Munyaneza v. Blinken

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NARCIESSE MUNYANEZA,
Plaintiff,
v. Civil Action No. 21-cv-2778 (TSC)
ANTONY BLINKEN, et al.,
Defendant.
MEMORANDUM OPINION
Plaintiff Narcisse Munyaneza has petitioned this court for a writ of mandamus to compel
Defendants to adjudicate a pending visa application for his wife, Claudine Niyibizi. See Pet. for
Writ of Mandamus & Compl. for Inj. Relief (“Compl.”) ¶¶ 1, 12, ECF No. 1. Niyibizi’s
application originated in Rwanda but was transferred to the United States Embassy in Nairobi,
Kenya, in March 2020. Id. ¶ 14. In May 2021, Niyibizi had an interview with a consular officer
in Nairobi, after which her application was placed in “administrative processing.” Id. ¶ 15-16.
This is not a final decision; rather, it allows applicants to provide supplemental information to
their application as requested by the State Department to determine their visa eligibility. 9 FAM
306.2-2(A)(a); see also Ramirez v. Blinken, No. 21-cv-1099, 2022 WL 1795080, at *5 (D.D.C.
Mar. 22, 2022). The application remains in administrative processing.
Munyaneza filed suit five months after the application was placed into administrative
processing, claiming that Defendants “unlawfully withheld or unreasonably delayed” agency
action on his wife’s visa, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§
555(b), 706(1). Compl. ¶¶ 12-30 (quoting 5 U.S.C. § 706(1)). He thus seeks a writ of
mandamus ordering Defendants to process the visa within 15 days. Id. ¶¶ 31-36.
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Defendants have moved to dismiss, ECF No. 5, arguing that (1) Munyaneza lacks
standing to sue certain Defendants because they cannot provide the relief that he seeks; (2) the
claims of unreasonable delay are “immune from review under the consular non-reviewability
doctrine;” and (3) the re-adjudication time for the visa application at issue is not unreasonable
under the factors provided by Telecommunications Research & Action Center v. FCC, 750 F.2d
70, 79 (D.C. Cir. 1984) (“TRAC”). Defs.’ Mot. to Dismiss (“MTD”) at 4-18, ECF No. 5.
The court will grant Defendants’ motion to dismiss as to the first and third claims, and
therefore need not address the consular non-reviewability argument. See, e.g., Tekle v. Blinken,
No. 21-cv-1655, 2022 WL 1288437 at *2 (D.D.C. Apr. 29, 2022) (quoting Baan Rao Thai Rest.
v. Pompeo, 985 F.3d 1020, 1027 (D.C. Cir. 2021) ( dismissal based on consular non-
reviewability is not jurisdictional).
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move for dismissal
because a plaintiff has failed to establish the court’s jurisdiction by a preponderance of the
evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561. That includes establishing the
“irreducible constitutional minimum” of standing: that the plaintiff has alleged (1) an injury in
fact that is concrete and particularized as well as actual or imminent, (2) a causal connection
between the injury and the challenged conduct, and (3) a likelihood that the injury will be
redressed by a favorable decision. Id. The court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of
all inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
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complaint should state a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts to state a
claim that is plausible on its face by alleging facts that, if assumed to be true, would allow the
court to draw “reasonable inference[s] that the defendant is liable for the misconduct alleged.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 663,
677–78 (2009). The court presumes the truth of a plaintiff's factual allegations, see Iqbal, 556
U.S. at 679, and construes the complaint “in favor of the plaintiff, who must be granted the
benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States,
677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted) (citation omitted).
II. ANALYSIS
A. Named Officials
Munyaneza names as Defendants three State Department officials (the Secretary of State,
its Acting Legal Advisor, and the Nairobi Embassy’s Chargé d’Affaires), the Attorney General
of the United States, the Secretary of the Department of Homeland Security (“DHS”), the
Director of the United States Citizenship and Immigration Services (“USCIS”), and the Director
of the FBI. Compl at 1. Defendants argue that Munyaneza lacks the requisite standing to sue all
except the Nairobi Embassy’s Chargé d’Affaires. Defs.’ Mot. to Dismiss (“MTD”) at 4, ECF
No. 5. Munyaneza does not cite any caselaw in opposition, instead arguing that “it cannot be the
Plaintiff’s role to always know who has the [immigration] case.” Pl.’s Opp. to MTD at 12, ECF
No. 8.
Each Defendant, save for the Nairobi Embassy’s Chargé d’Affaires, must be dismissed
because Munyaneza has failed to establish the requisite standing to sue them. First, as he admits,
USCIS no longer has a role in processing the visa application, Compl. ¶ 12, which precludes
USCIS or its parent department DHS as a defendant. And while Munyaneza “suspects” that the
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FBI is responsible for the delay, that is not enough to confer standing on a plaintiff. See
Twombly, 550 U.S. at 555 (“[T]he pleading must contain something more than .. . . a suspicion
of a legally cognizable right of action”) (cleaned up). And as to the Attorney General,
Munyaneza’s claim that he is responsible for “ensuring compliance with all applicable federal
laws” does not mean that he is responsible for adjudicating the visa application, or that he could
taken any action to expedite its processing.
Finally, as to the State Department Officials, the D.C. Circuit has made clear that
consular officers have “exclusive authority to review applications for visas, precluding even the
Secretary of State from controlling their determinations.” Baan Rao Thai Rest., 985 F.3d at 1024
(quoting Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999)). Consequently,
neither the Secretary of State nor the Acting Legal Adviser, who had no role in adjudicating
Munyaneza’s application, are properly named as defendants.
Defendants raise no arguments as to the Nairobi Embassy’s Chargé d’Affaires.
Therefore, the court will dismiss all named Defendants except for the Nairobi Embassy’s Chargé
d’Affaires Eric W. Kneedler from this action.
B. TRAC Factors
“There is no per se rule as to how long is too long to wait for agency action.” In re Am.
Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (internal quotation marks
omitted). The court thus analyzes an unreasonable delay claim with the following six TRAC
factors:
(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;
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(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 70, 80 (D.C. Cir. 1984).
Courts typically evaluate the first two factors together. See Dastagir v. Blinken, 557 F.
Supp. 3d 160, 165 (D.D.C. 2021). The first factor is the “most important” and “carries the most
weight.” In re Core Comm’ns, Inc. 531 F.3d 849, 855 (D.C. Cir. 2008). Congress has not
imposed a timeframe to adjudicate visas, but instead provided agencies with “wide discretion in
the area of immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C.
2017) (citations omitted). Without such a timeframe, “courts typically turn to case law as a
guide.” Sarlak v. Pompeo, No. 20-cv-0035, 2020 WL 3082018 at *6 (D.D.C. June 20, 2020)
(internal citation omitted).
Munyaneza’s application was referred to administrative processing in May 2021, Compl.
¶¶ 15-16, making his delay approximately 17 months. See Mahmood v. U.S. Dep’t of Homeland
Sec’y, 21-cv-1262, 2021 WL 5998385 at *6-7 (D.D.C. Sept. 15, 2021) (considering delay length
as time between last government action and issuance of court’s opinion.). This is not a
significant enough period to implicate TRAC factors 1 and 2; courts have held that delays of even
multiple years are not unreasonable. See, e.g., Ghadami v. U.S. Dep’t of Homeland Secy., No.
19-cv-0397, 2020 WL 1308376, at *8 (D.D.C. March 19, 2020) (“[M]any courts . . . have
declined to find a two-year period to be unreasonable as a matter of law.” (citing cases));
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Dastagir, 557 F. Supp. 3d at 165 (five years not unreasonable); see also Skalka, 246 F. Supp. 3d
at 154 (collecting cases). Factors one and two, therefore, weigh in favor of the Defendants.
Factors three and five—whether health and welfare are at stake and the interests
prejudiced by the delay—are also reviewed together. Munyaneza only alleges that the
adjudication delay has had a “profound and negative impact on the lives of Plaintiff and his
wife.” Compl. ¶ 19. While he adduces further evidence of emotional and physical harm to
Niyibizi and himself in his opposition to Defendants’ motion to dismiss, the court cannot
consider them, as they are new allegations raised for the first time in a plaintiff’s opposition to a
motion to dismiss. See Kingman Park Civic Ass’n, 27 F. Supp. 3d 142, 160 n.7 (D.D.C. 2014).
Defendants do not dispute that the “processing delay has profoundly impacted the lives of
Munyaneza and his family,” but assert that re-adjudication has been delayed by its prioritization
decisions and “measures necessary to prevent the spread of COVID-19 and protect the safety of
U.S. officials.” MTD at 17. But, as Defendants admit, those measures have changed to allow
some, albeit “limited processing of immigrant visas.” Defs.’ Reply at 1, ECF No. 9. Therefore,
factors three and five weigh in Munyaneza’s favor.
With regard to the fourth TRAC factor, Defendants argue that granting Munyaneza’s
requested relief “would “simply ‘reorder’ a queue of applicants seeking adjudication.” MTD at
14. They are correct; “a judicial order putting [a plaintiff] at the head of the queue simply moves
all others back one space and produces no net gain.” In re Barr Labs, 930 F.2d 72, 75 (D.C. Cir.
1991). “While the effect of an individual case would be minimal, the accumulation of such
individual cases being pushed by judicial fiat to the front of the line would erode the ability of
agencies to determine their priorities.” Tate v. Pompeo, 513 F. Supp. 3d 132, 150 (D.D.C. 2021).
Filing a federal lawsuit alone “should not give . . . any advantage.” Kussem v. Blinken, No. 21-
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cv-1441, 2022 WL 670831 at *5 (D.D.C. 2022) (quoting Gong v. Duke, 282 F. Supp. 3d 566,
569 (E.D.N.Y. 2017)). Factor four, therefore, weighs in favor of Defendants.
The final factor, factor six, asks the court to evaluate if there is some impropriety behind
the agency delay. TRAC, 750 F.2d at 80. Munyaneza does not allege any bad faith, or,
impropriety, and a “mere . . . delay is insufficient to show impropriety.” Chowdhury v. Blinken,
No. 21-cv-1205, 2022 WL 136795 at *5 (D.D.C. Jan. 14, 2022). Because Munyaneza has not
alleged any bad faith, the sixth factor remains neutral to either party. See Dastagir, 557 F. Supp.
3d at 168 (finding sixth TRAC factor to be neutral where no bad faith was alleged); Sarlak 2020
WL 3082018 at *6 (same).
In sum, Munyaneza has not made the requisite showing under the TRAC factors to state
an unreasonable delay claim. And because he has not done so, his mandamus claim necessarily
fails. See, e.g., Skalka, 246 F. Supp. 3d at 152 (“The standard by which a court reviews ...
agency inaction is the same under . . . the APA and the Mandamus Act.”); see also Fornarno v.
James, 416 F.3d 63, 69 (D.C. Cir. 2005) (mandamus relief requires, inter alia, that “the
defendant has a clear duty to act.”).
III. CONCLUSION
For the foregoing reasons, the court will GRANT Defendants’ motion to dismiss. The
action will be dismissed without prejudice.
Date: September 30, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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