Bagherian v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEHZAD BAGHERIAN, et al.,
Plaintiffs,
v. Civil No. 19-1049 (JDB)
MICHAEL R. POMPEO, in his official
capacity as U.S. Secretary of State, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Behzad Bagherian and Faezeh Abbasi brought this action against the U.S.
government and various U.S. officials, seeking to compel the government under the Administrative
Procedure Act (“APA”) or the Mandamus Act to adjudicate Abbasi’s visa application. Now before
the Court is the government’s motion to dismiss. For the reasons explained below, the Court will
grant the motion and dismiss the case.
Background 1
Bagherian is a U.S. citizen residing in Colorado. Petition for Writ of Mandamus
(“Compl.”) [ECF No. 1] ¶ 8. He is engaged to Abbasi, an Iranian national. Id. ¶¶ 2, 8. The couple
wish to get married in, and then live together in, the United States. Id. ¶ 6, 36–37. On August 19,
2016, Bagherian filed a petition for a K-1 visa on behalf of Abbasi. Id. ¶¶ 1–2. Otherwise known
as “fiancée visas,” K-1 visas are available—if certain requirements are met—to aliens who intend
to marry a U.S. citizen within 90 days of arrival in the United States. Visas for Fiancé(e)s of U.S.
Citizens (“Visa Procedures”), https://www.uscis.gov/family/family-us-citizens/visas-fiancees-us-
1
The relevant facts are drawn from plaintiffs’ complaint and are assumed to be true for purposes of the
motion to dismiss.
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citizens. Filing a petition is just the first step in the lengthy, multistep K-1 visa process. The
government must then approve the petition and send the application on to the National Visa Center
(“NVC”), at which point the application is forwarded to the U.S. embassy or consulate where the
alien fiancé(e) lives. Id. A consular officer in that office is responsible for interviewing the alien
fiancé(e), reviewing the relevant documents, and requesting a background check. Id. If approved
by the officer, a visa is issued to the alien fiancé(e). Id. He or she may then enter the United States
and must marry the U.S. citizen indicated in the initial petition within 90 days of entry. Id.
Abbasi made it past the first several steps in this process: her petition was approved and
forwarded on to the U.S. Embassy in Yerevan, Armenia, and a consular officer there interviewed
her on November 29, 2016. Compl. ¶¶ 16–17. But she then entered a limbo period. After her
interview, the officer informed her that her “visa application is temporarily refused under section
221(g) of the US Immigration and Nationality Act,” pending the completion of administrative
processing. Id. ¶ 17. Between November 2016 and December 2017, Bagherian reached out to the
embassy at least five times, and even enlisted the help of a U.S. Senator from Colorado. Id. ¶¶ 19–
25. Each time, the embassy informed Bagherian (and the Senator) that the case was “pending
administrative processing.” Id.
While Abbasi and Bagherian were waiting to hear from the Embassy, on September 24,
2017, President Trump issued Presidential Proclamation 9645. See 82 Fed. Reg. 45,161 (Sept. 24,
2017). Among other things, Proclamation 9645 barred entry into the United States of nationals
from seven countries, including Iran, except as “subject to categorical exceptions and case-by-case
waivers.” Id. § 2. The Proclamation also established a waiver mechanism whereby consular
officers may grant waivers to a foreign national if (and only if) the foreign national demonstrates
that (1) “denying entry would cause the foreign national undue hardship”; (2) “entry would not
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pose a threat to the national security or public safety of the United States”; and (3) “entry would
be in the national interest.” Id. § 3(c). The President derived his authority to issue the Proclamation
from the Immigration and Nationality Act, which affords presidents broad discretion to “suspend
the entry of all aliens or any class of aliens” if they deem such a suspension to be in “the interests
of the United States.” See 8 U.S.C. § 1182(f); see also 82 Fed. Reg. at 45,161. The Proclamation
was challenged in federal court, but its validity was ultimately upheld by the Supreme Court in
Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
On January 4, 2018, the Embassy emailed Abbasi and informed her that “a consular officer
found [her] ineligible for a visa under Section 212(f) of the Immigration and Nationality Act,
pursuant to Presidential Proclamation 9645.” Compl. ¶ 26. The email also noted that the officer
was “reviewing [her] eligibility for a waiver,” but that her visa application would “remain refused”
until the waiver process was complete. Ex. G to Pls.’ Resp. in Opp’n to Mot. to Dismiss (“Pls.’
Opp’n”) [ECF No. 15-8] at 3.
Twice more thereafter, on April 10, 2018, and May 21, 2018, the Embassy emailed Abbasi
asking for additional information regarding her eligibility for a waiver, including her original birth
certificate and responses to a detailed questionnaire about her travel history and family. Compl.
¶¶ 28, 30. The May 21st email stated that the request was made “[a]s part of [Abbasi’s]
administrative processing.” Ex. J to Pls.’ Opp’n [ECF No. 15-11] at 2. Bagherian continued to
reach out to the Embassy for status updates but was told only that “[a] consular officer is currently
reviewing your case for eligibility for a waiver.” Ex. L to Pls.’ Opp’n [ECF No. 15-13] at 2.
Throughout this period, the State Department’s website stated that Abbasi’s “immigrant visa
application” was “currently undergoing necessary administrative processing.” Ex. M to Pls.’
Opp’n [ECF No. 15-14] at 2.
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On April 14, 2019, about 28 months after Abbasi’s interview at the U.S. Embassy and 15
months after Abbasi began being considered for a waiver, she filed this suit. She seeks a
declaratory judgment under the APA directing the government to “complete administrative
processing and render a decision on Plaintiffs’ visa petition.” Compl. ¶ 53. Alternatively, she
seeks a writ of mandamus compelling the government to “issue a final decision.” Id. ¶ 47. The
government has moved to dismiss, arguing under Federal Rule of Civil Procedure 12(b)(1) that
this Court lacks subject matter jurisdiction and under Rule 12(b)(6) that Abbasi has failed to state
a claim.
Discussion
I. Legal Standard
When reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the Court “assume[s] the truth of all material factual allegations in the complaint and
construe[s] 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)
(internal quotation marks omitted). “The plaintiff bears the burden of establishing jurisdiction by
a preponderance of the evidence.” Didban v. Pompeo, 2020 WL 224517, at *3 (D.D.C. Jan. 15,
2020) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The
complaint “must provide more than labels and conclusions; although it does not need detailed
factual allegations, the factual allegations must be enough to raise a right to relief above the
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speculative level.” Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332,
343 (D.C. Cir. 2018) (internal quotation marks omitted).
II. Analysis
A. Jurisdiction
The government argues that this Court lacks subject matter jurisdiction over Abbasi’s suit,
citing both the consular non-reviewability doctrine 2 and mootness. Neither jurisdictional bar
applies here.
The doctrine of consular non-reviewability “holds that a consular official’s decision to
issue or withhold a visa is not subject to judicial review.” Saavedra Bruno v. Albright, 197 F.3d
1153, 1159 (D.C. Cir. 1999). In other words, “[c]onsular officers have complete discretion over
issuance and revocation of visas,” id. at 1158 n.2, “even where it is alleged that the consular officer
failed to follow regulations, where the applicant challenges the validity of the regulations on which
the decision was based, or where the decision is alleged to have been based on a factual or legal
error,” Chun v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002) (internal citations omitted).
The government contends that the doctrine bars this Court from reviewing the consular
officer’s decision, on January 4, 2018, to refuse Abbasi’s visa application. See Decl. of Chloe
Dybdahl [ECF No. 14-1] ¶ 6. True enough. However, Abbasi is not seeking review of that
decision. Indeed, she is not seeking review of any decisions at all. Instead, she seeks review of
the government’s failure to adjudicate her waiver eligibility—the failure to make a decision—
within a reasonable time. 3 The government itself acknowledges that “Abbasi is undergoing
2
As another court in this district recently pointed out, “[t]here is some ambiguity as to whether the doctrine
of consular non-reviewability” is technically a matter of jurisdiction or is instead more properly classified as a merits
matter. Didban, 2020 WL 224517, at *3 n.2. Here, because the Court concludes that the doctrine does not apply,
there is no need to wade into this debate.
3
Although her complaint and briefing often frame Abbasi’s requested relief as adjudication of her visa
application, the Court thinks it abundantly clear from context that what Abbasi is really seeking is adjudication of her
waiver eligibility. Abbasi does not dispute that the State Department “denied” her initial visa application on January
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consideration for a waiver of the Proclamation’s entry restrictions.” Id. ¶ 7. The doctrine of
consular non-reviewability is therefore inapplicable to this action, because the doctrine “is not
triggered until a consular officer has made a decision with respect to a particular visa application.”
Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry, 168
F. Supp. 3d 268, 290 (D.D.C. 2016). At least five other district courts in recent months have
reached the same conclusion in similar cases involving the government’s failure to adjudicate
waiver eligibility under Presidential Proclamation 9645. See Moghaddam v. Pompeo, 2020 WL
364839, at *5 (D.D.C. Jan. 22, 2020) (rejecting applicability of doctrine where “[p]laintiffs d[id]
not challenge the initial denial of [a plaintiff’s] visa application,” but instead sought adjudication
of plaintiff’s “waiver, which clearly remains pending and has not been denied”); Didban, 2020
WL 224517, at *4 (same); Motaghedi v. Pompeo, 2020 WL 207155, at *7–8 (E.D. Cal. Jan. 14,
2020) (same); Najafi v. Pompeo, 2019 WL 6612222, at *5 (N.D. Cal. Dec. 5, 2019) (same); Yavari
v. Pompeo, 2019 WL 6720995, at *3–4 (C.D. Cal. Oct. 10, 2019) (concluding that doctrine applied
only to initial refusal decision and not to consular officer’s subsequent failure to adjudicate waiver
application).
The government also contends that the case is moot because “Abbasi’s visa application
was denied,” and if the Court were to issue an order “direct[ing] the government to issue a ‘final
decision’ on the visa application, the government would immediately comply with that order by
denying the visa application once again.” Reply in Further Supp. of Defs.’ Mot. to Dismiss
4, 2018. However, she points out that in that very same denial email, the Department informed her that it was
“reviewing [her] eligibility for a waiver.” Ex. G at 3. Thereafter, the State Department’s website listed her case status
as “currently undergoing necessary administrative processing,” Ex. M at 2, and the Department’s emails described her
case as in “administrative processing,” Ex. J at 2. Adjudication of her waiver eligibility is all that remains for the
Department to do, and review of the Department’s failure to do so is all that Abbasi seeks. Cf. Moghaddam v. Pompeo,
2020 WL 364839, at *5 (D.D.C. Jan. 22, 2020) (construing plaintiff’s request for adjudication of her visa application
as a request for adjudication of her “waiver eligibility, which [she] view[ed] as part of the overall visa application
process”).
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(“Gov’t’s Reply”) [ECF No. 17-1] at 6–7. However, this argument once again misunderstands
Abbasi’s claims. She is seeking an order that the government must adjudicate her waiver
eligibility—an adjudication that in her view has been unreasonably delayed. A case is moot only
“if events have so transpired that the decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the future.” Am. Bar. Ass’n v. FTC,
636 F.3d 641, 645 (D.C. Cir. 2011). Here, an order from the Court directing the government to
adjudicate Abbasi’s waiver eligibility has a “more than speculative chance of affecting her legal
rights.” Didban, 2020 WL 224517, at *4. The case is not moot.
B. APA Claim
Abbasi’s first claim is that the government’s delay in adjudicating her waiver eligibility
violates the APA. Compl. ¶ 51. The APA requires agencies to “conclude” matters presented to
them “within a reasonable time.” 5 U.S.C. § 555(b)). If an agency fails to do so, the APA
authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed.” Id.
§ 706(1). Notably, and as relevant here, the APA excludes from judicial review “agency action
[that] is committed to agency discretion by law.” Id. § 701(a)(2). In response to Abbasi’s APA
claim, the government argues first that the “waiver program is governed entirely by the
Proclamation (which is presidential action that is allegedly not subject to the APA),” and second
that “the pace of adjudicating waiver applications is committed to agency discretion.” Didban,
2020 WL 224517, at *5; see Mem in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mot. to Dismiss”)
[ECF No. 14] at 8–9. The thrust of these arguments is that the government’s actions implementing
the Proclamation are not subject to judicial review. The government also contends, in the
alternative, that even if its actions here are reviewable, on the merits, plaintiffs have failed to
“state[] any claim under the APA for allegedly unreasonable delay.” Gov’t’s Reply at 8.
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Whether the government’s failure to adjudicate Abbasi’s waiver eligibility is reviewable
under the APA—put somewhat more abstractly, whether government action or inaction taken
pursuant to a presidential proclamation is reviewable under the APA, given that the President’s
actions are “not subject” to the APA’s requirements, Franklin v. Mass., 505 U.S. 788, 801
(1992)—is a complex legal question for which there is not clear D.C. Circuit precedent. See
Moghaddam, 2020 WL 364839, at *10 (noting that “this circuit has not clearly determined whether
action taken pursuant to the Proclamation is reviewable” and relying on Ninth Circuit precedent
to conclude that such action is reviewable). But the Court need not resolve that question. Even if
the government’s failure to act is reviewable under the APA, the Court concludes that Abbasi has
failed to state a claim because the roughly twenty-five-month delay to this point in adjudicating
her waiver eligibility is not unreasonable. Cf. Didban, 2020 WL 224517, at *5 (assuming without
deciding that “the Government’s failure to issue a waiver decision is reviewable under the APA”);
Yavari, 2019 WL 6720995, at *7 (assuming without deciding that “the State Department’s failure
to issue a decision in Plaintiff’s waiver case can properly be considered under” the APA).
A six-factor balancing test governs whether agency action, like waiver-eligibility
adjudication, has been unreasonably delayed. See Telecomm. Research & Action Ctr. v. FCC,
750 F.2d 70, 79–80 (D.C. Cir. 1984). Those factors are:
(1) The time agencies take to make decisions must be governed by a rule of reason;
(2) where Congress has provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency
activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests
prejudiced by delay; and
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(6) the court need not find any impropriety lurking behind agency lassitude in order
to hold that agency action is ‘unreasonably delayed.’
In re People’s Mojahedin Org. of Iran, 680 F.3d 832, 836–37 (D.C. Cir. 2012). Whether a delay
is unreasonable “cannot be decided in the abstract, by reference to some number of months or
years beyond which agency inaction is presumed to be unlawful, but will depend in large
part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome,
and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton,
336 F.3d 1094, 1102 (D.C. Cir. 2003). Moreover, courts should “refuse[] to grant relief,” even if
all the TRAC factors point toward relief, “where ‘a judicial order putting [the petitioner] at the
head of the queue [would] simply move[] all others back one space and produce[] no net gain’”
and there is “no evidence the agency . . . treated the petitioner differently from anyone else.” Id.
at 1100 (quoting In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)).
Two other courts have recently determined that delays of similar lengths in the waiver-
eligibility adjudication context are not unreasonable as a matter of law, given the “significant
national security interests involved in assessing waiver applications and the compelling
governmental interest in allowing the agency to balance its competing priorities as it sees fit.”
Didban, 2020 WL 224517, at *6 (two-year delay); see Yavari, 2019 WL 6720995, at *8 (“Because
the period of the delay is the strongest factor, and slightly more than a year is drastically short of
what constitutes an unreasonable delay in the Ninth Circuit, only very substantially longer delay
could constitute sufficient factual allegations to implicate § 706(1)’s unreasonable delay . . . .”).
An analysis of the TRAC factors as applied here leads this Court to the same conclusion—that the
twenty-five-month delay at issue here is not unreasonable as a matter of law, given the
circumstances.
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The first two factors, relating to whether Congress has imposed a timeline for the agency
action, heavily favor the government. There is no congressionally imposed timeline here. Indeed,
“Congress has given the agencies wide discretion in the area of immigration processing,” and a
“delay of [two years] does not typically require judicial intervention.” Skalka v. Kelly, 246 F.
Supp. 3d 147, 153–54 (D.D.C. 2017) (citing case law that even a five- to ten-year delay in the
immigration context may be reasonable); see also Yavari, 2019 WL 6720995, at *8 (citing case
law that “immigration delays in excess of five, six, seven years are unreasonable, while those
between three to five years are often not unreasonable”). Moreover, as the government points out,
the twenty-five-month period that has elapsed so far since the government began assessing
Abbasi’s waiver eligibility in January 2018 “is far from ‘extraordinary’ when considering the
national security interests implicated and the volume of applications being processed.” Defs.’
Mot. to Dismiss at 11; see id. at 3 (“[M]ore than 12,000 visa applicants have been found by a
consular officer preliminarily to meet the first two conditions for a waiver and are now under
review to determine whether they meet the national security and public safety criterion” (citing
Dep’t of State Report: Implementation of Presidential Proclamation 9645—December 8, 2017 to
March 31, 2019 at 3)).
The third and fifth TRAC factors, relating to Abbasi’s interests, health, and welfare, weigh
in her favor. Her “health and welfare are at stake because the delay in adjudicating” her waiver
eligibility has forced her “to endure a prolonged and indefinite separation” from her fiancé.
Didban, 2020 WL 224517, at *6; see Compl. ¶¶ 35–38. The Court does not take lightly Abbasi
and her fiancé’s interest in marrying and living together in the United States, and it reminds the
government that it must treat Abbasi’s case with “the sense of urgency one would expect when
familial interests are at stake.” Skalka, 246 F. Supp. 3d at 154. However, the fourth TRAC factor,
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relating to whether expediting action in this case would harm other agency activities of equal or
greater priority, “surely has a mitigating effect on that sense of urgency here.” Id. As the
government has stated, at least 12,000 visa applicants are currently undergoing waiver-eligibility
review. Gov’t Mot. to Dismiss at 3. Abbasi has made no allegation that the government is treating
her differently than any other visa applicant. Expediting review in Abbasi’s case, then, would
merely pull government resources from the adjudication of other applicants’ waiver eligibility and
direct those resources to Abbasi’s case; in effect, putting her “at the head of the queue” and
“mov[ing] all others back one space,” producing “no net gain.” In re Barr Labs., 930 F.2d at 75;
see Skalka, 246 F. Supp. 3d at 154 (noting that courts step outside of their “limited role” where
they require “agencies to invest the high degree of resources that would be necessary to accurately
investigate plaintiffs’ visa petitions,” because such a requirement “would presumably delay other
adjudications” and make others “suffer in response”). These sorts of judicial “reordering[s] [of]
agency priorities” are inappropriate where “[t]he agency is in a unique—and authoritative—
position to view its projects as a whole, estimate the prospects for each, and allocate its resources
in the optimal way.” In re Barr Labs, 930 F.2d at 76.
Upon consideration of each of these factors, 4 the Court holds that the government’s twenty-
five-month delay in adjudicating Abbasi’s waiver eligibility is not unreasonable. While the Court
urges the government to make a decision as to Abbasi’s waiver eligibility as quickly as it can, the
Court nonetheless concludes that the government’s interests in balancing its own priorities and
carefully vetting foreign nationals before admitting them to the country outweigh Abbasi’s
4
The sixth TRAC factor, relating to whether agency impropriety is behind the delay, is not relevant here:
Abbasi does not allege that the government had improper motivations for delaying adjudication of her waiver
eligibility.
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interests in receiving an immediate decision on her waiver eligibility. Accordingly, Abbasi’s APA
claim fails as a matter of law.
C. Mandamus Claim
Like her APA claim, Abbasi’s mandamus claim revolves around the government’s alleged
“unreasonabl[e] delay” in adjudicating her waiver eligibility. Compl. ¶ 45. “The standard by
which a court reviews . . . agency inaction is the same under both § 706(1) of the APA and the
Mandamus Act . . . .” Skalka, 246 F. Supp. 3d at 152. In either circumstance, courts must look to
whether “the agency has unreasonably delayed the contemplated action.” In re Core Commc’ns,
Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (internal quotation marks omitted). Here, the Court has
already determined under the APA that the twenty-five-month delay in adjudicating Abbasi’s
waiver eligibility is not unreasonable. This conclusion applies with equal force to Abbasi’s
mandamus claim. Moreover, the D.C. Circuit has instructed that courts should “reject[] mandamus
claims that would have . . . the effect of allowing the plaintiffs to jump the line, functionally solving
their delay problem at the expense of other similarly situated applicants.” Am. Hosp. Ass’n v.
Burwell, 812 F.3d 183, 192 (D.C. Cir. 2016). As noted above, that is precisely the effect that
directing the government to expedite review of Abbasi’s waiver eligibility would have. Hence,
Abbasi’s mandamus claim also fails.
III. Conclusion
For the foregoing reasons, the Court will grant the government’s motion to dismiss. A
separate order will be issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: February 11, 2020
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