Luis Reyes v. GARLAND

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 23-24695-CIV-WILLIAMS/GOODMAN

CLAUDIA R. LUIS GONZALEZ and

ROBERTO LUIS REYES,

Plaintiffs,

v.

Merrick B. Garland, Attorney General

of the United States, in his official

capacity, et al.,

Defendants.

_____________________________________/

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS

In this action brought under the Administrative Procedures Act (“APA”), 5 U.S.C.

§ 701, et seq., Attorney General Merrick B. Garland (in his official capacity), Secretary of

State Antony J. Blinken (in his official capacity),1 Deputy Chief of Mission in Havana,

1 In a footnote, Defendants argue that Secretary Blinken is not a proper party to this

lawsuit because “Plaintiffs do not seek review of any Department of State policy, rule,

practice, or regulation[.]” [ECF No. 8, p. 1 n.1]. Plaintiffs do not discuss this argument in

their response.

“[A]ddressing legal arguments in footnotes is an incorrect method to present

substantive arguments on the merits or otherwise request relief from the Court.” Sony

Music Ent. v. Vital Pharms., Inc., No. 21-22825-CIV, 2022 WL 4771858, at *13 (S.D. Fla. Sept.

14, 2022). At the same time, the failure to respond to an argument concedes the point. See

Jones v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (“‘[A] party’s failure to

Cuba Elias Baumann (in his official capacity), and the United States of America

(collectively, the “Government” or “Defendants”) seek to dismiss Claudia R. Luis

Gonzalez (“Gonzalez”) and Roberto Luis Reyes’ (“Reyes” and collectively, “Plaintiffs”)

Complaint [ECF No. 1] “for lack of subject matter jurisdiction pursuant to Federal Rule

of Civil Procedure 12(b)(1) and failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6).” [ECF No. 8]. Plaintiffs filed a

response in opposition [ECF No. 10] and Defendants filed an optional reply [ECF No. 12].

United States District Judge Kathleen M. Williams referred the instant motion to

the Undersigned for a Report and Recommendations. [ECF No. 11]. For the reasons

discussed in detail below, the Undersigned respectfully recommends that Judge

Williams grant Defendants’ motion [ECF No. 8] and dismiss Plaintiffs’ Complaint [ECF

No. 1].

I. Background

Gonzalez is a United States citizen. [ECF No. 1, ¶ 7]. Her father, Reyes, is a Cuban

citizen, id. at ¶ 6, residing in Cuba. On September 18, 2020, Gonzalez filed an I-130 visa

respond to any portion or claim in a motion indicates such portion, claim or defense is

unopposed.’”) (quoting Kramer v. Gwinnett Cnty., Ga., 306 F. Supp. 2d 1219, 1221 (N.D.

Ga. 2004) (alteration in original)); Five for Ent. S.A. v. Rodriguez, No. 11-24142-CIV, 2013

WL 4433420, at *14 (S.D. Fla. Aug. 15, 2013) (“A failure to address issues in response to a

motion is grounds for finding that the claims have been abandoned.”). In any event,

notwithstanding the both-parties-made-procedural-errors scenario, the Undersigned’s

recommendation that the District Court dismiss Plaintiffs’ Complaint [ECF No. 1]

encompasses the single count asserted against all Defendants, including Secretary

Blinken.

petition (“Petition”) on behalf of Reyes with the U.S. Citizenship and Immigration

Services (“USCIS”). Id. at ¶ 21. USCIS purportedly approved the Petition on December

22, 2020. Id. at ¶ 23. Thereafter, the matter was transferred to the National Visa Center

(“NVC”), which confirmed receipt on January 6, 2021 and “stated that it would forward

the application to the U.S. Embassy in Cuba, (‘U.S. Embassy’).” Id.

On November 2, 2022, the State Department conducted Reyes’ visa interview. Id.

at ¶ 24. “After the November 2, 2022 interview, the U.S[.] Embassy ‘refused’ [the]

[P]etition and issued a 221(g) [letter] requesting more documents. . . . [Reyes] promptly

acquired the necessary documents and sent them to the U.S. Embassy on December 3,

2022.” Id. The U.S. Embassy acknowledged receipt of the documents on December 5, 2022.

Id. Per Plaintiffs, the “[P]etition has been in ‘administrative processing’ since November

2, 2022.” Id. at ¶ 27.

As a result, Plaintiffs filed a one-count Complaint alleging that Defendants

“unlawfully withheld and unreasonably delayed with respect to the adjudication of a US

citizen parent’s visa (also known as an IR5 visa), which was filed by [Gonzalez] on behalf

of her father, [Reyes].” Id. at 1–2. Plaintiffs ask the Court to: (1) require Defendants to

adjudicate the Petition; (2) award reasonable attorney’s fees and costs pursuant to the

Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412; and (3) grant

any further relief deemed just and proper. Id. at 10 (Request for Relief).

Defendants maintain that “[they] have adjudicated and refused [ ] Reyes’ parental

visa application, exactly in accordance with their non[-]discretionary obligation to do so”

and “Plaintiffs now seek judicial review of a consular decision of the sort that is immune

from judicial review under the consular non-reviewability doctrine” and, as such, this

“relief is unavailable to [ ] Plaintiffs.” [ECF No. 8, p. 2 (emphasis added)]. Defendants

note that the 221(g) letter “informed [ ]. Reyes that his visa application was refused under

Section 221(g) of the [Immigration and Nationality Act (‘INA’)].” Id. at 4. Thus, they

contend that “what Plaintiffs request this Court to compel is not an adjudication, but

rather a re-adjudication of the visa application through judicial review of the refusal.” Id.

at 7 (emphasis added).

They further argue that “assuming, arguendo, that the visa refusal is available for

judicial review, the consular officer’s pace of any re-adjudication of the IR-5 visa

application is not unreasonable as a matter of law.” Id. at 2.

II. Applicable Legal Standards

Defendants move to dismiss pursuant to both Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6).

A. Rule 12(b)(1)

Federal courts are courts of limited subject-matter jurisdiction and must be vigilant

in ensuring that they have jurisdiction over a case. “[B]ecause a federal court is powerless

to act beyond its statutory grant of subject[-]matter jurisdiction, a court must zealously

insure that jurisdiction exists over a case, and should itself raise the question of subject[-

]matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises.”

Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

“Courts have an independent obligation to determine whether subject-matter

jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“Indeed, it is

well settled that a federal court is obligated to inquire into subject[-]matter jurisdiction

sua sponte whenever it may be lacking.”). Moreover, the Court always has jurisdiction to

determine whether it has jurisdiction over a matter. United States v. Ruiz, 536 U.S. 622, 628

(2002) (“[I]t is familiar law that a federal court always has jurisdiction to determine its

own jurisdiction.”).

Dismissal under Rule 12(b)(1) is appropriate if a plaintiff fails to show that the

Court has subject-matter jurisdiction over the lawsuit. Fed. R. Civ. P. 12(b)(1). The party

invoking the Court’s jurisdiction bears the burden of showing that the action falls within

the Court’s subject-matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.

1994).

B. Rule 12(b)(6)

To survive a motion to dismiss under Rule 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, 129 S. Ct. 1937 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). To meet this “plausibility standard,” a

plaintiff must “plead[ ] factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

(quoting Twombly, 550 U.S. at 555).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

On a motion to dismiss, “the court must accept all factual allegations in a

complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of

the claim showing that the pleader is entitled to relief.” It does not “require that a plaintiff

specifically plead every element of a cause of action.” Balaschak v. Royal Caribbean Cruises,

Ltd., No. 09-21196, 2009 WL 8659594, at *6 (S.D. Fla. Sept. 14, 2009) (citing Roe v. Aware

Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), which, in turn, cited Jack H.

Friedenthal, et al., Civil Procedure, § 5.7 (2d ed. 1993) for the view that “[w]hat the pleader

need not do is worry about the particular form of the statement or that it fails to allege a

specific fact to cover every element of the substantive law involved.”).

III. Analysis

The Complaint alleges, in pertinent part, that:

24. Plaintiff [Reyes] had an interview regarding the I-130 petition in the U.S.

Embassy in Cuba on November 2, 2022, over twelve (12) months ago. In

total, it’s been almost over three (3) years since Plaintiff [Gonzalez] began

this unreasonably delayed process to bring her father to the United States

to reside with her and his grandson. After the November 2, 2022 interview,

the U.S[.] Embassy “refused” Plaintiff [Gonzalez] and Plaintiff [Reyes’]

petition and issued a 221(g) [letter] requesting more documents. Plaintiff

[Gonzalez] called and sent emails on November 8 to the Embassy to ask for

the requested documents and by November 30, 2023[,] she received a

response from the Embassy. Plaintiff [Reyes] promptly acquired the

necessary documents and sent them to the U.S. Embassy on December 3,

2022.

25. On December 5, 2022, Plaintiff [Gonzalez] received an email from the

U.S. Embassy, acknowledging receipt of the documents. Exhibit C. Emails

from the U.S. Embassy.

26. On November 2, 2022, Plaintiff [Reyes] received a letter stating that

his application was refused under 221(g) because the Embassy required

more information and his case was in “administrative processing” and he

would be contacted when processing was completed. See Exhibit D. Letter

from the Embassy stating that Plaintiff [Reyes’] application was in

Administrative Processing.

[ECF No. 1, ¶ 24–26 (underline emphasis in original; bold emphasis added)].

Plaintiffs contend that their Petition is still pending since “the U.S. Embassy has

not made a final determination”:

Plaintiff [Reyes] received a letter stating that his application was “refused”

under 221(g) stating that the U.S. Embassy required more information and

his case was in “administrative processing” and that he would be contacted

when processing was completed. [ECF No. 1, ¶ 25]. On November 8, 2022,

Plaintiff [Gonzalez] followed up with the U.S. Embassy by phone and email

to inquire about the requested documents. Id. She received a response on

November 30 and Plaintiff [Reyes] promptly worked with her father to

gather all the necessary documents. November 30, 2022 she received a

response from the Embassy. Plaintiff [Reyes] promptly acquired the

necessary documents and sent them to the U.S. Embassy on December 3,

2022. On December 5, 2022, Plaintiff [Gonzalez] received an email from the

U.S. Embassy, acknowledging receipt of the documents. [ECF No. 1; Exh.

C]. Furthermore, as further evidence that this case is still in a pending status

and has not been adjudicated, the Defendant Department of State sent an

email to Plaintiff [Gonzalez] from the Immigrant Visa Unit of the U.S.

Embassy in Havana, Cuba stating that after carefully considering and reviewing

all available information. . . “[a]dditional security screening is being conducted.”

Exhibit A, Email from the Department of State from Immigrant Visa Unit

of the U.S. Embassy in Havana stating that “. . . Additional security

screening is being conducted.”

[ECF No. 10, p. 7 (emphasis in original)]. Thus, they maintain that “a refusal under 221(g)

is not a final decision.” Id. at 8.

The Government’s position is that Reyes’ visa application was adjudicated on

November 2, 2022, when a consular officer issued the Section 221(g) refusal. [ECF No. 8,

p. 4]. According to the Government, the fact that the U.S. Embassy requested additional

information from Reyes (post-refusal) does not change the fact that the Petition has been

fully adjudicated:

While it is possible that additional documentation or investigation may

prompt a consular officer to revisit a decision to refuse a visa application,

the consular officer maintains its decision to refuse the visa in the

interim. In other words, the decision to refuse a visa application operates

as a final decision unless and until the applicant overcomes the

ineligibility. See [Tariq v. Blinken, Civ. A. No. 21-2841, 2023 WL 2661543, at

*1 (N.D. Tex. Jan. 31, 2023)] (“[T]he mere possibility that an agency might

reconsider . . . does not suffice to make an otherwise final agency action

nonfinal.”) (quoting Sackett v. Envtl. Prot. Agency, 566 U.S. 120, 127 (2012)).

[ECF No. 8, p. 11 (emphasis added)]; see also [ECF No. 12, p. 2 (“[T]he consular officer’s

decision is final unless and until superseded by another decision, which may or may not

happen at all. . . . [U]ntil a consular officer makes another decision, the visa application

has been and remains refused.”)].

Thus, the Government seeks to dismiss the Complaint [ECF No. 1] on the

following grounds: (1) the consular non-reviewability doctrine bars judicial review of the

consular officer’s refusal of Reyes’ visa application; (2) there is no non-discretionary duty

for a consular officer to re-adjudicate an already-refused visa application; and (3)

Plaintiffs have failed to state a claim for unreasonable delay under the APA.

A. Consular Non-Reviewability Doctrine

At the outset, Defendants contend that the Court should dismiss Plaintiffs’

Complaint [ECF No. 1] pursuant to the consular non-reviewability doctrine. [ECF No. 8].

The Supreme Court has noted that:

“For more than a century, this Court has recognized that the admission and

exclusion of foreign nationals is a ‘fundamental sovereign attribute

exercised by the Government’s political departments largely immune from

judicial control.’” [Trump v. Hawaii, 585 U.S. 667, 702, 138 S. Ct. 2392, 201 L.

Ed. 2d 775 (2018)] (quoting Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 52

L. Ed. 2d 50 (1977)). Congress may delegate to executive officials the

discretionary authority to admit noncitizens “immune from judicial inquiry

or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 588–591, 72 S. Ct.

512, 96 L. Ed. 586 (1952). When it does so, the action of an executive officer

“to admit or to exclude an alien” “is final and conclusive.” United States

ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S. Ct. 309, 94 L. Ed. 317

(1950); see also Dept. of Homeland Security v. Thuraissigiam, 591 U.S. 103, 138–

139, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020); [Kleindienst v. Mandel, 408 U.S.

753, 765–766, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972)]; Nishimura Ekiu v. United

States, 142 U.S. 651, 659–660, 12 S. Ct. 336, 35 L. Ed. 1146 (1892). The Judicial

Branch has no role to play “unless expressly authorized by law.” Knauff,

338 U.S., at 543, 70 S. Ct. 309. The [INA] does not authorize judicial review

of a consular officer’s denial of a visa; thus, as a rule, the federal courts

cannot review those decisions. This principle is known as the doctrine of

consular non[-]reviewability.

Dep't of State v. Munoz, 144 S. Ct. 1812, 1820, 219 L. Ed. 2d 507 (2024) (emphasis added;

footnote omitted).2 The Eleventh Circuit has stated that “when the doctrine of consular

non-reviewability bars review of a consular official’s decision, a district court should

dismiss a suit challenging the decision under Rule 12(b)(6).” Del Valle v. Sec'y of State,

United States Dep't of State, 16 F.4th 832, 838 (11th Cir. 2021).

“[The consular non-reviewability] doctrine only applies to affirmative decisions

by consular officers; it does not apply to suits challenging inaction.” Anid Infosoft LLC v.

Blinken, No. 1:22-CV-4721-TWT, 2023 WL 7312488, at *4 (N.D. Ga. Nov. 3, 2023) (emphasis

added). The doctrine “does not bar suits that merely seek to compel some agency action—

regardless of the substance of that action.” Al-Gharawy v. U.S. Dep’t of Homeland Sec., 617

2 The Supreme Court has “assumed that a narrow exception to this bar exists ‘when

the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.’” Munoz,

114 S. Ct. at 1821 (citing Trump, 585 U.S. at 703). However, this narrow exception does not

apply here. Gonzalez, a United States citizen, does not allege in the Complaint [ECF No.

1] that her constitutional rights are being violated.

Moreover, this limited exception only “authorizes a court to ensure that a visa

denial is based on a ‘facially legitimate and bona fide reason.’” Ruiz-Herrera v. Holder, No.

1:12-CV-0194-JEC, 2013 WL 1136849, at *4 (N.D. Ga. Mar. 15, 2013) (quoting Mandel, 408

U.S. at 770). But, as the Government points out, “[n]owhere in the Complaint do [ ]

Plaintiffs suggest that the reasons for the consular officer’s [November 2, 2022] refusal of

[ ] Reyes’ visa application are facially illegitimate or non-bona fide.” [ECF No. 8, p. 9].

F. Supp. 3d 1, 12 (D.D.C. 2022); see also Ramizi v. Blinken, No. 5:23-CV-000730-M, 2024 WL

3875041, at *6 (E.D.N.C. Aug. 14, 2024) (finding that doctrine of consular non-

reviewability did not bar lawsuit because “[the] [p]laintiffs [were] not challenging the

consular officer’s refusal of [the] visa application, but rather the period of post-refusal

administrative processing that has ensued after the refusal” (appeal pending)).

Here, Plaintiffs allege that “[o]n November 2, 2022, Plaintiff [Reyes] received a

letter stating that his application was refused under 221(g) because the Embassy required

more information and his case was in ‘administrative processing’ and he would be

contacted when processing was completed.” [ECF No. 1, ¶ 26]. Plaintiffs further allege

that “[Reyes’] [P]etition has been in ‘administrative processing’ since November 2, 2022.”

Id. at ¶ 27.

Moreover, the Complaint makes clear that Plaintiffs are not seeking judicial review

of the consular officer’s November 2, 2022 refusal of Reyes’ visa application. Rather, they

are seeking to compel the Government to act. In their prayer for relief, they ask that

“Defendants be ordered to adjudicate Plaintiffs’ [ ] visa application without delay.” Id. at

10. Therefore, the consular non-reviewability doctrine is inapplicable here.

B. Non-Discretionary Duty

Next, the Government asserts that “Plaintiffs do not, and cannot, identify any

clear, non-discretionary duty for a consular officer to reconsider or re-adjudicate any

specific visa application after it has already been refused.” [ECF No. 8, p. 12]. In the same

vein, it argues that “[e]ven assuming, arguendo, that a non-discretionary duty to re-

adjudicate [ ] Reyes’ visa application existed, neither 22 C.F.R. § 42.81 nor any other

statute or regulation specifies when any such reconsideration or re-adjudication must

happen.” Id. at 15.

It states that:

“a delay cannot be unreasonable with respect to action that is not

required.” [Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 n.1 (2004)]; see

[Zeynali v. Blinken, 630 F. Supp. 3d 208, 212 (D.D.C. 2022)] (“Thus, one

component of either an unlawful withholding or an unreasonable delay

claim under the APA, is a showing that the agency had a non-

discretionary duty to take a discrete action.”). Consequently, there is

simply no standard against which the Court can measure whether

Defendants have acted “within a reasonable time” or “unreasonably

delayed adjudication,” especially for the re-adjudication Plaintiffs

ultimately seek in this matter. 5 U.S.C. § 555(b); 5 U.S.C. § 706(1)[.]

Id.

The Undersigned acknowledges that some courts have rejected the Government’s

position because it would necessarily mean that it can hold Reyes’ visa application in

“administrative processing” ad infinitum. See, e.g., Farahani v. Laitinen, No. 1:23-CV-922,

2024 WL 2785043, at *4 (M.D.N.C. May 30, 2024) (noting that the Government’s position

“would, in effect, permit administrative processing to carry on indefinitely without

judicial review”).

Nonetheless, after the parties filed their briefs, the United States Court of Appeals

for the District of Columbia Circuit decided Karimova v. Abate, No. 23-5178, 2024 WL

3517852 (D.C. Cir. July 24, 2024) (per curiam). Although Karimova is a non-binding

unpublished decision from another circuit, the Undersigned finds its reasoning

persuasive. See Ramizi, 2024 WL 3875041, at *8 (“Karimova is unpublished and non-

binding. But the court finds its reasoning persuasive and adopts it for purposes of this

order.”).

Moreover, it undermines some of the earlier D.C. district court cases which

Plaintiffs rely on to support their argument that the 221(g) letter was a temporary refusal

and not a final adjudication. See Sharifishourabi v. Blinken, No. CV 23-3382 (RC), 2024 WL

3566226, at *4–5 (D.D.C. July 29, 2024) (“Until recently, the [c]ourt would be inclined to

disagree with [the Government’s] characterization. After all, courts have consistently

held that where, as here, a visa ‘application is still undergoing administrative processing,’

the State Department’s ‘decision is not final’ ‘even where a refusal has been relayed.’” . .

. . The [D.C.] Circuit’s recent, unpublished decision in Karimova . . . . casts doubt on the

accuracy of the reasoning in those decisions.”); Ibrahim v. Spera, No. CV 23-3563 (ABJ),

2024 WL 4103702, at *3 (D.D.C. Sept. 6, 2024) (“While it troubles this [c]ourt, one cannot

read Karimova as saying anything other than a 221(g) refusal and placement in

administrative processing was a conclusion.” (emphasis added)).3

3 At least one D.C. district court has declined to follow Karimova. See Hajizadeh v.

Blinken, No. CV 23-1766, 2024 WL 3638336 (D.D.C. Aug. 2, 2024). But that decision does

not engage in a substantive discussion of Karimova and merely states that “[t]his court has

considered Karimova but declines to follow it.” Id. at *3 n.3.

In Karimova, as in the instant case, a consular officer interviewed the plaintiff and

officially “refused” her application but “placed her application in administrative

processing in order to verify qualifications for [her requested] visa.” 2024 WL 3517852, at

*2 (internal quotation marks omitted; alteration in original). Approximately a year later,

the plaintiff filed suit “alleg[ing] that the consul’s duty [under Section 555(b) of the APA

was] not discharged by a refusal due to administrative processing, because that [was] not

a final decision on the visa application.” Id. (internal quotation marks omitted).

The district court granted the Government’s motion to dismiss. The appellate court

affirmed. In doing so, the Karimova Court noted that:

Visa applicants “make” or “execute” their application by bringing the

required paperwork to an in-person interview with a consular officer. 9

Foreign Affairs Manual (“FAM”) § 504.1-3(a), (g). The consular officer’s

decision to refuse or grant the application is based on that interview and

the application materials. Id. § 504.1-3(f). As relevant here, once the

applicant properly applies, the consular officer—by regulation—“must

issue” or “refuse” the visa. 22 C.F.R. § 42.81(a) (emphasis added); see 9

FAM § 504.1-3(g) (“Once an application has been executed, [the consular

officer] must either issue the visa or refuse it.”). Consular officers “cannot

temporarily refuse, suspend, or hold the visa for future action” at that

point. 9 FAM § 504.1-3(g); id. § 504.9-2. There are no exceptions to this rule

relevant to this case. Id. § 504.1-3(i)(1); id. § 504.11-2(A)(a).

So any applicant “to whom a visa is not issued by the end of the working

day on which the application is made, or by the end of the next working

day [. . . ] must be found ineligible[.]” 9 FAM § 504.1-3(i)(1); id. § 504.11-

2(A)(a). The “requirement to find an applicant ineligible when a visa is not

issued applies even when” more information might show the applicant to

be eligible. Id. § 504.1-3(i)(1). “There is no such thing as an informal refusal

or a pending case once a formal application has been made.” Id. § 504.1-

3(i); id. § 504.11-2(A)(b); see 22 C.F.R. § 42.81(a).

After a consular officer makes an official decision refusing to issue a visa

because the applicant has not carried her burden of showing eligibility, the

official may then conclude that the applicant could perhaps still receive a

visa eventually if circumstances change. As a result, the consular officer

may choose to place an officially refused application in administrative

processing. Such an applicant cannot come into the United States since the

consular officer has refused to issue her a visa. But that refusal may (or may

not) be overcome with new information at a later date. See 9 FAM § 306.2-

2(A)(a). If the consular officer gets enough new information, sometimes

from sources other than the applicant, the officer can determine sua

sponte that the administrative processing is “completed” and may then

re-open and re-adjudicate the applicant’s case. Id. § 306.2-2(A)(a)(2).

Unless and until that happens, though, the visa application remains

officially refused. Because the visa application has already been officially

refused, keeping the door open in administrative processing can only

benefit, never hurt, the applicant’s entry prospects.

Id. at *1–2 (emphasis added; footnote omitted).

The appellate court determined that the plaintiff had failed to identify a duty

under Section 555(b) of the APA to adjudicate an already refused application:

Karimova’s “matter” has already been “conclude[d.]” 5 U.S.C. § 555(b).

Karimova acknowledges that her application was considered by the

consular officer and officially refused. A consular officer reviewed her

application, interviewed her, and ruled that no visa would be granted.

Karimova’s argument hinges on defining what it means to conclude a visa

application in a manner that neither a federal statute nor regulation clearly

requires. She received the “refused” decision that the law expressly

authorizes as one of the allowed actions on a visa application. 22 C.F.R. §

42.81; see 8 U.S.C. § 1201(g). Nothing in federal law speaks to the ability

of a consul, after making that decision, to hold onto the application in

case circumstances later change in the applicant’s favor, thereby saving

the applicant the time and cost of filing a whole new visa application.

In other words, even on Karimova’s reading, Section 555(b) at most could

have entitled her to the official refusal decision she already received.

Section 555(b) does not in any way dictate how the agency can handle her

rejected paperwork after a decision has been made.

Id. at *4 (record citations omitted; emphasis added).

Moreover, the fact that Plaintiffs submitted additional documents to the U.S.

Embassy (post-refusal) does not alter the outcome. See Ramizi, 2024 WL 3875041, at *12

(“To the extent a consular officer has any nondiscretionary duty under Section 42.81(e),

that duty is only to review information submitted by a refused applicant to determine

whether that evidence tends to overcome the ground of ineligibility. But the [c]omplaint

contains no allegation that [the] [d]efendants have refused to review the information [one

of the plaintiffs] submitted after his application was refused. To the contrary, [the]

[p]laintiffs allege that the review is ongoing.” (record citations omitted)); Hemmat v.

Blinken, No. CV 23-2085 (TSC), 2024 WL 4210658, at *4 (D.D.C. Sept. 17, 2024) (“[The]

[p]laintiffs’ other attempts to identify a source for the duty they claim do not succeed,

either. Laws and regulations requiring consular officers ‘properly and promptly’ process

visa applications, making a decision to ‘issue’ or ‘refuse’ them when completed, 8 U.S.C.

§ 1201(g), 22 C.F.R. §§ 41.106, 42.81(a), were satisfied when [the] [p]laintiffs’ application

were [sic] ‘refused[.]’” (citing Karimova, 2024 WL 3517852, at *4)).

Because Plaintiffs failed to identify a non-discretionary duty to act on an already

refused visa application, the Undersigned respectfully recommends that Judge Williams

dismiss the Complaint [ECF No. 1]. Additionally, and as discussed below, even if the

Court were to assume (arguendo) that a non-discretionary duty to adjudicate a refused-

visa application placed in administrative process does exist, the Complaint should still be

dismissed because Plaintiffs have failed to allege an unreasonable delay under the APA.

C. Unreasonable Delay Claim under the APA

The APA requires agencies to “conclude” matters presented to them “within a

reasonable time.” 5 U.S.C. § 555(b). If an agency fails to do so, the APA authorizes courts

to “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1).

“When assessing unreasonable delay claims under the APA, courts frequently use

the ‘TRAC factors,’ a six-factor test articulated by the D.C. Circuit in Telecommunications

Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”).” Mafundu v.

Mayorkas, 699 F. Supp. 3d 1310, 1316 (S.D. Fla. 2023). These factors are as follows:

(1) the time agencies take to make decisions must be governed by a rule of

reason[;] (2) where Congress has provided a timetable or other indication

of the speed with which it expects the agency to proceed in the enabling

statute, that statutory scheme may supply content for this rule of reason[;]

(3) delays that might be reasonable in the sphere of economic regulation are

less tolerable when human health and welfare are at stake; (4) the court

should consider the effect of expediting delayed action on agency activities

of a higher or competing priority[;] (5) the court should also take into

account the nature and extent of the interests prejudiced by delay[;] and (6)

the court need not find any impropriety lurking behind agency lassitude in

order to hold that agency action is ‘unreasonably delayed.

TRAC, 750 F.2d at 80 (citations and internal quotation marks omitted).

The TRAC factor analysis is necessarily fact-intensive. “As a result, courts are split

on whether it is appropriate to analyze the TRAC factors at the motion to dismiss stage.”

Abou Hala v. Chief, Immigrant Inv. Program Off., No. 6:23-CV-1541-PGB-DCI, 2024 WL

4188350, at *5 (M.D. Fla. Sept. 13, 2024).

Here, Plaintiffs argue that “[u]nreasonable delay claims require fact-based

inquiries not suitable for disposition at this stage of litigation.” [ECF No. 10, pp. 14–15].

But many of the cases cited in Plaintiffs’ response applied the TRAC factors at the motion

to dismiss stage. See, e.g., Lee v. Blinken, 23-cv-1783 (DLF) (D. D.C. Feb 15, 2024) (granting

Government’s motion to dismiss undue delay claim after applying the TRAC factors);

Didban v. Pompeo, 435 F. Supp. 3d 168, 174–75 (D.D.C. Jan. 15, 2020) (same). Moreover,

Plaintiffs themselves engaged in a TRAC factor analysis and have not identified any

specific facts which need to be developed through the discovery process. Thus, Plaintiffs

do not provide a compelling reason for why the Court should not analyze the TRAC

factors at this time. See Osechas Lopez v. Mayorkas, 649 F. Supp. 3d 1278, 1287 (S.D. Fla.

2023) (Williams, J.) (on a motion to dismiss, stating that “[i]n this matter, [the] [p]laintiff—

the non-movant—briefed the TRAC factors in her [r]esponse and accordingly, the Court

considers the record appropriately developed to determine whether [the] [p]laintiff has

adequately stated a claim for unreasonable delay”).

1. Factors 1 and 2

“The first and second TRAC factors are ‘typically considered together[.]’”

Nascimento v. United States Dep’t of Homeland Sec., 689 F. Supp. 3d 1245, 1250 (S.D. Fla.

2023) (quoting Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020)). “Of the two

factors, the first—whether a “rule of reason” guides the agency—is the most important.”

Id.

Plaintiffs argue that the first factor falls in their favor because “there is no claim

that Plaintiffs’ immigrant visa adjudications are complex or time [c]onsuming.” [ECF No.

10, p. 11]. They cite to Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful

Serv. to the United States v. Pompeo, No. 18-CV-01388 (TSC), 2019 WL 4575565 (D.D.C. Sept.

20, 2019) and note that in that case, the court determined that the first factor weighed in

favor of the plaintiffs because “the D.C. Circuit relied heavily on Congress’s intent that,

except for certain high-risk cases, [the special immigrant visa (“SIV”) applications at

issue] should be completed, specifically including background checks and screenings,

within [nine] months from the date the applicant submitted the required

documentation.” Id. at 10.

But Plaintiffs’ reliance on cases involving visas under the Refugee Crisis in Iraq

Act (“RCIA”) and the Afghan Allies Protection Act (“AAPA”) is unavailing because the

process for obtaining those visas is different. See Afghan & Iraqi Allies Under Serious Threat

Because of Their Faithful Serv. to the United States, 2019 WL 367841, at *3 (explaining that

“[t]o successfully obtain admission into the United States through the SIV program, Iraqi

and Afghan nationals must complete fourteen steps.”). Moreover, per the 2013

amendments to the RCIA and AAPA, there is a congressionally-set nine-month timeline

for when applications should be completed, as well as periodic reporting requirements.

Id. at *2 (noting that “[a]ll government-controlled steps incidental to issuing the SIVs,

‘including required screenings and background checks,’ should be completed within nine

months after submission of a complete application.”).

Plaintiffs have not shown that similar protocols apply to the visa application at

issue here.

The second factor considers whether Congress has provided a timetable or other

indication of speed. Plaintiffs assert that “Congress has provided its clear intention that

any delay in excess of 180 days is unreasonable under TRAC Factor 2.” [ECF No. 10, p.

11]. But as one court explained, this 180-day language, found in 8 U.S.C. § 1571(b), “is

best interpreted as nonbinding. . . . And a contrary holding would ignore the

overwhelming caselaw rejecting unreasonable delay challenges for applications that

remained pending well beyond the 180-day window that Congress contemplated in 8

U.S.C. § 1571(b).” Mohammad v. Blinken, 548 F. Supp. 3d 159, 167 (D.D.C. 2021) (internal

citation and quotation marks omitted); see also Eljalabi v. Blinken, No. CV 21-1730 (RC),

2022 WL 2752613, at *5 (D.D.C. July 14, 2022) (“Despite [the plaintiff’s] attempt to apply

the timeframe established by Congress in 8 U.S.C. § 1571(b)—which states that [the

Department of State (“DOS”)] must adjudicate immigration benefits within 180 days—to

the instant case, there exists no statutory or regulatory framework within which DOS

must adjudicate I-130 applications.” (record citation omitted)); Reese v. United States Dep't

of State, No. 1:23-CV-1643-RDP, 2024 WL 3381898, at *2 (N.D. Ala. July 10, 2024) (“[T]here

is no congressionally or administratively prescribed timeframe within which USCIS has

a duty to process or adjudicate I-130 petitions.” (citing Alfassi v. Garland, 614 F. Supp. 3d

1252, 1255 (S.D. Fla. 2022))).

“Absent a congressionally supplied yardstick, courts typically turn to case law as

a guide.” Sarlak v. Pompeo, No. CV 20-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10,

2020). At present, approximately two years have elapsed since the November 2, 2022

refusal. “[C]ourts . . . routinely find that delays of numerous years are not unreasonable.”

Sivananthan v. Blinken, No. CV 23-1181 (CKK), 2023 WL 4885858, at *3 (D.D.C. Aug. 1,

2023). In fact, “[d]istrict courts have generally found that immigration delays in excess of

five, six, seven years are unreasonable, while those between three to five years are often

not unreasonable.” Yavari v. Pompeo, No. 2:19-CV-02524-SVW-JC, 2019 WL 6720995, at *8

(C.D. Cal. Oct. 10, 2019).

In sum, the first and second factors weigh in favor of the Government.

2. Factors 3 and 5

The third and fifth TRAC factors consider whether “human health and welfare are

at stake,” and the “nature and extent of the interests prejudiced by delay.” TRAC, 750

F.2d at 80. Plaintiffs state that “[Reyes] is rapidly aging and his U[.]S[.] citizen Plaintiff

[d]aughter is waiting for him in Miami to provide the best care for him in his last years.”

[ECF No. 10, p. 11]. They further state that “[t]here is nothing in the record to show that

compelling Defendants to schedule and complete [Reyes’] immigrant visa interview and

the adjudication of his DS-260 immigrant visa application would prejudice them in any

way.” Id. at 12.

The Government argues that “[f]or the third and fifth factors to weigh in Plaintiffs

favor, it is not enough that they claim financial, medical, and emotional hardship when

many others face similarly difficult circumstances.” [ECF No. 12, p. 8 (quoting

Mohammad, 548 F. Supp. 3d at 168–69 (quotation marks omitted))].

These factors weigh in Plaintiffs’ favor. See Albrecht v. Blinken, No. 22-CV-1318

(APM), 2023 WL 4488282, at *4 (D.D.C. June 16, 2023), aff'd, No. 23-5157, 2024 WL 85917

(D.C. Cir. Jan. 8, 2024) (“The court recognizes that [the] [p]laintiff is harmed by his

separation from relatives in the United States”).

3. Factor 4

As to the fourth factor, consideration must be given to the effect of expediting

Plaintiffs’ [P]etition on the USCIS’s “activities of a higher or competing priority.” TRAC,

750 F.2d at 80. The fourth factor alone, may be enough to tip the scales in favor of

dismissal:

Even where all other TRAC factors weigh in a plaintiff’s favor, a court may

“refuse[ ] to grant relief . . . where ‘a judicial order putting the petitioner at

the head of the queue would simply move all others back one space and

produce no net gain.’” See Mashpee Wampanoag Tribal Council, Inc. v. Norton,

336 F.3d 1094, 1100 (D.C. Cir. 2003) (cleaned up) (quoting [In re Barr Lab'ys,

Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)]); see also [Otto v. Mayorkas, No. 8:22-cv-

1172, 2023 WL 2078270, at *5 (M.D. Fla. Feb. 17, 2023)] (“[S]witching

positions of applicants would ‘produce no net gain’ in the overall

progression of adjudications.” (quoting Mashpee, 336 F.3d at 1100)).

Mafundu, 699 F. Supp. 3d at 1319.

The Government argues that granting “the relief sought by [ ] Plaintiffs would

inherently divert resources from other applicants by allowing [ ] Plaintiffs ‘to cut the line’

and obtain immediate re-adjudication of their visa application.” [ECF No. 12, p. 9]. They

note that “delay and uncertainty is inherent to the immigration application process and

courts are disinclined to place one individual ahead of similarly-situated individuals.” Id.

This factor weighs heavily in the Government’s favor. “[D]eference must be given

to the State Department’s priority-setting and resource-allocation decisions.” Arab v.

Blinken, 600 F. Supp. 3d 59, 71 (D.D.C. 2022). Moreover, “[a] court should not compel

agency action where the result would be merely to expedite the consideration of a

plaintiff’s request ahead of others.” Ali v. United States Dep't of State, 676 F. Supp. 3d 460,

471 (E.D.N.C. 2023).

4. Factor 6

The sixth TRAC factor provides that “the court need not find any impropriety

lurking behind agency lassitude in order to hold that agency action is ‘unreasonably

delayed.’” TRAC, 750 F.2d at 80 (internal citation omitted). This factor is neutral because

Plaintiffs have made no allegations regarding the Government’s motivations or any bad

faith.

In sum, the balance of the TRAC factors weighs in favor of the Government. Thus,

the Undersigned respectfully recommends that Judge Williams dismiss Plaintiff’s

Complaint [ECF No. 1] for failure to state a claim under Rule 12(b)(6).

Plaintiffs’ frustration with the time in which Reyes’ case has been in administrative

processing is understandable. But courts addressing “visa delays measuring under two

years while placed in administrative processing — have consistently held that the

lawsuits fail under the TRAC factors.” Key v. Palmer, No. 2:24-CV-01563 AC, 2024 WL

4289582, at *5 (E.D. Cal. Sept. 25, 2024); Sharifishourabi, No. CV 23-3382 (RC), 2024 WL

3566226, at *7 (D.D.C. July 29, 2024) (“delay of just over two years [was] not

unreasonable”).

D. EAJA Fees

Lastly, the Government argues that Plaintiffs are not entitled to fees under the

EAJA. [ECF No. 8, p. 17]. Because the Undersigned is recommending that Plaintiffs’

Complaint be dismissed, it is not necessary to address this argument.

IV. Conclusion

For the reasons stated above, the Undersigned respectfully recommends that the

District Court grant Defendants’ motion [ECF No. 8] and dismiss Plaintiffs’ Complaint

[ECF No. 1].

If Judge Williams agrees with the Undersigned that there is no non-discretionary

duty to adjudicate an already-refused visa application, then the dismissal should be with

prejudice. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a

complaint is futile when the complaint as amended would still be properly dismissed or

be immediately subject to summary judgment for the defendant.”).

If, on the other hand, Judge Williams decides to dismiss Plaintiffs’ Complaint only

for failure to state an unreasonable delay claim (applying the TRAC factors), then the

dismissal should be without prejudice but without leave to amend. See Key v. Palmer,

No. 2:24-CV-01563 AC, 2024 WL 4289582, at *6 (E.D. Cal. Sept. 25, 2024) (dismissing

complaint without leave to amend because the pleading deficiencies could not be cured

with additional facts but “without prejudice, such that plaintiff may bring a future action

if the delay unreasonably persists”). Moreover, Plaintiffs, who are represented by

counsel, have not sought leave to amend. See Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“A district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented

by counsel, never filed a motion to amend nor requested leave to amend before the

district court.”).

V. Objections

The parties will have fourteen (14) days from the date of being served with a copy

of this Report and Recommendations within which to file written objections, if any, with

United States District Judge Kathleen M. Williams. Each party may file a response to the

other party’s objection within fourteen (14) days of the objection. Failure to file objections

timely shall bar the parties from a de novo determination by the District Judge of an issue

covered in the Report and shall bar the parties from attacking on appeal unobjected-to

factual and legal conclusions contained in this Report except upon grounds of plain error

if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140,

149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on October

21, 2024.

Jgnathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Kathleen M. Williams

All Counsel of Record

26