asks the Court to issue a writ of mandamus ordering either the issuance of the immigrant visas or ordering defendants to complete all administrative proceedings within sixty days. Compl., Req. for Relief ¶¶ 5, 7. He also asks that the Court order defendants to explain the cause and nature of the delay and inform plaintiff of any action he may take to “accelerate processing of the visa application[s].” Compl., Req. for Relief ¶ 8.[3] Finally, plaintiff asks the Court to assume jurisdiction of this matter and to adjudicate the immigration visa petitions itself under its declaratory judgment authority. Compl. ¶ 6. The prayer for relief also seeks attorneys' fees and other costs. Compl. ¶ 9.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants have moved to dismiss plaintiff's claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss [Dkt. # 14] (“Mot.”) at 1. For the reasons set forth below and after review of the entire record, [4] the Court will grant defendants' motion to dismiss.
3
BACKGROUND
On November 28, 2016, plaintiff filed I-130 IR-5 visa petitions with USCIS for his parents, Ms. Habib and Mr. Rahman.[5] Compl. ¶¶ 24, 27, 32, 35; see also Howard Decl. ¶¶ 6-7. He alleged that their applications were forwarded to a consular officer in Bangladesh after USCIS concluded processing the applications on July 18, 2017, Compl. ¶¶ 29, 37, and that his parents' visa interviews were conducted on or about April 19, 2018. Compl. ¶¶ 31, 39. But the visa applications have remained pending since then. Compl. ¶¶ 31, 39; see also Mot. at 2.
According to the defendants, as of March 2020, DOS suspended visa services in Bangladesh due to the onset of the COVID-19 pandemic. See Mot. at 2. Routine visa services remain suspended in Bangladesh, and this has contributed to a backlog of visa applications there. Id.
LEGAL STANDARD
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005).
4
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Food and Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (citation omitted) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
“To survive a [Rule 12(b)(6)] motion to dismiss, 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,
5
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court in Iqbal outlined two central principles: “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” and “[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft, 566 U.S. at 678-79, citing Twombly, 550 U.S. at 555-56. A claim is facially plausible if the facts “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S. at 556.
ANALYSIS
Defendants moved to dismiss plaintiff's complaint pursuant to both Rule 12(b)(1) and 12(b)(6). Mot. at 4. They argue that the Court does not have jurisdiction to hear plaintiff's claims against DHS, USCIS, and officials from DHS, USCIS, and DOS because these defendants cannot grant the relief plaintiff seeks: an adjudication of the applications. Mot. at 4. Defendants also moved to dismiss the complaint under Rule 12(b)(6) on the grounds that plaintiff has failed to state a claim under the APA, the Mandamus Act, or the Fifth Amendment of the Constitution. Mot. at 5-13.
The Court finds that it has jurisdiction over the case, but that plaintiff has failed to state a claim for relief that is plausible on its face.
I. Subject Matter Jurisdiction
Plaintiff has filed a claim under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, and a petition for a writ of mandamus pursuant to the Mandamus Act, 28 U.S.C. § 1361. Compl. ¶ 13. The APA entitles “person[s] suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . to judicial review thereof, ” and instructs that “[a]n action in a court of the United States seeking relief other than money
6
damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed.” 5 U.S.C. § 702. Under ordinary circumstances, if the APA provides a cause of action, courts have subject matter jurisdiction under 28 U.S.C. § 1331, the general federal question statue. See Am. Rd. & Transp. Builders Ass'n. v. EPA, 865 F.Supp.2d 72, 80-81 (D.D.C. 2012), aff'd, No. 12-5244, 2013 WL 599474 (D.C. Cir. Jan. 28, 2013) (per curiam). The APA requires that agencies, “within a reasonable time . . . shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). If they fail to do so, the APA authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). At the same time, however, the APA exempts from judicial review “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
Defendants maintain, though, that aside from the “consulate in the Foreign Jurisdiction, ” no government officials “can grant the relief [p]laintiff seeks in this matter - namely, an adjudication of the Application, ” because only consular officials have authority to adjudicate immigration applications. Mot. at 4-5. They point to the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. § 1101, et seq., which governs the visa adjudication process and grants “consular officers exclusive authority to review applications for visas.” Mot. at 4; Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999), citing 8 U.S.C. §§ 1104(a), 1201(a). Because consular officers have exclusive authority to review visa applications, this Court cannot adjudicate the immigration visa petitions under its declaratory judgment authority as plaintiff has requested. See Compl., Req. for Relief ¶ 6.
But the crux of plaintiff's complaint is there has been an unreasonable delay in issuing any final decisions on the visa applications. See Compl. ¶¶ 41-55. Plaintiff is not asking this Court...
