Venigalla v. United States Citizenship and Immigration Services' Administrative Appeals Office

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DIVYA VENIGALLA,

Plaintiff,

Vv.

UNITED STATES CITIZENSHIP AND No. 25-ev-179 (TSC)

IMMIGRATION SERVICES’

ADMINISTRATIVE APPEALS OFFICE,

etal.,

Defendants.

MEMORANDUM OPINION

Plaintiff Divya Venigalla, a citizen of India, challenges the decision of U.S. Citizenship

and Immigration Services (“USCIS”) to reject her appeal of a denial of an immigration benefit.

Defendants now move to dismiss. See Defs.’ Mot. to Dismiss, ECF No. 8. For the reasons

below, the court will GRANT IN PART and DENY IN PART the Motion.

1. BACKGROUND

A. Legal Background

An affected party who wishes to appeal the denial of an immigration benefit by USCIS

must file a Form J-290B “within 30 days after service of the decision.” 8 C.F.R. § 103.3(a)(2)(1).

If a party is served by mail, the date of mailing is deemed the date of service and “3 days shall be

added to” the 30-day appeal deadline. /d. § 103.8; see also USCIS Admin. App. Off., Practice

Manual § 3.7(c)(1), https://perma.cc/EF2M-WSHF (“[S]ervice . . . by mail is complete upon the

date of mailing[.]”). Thus, a party must appeal a mailed denial of an immigration benefit within

33 days of the date of mailing. See Practice Manual § 3.7(c). An appeal “will be rejected if it is

Page 1 of 9

not... signed with [a] valid signature,” and a rejected appeal “will not retain [its] filing date.”

8 C.F.R. § 103.2(a)(7)(ii); see also id. § 1.2 (defining “benefit request” to include “any .. .

appeal”).

The regulations contain a safety valve for untimely appeals. “If an untimely appeal meets

the requirements of .. . a motion to reconsider as described in [8 C.F.R.] § 103.5(a)(3)[,] the

appeal must be treated as [such] a motion, and a decision must be made on the merits of the

case.” 8 C.F.R. § 103.3(a)(2)(v)(B). But a motion to reconsider must itself be made within 30

days of the decision for which it seeks reconsideration or else itis untimely. And an untimely

motion to reconsider may only be heard if the “failure to file” by the deadline is “excused in the

discretion of the Service where it is demonstrated that the delay was reasonable and beyond the

control of the applicant or petitioner.” /d. § 103.5(a)(1)(i). Thus, an untimely appeal only

“meets the requirements” of a motion to reconsider if it both satisfies the criteria listed in

§ 103.5(a)(3) and if the filing delay is excused by USCIS under § 103.5(a)(1)(i).!

' Plaintiff argues that an untimely appeal need only meet the criteria laid out in § 103.5(a)(3)

without regard to how untimely the appeal is filed and the reasonableness of that delay. But

regulations “must be read in their context and with a view to their place” within “a symmetrical

and coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132 (2000). Regulations must also be read to avoid “unreasonable... , unjust and absurd”

results. Cannon v. Watermark Retirement Cmtys., 45 F.4th 137, 149 (D.C. Cir. 2022). Read

within its broader regulatory context, § 103.3(a)(2)(v)(B)’s use of the phrase “as described in

[8 C.F.R.] § 103.5(a)(3)” is best understood as clarifying that “a motion to reopen” refers to “a

motion to reopen” as described in § 103.5(a)(3), not of relieving an untimely appeal that

otherwise substantively qualifies a motion to reopen of the need to also qualify for a

discretionary excusal of untimeliness by the Service under § 103.5(a)(1). To hold otherwise

would produce the absurd result of requiring the agency to evaluate the merits of appeals filed

years or decades after the appeal deadline. It would also produce the absurd result of allowing

parties to restyle an untimely motion to reopen as an untimely appeal that meets the substantive

criteria of a motion to reopen, thus skirting the filing deadline for a motion to reopen.

Page 2 of 9

B. Factual Background

On August 14, 2023, USCIS mailed Plaintiff a notice of denial of her petition for an

immigrant investor green card. Compl. §/ 9, ECF No. 1; see a/so Compl. Ex. A. at 1, ECF No. 1-

2. The notice warned Plaintiff that any appeal “must be filed . . . within 33 calendar days of the

date of this notice.” Compl. Ex. A at 1. On September 18, Plaintiff submitted a Form I-290B

appeal. See Compl. 7 10. Although that was 35 days after the notice of denial, Plaintiff's Form

I-290B was timely because the 33-day deadline fell on a Saturday—September 16—and when a

deadline falls on a Saturday, it is extended until the end of the next business day—in this case,

September 18. 8 C.F.R. § 1.2. On September 21, however, USCIS rejected Plaintiff's Form I-

290B appeal because the signature page was missing. Compl. 4 11; see a/so Compl. Ex. A at 20.

On October 27—74 days after the denial of Plaintiff's petition and 36 days after the

rejection of her appeal for lack of a valid signature—Plaintiff “refiled her appeal” by submitting

a second Form I-290B with the signature page attached. Compl. { 12. Plaintiff also submitted a

five-page legal brief. See Compl. Ex. A at 42—46. In it, she asked USCIS to treat the earlier

appeal as timely filed under the doctrine of equitable tolling, arguing that equitable tolling was

appropriate because she timely filed a defective pleading. See id. at 42 (citing rwin v. Dep't of

Veterans’ Affs., 498 U.S. 89, 96 (1990) (“We have allowed equitable tolling in situations where

the claimant has actively pursued his judicial remedies by filing a defective pleading during the

statutory period.”)). In the alternative, Plaintiff asked USCIS to treat her second, untimely Form

I-290B as a motion to reconsider under 8 C.F.R. § 103.3(a)(2)(v)(B). Jd. at 42-43.

Approximately a year later, in October 2024, USCIS’s Administrative Appeals Office

(“AAO”) rejected Plaintiff's second appeal as untimely. Compl. Ex. A at 115. The AAO did not

Page 3 of 9

address Plaintiff's argument that her first appeal should be deemed timely under the doctrine of

equitable tolling. See id.; see also Compl. JJ 31, 33.

C. Procedural History

In January 2025, Plaintiff sued two components of USCIS: The AAO and the Immigrant

Investor Program (“IIP”). She brings five claims: two under the Mandamus Act asking the court

to “compel the AAO to accept [Plaintiff's] appeal” or “compel the IIP to treat [Plaintiffs

second] appeal . . . as a motion to reconsider,” Compl. {] 27, 41, and three claims under the

Administrative Procedure Act asserting that it was contrary to law, arbitrary and capricious, and

an abuse of discretion for the AAO to not address Plaintiff's request for equitable tolling. /d.

1 29, 31-32, 33-34.” Defendants now move to dismiss for lack of jurisdiction and failure to

state a claim under Federal Rule of Civil Procedure 12(b)(1) and (6).

I. LEGAL STANDARDS

“To survive a motion to dismiss under Rule 12(b)(1),” a plaintiff “must demonstrate that

the court has jurisdiction.” Davis v. United States, 973 F. Supp. 2d 23, 26 (D.D.C. 2014) (citing

Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008)). In assessing a Rule 12(b)(1)

motion, the court must “accept all factual allegations in the complaint as true,” but “those

allegations will bear closer scrutiny” than they would “in resolving a 12(b)(6) motion.” Jordan

v. Rubio, 795 F. Supp. 3d 46, 52 (D.D.C. 2025) (cleaned up).

To survive a Rule 12(b)(6) motion, “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court

? Plaintiff's APA claims do not challenge the IIP’s failure to consider her request to construe her

untimely appeal as a motion to reconsider.

Page 4 of 9

“need not, however, accept inferences that are unsupported by the facts set out in the complaint,

nor will it accept legal conclusions cast [as] factual allegations.” /slamic Am. Relief Agency v.

Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007).

I. DISCUSSION

A. Mandamus Act

“Mandamus is an ‘extraordinary remedy, reserved only for the most transparent

violations of a clear duty to act.’” Jn re Ctr. for Bio. Diversity, 53 F 4th 665, 670 (D.C. Cir.

2022) (quoting Jn re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000)). “It is hardly

ever granted.” Jn re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc) (cleaned up). “To

show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to

relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no

adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir.

2016). Critically, the agency’s duty to act must be non-discretionary. Jn re Nat’l Nurses United,

47 F Ath 746, 752 (D.C. Cir. 2022) (“The [agency’s] duty must be incontrovertible and not a

matter within the agency’s discretion.”). “These three threshold requirements are jurisdictional;

unless all are met, a court must dismiss the case for lack of jurisdiction.” Burwell, 812 F.3d at

189.

Plaintiff has not shown “a clear and indisputable right to [the] relief’ she requests. Jn re

Cheney, 406 F.3d at 729 (cleaned up). First, Plaintiff asks the court to order the AAO to accept

her first appeal as timely filed under the doctrine of equitable tolling. Compl. { 27. Assuming

the doctrine of equitable tolling applies to USCIS’s appeal deadline, Plaintiff has still failed to

show that she is clearly and indisputably entitled to that relief. As Plaintiff recognizes, to prevail

on her claim to equitable tolling, she would need to demonstrate that “she timely file[d] a

Page 5 of 9

technically defective pleading and in all other respects act[ed] with the proper diligence which

[the filing deadlines] were intended to insure.” Pl.’s Opp’n at 4, ECF No. 10 (quoting Justice v.

United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (cleaned up)) (emphasis added). It is not clear

that Plaintiff acted with proper diligence by taking 36 days after the rejection of her appeal to

remedy the defect. See Ajenifuja v. Dangote, 485 F. Supp. 3d 120, 127 (D.D.C. 2020)

(“Equitable tolling is an extraordinary remedy that courts apply sparingly.” (citing Norman v.

United States, 467 F.3d 773, 776 (D.C. Cir. 2006)).

In any event, “[e]quitable tolling is [usually] discretionary.” Christmas v. Hooper, 118

F.4th 724, 732 (Sth Cir. 2024); see also Haynes v. D.C. Water & Sewer Auth. , 924 F.3d 519, 523

(D.C. Cir. 2019) (explaining that the application of the doctrine of equitable tolling is ordinarily

reviewed for abuse of discretion unless based upon an error of law). And that is so here: If the

doctrine of equitable tolling in fact applies to the filing deadline, it would be within the AAO’s

discretion to decide in the first instance whether Plaintiff acted with diligence in remedying her

defective appeal. See Flaherty v. Pritzker, 195 F. Supp. 3d 136, 143 (D.D.C. 2016) (“In

reviewing agency action, the district court ‘sits as an appellate tribunal, not a court authorized’”

to make “‘trial-type’” decisions. (quoting Marshall Cnty. v. Shalala, 988 F.2d 1221, 1225 (D.C.

Cir. 1993)). Thus, Plaintiff also cannot show that the AAO “failed to perform a non-

discretionary duty to act.” Elec. Priv. Info. Ctr. v. IRS, 910 F.3d 1232, 1244 (D.C. Cir. 2018)

(emphasis added); see also Inre Nat’l Nurses United, 47 F 4th at 752 (“The [agency’s] duty

must be incontrovertible and not a matter within the agency’s discretion.”).

Plaintiffs request that the court order the IIP to treat her second untimely appeal as a

motion to reconsider runs into the same two problems. As described above, the IIP need only

consider an untimely appeal as a motion to reconsider if it first finds, in its discretion, that

Page 6 of 9

Plaintiff's delay was reasonable and beyond her control. Bestman v. DHS, No. 20-cv-564, 2025

WL 358764, at *6 (D.D.C. Jan. 31, 2025) (“A delayed filing ‘may be excused in the [agency’s]

discretion’ if the applicant ‘demonstrate[s] that the delay was reasonable’ and ‘beyond [her]

control.’” (quoting 8 C.F.R. § 103.5(a)(1)(@))). Because “the decision whether to excuse an

untimely motion to reconsider . . . lies entirely within USCIS’s discretion,” id., Plaintiff cannot

show that ITIP “failed to perform a non-discretionary duty to act.” Elec. Priv. Info. Ctr., 910 F.3d

at 1244. Plaintiff also cannot establish “a clear and indisputable right to relief,” Jn re Cheney,

406 F.3d at 729 (cleaned up), because it is not apparent that her 74-day delay in filing a proper

appeal was “reasonable” and “beyond [her] control.” 8 C.F.R. § 103.5(a)(1)(G). The missing

signature page appears to be Plaintiff's fault, and she alleges no facts to the contrary. In any

event, it is not indisputable that Plaintiff acted reasonably in taking 36 days to submit the missing

page. In sum, because Plaintiff cannot clear the threshold requirements for either of her

Mandamus Act claims, the court lacks jurisdiction over those claims and they will be dismissed.

B. Administrative Procedure Act

The court will not, however, dismiss Plaintiffs claims that the AAO violated the APA by

entirely failing to consider her equitable tolling claim. To start, the court disagrees with

Defendant’s contention that it lacks jurisdiction over Plaintiff's APA claims. In Aftipoe v. Barr,

the Second Circuit was confronted with a similar argument that it “lack[ed] jurisdiction to

2 oC

consider an appeal” from the Bureau of Immigration Appeals’ “entirely discretionary decision”

not to accept a late-filed appeal. 945 F.3d 76, 80 (2d Cir. 2019). But the Court explained that

“the gravamen of [the plaintiffs] appeal is that the BIA erred in not considering his argument

that, because the filing deadline . . . is nonjurisdictional, it is subject to equitable tolling.” /d.

The Court went on to hold that it had jurisdiction to review the BIA’s failure to consider the

Page 7 of 9

plaintiffs equitable tolling argument. See id. The same is true here. Although this court might

lack jurisdiction to review the discretionary denial of an equitable tolling request, the failure to

consider such a request is not a discretionary decision over which the court lacks jurisdiction—it

is a failure to make a discretionary decision altogether.

Turning to the merits, Plaintiff has adequately alleged that the AAO violated the APA by

failing to address her request for equitable tolling. Although this court’s review under the APA

is “deferential,” an agency’s decision must still “be reasonable and reasonably explained.” FCC

v. Prometheus Radio Proj., 592 U.S. 414, 423 (2021). “Unless the agency answers objections

that on their face seem legitimate, its decision can hardly be classified as reasoned.” PPL

Wallingford Energy v. FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005) (cleaned up). Thus, the

APA’s reasoned explanation requirement demands that an agency “respond meaningfully” to a

party’s nonfrivolous argument. /d. (cleaned up).

Plaintiff has plausibly alleged that the AAO failed to address her argument that (1) the

doctrine of equitable tolling applied to the appeal-filing deadline, and (2) she was entitled to

equitable tolling because she timely filed a defective appeal which she then remedied. See

Compl. ff 31, 33. Indeed, the AAO’s rejection of Plaintiff's appeal offers only a single

paragraph of reasoning that does not mention equitable tolling at all. See Compl. Ex. A at 115.

The AAO’s apparent failure to address Plaintiff's argument plausibly violates the APA because

Plaintiff's argument is facially legitimate and nonfrivolous. First, the doctrine of equitable

tolling may apply to the appeal-filing deadline. “Non-jurisdictional timing rules are

presumptively subject to equitable tolling.” Nelson v. SEC, 138 F.4th 514, 522 (D.C. Cir. 2025)

(quoting Boechler P.C. v. Comm r, 596 U.S. 199, 209 (2022)) (cleaned up). And filing deadlines

are quintessential non-jurisdictional timing rules. See Henderson v. Shinseki, 562 U.S. 428, 435

Page 8 of 9

(2011). Second, if the doctrine of equitable tolling does apply to USCIS’s filing deadline,

Plaintiff has a nonfrivolous argument that it should be granted to her: Although equitable tolling

is “an extraordinary remedy” to be applied “sparingly,” see Ajenifuja, 485 F. Supp. 3d at 127,

Plaintiffs claim that she acted diligently is substantial enough that it cannot be ignored.

Ultimately, Defendants may be right that Plaintiff is not entitled to equitable tolling, but

the court will not resolve that issue in the first instance. “[W]hen an agency does not respond to

arguments that do not appear frivolous on their face and could affect the agency’s ultimate

disposition,” the usual course is to “remand for agency consideration” of the arguments.

Constellation Mystic Power, LLC v. FERC, 45 F 4th 1028, 1054-55 (D.C. Cir. 2022) (cleaned

up).

IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Motion to Dismiss with

respect to Plaintiff's Mandamus Act claims and DENY Defendants’ Motion to Dismiss with

respect to Plaintiff's APA claims. A separate order will follow this opinion.

Date: January 20, 2026

g

TANYA S. CHUTKAN

United States District Judge

Page 9 of 9