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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 SHIVA AHMADPOUR, et al., Case No. 2:25-cv-3730-TLN-JDP (PS)

12 Plaintiffs,

13 v. FINDINGS AND RECOMMENDATIONS

14 MARCO RUBIO, et al.,

15 Defendants.

16

17 Plaintiff Ahmadpour, proceeding pro se, brings this action against defendants Marco

18 Rubio, in his official capacity as U.S. Secretary of State, Pamela Bondi, in her official capacity as

19 U.S. Attorney General, and Joseph Edlow, in his official capacity as Director of U.S. Citizenship

20 and Immigration Services, for unreasonably delaying adjudication of her mother’s visa

21 application. Defendants have filed a motion to dismiss or, alternatively, for summary judgment.

22 For the reasons stated below, I recommend that defendants’ motion be granted.

23 Background

24 A. Statutory and Regulatory Framework

25 The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes the

26 issuance of three broad categories of visas: family-based, employment-based, and diversity.

27 8 U.S.C. § 1151(a). Relevant here are family-based visas. See 8 U.S.C. §§ 1151(b)(2)(A)(i),

28 1201(a)(1)(A); 22 C.F.R. §§ 42.21, 42.42. For a family-based immigrant visa, the sponsoring

1 U.S. citizen must first file a “Petition for Alien Relative (Form I-130)” with the United States

2 Citizenship and Immigration Services (“USCIS”). 8 U.S.C. § 1154. Once USCIS approves the

3 Form I-130, it transfers the petition to the National Visa Center (“NVC”) for preprocessing. The

4 beneficiary may then begin the visa application process by submitting a DS-260 Online

5 Immigrant Visa and Alien Registration Application. 9 Foreign Affairs Manual (FAM) § 504.1-

6 2(a)(1)). After the beneficiary completes the DS-260 and submits all the necessary forms and

7 fees to the NVC, the NVC determines whether an applicant is documentarily complete. 9 FAM

8 § 504.1-2(b)(2).

9 Once the NVC determines an applicant is documentarily complete and the applicable

10 consular officer completes all the “necessary clearance procedures,” the applicant is considered

11 documentarily qualified. 22 C.F.R. § 40.1(h). This means that the applicant is qualified “to apply

12 formally for an immigrant visa.” Id. For an immigrant visa applicant, to “[m]ake or file an

13 application for a visa” means, in relevant part, “personally appearing before a consular officer and

14 verifying by oath or affirmation the statements contained on . . . Form DS-260.” Id. § 40.1(l).

15 The NVC schedules interviews at the applicable overseas consular post “in the chronological

16 order of the documentarily complete applicants.” 9 FAM 504.1-2(d)(1). During the interview, an

17 applicant can formally apply for an immigrant visa by swearing to or affirming the contents of the

18 DS-260 and signing it before a consular officer. 22 C.F.R. § 42.67(a). The INA provides that

19 “[a]ll immigrant visa applications shall be reviewed and adjudicated by a consular officer.”

20 8 U.S.C. § 1202(b). Once an application is properly completed and executed before a consular

21 officer, the officer must either issue or refuse to issue a visa. See 22 C.F.R. § 42.81(a).

22 The consular officer “may require the submission of additional information or question

23 the alien on any relevant matter whenever the officer believes that the information provided . . . is

24 inadequate to determine the alien’s eligibility to receive an immigrant visa.” 22 C.F.R.

25 § 42.63(c). Such information may be provided through Form DS-5535, Supplemental Questions

26 for Visa Applicants. See 60-Day Notice of Proposed Information Collection: Supplemental

27 Questions for Visa Applicants, 88 Fed. Reg. 65,418 (Sept. 22, 2023). Any additional materials

28 submitted “become a part of the visa application.” 22 C.F.R. § 42.63(c). If the applicant

1 produces additional evidence “tending to overcome the ground of ineligibility on which the

2 refusal was based, the case shall be reconsidered.” Id. § 42.81(e).

3 B. Factual Allegations

4 Plaintiff is a U.S. citizen. ECF No. 1 at 2. Plaintiff filed a Form I-130 on November 13,

5 2020, on behalf of her mother, Fahimeh Askari, who is an Iranian citizen living in Iran. Id. The

6 application was approved by USCIS. Id. On September 13, 2023, plaintiff’s mother attended an

7 interview in Abu Dhabi. Id. Plaintiff asserts that the application is currently under administrative

8 processing and has remained in that status since the interview. Id. at 3. Defendants counter that

9 the consular office’s refusal of Ms. Askari’s visa application on September 13, 2023 was an

10 official adjudication and that the visa remains refused while it is in administrative processing for

11 additional security screening. ECF No. 7 at 9. Plaintiff alleges that the delay in adjudicating her

12 mother’s visa application has had a substantial impact on their family. ECF No. 1 at 3.

13 Plaintiff filed a notice of supplemental facts on April 14, 2026, to inform the court of

14 recent developments. ECF No. 16 at 1. Plaintiff states that the U.S. Embassy notified plaintiff’s

15 mother that her visa case was suspended due to the application of Presidential Proclamation

16 10998. Id. Plaintiff’s mother submitted additional documentation regarding her ethnic

17 background and experiences of discrimination. Id. Plaintiff alleges that no further action has

18 been taken by defendants and that the case is still pending. Id. Plaintiff alleges that these

19 developments show that the application has not been finally adjudicated and that the delay has

20 caused additional prejudice due to the new policy. Id. at 2.

21 Plaintiff brings two causes of action. First, plaintiff asks the court to compel adjudication

22 of her mother’s visa application pursuant to the Mandamus Act, 28 U.S.C. § 1361. ECF No. 1 at

23 4. Second, she alleges that defendants’ delay violates the Administrative Procedure Act (“APA”),

24 5 U.S.C. § 555(b). Id.

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1 Legal Standards

2 A. Motion to Dismiss

3 “Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable

4 legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Somers v.

5 Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “To survive a motion to dismiss, a complaint

6 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

7 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

8 550 U.S. 544, 570 (2007)). A claim has facial plausibility when a plaintiff “pleads factual content

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

10 misconduct alleged.” Iqbal, 556 U.S. at 678.

11 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

12 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it

13 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

14 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).

15 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements

16 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

17 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

18 B. Motion for Summary Judgment

19 Summary judgment is appropriate where there is “no genuine dispute as to any material

20 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

21 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

22 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

23 while a fact is material if it “might affect the outcome of the suit under the governing law.”

24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818

25 F.2d 1422, 1436 (9th Cir. 1987).

26 Rule 56 allows a court to grant summary adjudication, also known as partial summary

27 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

28 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

1 56 authorizes a summary adjudication that will often fall short of a final determination, even of a

2 single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply to

3 both a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ.

4 P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

5 Each party’s position must be supported by (1) citations to particular portions of materials

6 in the record, including but not limited to depositions, documents, declarations, or discovery; or

7 (2) argument showing either that the materials cited do not establish the presence or absence of a

8 genuine factual dispute or that the opposing party cannot produce admissible evidence to support

9 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider

10 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P.

11 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see

12 also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

13 “The moving party initially bears the burden of proving the absence of a genuine issue of

14 material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex

15 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet its burden, “the moving party must either

16 produce evidence negating an essential element of the nonmoving party’s claim or defense or

17 show that the nonmoving party does not have enough evidence of an essential element to carry its

18 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc.,

19 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden

20 then shifts to the non-moving party “to designate specific facts demonstrating the existence of

21 genuine issues for trial.” In re Oracle, 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323).

22 The nonmoving party must “show more than the mere existence of a scintilla of evidence.” Id.

23 (citing Anderson, 477 U.S. at 252). However, the non-moving party is not required to establish a

24 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be

25 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”

26 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

27 The court must apply standards consistent with Rule 56 to determine whether the moving

28 party has demonstrated there to be no genuine issue of material fact and that judgment is

1 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

2 “[A] court ruling on a motion for summary judgment may not engage in credibility

3 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

4 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

5 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

6 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

7 198 F.3d 1130, 1134 (9th Cir. 2000).

8 Analysis

9 Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6) or,

10 alternatively, for summary judgment under Rule 56. ECF No. 7. Defendants seek dismissal for

11 three main reasons. First, defendants argue that the doctrine of consular nonreviewability

12 precludes judicial review of a U.S. consular official’s decision to refuse a visa application of a

13 noncitizen. Id. at 13-16. Second, defendants argue that they do not owe plaintiff a

14 nondiscretionary duty to act since the allocation of consular services is discretionary. Id. at 16-

15 17. Finally, defendants argue that the delay plaintiff’s mother has experienced is not

16 unreasonable under the applicable legal test. Id. at 18-24.

17 For her part, plaintiff contests all three reasons: she argues that the doctrine of consular

18 nonreviewability does not preclude judicial review of this action because her mother’s visa

19 application has not been finally adjudicated; she asserts that defendants owe her mother a

20 nondiscretionary duty to provide a final adjudication on the visa application; and she argues that

21 the delay is unreasonable. See ECF No. 12 at 2-3.

22 A. Doctrine of Consular Nonreviewability

23 The Ninth Circuit has recognized that “ordinarily, a consular official’s decision to deny a

24 visa to a foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104 (9th Cir.

25 2018). However, courts in this district and others have held that the doctrine does not apply

26 where plaintiffs seek a final decision on their visa applications rather than judicial review of a

27 final decision. See Abbassi v. Gaudiosi, No. 23-cv-1573-CDB, 2024 WL 1995246, at *4 (E.D.

28 Cal. May 6, 2024) (citing cases); Mohamed v. Pompeo, No. 1:19-cv-1345-LJO-SKO, 2019 WL

1 4734927, at *2 (E.D. Cal. Sept. 27, 2019).

2 Accepting plaintiff’s allegations as true, defendants’ failure to issue a decision on

3 plaintiff’s mother’s visa application under INA § 221(g) does not amount to a final decision. See

4 Kiani v. Blinken, No. 23-cv-5069-GW-JCX, 2024 WL 658961, at *5 (C.D. Cal. Jan. 4, 2024);

5 Gonzalez v. Baran, No. 2:21-cv-5902-CAS-ASX, 2022 WL 1843148, at *3 (C.D. Cal. Jan. 11,

6 2022) (“[T]he ‘administrative processing’ designation [under § 221(g) is] insufficient to

7 constitute a refusal.”). In the absence of precedent to the contrary, I find that the doctrine of

8 consular nonreviewability does not bar plaintiff’s claims. See Abbassi, 2024 WL 1995246, at *4

9 (agreeing with the “prevailing position among most other district courts” that the doctrine does

10 not bar review of a visa application in administrative processing); Iqbal v. Blinken, No. 2:23-cv-

11 1299-KJM-CSK, 2024 WL 3904959, at *7 (E.D. Cal. Aug. 22, 2024) (“The court joins with the

12 courts that have found the refusal of a visa application for administrative processing does not

13 constitute a final decision.”).

14 B. APA and Mandamus Act

15 The INA does not set a deadline for consular officers to review and adjudicate visa

16 applications, but, under the APA, defendants have a duty to act within a “reasonable time.” See 5

17 U.S.C. § 555. “[T]he APA and related case law provide ‘law to apply’ in determining whether

18 defendants have failed to act within a reasonable time.” Khan v. Johnson, 65 F. Supp. 3d 918,

19 926 (C.D. Cal. 2014). “[F]ederal courts routinely assess the ‘reasonableness’ of the pace of

20 agency action under the APA.” Id. (citation omitted). Under the APA, the reviewing court must

21 “compel agency action . . . unreasonably delayed.” 5 U.S.C. § 706(1). “A court can compel

22 agency action under this section only if there is a specific, unequivocal command placed on the

23 agency to take a discrete agency action, and the agency has failed to take that action.” Vietnam

24 Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (cleaned up). “The

25 agency action must be pursuant to a legal obligation ‘so clearly set forth that it could traditionally

26 have been enforced through a writ of mandamus.’” Id. at 1075-76 (citation omitted).

27 The Mandamus Act “provides district courts with mandamus power ‘to compel an officer

28 or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.’”

1 Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (quoting 28 U.S.C. § 1361).

2 “Although the exact interplay between these two statutory schemes has not been thoroughly

3 examined by the courts, the Supreme Court has construed a claim seeking mandamus under the

4 [Mandamus Act] ‘in essence,’ as one for relief under § 706 of the APA.” Id. (quoting Japan

5 Whaling Ass’n v. Am. Cetacean Society, 478 U.S. 221, 230 n.4 (1986)). “Because the relief

6 sought is essentially the same, in the form of mandamus,” courts analyze the sufficiency of the

7 complaint under the APA. Id.

8 In determining whether an agency action has been unreasonably delayed, courts consider

9 the six “TRAC” factors:

10 (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

11 indication of the speed with which it expects the agency to proceed

in the enabling statute, that statutory scheme may supply content for

12 this rule of reason; (3) delays that might be reasonable in the sphere

of economic regulation are less tolerable when human health and

13 welfare are at stake; (4) the court should consider the effect of

expediting delayed action on agency activities of a higher or

14 competing priority; (5) the court should also take into account the

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

15 court need not find any impropriety lurking behind agency lassitude

in order to hold that agency action is unreasonably delayed.

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17 In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138-39 (9th Cir. 2020) (quoting Telecomms.

18 Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984)).

19 Although not determinative, the first factor, “rule of reason,” is the most important. In re

20 A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). Courts consider the length of the delay and the

21 cause of the delay in assessing “whether there is any rhyme or reason for the Government’s

22 delay—in other words, whether the agency’s response time . . . is governed by an identifiable

23 rationale.” Poursohi v. Blinken, No. 21-01960, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16,

24 2021) (cleaned up). Where Congress has not supplied a period for agency action, courts look to

25 case law in assessing whether the agency’s action is unreasonably delayed. See Sarlak v.

26 Pompeo, No. 20-cv-35-BAH, 2020 WL 3082018, at *6 (D.D.C. June 10, 2020) (“Absent a

27 congressionally supplied yardstick, courts typically turn to case law as a guide.”).

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1 Here, approximately twenty-seven months elapsed between the last government action

2 (when the consular officer refused plaintiff’s mother’s visa application with the administrative

3 processing designation on September 13, 2023) and the filing of the complaint on December 29,

4 2025. See ECF No. 1. In the context of unreasonable delay involving visa application

5 processing, delay is measured from the time that the beneficiary attended the interview, not the

6 time that they filed the visa petition. See Ferdowski v. Blinken, No. 8:23-cv-01123-JWH-KES,

7 2024 WL 685912, at *4 & n.26 (C.D. Cal. Feb. 12, 2024) (citing Shahijani, 2023 WL 6889774, at

8 *3). Generally, courts have found ‘immigration delays in excess of five, six, [and] seven years

9 are unreasonable, while those between three to five years are often not unreasonable.’” Ortiz v.

10 U.S. Dep’t of State, Case No. 22-cv-0508-AKB, 2023 WL 4407569 *8 (D. Idaho July 7, 2023).

11 To date, approximately thirty-four months have passed since plaintiff’s mother’s

12 application was initially refused. “[I]n the immigration context, district courts have generally

13 found delays of less than four years are not unreasonable.” Blinken, 2024 WL 3904959, at *10

14 (collecting cases). Existing case law supports the view that, without minimizing the burden of a

15 delay of thirty-four months in this context, such a delay does not violate the APA. See Ali v.

16 Ordeman, No. 2:23-cv-2822 CKD, 2024 WL 2274912, at *6 (E.D. Cal. May 20, 2024); Dastagir

17 v. Blinken, 557 F. Supp. 3d 160, 162 (D.D.C. 2021) (delay of 29 months at the point of filing suit

18 after being placed in “administrative processing” following consular interview was not

19 unreasonable); Skalka v. Kelly, 246 F. Supp. 3d 147, 154 (D.D.C. 2017) (citing case law

20 suggesting that even a five- to ten-year delay in the immigration context may be reasonable);

21 Beyene v. Napolitano, No. 12-cv-1149-WHA, 2012 WL 2911838, at *9 (N.D. Cal. July 13, 2012)

22 (holding that while the “case presents a close call,” a delay of nearly five years in adjudicating the

23 plaintiff’s application for adjustment of immigration status was not unreasonable); Jamal v.

24 Johnson, No 2:15-cv-8088-ODW, 2016 WL 4374773, at *6 (C.D. Cal. Aug. 15, 2016) (noting

25 that delays of four years not unreasonable, but holding that delay of over seven years to

26 adjudicate the plaintiff’s application for adjustment of status, combined with defendants’

27 unwillingness to indicate if or when plaintiff’s petition will be adjudicated, was unreasonable);

28 Ou v. Johnson, No. 15-cv-3936-BLF, 2016 WL 7238850, at *3 (N.D. Cal. Feb. 16, 2016) (noting

1 that “courts in this district have generally found delays of four years or less not to be

2 unreasonable under the APA”); Zhang v. Cissna, No. 18-cv-9696-MWF, 2019 WL 3241187, at

3 *5 (C.D. Cal. Apr. 25, 2019) (“[T]he Court cannot conclude, as a matter of law, that [four-year]

4 delay in processing [asylum] application was unreasonable.”); Islam v. Heinauer, No. 10-cv-

5 4222-JSW, 2011 WL 2066661, at *8 (N.D. Cal. May 25, 2011) (point of unreasonableness had

6 “not yet come” after three-year delay for adjustment of status). The first factor thus weighs in

7 defendants’ favor.

8 For the second TRAC factor, the court considers whether “Congress has provided a

9 timetable or other indication of the speed with which it expects the agency to proceed in the

10 enabling statute.” In re Nat. Res. Def. Council, Inc., 956 F.3d at 1138. Congress has not

11 provided a timetable for processing immigration visa applications. Cf. 8 U.S.C.

12 § 1158(d)(5)(A)(ii) (another provision of the INA requiring interviews to “commence not later

13 than 45 days after the date an application is filed” for asylum cases).1 Rather, “Congress has

14 given the State Department and other agencies wide discretion in the area of immigration

15 processing.” Milligan v. Pompeo, 502 F. Supp. 3d 302, 318 (D.D.C. 2020) (cleaned up). Here,

16 there is no statutorily mandated timeline for the Department to process plaintiff’s visa case. See

17 Dastagir, 557 F. Supp. 3d at 166 (noting that there is “no statutory or regulatory timeframe” for

18 processing immediate family immigrant visa applications). Therefore, this factor is neutral. See

19 Poursohi, 2021 WL 5331446, at *9 (“[T]he absence of a mandatory timetable for adjudication of

20 Plaintiffs’ Application combined with the fact that the delay comports with the rule of reason, the

21 second TRAC factor also weighs in Defendant’s favor or is at least neutral.”).

22 “The third and fifth factors overlap, requiring the court to consider whether human health

23 and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.”

24 Poursohi, 2021 WL 5331446, at *9. Plaintiff alleges that the delay has caused emotional

25 hardship because Ms. Askari is separated from her husband and family in the United States. ECF

26

27 1 Plaintiff states that “Congressional policy anticipates that immigration benefit

applications should be adjudicated within approximately 180 days of filing.” ECF No. 1 at 3.

28 Plaintiff provides no authority supporting that assertion. See generally ECF No. 1.

1 No. 1 at 3. Plaintiff also alleges that there is significant hardship due to the family separation

2 because Ms. Askari cannot support her spouse who resides in the United States and has been

3 dealing with physical hardships following knee replacement surgery. Id. Considering the

4 allegations of the significant hardships and plaintiff’s parents’ emotional suffering, I find that this

5 factor cuts in favor of plaintiff. See Motaghedi v. Pompeo, 436 F. Supp. 3d 1345, 1363 (E.D. Cal.

6 2020) (finding the third and fifth TRAC factors in favor of the plaintiff because of the allegations

7 of emotional, physical, and financial harm caused by the separation).

8 Under the fourth TRAC factor, the court considers the effect of expediting the

9 adjudication of the beneficiary’s application on other agency action of higher or competing

10 priority. Kapoor v. Blinken, No. 21-cv-1961-BLF, 2022 WL 181217, at *8 (N.D. Cal. Jan. 20,

11 2022). This factor favors the defendants; plaintiff’s family is not alone in their circumstances,

12 and ordering defendants to prioritize plaintiff’s mother’s application only further delays the

13 resolution of other applications. See Ali, 2024 WL 2274912, at *6; Throw v. Mayorkas, No. 3:22-

14 cv-5699-DGE, 2023 WL 2787222, at *5 (W.D. Wash. Apr. 5, 2023) (noting many families face

15 delays and ordering the State Department to schedule the beneficiary plaintiff’s interview would

16 not ameliorate the situation); Jain v. Renaud, No. 21-cv-3115-VKD, 2021 WL 2458356, at *6

17 (N.D. Cal. June 16, 2021) (“Most courts have found that the fourth TRAC factor weighs heavily

18 in the agency’s favor when a judicial order putting plaintiffs at the head of the line would simply

19 move all others back one space and produce no net gain.”). The fourth factor weighs in favor of

20 defendants.

21 Under the sixth TRAC factor, where a plaintiff has not made cognizable allegations of

22 impropriety, “courts in the Ninth Circuit have found this factor to either weigh in the

23 government’s favor or to be neutral.” Poursohi, 2021 WL 5331446, at *11. Plaintiff has set forth

24 no such allegations, and thus, the sixth TRAC factor weighs neutrally.

25 After considering the TRAC factors, I find that plaintiff’s unreasonable delay claims must

26 fail. Even assuming that the allegations of the complaint are sufficient to satisfy factors three and

27 five, the alleged delay cannot as a matter of law be considered unreasonable at this time.

28 Plaintiff’s circumstances are not unprecedented, and courts in this circuit faced with facts similar

1 | to those in this case—visa delays measuring under three years while placed in administrative

2 || processing—have consistently held that the lawsuits fail under the TRAC factors. See Zhang,

3 | 2019 WL 3241187 at *5 (4-year delay); /s/am, 2011 WL 2066661 at *8 (3-year delay); Beyene,

4 | 2012 WL 2911838 at *9 (nearly 5-year delay). Accordingly, I recommend that the court grant

5 | defendants’ motion as to plaintiff's APA claim.

6 As set forth above, a claim seeking mandamus under the Mandamus Act closely

7 | resembles one for relief under § 706 of the APA. Japan Whaling Ass’n, 478 U.S. at 230 □□□□

8 | Because an adequate remedy exists under the APA, I have analyzed plaintiffs claim of delay

9 | under the APA only. See Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022). For the reasons set

10 | forth above, I also recommend defendants’ motion be granted as to plaintiff's Mandamus Act

11 | claim.

12 Accordingly, it is hereby RECOMMENDED that:

13 1. Defendants’ motion to dismiss and for summary judgment, ECF No. 7, be GRANTED.

14 2. The Clerk of Court be ordered to enter judgment accordingly and to close this case.

15 These findings and recommendations are submitted to the United States District Judge

16 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of

17 | service of these findings and recommendations, any party may file written objections with the

18 | court and serve a copy on all parties. Any such document should be captioned “Objections to

19 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

20 | within fourteen days of service of the objections. The parties are advised that failure to file

21 | objections within the specified time may waive the right to appeal the District Court’s order. See

22 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir.

23 | 1991).

24

95 IT IS SO ORDERED.

Dated: _ August 4, 2026 QH———

27 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

12