Nawaz v. United States Department of State

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Farwa Nawaz,

Plaintiff, MEMORANDUM & ORDER

22-CV-05343 (DG) (RML)

-against-

United States Department of State; U.S. Embassy in

Islamabad, Pakistan; Antony Blinken, United States

Secretary of State; and Donald Blome, Ambassador

of the United States at the U.S. Embassy in

Islamabad, Pakistan,

Defendants.

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DIANE GUJARATI, United States District Judge:

On September 8, 2022, Plaintiff Farwa Nawaz commenced this action against Defendants

United States Department of State (the “Department of State”); U.S. Embassy in Islamabad,

Pakistan; Antony Blinken, United States Secretary of State; and Donald Blome, Ambassador of

the United States at the U.S. Embassy in Islamabad, Pakistan. See generally Complaint

(“Compl.”), ECF No. 1. The Complaint, which stems from the visa petition Plaintiff filed for her

spouse, Muhammad Faisal Ali Khan, brings two claims for relief: (1) a claim titled “Agency

Action Unlawfully Withheld and Unreasonably Delayed” (the “unreasonable delay claim”) and

(2) a claim titled “Violation of Right to Due Process of Law” (the “due process claim”). See

Compl. ¶¶ 19-37. Although the Complaint is not entirely clear, the unreasonable delay claim

appears to be brought pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et

seq., and the Mandamus Act, 28 U.S.C. § 1361. See generally Compl. The due process claim

appears to be premised on the Fifth Amendment to the United States Constitution. See Compl.

¶ 35. Plaintiff seeks a writ of mandamus compelling Defendants to, inter alia, issue an

immigrant visa to Mr. Khan, and seeks various other forms of relief, including declaratory relief

as well as fees and costs. See Compl. at 7-8.1

Pending before the Court is Defendants’ Motion to Dismiss the Complaint, brought

pursuant to Rule 12 of the Federal Rules of Civil Procedure (the “Motion to Dismiss”). See

Notice of Motion, ECF No. 23; see also Memorandum of Law in Support of Defendants’ Motion

to Dismiss the Complaint (“Defs.’ Br.”), ECF No. 23-1; Reply Memorandum of Law in Further

Support of Defendants’ Motion to Dismiss the Complaint (“Reply”), ECF No. 25.2 Plaintiff

opposes the Motion to Dismiss. See Plaintiff’s Opposition to Defendants’ Motion to Dismiss

(“Pl.’s Br.”), ECF No. 24.

For the reasons set forth below, the Motion to Dismiss is granted and the Complaint is

dismissed without prejudice.

BACKGROUND

I. Factual Background3

Plaintiff alleges that she is a citizen of the United States. See Compl. ¶ 1. Plaintiff

alleges that her spouse, Muhammad Faisal Ali Khan, is a citizen of Pakistan, currently residing

in Pakistan. See Compl. ¶ 2. Plaintiff alleges that, on September 18, 2018, she filed a visa

petition for Mr. Khan with United States Citizenship and Immigration Services (“USCIS”). See

Compl. ¶ 13. Plaintiff alleges that she paid, and Defendants accepted, all applicable filing and

visa fees, see Compl. ¶ 14, and that USCIS purportedly approved Plaintiff’s visa petition on

1 Because the paragraph numbering restarts in the section of the Complaint entitled “Request

for Relief,” this citation is to the page numbers generated by the Court’s electronic case filing

system (“ECF”).

2 In their briefing, Defendants reference Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure. See Defs.’ Br. at 6-8.

3 Familiarity with the statutory and regulatory framework governing the issuance of immigrant

visas that is discussed by Defendants in their briefing, see Defs.’ Br. at 2-5, is assumed herein.

September 25, 2020, see Compl. ¶ 15. Plaintiff alleges that the case should have then been sent

to the National Visa Center (“NVC”), a part of the Department of State, for visa processing, and

Plaintiff alleges that the NVC assigned a case number to the case. See Compl. ¶ 16. Plaintiff

further alleges, upon information and belief, that “the NVC completed its processing of the case

and sent it to the U.S. Embassy in Islamabad, Pakistan, for an interview” and alleges that,

“[s]ince that time, the agency has refused to schedule an interview for [Mr. Khan] and to issue a

decision on this case” despite Plaintiff’s “repeated attempts to obtain a decision in this matter

without involving [the] Court,” including “contact[ing] the consulate multiple times.” See

Compl. ¶¶ 16-18.4

Plaintiff alleges that Mr. Khan’s “application has been in administrative processing

beyond a reasonable time period for completing administrative processing of their visa

application.” See Compl. ¶ 30. Plaintiff further alleges that the “combined delay and failure to

act on [Mr. Khan’s] immigrant visa application is attributable to the failure of Defendants to

adhere to their legal duty to avoid unreasonable delays under [the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1101 et seq.,] and the applicable rules and regulations.” See Compl.

¶ 31.5 Plaintiff additionally alleges that there are “no alternative adequate or reasonable forms of

4 Defendants assert, and Plaintiff does not appear to contest, that on January 27, 2022, the case

became documentarily qualified such that Mr. Khan became eligible to be scheduled for a visa

application interview. See Defs.’ Br. at 6 (citing Declaration of Chloe Peterman ¶ 5, ECF No.

23-2).

5 Plaintiff alleges that Defendants are intentionally delaying pursuant to a Department of

Homeland Security (“DHS”) policy known as the “Controlled Application Review and

Resolution Program” (“CARRP”) and that the delay is “due to [Mr. Khan] being from a

predominantly Muslim country.” See Compl. ¶¶ 24-25. Plaintiff alleges that “CARRP

prohibits USCIS field officers from approving an application with a potential ‘national

security concern,’ instead directing officers to deny the application or delay adjudication –

often indefinitely.” See Compl. ¶ 27. Plaintiff further alleges that CARRP violates the INA.

See Compl. ¶¶ 27-28.

relief available to Plaintiff” and that Plaintiff “has exhausted all available administrative

remedies in pursuit of a resolution of this matter, including repeatedly requesting the processing

of their case.” See Compl. ¶¶ 32-33. Further, with respect to the due process claim, Plaintiff

alleges that the “combined delay and failure to act by Defendants has violated the due process

rights of Plaintiff” and has “irrevocably harmed Plaintiff by causing a loss of consortium

between Plaintiff and [Mr. Khan], among other ways.” See Compl. ¶¶ 36-37.

II. The Motion to Dismiss

On December 20, 2022, Defendants filed a letter motion seeking a pre-motion conference

in anticipation of filing a motion to dismiss. See ECF No. 11. On January 12, 2023, Plaintiff

filed a letter in response to Defendants’ December 20, 2022 letter motion. See ECF No. 13. By

Order dated May 17, 2023, the Court, having reviewed the parties’ letters and having determined

that a pre-motion conference was not necessary, denied Defendants’ motion for a pre-motion

conference and set a briefing schedule for Defendants’ anticipated motion to dismiss. See May

17, 2023 Order.

On August 11, 2023, Defendants filed the Motion to Dismiss. In support of their motion,

Defendants first argue that the Court lacks subject matter jurisdiction over Plaintiff’s

unreasonable delay claim because the doctrine of consular nonreviewability bars review. See

Defs.’ Br. at 8-13.6 Defendants further argue that, even if the Court were to find that the doctrine

of consular nonreviewability did not bar Plaintiff’s unreasonable delay claim, dismissal of the

Complaint is warranted because the Complaint (1) fails to state an APA claim for actionable

6 Defendants state in their briefing: “Notably, the Second Circuit has expressed some doubt as

to whether consular non-reviewability rests on a lack of subject matter jurisdiction, as

opposed to prudential separation of powers considerations, in either event, it is a threshold

consideration.” See Defs.’ Br. at 10 n.7 (citations omitted).

delay because the factors set forth in Telecommunications Research and Action Center v.

Federal Communications Commission (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984), which are

regularly considered by courts to determine whether a delay is reasonable under the APA, weigh

in favor of Defendants, particularly in light of the relatively short period of alleged delay; (2)

fails to establish the requirements for obtaining relief under the Mandamus Act, which relief is

an extraordinary remedy; and (3) fails to state a procedural due process claim. See Defs.’ Br. at

13-22. With respect to the due process claim, Defendants argue that, to the extent that Plaintiff

contends that an exception to consular nonreviewability applies, she errs; to the extent that

Plaintiff is not asserting an exception to the doctrine of consular nonreviewability, Plaintiff has

identified no sovereign immunity waiver for asserting such a claim against the Department of

State; and to the extent that the claim recycles the unreasonable delay claim under the APA as a

putative due process violation, this is improper. See Defs.’ Br. at 19-20. Additionally,

Defendants argue that Plaintiff has not identified a protected liberty interest entitling her to

protection under the Fifth Amendment; that Plaintiff simply objects to the pace of adjudication,

which is inadequate to state a due process claim; and, that Plaintiff in any event fails to allege the

process of which she was deprived, noting with respect to this last argument that “at best

[Plaintiff] alleges that like many others her husband is simply awaiting the consular visa

interview at which time she may execute a visa application, not that she has been denied that

interview – which is a claim of undue delay, not a deprivation of process.” See Defs.’ Br. at 20-

22.7

In opposing the Motion to Dismiss, Plaintiff argues that the doctrine of consular

7 Defendants further argue that Plaintiff’s CARRP-related allegations are unavailing. See

Defs.’ Br. at 22 n.11; Reply at 9-10.

nonreviewability does not bar the Court’s review and that Defendants misrepresent “the spirit of

the doctrine;” that Plaintiff has alleged facts sufficient to withstand a motion to dismiss with

respect to each of Plaintiff’s claims; and that, at the least, the motion should be denied because

Plaintiff has not had the benefit of discovery, which would allow the Court “to make an informed

decision as to the unreasonableness of Defendants’ delay.” See generally Pl.’s Br.8

STANDARD OF REVIEW

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). “A plaintiff

asserting subject matter jurisdiction has the burden of proving by a preponderance of the

evidence that it exists.” Id.; see Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638

(2d Cir. 2005); Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (“The party invoking

federal jurisdiction bears the burden of establishing that jurisdiction exists.” (quotation omitted)).

In resolving a motion to dismiss for lack of subject matter jurisdiction, a district court may refer

to evidence outside the pleadings. See Makarova, 201 F.3d at 113. “If the court determines at

any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ.

P. 12(h)(3).

When a court is faced with a motion to dismiss pursuant to both Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure, the court “must decide the jurisdictional

question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits and,

therefore, an exercise of jurisdiction.” Pressley v. City of N.Y., No. 11-CV-03234, 2013 WL

8 Plaintiff also requests an evidentiary hearing “to the extent the Court is inclined to inquire into

the issues raised by Defendants.” See Pl.’s Br. at 5.

145747, at *5 (E.D.N.Y. Jan. 14, 2013) (quotation omitted); see also United States ex rel.

Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993).

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept all ‘well-

pleaded factual allegations’ in the complaint as true” and “‘construe all reasonable inferences

that can be drawn from the complaint in the light most favorable to the plaintiff.’” Lynch v. City

of N.Y., 952 F.3d 67, 74-75 (2d Cir. 2020) (first quoting Iqbal, 556 U.S. at 679; then quoting

Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009)). However, “labels and conclusions” or

“formulaic recitation[s] of the elements of a cause of action will not do,” and dismissal is proper

where “the allegations in a complaint, however true, could not raise a claim of entitlement to

relief.” Twombly, 550 U.S. at 555, 558. A court is not “bound to accept conclusory allegations

or legal conclusions masquerading as factual conclusions.” See Faber v. Metro. Life Ins. Co.,

648 F.3d 98, 104 (2d Cir. 2011) (quotation omitted); see also Iqbal, 556 U.S. at 678 (noting that

a court is “not bound to accept as true a legal conclusion couched as a factual allegation”

(quoting Twombly, 550 U.S. at 555)); Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55,

59 (2d Cir. 2010) (noting that “factual allegations must be sufficient to support necessary legal

conclusions” and “plausibly suggest an entitlement to relief”).

DISCUSSION

For the reasons set forth below, the Motion to Dismiss is granted and the Complaint is

dismissed without prejudice.

I. Plaintiff’s Unreasonable Delay Claim is Dismissed

Plaintiff’s unreasonable delay claim, whether analyzed under the APA or under the

Mandamus Act, must be dismissed as barred by the doctrine of consular nonreviewability.9

Further, even if the doctrine of consular nonreviewability did not bar Plaintiff’s unreasonable

delay claim, such claim nevertheless would be dismissed for failure to state a claim.

As an initial matter, the United States Court of Appeals for the Second Circuit has stated

that “[i]t is settled that the judiciary will not interfere with the visa-issuing process.” See Hsieh

v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978). The Second Circuit has also stated that “[the

Second Circuit] has long held that ‘a consular officer’s decision to deny a visa is immune from

judicial review.’” See Chhabra v. Blinken, No. 22-192, 2022 WL 17587850, at *1 (2d Cir. Dec.

13, 2022) (citing Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009)); see

also Alharbi v. Miller, 368 F. Supp. 3d 527, 553 n.7 (E.D.N.Y. 2019) (“The doctrine of consular

nonreviewability precludes judicial review of a consular official’s decision to issue or withhold a

visa.” (quotation omitted) (alteration accepted)), aff’d in part, dismissed in part, 829 F. App’x

570 (2d Cir. 2020); Abdo v. Tillerson, No. 17-CV-07519, 2019 WL 464819, at *3 (S.D.N.Y. Feb.

5, 2019).

Further, courts in this Circuit have held that “the doctrine of consular nonreviewability

applies not only when a plaintiff challenges an official’s discretionary decision to approve or

9 Whether viewed as a matter of subject matter jurisdiction or otherwise, the doctrine of

consular nonreviewability bars the claim.

deny a visa application, but also where a plaintiff seeks to compel an official to simply

adjudicate a visa application.” See Abdo, 2019 WL 464819, at *3 (quotation omitted) (collecting

cases). Courts in this Circuit have expressly noted that, notwithstanding caselaw in other

circuits, a distinction between challenging a decision and compelling adjudication is not a

distinction that has a basis in Second Circuit law. See id.; see also Nurjahan v. U.S. Dep’t of

State, No. 22-CV-02692, 2023 WL 2931581, at *2 (E.D.N.Y. Apr. 13, 2023); Al Naham v. U.S.

Dep’t of State, No. 14-CV-09974, 2015 WL 3457448, at *3 (S.D.N.Y. June 1, 2015).

Courts in this Circuit have applied the doctrine of consular nonreviewability to

unreasonable delay claims under the APA and unreasonable delay claims under the Mandamus

Act. See, e.g., Hettiarachchige v. Bitter, No. 22-CV-03622, 2022 WL 17738771, at *2

(S.D.N.Y. Dec. 16, 2022); Foad v. Holder, No. 13-CV-06049, 2015 WL 1540522, at *3

(E.D.N.Y. Apr. 7, 2015).10

Consistent with the within-Circuit caselaw, Plaintiff’s unreasonable delay claim is barred

by the doctrine of consular nonreviewability. Plaintiff’s argument to the contrary, which relies

on out-of-Circuit caselaw, is unavailing.

Moreover, even if the Court were to conclude that Plaintiff’s unreasonable delay claim

was not barred by the doctrine of consular nonreviewability, the unreasonable delay claim

nevertheless would be dismissed for failure to state a claim, substantially for the reasons set forth

by Defendants in their briefing. See Defs.’ Br. at 13-19 (discussing TRAC factors with respect to

APA claim and discussing requirements for obtaining relief under the Mandamus Act); see also

Reply at 6-8.

10 Courts have also determined that the doctrine of consular nonreviewability precludes judicial

review under the INA and under the Declaratory Judgment Act. See Gogilashvili v. Holder,

No. 11-CV-01502, 2012 WL 2394820, at *3 (E.D.N.Y. June 25, 2012).

Plaintiff’s unreasonable delay claim is dismissed without prejudice.

II. Plaintiff’s Due Process Claim is Dismissed

Plaintiff’s due process claim also appears to be barred by the doctrine of consular

nonreviewability and, in any event, fails to state a claim. Accordingly, it too must be dismissed.

Although courts have recognized an exception to the doctrine of consular

nonreviewability – relating to First Amendment claims brought by United States citizens, see

Xian Yong Zeng v. Pompeo, 740 F. App’x 9, 11 (2d Cir. 2018) (noting that the Second Circuit

has “concluded that there is a narrow exception where a plaintiff alleges that the denial of a visa

to a visa applicant violated the plaintiff’s First Amendment right to have the applicant present his

views in this Country”); see also Am. Acad. of Religion, 573 F.3d at 125 (applying Kleindienst v.

Mandel, 408 U.S. 753 (1972)); Al Naham, 2015 WL 3457448, at *3 (discussing exception and

observing that “the doctrine is otherwise treated as nearly absolute”) – Plaintiff’s due process

claim does not fall within the recognized exception. Indeed, the Second Circuit has stated that it

“ha[s] not decided whether [the] narrow exception to the consular nonreviewability doctrine

applies to constitutional challenges other than First Amendment challenges, such as due process

challenges.” See Xian Yong Zeng, 740 F. App’x at 11.

Moreover, even if the Court were to conclude that Plaintiff’s due process claim was not

barred by the doctrine of consular nonreviewability, the due process claim nevertheless would be

dismissed for failure to state a claim. As Defendants persuasively argue, Plaintiff has failed to

sufficiently allege, inter alia, a recognized protected liberty interest or that she has been deprived

of process to which she is due. See Defs.’ Br. at 19-22; see also Nurjahan, 2023 WL 2931581, at

*3.11 Plaintiff’s due process claim, which is conclusorily pled and which appears largely to be a

11 Notably, the Second Circuit has stated that it has “[n]ever decided whether a citizen has a due

repackaging of her unreasonable delay claim, is unavailing.

Plaintiff’s due process claim is dismissed without prejudice.12

CONCLUSION

For the reasons set forth above, the Motion to Dismiss, ECF No. 23, is GRANTED and

the Complaint, ECF No. 1, is dismissed without prejudice.13 The Clerk of Court is directed to

enter judgment accordingly and to close the case.

SO ORDERED.

/s/ Diane Gujarati

DIANE GUJARATI

United States District Judge

Dated: January 9, 2024

Brooklyn, New York

process right to live in this country with their spouse.” See Xian Yong Zeng, 740 F. App’x at

11.

12 Plaintiff’s CARRP-related allegations do not save either her unreasonable delay claim or her

due process claim, substantially for the reasons set forth by Defendants. See Defs.’ Br. at 22

n.11; Reply at 9-10.

13 In light of the above, Plaintiff’s request for an evidentiary hearing is denied, see Nurjahan,

2023 WL 2931581, at *2 n.4, as is Plaintiff’s request for discovery.