Tekle v. Blinken

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
TADESSE WELDAY TEKLE, )
)
Plaintiff, )
)
v. )
) Case No. 21-cv-1655 (APM)
ANTONY BLINKEN et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I.
Plaintiff Tadesse Welday Tekle is a United States citizen who has filed visa applications
on behalf of his wife and son, both citizens of Ethiopia. Pet. for Writ of Mandamus & Compl. for
Inj. Relief., ECF No. 1 [hereinafter Compl.], ¶ 1. A person seeking to sponsor foreign relatives
for immigrant visas must file a Form I-130 (Petition for Alien Relative) with the United States
Citizenship & Immigration Services (“USCIS”). See 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1)
(2022). If USCIS approves the petition, then the petition is sent to a State Department processing
center. 8 C.F.R. § 204.2(a)(3) (2022). The foreign relatives must then submit another application
and await an interview with a consular officer. 22 C.F.R. §§ 42.61, 42.62 (2022). After the
interview, generally speaking, “the consular officer must [either] issue the visa, [or] refuse” it. Id.§ 42.81(a).
Plaintiff alleges that he properly filed Form I-130s on behalf of his wife and son in July
2018. Compl. ¶ 12. USCIS approved both petitions in December of that same year. Id. His wife
had an interview in July 2019 at the U.S. Embassy in Ethiopia, during which, Plaintiff asserts, she
truthfully responded to all questions and provided all information requested. Id. ¶ 14. However,
her and her son’s applications have lingered in “administrative processing” since the interview.
Id. ¶ 15 (internal quotation marks omitted). Plaintiff alleges, given the passage of time, that
Defendants “are unlawfully withholding or unreasonably delaying action” on the applications and
that they “have failed to carry out the adjudicative functions delegated to them by law.” Id. ¶ 19.
Plaintiff ultimately requests an order by this court “requiring Defendants to complete the
adjudication process.” Id.
Plaintiff’s action asserts two claims: one under the Administrative Procedure Act (“APA”),
5 U.S.C. § 701, and another under the Mandamus Act, 28 U.S.C. § 1361. He brings this action
against a variety of Defendants, naming Secretary of State Antony Blinken; Acting Director of
USCIS Tracy Renaud; Attorney General Merrick Garland; Secretary of the Department of
Homeland Security (“DHS”) Alejandro Mayorkas; Acting Legal Adviser of the Department of
State Richard C. Visek; Federal Bureau of Investigation (“FBI”) Director Christopher Wray;
Acting Assistant Secretary of the Bureau of Consular Affairs Ian G. Brownlee; and Deputy Chief
of Mission of the U.S. Embassy in Ethiopia David Renz (collectively, “the Government”). Compl.
¶¶ 6–10. The Government has moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. See Defs.’ Mot. to Dismiss & Mem. in Supp. Thereof, ECF No. 4
[hereinafter Defs.’ Mot.]. Along with his opposition, Plaintiff filed a motion for summary
judgment. See Pl.’s Mot. for Summ. J., ECF No. 6 [hereinafter Pl.’s Mot.]; see also Pl.’s Mem. of
P. & A. in Opp’n to Defs.’ Mot. & in Supp. of Pl.’s Mot. for Summ. J., ECF No. 5 [hereinafter
Pl.’s Opp’n].
For the reasons that follow, Defendants’ motion to dismiss is granted and Plaintiff’s motion
for summary judgment is denied as moot.
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II.
When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual
allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA., 402 F.3d 1249,
1253 (D.C. Cir. 2005). Because the court has “an affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority,” however, the factual allegations in the complaint
“will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for
failure to state a claim.” Grand Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9,
13–14 (D.D.C. 2001) (internal quotation marks omitted). To that end, the “court may consider
such materials outside the pleadings as it deems appropriate to resolve the question whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000). Thus, “where necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” See Coal. for Underground Expansion v. Mineta,
333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted).
To survive a motion to dismiss 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The factual
allegations in the complaint need not be “detailed,” but the Federal Rules demand more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In evaluating a motion to
dismiss under Rule 12(b)(6), the court must accept a plaintiff’s factual allegations as true and
“construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences
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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). The court need not accept as true either “legal
conclusion[s] couched as . . . factual allegation[s],” Papasan v. Allain, 478 U.S. 265, 286 (1986),
or “inferences . . . unsupported by the facts set out in the complaint,” Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). If the facts as alleged fail to establish that a plaintiff
has stated a claim upon which relief can be granted, then a court must grant the defendant’s Rule
12(b)(6) motion. See Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Hum. Servs., 922
F. Supp. 2d 56, 61 (D.D.C. 2013).
III.
The Government moves to dismiss on three grounds: (1) Plaintiff “names a host of officials
that cannot provide Plaintiff the sought-after relief”; (2) Plaintiff’s claims are subject to the
consular non-reviewability doctrine; and (3) with regard to the merits of the case, the delay “is not
unreasonable as a matter of law.” Def’s Mot. at 7. 1 Because the court agrees with the first and
third of these arguments, it does not address consular non-reviewability. See Baan Rao Thai Rest.
v. Pompeo, 985 F.3d 1020, 1027 (D.C. Cir. 2021) (holding that dismissal based on consular non-
reviewability is not jurisdictional)
A.
Plaintiff names as Defendants officials from USCIS, DHS, the Department of Justice, and
the FBI. USCIS and DHS, however, have completed their portions of Plaintiff’s family’s visa-
application review by approving his wife and son’s initial applications and thus no longer have
any role in visa processing. As for DOJ and the FBI, neither agency has any evident role in the
Tekle family’s visa processing. Because Plaintiff’s injuries cannot be traced to any of these
1
The court uses ECF pagination for Defendants’ Motion to Dismiss.
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agencies, Plaintiff lacks standing as to them. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992) (outlining the requirements of standing, including “a causal connection between
the injury and the conduct complained of”).
Plaintiff’s only response to shore up standing against these Defendants is that “the USCIS
policy Controlled Application Review and Resolution Program (CAARP)” is “[a]t issue.” Pl.’s
Opp’n at 7. But the CAARP program is nowhere mentioned in his Complaint, and “[i]t is
axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”
Arbitraje Casa De Cambio, S.A. DE C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C.
2003) (internal quotation marks omitted). As a result, the court dismisses the DHS, USCIS, DOJ,
and FBI officials from this action.
B.
The court now turns to the merits of Plaintiff’s unreasonable-delay claim under the standard
for motions to dismiss brought under Rule 12(b)(6). Plaintiff claims that the Government has
unreasonably delayed adjudicating his wife’s visa application and seeks relief for that delay under
the APA. See Compl. ¶¶ 24–35. The APA “imposes a general but nondiscretionary duty upon an
administrative agency to pass upon a matter presented to it ‘within a reasonable time,’ and
authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably
delayed.’” Mashpee Wampanoag Tribe Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir.
2003) (quoting 5 U.S.C. §§ 555(b), 706(1)). “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). Instead, courts apply the six factors set forth in
Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984):
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(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
(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). The question
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.” Mashpee
Wampanoag Tribal Council, 336 F.3d at 1102. Instead, it “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.” Id.
TRAC Factors One and Two. Courts usually assess the first two TRAC factors in tandem.
Dastagir v. Blinken, 557 F. Supp. 3d 160, 165 (D.D.C. 2021). Congress did not provide a statutory
deadline to complete processing or adjudication of visa applications. In fact, “Congress has given
the agencies wide discretion in the area of immigration processing.” Skalka v. Kelly, 246 F. Supp.
3d 147, 153–54 (D.D.C. 2017). Where there is no timeline or guidance provided by statute, “courts
typically turn to case law as a guide.” Sarlak v. Pompeo, No. 20-cv-35 (BAH), 2020 WL 3082018,
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at *6 (D.D.C. June 10, 2020). Courts in this District consistently have held that two or three years
does not constitute an unreasonable delay. See, e.g., Ghadami v. U.S. Dep’t of Homeland Sec.,
No. 19-cv-397 (ABJ), 2020 WL 1308376, at *8 (D.D.C. March 19, 2020) (“[M]any courts
evaluating similar delays have declined to find a two-year period to be unreasonable as a matter of
law.” (citing cases)); Dastagir, 557 F. Supp. 3d at 165 (“Even if the Court started the clock when
[the plaintiff] filed the petition five years ago, several of this district’s courts have noted that delays
between three to five years are often not unreasonable.” (internal quotation marks omitted));
Skalka, 246 F. Supp. 3d at 154 (collecting cases concluding that delays of four and a half, five, and
ten years were not unreasonable in different immigration contexts). Plaintiff’s contention that
delays of this length occur only in other visa contexts, Pl.’s Opp’n at 11, is not correct. See, e.g.,
Dastagir, 557 F. Supp. 3d at 165 (finding spousal-visa application pending for 29 months not
unreasonable); Mahmood v. U.S. Dep’t of Homeland Sec., No. 21-cv-1262 (RC), 2021 WL
5998385, at *7–9 (D.D.C. Dec. 20, 2021) (finding spousal visa application pending for 25 months
not unreasonable); Ghadami, 2020 WL 1308376, at *8 (finding relative visa pending for 25 months
not unreasonable). Here, the last agency action occurred in July 2019, approximately 23 months
before Plaintiff filed suit in June 2021. See Compl. ¶ 14. Even if the court were to take account
of the ensuing ten months, a 33-month delay is not unreasonable.
Plaintiff points to 8 U.S.C. § 1571 as a statutory timetable for the processing of visa
applications. Pl.’s Opp’n at 10. That provision says that “[i]t is the sense of Congress that the
processing of an immigration benefit application should be completed not later than 180 days after
the initial filing of the application.” But “[s]everal courts, including the D.C. Circuit, have
recognized that a sense of Congress resolution is not law.” Palakuru v. Renaud, 521 F. Supp. 3d
46, 51 (D.D.C. 2021) (internal quotation marks omitted) (citing Emergency Coal. to Defend Educ.
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Travel v. U.S. Dep’t of Treasury, 545 F.3d 4, 14 n.6 (D.C. Cir. 2008), and other cases). And, even
when this 180-day period is considered as some indication of the speed with which Congress
expected the agency to act, courts still have found the first two TRAC factors to favor the
Government. See Palakuru, 521 F. Supp. 3d at 51–52.
As further evidence of unreasonableness, Plaintiff points to a recent USCIS Notice of
Rulemaking, which estimated that even complex immigrant applications take between 2.22 and
4.10 “adjudication hours.” Pl.’s Opp’n at 11–12 (citing U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 FR 11
62280, 62292 (proposed Nov. 14, 2019)). But knowing how many “adjudication hours” are
required to “adjudicate” a visa tells the court nothing about the length of a queue or what is a
reasonable processing time in the ordinary lifecycle of a relative visa application. The cases cited
above establish that such reasonableness is measured in months, not “adjudication hours.”
TRAC Factors Three and Five. The third and fifth TRAC factors, which consist of the
nature of delays and any prejudice suffered therefrom, together favor Plaintiff. Plaintiff alleges,
and it is no doubt true, that the Government’s failure to finally adjudicate his relative applications
“has had a profound and negative impact on the lives of Plaintiff and his wife and son.” Compl.
¶ 18. He also describes the current war in the Tigray region of Ethiopia, which has reduced his
ability to travel to his home country, contact his family, and send money from his employment in
the United States to Ethiopia with knowledge and faith that his family will receive it. Pl.’s Mot.,
Decl. of Tadesse Welday Tekle, ECF No. 6-3, ¶¶ 19–24. Indeed, he has not had any contact with
his family since April 2021. Id. ¶ 21. “Plaintiff[’s] interest in receiving a decision is undeniably
significant.” Ghadami, 2020 WL 1308376, at *9.
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TRAC Factor Four. The fourth TRAC factor evaluates how expediting this application
might impede other agency priorities and “carries the greatest weight in many cases[.]” Milligan
v. Pompeo, 502 F. Supp. 3d 302, 319 (D.D.C. 2020). Even when all other TRAC factors lie in a
plaintiff’s favor, the D.C. Circuit has refused a grant of 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.” Mashpee Wampanoag Tribal Council, 336 F.3d at 1100 (alterations omitted). Plaintiff
attempts to avoid this precedent by asserting that his family is already at “the front of the line,
simply awaiting the consular officer’s completion of administrative processing.” Pl.’s Opp’n at
13. But this assertion is entirely speculative: Plaintiff offers no evidence establishing where his
family stands in the processing queue. What is not speculative, however, is that if the court were
to grant the relief Plaintiff seeks, it would divert resources from other processing priorities to
Plaintiff’s family’s applications. The court cannot override the agency’s “unique—and
authoritative—position to view its projects as a whole, estimate the prospects for each, and allocate
its resources in the optimal way.” Ghadami, 2020 WL 1308376, at *9 (internal quotation marks
omitted) (quoting In re Barr Lab’ys, Inc., 930 F. 2d 72, 76 (D.C. Cir. 1991)).
TRAC Factor Six. The final TRAC factor—the presence of impropriety—favors neither
side, as Plaintiff concedes that there is no bad faith in the Government’s delay. Pl.’s Opp’n at 13.
See Sarlak, 2020 WL 3082018, at *6 (finding sixth TRAC factor to be neutral where no bad faith
is alleged).
Final Balancing. Considering all the factors together, Plaintiff has not stated an
unreasonable-delay claim under the APA. The court sympathizes with the hardship caused by the
length of time without final adjudication of Plaintiff’s family’s applications, but this hardship is
outweighed by the rule of reason supplied by case law and the fact that granting relief would be at
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the expense of others without any net gain. See Sarlak, 2020 WL 3082018, at *6 (reaching same
conclusion and citing other cases also reaching that conclusion).
IV.
This conclusion also disposes of Plaintiff’s request for a writ of mandamus. “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. The D.C. Circuit has made clear that courts are
to “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). Thus, for the reasons already
discussed, the court denies Plaintiff’s request for mandamus.
V.
For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 4, is granted and
Plaintiff’s Motion for Summary Judgment, ECF No. 6, is denied as moot. A final, appealable
order accompanies this Memorandum Opinion.
Dated: April 29, 2022 Amit P. Mehta
United States District Court Judge
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