MYERS v. RUBIO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOURNEY ELLIOTT MYERS and SAMIRA

DANAEI,

Plaintiffs, Civil Action No. 2:24-cv-1592

v. Hon. William S. Stickman IV

MARCO A. RUBIO, in his official capacity

as U.S. Secretary of State, et al.,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiffs Journey Elliott Myers (“Myers”) and Samira Danaei (“Danaei”) (collectively

“Plaintiffs”), brought this action against Defendants Antony Blinken (“Blinken”) and Robert

Jachim (“Jachim”) (collectively “Defendants”) in their official capacity. (ECF No. 1). At Count

I, Plaintiffs seek a writ of mandamus under 28 U.S.C. § 1361 compelling Defendants to adjudicate

Plaintiffs’ visa application. (Id. 109-23). At Count II, Plaintiffs request the Court to compel

Defendants to adjudicate their visa application under the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 706(1) and 706(2). Ud. §§ 124-31). Defendants filed a motion (ECF No. 9) and

supporting brief (ECF No. 10) seeking to dismiss Plaintiffs’ complaint. For the reasons articulated

below, the Court will grant Defendants’ motion.

' Under the new presidential administration, the Secretary of State is Marco Rubio. U.S.

DEPARTMENT OF STATE, https://www.state.gov/secretary/ (last visited March 13, 2025); see also

Hafez v. Equifax Info. Servs., LLC, 666 F. Supp. 3d 455, 457 n.2 (D.N.J. 2023) (“The Court may

take judicial notice of information published to government websites on a motion to dismiss

without converting it into a motion for summary judgment.”).

I. FACTUAL BACKGROUND

On January 26, 2023, Myers, a United States citizen, filed a Petition for Alien Fiancé(e),

also known as a Form I-129F with the United States Citizenship and Immigration Services

(“USCIS”) on behalf of Danaei, his fiancée. (ECF No. 1, Jf 2, 66). Danaei is an Iranian national

and the primary applicant for the nonimmigrant visa application. (/d. { 67). Plaintiffs’ petition

was forwarded to the National Visa Center (“NVC”) for processing. (Ud. § 3). On February 17,

2024, Plaintiffs submitted an Online Nonimmigrant Visa Application (“DS-160”). (Ud. 4 4). On

March 1, 2024, Danaei was interviewed at the United States Embassy in Ankara, Turkey. Ud. §

5). At this point, Danaei’s visa was refused pursuant to 8 U.S.C. § 1201(g) (also referred to as the

United States Immigration and Nationality Act (“INA”) § 221(g)). Ud. 49). After the interview,

Danaei was informed that her visa would be placed in administrative processing. (ld. □ 6).

According to Plaintiffs, the application has remained in administrative processing since that time.

Danaei’s application status on the United States Department of States’ (“DOS”) website is

listed as refused:

□□ Refused

Immigrant Visa Case Number: ANK2023855023 01 ANK

Case Created: 21-Dec-2023

Case Last Updated: 15-Oct-2024

A U.S. consular officer has adjudicated and refused your visa application. Please follow any

instructions provided by the consular officer. If you were informed by the consular officer that

your case was refused for administrative processing, your case will remain refused while

: undergoing such processing. You will receive another adjudication once such processing is

complete, Please be advised that the processing time varies and that you will be contacted if :

additional information is needed. For more information, please visit TRAVEL.STATE.GOV or the i

: website for the Embassy or Consulate at which you made your visa application. □

For more information, please visit U.S, Ernbassy Ankara.

(ECF No. 1-3, p. 2)’; (ECF No. 1, 973). Plaintiffs have not received an update since the interview.

(Id. 74). Plaintiffs are concerned that the new presidential administration will institute travel

bans effecting Iranian nationals. (Ud §§ 75-77). Further, Plaintiffs explained that “[b]eing

separated has... been a harrowing reality for Plaintiffs” particularly in light of the volatile security

situation in Iran. Ud. § 78). Plaintiffs contend that “Defendants are withholding final action on .

Danaei’s application and have left Plaintiffs in a perpetual state of administrative uncertainty.”

(Id. J 86). Blinken, who Plaintiffs sued in his official capacity, was the Secretary of the DOS. (d.

Jachim, also sued in his official capacity, was the DOS’s Acting Director of the Office of

Screening, Analysis, and Coordination. (Ud. § 31).

At Count I, Plaintiffs request that the Court issue a writ of mandamus compelling

Defendants to make a final decision with respect to Danaei’s visa application. (/d. {| 109-23). At

Count II, Plaintiffs request that the Court compel Defendants to complete a final adjudication of

Danaei’s visa application in accordance with the APA. Ud. {J 124-31). Under both Counts,

Plaintiffs maintain that they “have fully complied with all statutory and regulatory requirements

for seeking their K-1 nonimmigrant visa, including obtaining approval of an I-129F, applying for

their visa with a properly filed DS-160, and submitting all necessary documentation, paying all

required fees, and completing their visa interview.” (/d. J 114). Nevertheless, Plaintiffs allege

that Defendants “have willfully and unreasonably failed to adjudicate” the visa application. Ud. |

115); (see also id. § 121 (“Defendants have failed in their duty to adjudicate . . . Danaei’s visa

? Generally, “a district court ruling on a motion to dismiss [under Rule 12(b)(6)] may not consider

matters extraneous to the pleadings.” Jn re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997). However, the Court may consider exhibits attached to the complaint. See

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

application by refusing to act for an entirely unreasonable amount of time. Defendants have failed

to carry out the adjudicative and administrative functions delegated to [them] by law.”)).

Il. STANDARD OF REVIEW

A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), the Court must grant a

motion to dismiss if there is a lack of subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). A

plaintiff bears the burden of persuasion that federal jurisdiction is present. Saint Vincent Health

Ctr. v. Shalala, 937 F. Supp. 496, 501 (W.D. Pa. 1995) (citing Kehr Packages, Inc. v. Fidelcor,

Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). The threshold to survive a motion to dismiss under Rule

12(b)(1) is lower than that under Rule 12(b)(6). Lunderstadt v. Colafella, 886 F.2d 66, 70 (3d Cir.

1989). This is because dismissal for lack of jurisdiction cannot be predicated on the mere

probability that a plaintiffs legal theories are false; a court will only dismiss for a lack of

jurisdiction if a plaintiffs legal theories (1) are solely proffered to obtain federal jurisdiction but

otherwise are immaterial or (2) are “insubstantial on their face.” Growth Horizons, Inc. v. Del.

Cnty., Pa., 983 F.2d 1277, 1280 (3d Cir. 1993) (quoting Bell v. Hood, 327 U.S. 678, 773, 776

(1946)).

“A motion to dismiss for want of standing is... properly brought pursuant to Rule 12(b)(1),

because standing is a jurisdictional matter.” Ballentine v. United States, 486 F.3d 806, 810 Gd Cir.

2007). A court lacks jurisdiction if a plaintiff cannot establish Article HII standing. See Davis v.

Wells Fargo, 824 F.3d 333, 346 (Gd Cir. 2016) (“Absent Article III standing, a federal court does

not have subject matter jurisdiction to address a plaintiff's claims, and they must be dismissed.”).

B. Rule 12(b)(6)

A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”)

tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).

A plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on

its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 US.

662, 678 (2009). The Court must accept all well-pleaded factual allegations as true and view them

in the light most favorable to a plaintiff. Doe v. Princeton Univ., 30 F.4th 335, 340 (Gd Cir. 2022);

see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the Court must

accept the allegations in the complaint as true, it is “not compelled to accept unsupported

conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.”

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (internal citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even if the

complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not entitle a

plaintiff to relief. Id at 682. The complaint must support the inference with facts to plausibly

justify that inferential leap. Id.

UI. ANALYSIS

A. Article IIT Standing

Defendants contend that Plaintiffs’ complaint should be dismissed as moot because the

consular officer rendered a final adjudication when he refused Plaintiffs’ visa application after

Danaei’s March 1, 2024, interview. (ECF No. 10, p. 6). As such, according to Defendants,

Plaintiffs seek to compel an adjudication that has already occurred. (/d.). Since Plaintiffs’ visa

application has been adjudicated, Defendants argue that the Court has no jurisdiction over’

Plaintiffs’ claims because there is no outstanding duty that a writ of mandamus or injunction could

compel Defendants to perform. (/d. at 7). Plaintiffs counter that the controversy between Plaintiffs

and Defendants is live as “Danaei’s visa eligibility has not yet been determined because it has been

deferred for further administrative processing.” (ECF No. 12, pp. 6-7). Thus, the issue is whether

a visa application refusal pending administrative processing pursuant to INA § 221(g) is a final

adjudication.

Before deciding this issue, the Court must consider whether this issue is one of mootness

(as Defendants contend) or standing. Although often confused, “standing and mootness are

distinct justiciability doctrines” with different jurisdictional burdens. Hartnett v. Pa. State Educ.

Ass’n, 963 F.3d 301, 305 (3d Cir. 2020); see also Duncan v. Governor of Virgin Islands, 48 F.4th

195, 204 (3d Cir. 2022) (“The difference is not merely one of semantics.”). Standing is assessed

at the start of the litigation while mootness examines whether there is a live case throughout all

stages of the judicial proceeding. Zuch v. Comm’r of Internal Revenue, 97 F.4th 81, 93 (Gd Cir.

2024); W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 719 (2022). The distinction is important

because the burden to show standing rests with Plaintiffs, while the burden to show a case is moot

is borne by Defendants. W. Virginia, 597 U.S. at 718-19.

The standing inquiry considers “injury in fact, causation, and redressability.” Hartnett,

963 F.3d at 305. In other words, Plaintiffs must prove that they “(1) suffered an injury in fact, (2)

that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Associated Builders & Contractors W. Pa. v. Cmty.

Coll. of Allegheny Cnty., 81 F.4th 279, 287 (3d Cir. 2023) (internal citations omitted). Importantly,

the injury “must actually exist,” id., and the relief requested cannot be to have a defendant do what

“it has already done.” See Zevallos v. Obama, 10 F. Supp. 3d 111, 123 (D.D.C. 2014) (dismissing

a claim under Rule 12(b)(1) when the plaintiffs were requesting an agency to take action it has

already taken). In contrast, cases are moot when the defendant can show developments during

litigation that “eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court

from being able to grant the requested relief.” Hamilton v. Bromley, 862 F.3d 329, 335 3d Cir.

2017).

The Court holds that standing is the more appropriate lens through which to view

Defendants’ challenge. The parties are not debating whether an intervening circumstance deprives

the Court of jurisdiction. Defendants are alleging that there is no live case or controversy because

Danaei’s visa application was refused on March 1, 2024, before this litigation was commenced.

See Ebrahimi v. Blinken, 732 F. Supp. 3d 894, 902-03 (N.D. Ill. May 3, 2024) (reframing a

mootness argument as a standing issue when the basis of the argument was an event occurring

prior to the litigation commencing). While the parties frame their arguments in terms of mootness,

they are really disputing whether Plaintiffs had standing to bring the litigation from the outset. The

Court is permitted to reframe Defendants’ argument as a standing issue because Article ITI standing

is a “threshold” issue, Wayne Land & Min. Grp., LLC v. Delaware River Basin Comm’n, 959 F.3d

569, 573-74 (3d Cir. 2020), which the Court has an obligation to raise sua sponte, Seneca Res.

Corp. v. Twp. of Highland, Elk Cnty., Pennsylvania, 863 F.3d 245, 253 (3d Cir. 2017). Thus, the

proper inquiry is whether Plaintiffs have proven they have standing to bring this matter by showing

a decision has yet to be made on their visa application.

Article III of the United States Constitution provides that federal courts may only exercise

jurisdiction over “Cases” and “Controversies.” U.S. CONST. ART. III, § 2. The doctrine of standing

is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan

v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). As stated above, as the “party invoking federal

jurisdiction,” Plaintiffs bear the burden of establishing standing. Spokeo, Inc. v. Robins, 578 U.S.

330, 338 (2016).

In the instant case, the relevant prong of standing is redressability. Plaintiffs’ requested

relief is to compel Defendants to adjudicate Plaintiffs’ visa application.? For Plaintiffs’ purported

injury to be redressable, the relief requested must be something the Court has the power to order.

See MS. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018) (“[T]here is no redressability if a federal

court lacks the power to issue such relief.”); Republic of Marshall Islands v. United States, 865

F.3d 1187, 1199 (9th Cir. 2017) (“Redressability requires an analysis of whether the court has the

power to right or to prevent the claimed injury.”). Therefore, standing turns on whether Plaintiffs

3 Plaintiffs bring claims under the Mandamus Act (Count D and the APA (Count ID). The Court

will analyze these claims together in the standing section of this opinion because both counts

request the same relief: the Court to compel Defendants to adjudicate Plaintiffs’ visa application.

If the Court does not have the power to order such relief, Plaintiffs lack standing to bring both

claims. See Bokhari v. Bitter, 2024 WL 244211, at *1 (D.N.J. Jan. 22, 2024) (stating that the

plaintiff's “Mandamus Act claim is subsumed by his APA claim” rendering his Mandamus Act

claim “duplicative”); Azam v. Bitter, 2024 WL 912516, at *4 (D.N.J. Mar. 4, 2024) (Where... □

plaintiff seeks to compel agency action unlawfully withheld or unreasonably delayed, courts treat

claims under the APA and Mandamus Act co-extensively.”); Vietnam Veterans of Am. v. Shinseki,

599 F.3d 654, 659 n.6 (D.C. Cir. 2010) (“[T]he standards for obtaining relief [under the Mandamus

Act and the APA] are essentially the same.”)

have shown that Defendants have not fully discharged their duties to review and adjudicate the

visa application. Otherwise, if Defendants fulfilled their duties, Plaintiffs’ purported injury would

not be redressable by the Court.

Defendants contend that Plaintiffs’ visa application was already refused under INA §

221(g).4 Plaintiffs characterize Defendants’ actions as a deference or quasi-refusal. Plaintiffs

contend that by informing Danaei that her application was being placed in administrative

processing, Defendants have not fulfilled their duty to adjudicate Danaei’s visa application.” The

United States Court of Appeals for the Third Circuit has not addressed whether a refusal under

INA § 221(g) for administrative processing fulfills Defendants’ adjudicatory duty. However,

4 INA § 221(g) provides:

No visa or other documentation shall be issued to an alien if (1) it appears to the

consular officer, from statements in the application, or in the papers submitted

therewith, that such alien is ineligible to receive a visa or such other documentation

under section 1182 of this title, or any other provision of law, (2) the application

fails to comply with the provisions of this chapter, or the regulations issued

thereunder, or (3) the consular officer knows or has reason to believe that such alien

is ineligible to receive a visa or such other documentation under section 1182 of

this title, or any other provision of law.

8 U.S.C. § 1201(g).

> While the DOS has discretion with respect to whether to grant or deny a visa application, it has

a nondiscretionary duty to decide the application. 5 U.S.C. § 555(b) (compelling agencies “with

due regard for the convenience and necessity of the parties or their representatives and within a

reasonable time . . . [to] conclude a matter presented to it.”). Asa result, while the ultimate decision

whether to grant the visa is discretionary, “numerous courts have found that immigration

authorities have a non-discretionary duty to adjudicate applications.” Ahmed v. Holder, 12 F.

Supp. 3d 747, 753 (E.D. Pa. 2014) (quoting Hoo Loo v. Ridge, 2007 WL 813000, at *3 (E.D.N.Y.

Mar. 14, 2007)); see 22 C.F.R. § 41.121 (“When a visa application has been properly completed

and executed in accordance with the provisions of INA and the implementing regulations, the

consular officer must either issue or refuse the visa.”). And while the statute and regulations

governing visa applications do not provide a time frame within which the agency must adjudicate

applications, the DOS “does not have limitless discretion concerning the timing of processing

applications.” Jd. at 754.

persuasive case law from other circuits and district courts provides the Court with guidance and

allows it to conclude that an INA § 221(g) refusal is a final adjudication.

In Meleo vy. Blinken, 2024 WL 4345289 (D.N.J. Sept. 30, 2024), a district court in New

Jersey decided a similar case. In that action, the plaintiffs brought an action seeking to compel the

defendants to issue a final adjudication on an application for a fiancée visa under the Mandamus

Act and the APA. Meleo, 2024 WL 4345289, at *2. As in the instant case, the plaintiffs’ visa

application was refused pursuant to INA § 221(g) and sent to administrative processing. Id. The

Meleo court found that the plaintiffs lacked standing because an application refused and placed in

administrative processing is officially denied. Jd. at *8. Thus, the court had no ability to redress

the plaintiffs’ alleged injury.

Likewise, in Denisova v. Mayorkas, 2024 WL 2043664 (W.D. Pa. May 8, 2024), a court

in this district considered whether a refusal of a family-based visa petition application was final

when the application was placed in administrative processing and the consulate requested further

information from the applicant. Denisova, 2024 WL 2043664, at *1. The court held that the

refusal was a final adjudication — depriving the court of jurisdiction — even though the application

was placed in administrative processing. /d. at *4. The court noted that the request for further

information “simply commenced the reconsideration process, as opposed to continuing the prior

application period.” Jd.

The court in Denisova relied on Elhabash v. United States Department of State, 2010 WL

1742116, at *3 (D.N.J. Apr. 27, 2010). In Elhabash, the court found it dispositive that the consular

officer had informed the plaintiff that his visa application had been refused. Elhabash, 2010 WL

1742116, at *3. The court held that, even though the application had been refused because it

required further administrative processing, it was “without jurisdiction to hear the case because

10

the Embassy has denied [the plaintiff's] visa application pursuant to INA § 221(g).” Jd. It stated

that the plaintiffs’ “only recourse is to await the reconsideration of his application by the Embassy

after the administrative processing is complete.” Jd.; see also Karimova v. Abate, 2024 WL

3517852, at *3 (D.C. Cir. July 24, 2024) (finding an application placed in administrative

processing does not require a court to compel the Government “to make yet another final decision

on [an] already-refused visa application’”).°

Plaintiffs concede that the Third Circuit has not yet addressed the issue of whether an INA

§ 221(g) refusal constitutes a final agency action. (ECF No. 12, p. 7). Plaintiffs include a string

citation to various cases where courts found that INA § 221(g) refusals are interim decisions not

sufficiently final to deprive courts of jurisdiction over agency action. The Court acknowledges

the decisions of these courts. See Shahijani v. Laitinen, 2023 WL 6889774, at *3 (C.D. Cal. Oct.

6, 2023) (finding that a refusal pending administrative processing is not a final adjudication and

the DOS has a nondiscretionary duty to complete the administrative processing within a reasonable

time); Ebrahimi, 732 F. Supp. 3d at 904 (holding that a refusal under INA § 221(g) pending

administrative processing is not a final adjudication). But the Court does not find the reasoning in

this line of cases to be persuasive.’

6 These cases represent a sampling of cases finding that an INA § 221(g) refusal pending

administrative processing is a final adjudication. They do not constitute the full universe of cases

where courts have arrived at the same conclusion.

7 The Court hesitates to find a duty to reconsider INA § 221(g) visa refusals that has not been

clearly established by a statute or regulation. Plaintiffs’ claims arise within a field that is “vitally

and intricately interwoven with contemporaneous policies in regard to the conduct of foreign

relations [and] the war power|.|” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952); see

Goodluck v. Biden, 104 F.4th 920, 925 (D.C. Cir. 2024) (stating that when it comes to judicial

intervention in visa decisions, “[h]istorical and contextual considerations . . . warrant restraint’’).

11

22 C.F.R. § 41.121(a) provides that “[n]onimmigrant visa refusals must be based on legal

grounds, such as... INA [ ] 221(g)... or other applicable law.” 22 C.F.R. § 41.121 (a). Plaintiffs’

application was refused pursuant to INA § 221(g). Their application was considered by the

consular officer and officially refused. (See ECF No. 1-3, p. 2 (‘A U.S. consular officer has

adjudicated and refused your visa application.”)). The consular officer reviewed the visa

application, conducted an interview, and ruled that no visa would be granted. This “refused”

decision is one expressly authorized by INA § 221(g). While Danaei’s application may be

undergoing administrative processing, the Court views this process as one of “reconsideration” —

not a continuation of the adjudication process. See Elhabash, 2010 WL 1742116, at * 3; Denisova,

2024 WL 2043664, at *4. Defendants fulfilled their duties by rendering a final adjudication on

Danaei’s visa application.

Plaintiffs bring claims pursuant to the APA seeking to “compel agency action unlawfully

withheld or unreasonably delayed” under 5 U.S.C. § 706(1) (“§ 706(1)”). (ECF No. 1, 4 100).

The Court’s ability to compel agency action under § 706 is “carefully circumscribed to situations

where an agency has ignored a specific legislative command.” Massie v. U.S. Dep’t of Hous. &

Urb. Dev., 620 F.3d 340, 347 (3d Cir. 2010) (internal citations omitted). Likewise, “[m]andamus

is an extraordinary remedy that is available only when . . . the defendant owes the plaintiff ‘a clear

nondiscretionary duty.’” Brobst v. Att’y Gen. United States, 807 F. App’x 184, 186 (3d Cir. 2020)

(citing Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Plaintiffs are effectively suing to compel a

consular officer to make another final decision on their already refused visa application. Plaintiffs

have not identified any legal basis for that duty — let alone a specific legislative command or a

clear nondiscretionary duty. The Court has no power to order Defendants to readjudicate

Plaintiffs’ application, nor can the Court compel an adjudication that has already occurred. Thus,

12

Plaintiffs’ purported injury is not redressable by a favorable decision of this Court. The Court

holds that Plaintiffs failed to establish Article III standing.®

B. Unreasonable Delay

The Court holds that Plaintiffs failed to establish standing. However, Defendants contend

that even if the Court has jurisdiction over Plaintiffs’ claims, Plaintiffs’ APA claim (Count I) fails

because the length of delay is not unreasonable. (ECF No. 10, p. 14). Plaintiffs counter that

disposition of Count II is premature at this stage of litigation because unreasonable delay claims

require fact-based inquiries not suitable for determination on a motion to dismiss. (ECF No. 12,

pp. 13-14). In the alternative, Plaintiffs contend that Defendants’ delay in resolving Danaei’s visa

application through administrative processing is unreasonable.’ (/d.). Even if a refusal pursuant

Defendants argue that even if the Court has jurisdiction over Plaintiffs’ claims, the Court should

dismiss the complaint because the consular officer’s decision to refuse Danaei’s visa is

unreviewable. (ECF No. 10, p. 11). Plaintiffs counter that consular nonreviewability is not

applicable because administrative processing renders the consular officer’s decision non-final.

(ECF No. 12, pp. 12-13). In essence, Plaintiffs repeat their argument that an INA § 221(g) refusal

is not a final adjudication. Consular nonreviewability is not directly relevant because Plaintiffs

are not seeking judicial review of a consular officer’s final decision; instead, they argue that a final

decision was never made. The doctrine of consular nonreviewability states that federal courts

cannot review a consular officer’s denial of a visa. Dep’t of State v. Munoz, 602 U.S. 899, 908

(2024). In light of the Court’s holding that the consular officer’s decision was a final adjudication,

even if Plaintiffs established Article III standing, the Court would dismiss Plaintiffs’ complaint

because the visa refusal is not subject to review under the doctrine of consular nonreviewability.

° There is a dispute regarding the length of the delay at issue. Plaintiffs characterize the delay as

“nearly twelve months.” (ECF No. 12, p. 14). This delay appears to be the time between the INA

§ 221(g) refusal and the filing of Plaintiffs’ brief in opposition to Defendants’ Motion to Dismiss.

Defendants characterize the delay as nine months — the time between Danaei’s visa refusal after

her interview and the filing of Plaintiffs’ complaint. (ECF No. 13, p. 10 n.7). Delay in visa

processing is calculated from the time the Government last took action on a visa application to the

filing of Plaintiffs’ complaint. See, e.g. Arab v. Blinken, 600 F. Supp. 3d 59, 68 n.7 (D.D.C. 2022)

(determining that the delay was thirty months by calculating the time difference between “[t]he

last government action on this matter” and the date the complaint was filed); Rahimian v. Blinken,

2023 WL 143644, at *7 (D.D.C. Jan. 10, 2023) (evaluating unreasonable delay of a visa application

based on the time between the last action on the application and when plaintiff's complaint was

filed). The last action on Plaintiffs’ visa application was taken on March 1, 2024. (ECF No. 1, J

13

to INA § 221(g) did not constitute a final adjudication, the Court would dismiss Count II because

Plaintiffs failed to plausibly allege that the length of delay was unreasonable.

Section 706(1) permits the Court to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). To succeed on a § 706(1) claim, Plaintiffs’ must

demonstrate that the length of the delay — slightly over eight months — is unreasonable in the

context of visa administrative processing. Congress need not have set a definitive deadline for an

agency to act in order for a court to find a delay in agency action unreasonable. Pub: Citizen

Health Research Grp. V. Chao, 314 F.3d 143, 152 (3d Cir. 2002) (compelling an agency to proceed

with rulemaking although enabling legislation set no specific deadline to do so). While the statute

and regulations governing visa applications do not provide for a specific time frame within which

the DOS must adjudicate such applications, the DOS does not have limitless discretion concerning

the timing of processing such applications. Ahmed v. Holder, 12 F. Supp. 3d 747, 754 (E.D. Pa.

2014); Denisova, 2024 WL 2043664, at *4. Thus, the issue is whether the alleged eight month

and two-week delay is unreasonable.

“The reasonableness of a delay in the context of an immigration application is a fact-

dependent inquiry.” Ahmed, 12 F. Supp. 3d at 759. The Third Circuit articulated a factor test in

Oil, Chem. & Atomic Workers Union y. Occupational Safety & Health Admin., 145 F.3d 120 (3d

Cir. 1998) (“OCAWU”) to determine the reasonableness of agency delay. Those factors are (1)

the length of time that has elapsed since the agency had a duty to act; (2) the reasonableness of the

delay in context of the statute authorizing the agency’s action; (3) the consequences of the delay;

5). Plaintiffs’ complaint was filed on November 20, 2024. Ud). Thus, the relevant delay is

approximately eight months and two weeks. However, even if Plaintiffs’ calculation was correct

and the delay was closer to twelve months, the Court would still hold that the delay is reasonable

as a matter of law.

14

and (4) any plea of administrative error, inconvenience, practical difficulty, or need to prioritize in

the fact of limited resources. OCAWU, 145 F.3d at 123.

First, the Court disagrees with Plaintiffs’ contention that unreasonable delay claims under

the APA are not suitable for disposition at the motion to dismiss stage. Courts frequently decide

§ 706(1) claims as a matter of law. See Ahmad y. U.S. Citizenship & Immigr. Servs., 2024 WL

3272832, at *7 (D.N.J. July 2, 2024) (dismissing the plaintiffs’ complaint on a motion to dismiss

because they failed to state a claim for unreasonable delay under the APA); Denisova, 2024 WL

2043664, at *4-6 (same); Ebrahimi, 732 F. Supp. 3d at 901 (“[I]t is not uncommon for courts...

to resolve unreasonable delay claims in visa adjudication cases on a Rule 12(b)(6) motion.”’).

Second, the Court holds, applying the OCAWU factors, the delay alleged is not

unreasonable as a matter of law. As to the first factor, only eight months and two weeks have

elapsed between the refusal for administrative processing of Danaei’s visa application and the

filing of the complaint. While the issue of reasonableness “cannot be decided in the abstract, by

reference to some number of months or years beyond which agency inaction is presumed to be

unlawful,” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir.

2003), courts considering factually similar cases have found far longer delays reasonable. See

Azam, 2024 WL 912516, at *10 (finding a delay of 18 months reasonable in the context of visa

application processing); Dyvonyak v. Mayorkas, 2024 WL 3520058, at *3 (N.D. Ill. July 24, 2024)

(finding 29 months to be a reasonable delay in the processing of an immigration petition); Chang

v. United States Dep’t of State, 2024 WL 3161895, at *3 (W.D. Wash. June 25, 2024) (stating, in

a case involving a delay of seven months, that “in the immigration context, it is commonplace for

courts to hold that a delay of less than four years is not unreasonable.”). Thus, the relatively short

length of delay favors a finding that the delay was not unreasonable.

15

As to the second factor, the statute and regulations governing visa applications do not

provide for a specific time frame within which the DOS must adjudicate such applications. See

Denisova, 2024 WL 2043664, at *4. In the absence of a statutory or regulatory timeline, this factor

weighs in favor of neither party.!°

As to the third factor, the consequences of delay, Plaintiffs contend that “delay is causing

extended family separation and causing significant harm to Plaintiffs.”” (ECF No. 12, p. 16); (ECF

No. 1, 7, 16, 90). The Court is sympathetic to Plaintiffs’ frustrations and difficulties.

Nevertheless, the consequences of the delay suffered by Plaintiffs are no different than those

suffered by many other visa applicants. See Meleo, 2024 WL 4345289, at *10 (stating, in similar

circumstances, that the plaintiffs’ “predicament is not unique, and the Court cannot expedite

10 Plaintiffs contend that 22 C.F.R. § 41.121(c) requires visa administrative processing to be

resolved in “not more than 120 days.” (ECF No. 12, p. 14). The Court disagrees. The regulation’s

text does not suggest that a consular supervisor must review all visa refusals that eventually may

be overcome by the presentation of more evidence. Rather, it states only that, when engaging in

supervisory review of such cases, consular officers “may” defer review “for not more than 120

days,” when otherwise they would have to complete review “as soon as it is administratively

possible.” 22 C.F.R. § 41.121(c). As with all other visa refusals, review of refusals that may be

overcome by additional evidence is conducted “in accordance with guidance by the Secretary of

State,” and is required only as far as is necessary “to ensure compliance with laws and procedures.”

Id. “[N]othing in § 41.121(c) imposes a duty for [the DOS] to review any particular visa refusal

within a certain time.” Yaghoubnezhad v. Stufft, 734 F. Supp. 3d 87, 100 (D.D.C. 2024) (emphasis

in original). Plaintiffs’ reliance on Foreign Affairs Manual (“FAM”) § 507.7-2(b) is likewise

unpersuasive. Plaintiffs contend that § 507.7-2(b) requires fiancée visas to be processed within 30

days of receipt of the necessary information from the applicant. (ECF No. 12, p. 15). The FAM

lacks the “independent force and effect of law” because it is “not subjected to notice and comment

rulemaking” and it was not “promulgated pursuant to an independent congressional authority.”

Western Radio Servs. Co. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996). Because the timeline set forth

in the FAM lacks the force of law, it creates no enforceable right. Finally, Plaintiffs contend that

8 U.S.C. § 1571 requires Defendants to process their visa application within 30 days after the filing

of the petition. (ECF No. 12, p. 4). The plain text of § 1571(b) only sets an aspirational standard

for when USCIS should determine immigration-benefit applications. Further, the statute is not

applicable because it “applies to the processing of immigrant benefit applications by USCIS, not

consular officials at the State Department.” E/ Centro Reg’l Med. Ctr. v. Blinken, 2021 WL

3141205, at *4 & n.2 (S.D. Cal. July 23, 2021). “Accordingly, § 1571(b) cannot here carry the

weight that plaintiff would like it to shoulder.” Arab, 2022 WL 1184551, at *8.

16

Plaintiffs’ visa application over other similarly situated applicants”). The Court cannot conclude

that the alleged consequences of the delay have so prejudiced the Plaintiffs as to make the delay

unreasonable. This factor weighs in favor of finding that the delay at issue is reasonable.

Finally, the Court must consider any plea of administrative error, inconvenience, practical

difficulty, or need to prioritize in the fact of limited resources. Plaintiffs do not allege any bad

faith or improprieties on behalf of Defendants suggesting that they have the capacity to finish

processing Plaintiffs’ visa application but refuse to do so. Considering the broad statutory

deference owed to the DOS in processing visa applications, the Court will not wade into

Defendants’ internal adjudicatory processes for determining how to process visa applications more

efficiently. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 67 (2004) (“The prospect of

pervasive oversight by federal courts over the manner and pace of agency compliance with...

congressional directives is not contemplated by the APA.”). Doing so would only encourage more

litigation and permit those with the resources to bring a lawsuit to cut the line ahead of applicants

with visa applications that have been pending for an even longer period of time. See Tate v.

Pompeo, 513 F. Supp. 3d 132, 149 (D.D.C. 2021) (“Relief that would simply ‘reorder’ a queue of

applicants seeking adjudication is generally viewed as inappropriate when ‘no net gain’ in such

adjudications is achieved.” (internal citations omitted)). Thus, the fourth OCAWU factor weighs

in favor of finding that the delay is reasonable.

Considering the OCAWU factors, the Court holds that the alleged eight months and two-

week delay is reasonable as a matter of law. Plaintiffs have failed to state a claim for unreasonable

delay under the APA. As such, even if Plaintiffs established standing, the Court would dismiss

Count II of the complaint.

17

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ motion and dismiss Plaintiffs’

complaint with prejudice.!' Orders of Court will follow.

BY THE COURT:

NS i : an ero

4 : f 8 2 ge

i ¢ eer g we

fam) LA bs PHA |

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

Wiasias

Dated

1! Any amendment by Plaintiffs would be futile in the eyes of the Court. See Burlington, 114 F.3d

at 1434 (holding that a court may decide to deny leave to amend for reasons such as undue delay,

bad faith, dilatory motive, prejudice, and futility). “An amendment is futile if it merely restates

the same facts as the original complaint in different terms, reasserts a claim on which the court

previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.” 3 JAMES

WM. Moore ET AL., Moore’s Federal Practice 4 15.15 (3d ed. 2021). Plaintiffs’ claim hinges on

their argument that an INA § 221(g) refusal is not a final adjudication. In light of the Court’s

holding that such a refusal is a final adjudication, Plaintiffs cannot maintain their action as a matter

of law.

18