Opinion
Case No. 4:23-cv-24
2023-07-17
Dyphinah Jebet MUELLER, et al., Plaintiffs, v. Antony J. BLINKEN, Secretary of the U.S. Department of State, Defendant.
Jesse Matthew Bless, Pro Hac Vice, Bless Litigation, Georgetown, MA, Michael Leban, Leban & Associates, P.C., Virginia Beach, VA, for Plaintiffs. Daniel Patrick Shean, U.S. Attorney's Office, Norfolk, VA, for Defendant.
Jesse Matthew Bless, Pro Hac Vice, Bless Litigation, Georgetown, MA, Michael Leban, Leban & Associates, P.C., Virginia Beach, VA, for Plaintiffs. Daniel Patrick Shean, U.S. Attorney's Office, Norfolk, VA, for Defendant. MEMORANDUM OPINION & ORDER Jamar K. Walker, United States District Judge
Before the Court is a Motion to Dismiss or, Alternatively, for Summary Judgment filed by the defendant, Antony J. Blinken, Secretary of the U.S. Department of State. ECF Nos. 10 (motion), 11 (memorandum). The motion argues that the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), that the complaint fails to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), and that, in the alternative, the Secretary is entitled to summary judgment under Federal Rule of Civil Procedure 56. ECF No. 10 at 1. For the following reasons, the Secretary's motion to dismiss is GRANTED.
I. BACKGROUND
Plaintiff Dyphinah Jebet Mueller ("Plaintiff Mueller") is a United States citizen and stepmother to Plaintiffs Edmon Kipyegon Ruto and Gideon Cheruiyot Ruto (collectively, "Plaintiffs Ruto"), both of whom are nationals and citizens of Kenya. ECF No. 1 ¶¶ 1-2. The father of Plaintiffs Ruto is a naturalized citizen of the United States. Id. ¶ 4. Plaintiffs Ruto seek to join their father and stepmother in Virginia. To that end, Plaintiff Mueller filed an immediate-relative family-based visa petition, Form I-130, on behalf of Plaintiffs Ruto. Id. ¶ 5. The petition was approved by the United States Citizenship and Immigration Services on October 23, 2019. Id. The United States Embassy in Nairobi, Kenya confirmed receipt of the necessary documents in January 2022 upon their submission by Plaintiff Mueller, and in October 2022, the National Visa Center confirmed that it had approved all required documents. Id. ¶¶ 8, 40-41. Plaintiffs Ruto now await interviews at the United States Embassy in Nairobi, which have yet to be scheduled. Id. ¶¶ 10, 42. The Plaintiffs have "remained in Virginia separated from their children for years," which has caused them "anxiety and emotional distress." Id. ¶¶ 43-46. The plaintiffs bring this suit under the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1), seeking to "compel agency action unlawfully withheld or unreasonably delayed."
For the purpose of deciding this motion, the Court "assume[s] the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
II. LEGAL STANDARDS
A. Motions to Dismiss Under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges the Court's subject-matter jurisdiction. Such a motion can proceed in two ways: a "factual challenge," where the movant asserts that the complaint's subject-matter jurisdiction allegations are untrue, and a "facial challenge," where the movant asserts that the complaint "does not allege facts that permit the exercise of federal subject-matter jurisdiction." Garrett v. Clarke, 552 F. Supp. 3d 539, 549 (E.D. Va. 2021). On a factual challenge, the court "may consider evidence outside the pleadings and decide disputed issues of fact." Id. On a facial challenge, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id. (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
B. Motions to Dismiss Under Rule 12(b)(6)
"To survive a [Rule 12(b)(6)] motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, a plaintiff must plead sufficient "factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 545, 127 S.Ct. 1955. When considering a motion to dismiss, the court "must take all the factual allegations in the complaint as true," but the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
III. ANALYSIS
The Secretary makes three principal arguments in support of his motion to dismiss the complaint: (1) the Court lacks jurisdiction under the APA because "Plaintiffs cannot identify a clear, non-discretionary duty for Defendant to schedule any particular non-citizens for a visa interview," (2) the Court lacks subject matter jurisdiction based on the doctrine of consular non-reviewability, and (3) assuming that there is a clear, nondiscretionary duty to act, the plaintiffs fail to state a claim because the delay is not unreasonable as a matter of law. The Court agrees with the Secretary's first and third arguments and declines to reach the Secretary's second argument.
A. The Plaintiffs Have Not Identified a Clear, Non-Discretionary Duty to Act
To prevail on an APA claim to compel agency action that has been "unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), a plaintiff must show that the agency has failed "to take a discrete agency action that it is required to take." Gonzalez v. Cuccinelli, 985 F.3d 357, 366 (4th Cir. 2021) (quotation marks omitted). "[W]here an agency is not required to do something, [a court] cannot compel the agency to act—let alone act faster." Id. (emphasis in original).
To attempt to establish that the Department of State is compelled to act on the plaintiffs' visa request, the plaintiffs first point to 8 U.S.C. § 1202(b), which states:
(b) Other documentary evidence for immigrant visa Every alien applying for an immigrant visa shall present a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Secretary of State. The immigrant shall furnish to the consular officer with his application a copy of a certification by the appropriate police authorities stating what their records show concerning the immigrant; a certified copy of any existing prison record, military record, and record of his birth; and a certified copy of all other records or documents concerning him or his case which may be required by the consular officer. The copy of each document so furnished shall be permanently attached to the application and become a part thereof. In the event that the immigrant establishes to the satisfaction of the consular officer that any document or record required by this subsection is unobtainable, the consular officer may permit the immigrant to submit in lieu of such document or record other satisfactory evidence of the fact to which such document or record would, if obtainable, pertain. All immigrant visa applications shall be reviewed and adjudicated by a consular officer.The plaintiffs rely on the last sentence of this provision, which states that "[a]ll immigrant visa applications shall be reviewed and adjudicated by a consular officer." Id. That sentence does appear, at first blush, to establish a duty to act. But when the surrounding context is considered, that appearance falls apart. This provision "describes what documentation a visa applicant must provide and to whom they must submit the documentation." Babamuradova v. Blinken, 633 F.Supp.3d 1, 14 (D.D.C. 2022). That is plain enough from the title alone: "Other documentary evidence for immigrant visa." 8 U.S.C. § 1202(b). Thus, the last sentence is best read as merely "cabin[ing] the State Department's discretion as to who may review and adjudicate immigrant visa applications; it does not mandate that all applications actually be adjudicated." Id. at 15 (emphasis in original).
As other courts have observed, the ramifications of adopting the plaintiffs' interpretation of 8 U.S.C. § 1202(b) are extreme. This section "provides guidelines for all immigrant visa applicants." Babamuradova, 633 F.Supp.3d at 14 (emphasis in original). To hold that the government must review and adjudicate all visa applications "would truly be the proverbial elephant in a mousehole." Zarei v. Blinken, No. 1:21-cv-2102, 2021 WL 9146060, at *1 (D.D.C. Sept. 30, 2021); see also Whitman v. Am. Trucking Associations, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.").
To be clear, the Court's conclusion is not that the Department of State has the discretion to decide not to review any visa applications at all; the question before the Court is whether the Department has the discretion not to review a particular visa application, or, put differently, whether the Department must review every visa application.
For the foregoing reasons, the Court finds that 8 U.S.C. § 1202(b) does not impose a specific, nondiscretionary duty on the Department of State to act on the plaintiffs' visa request. See Ali v. United States Dep't of State, No. 5:23-cv-32, 676 F.Supp.3d 460, 469-70 (E.D.N.C. June 8, 2023) (holding that 8 U.S.C. § 1202(b) does not impose a duty to act on a visa application); Babamuradova, 633 F.Supp.3d at 13-16 (same); Nasab v. Blinken, No. 1:22-cv-2084, 2022 WL 4473922, at *1 (D.D.C. Sept. 26, 2022) (same); Khamrabaeva v. Blinken, No. 22-cv-1219, 2022 WL 4446387, at *5 (D.D.C. Sept. 24, 2022) (same); Zarei, 2021 WL 9146060, at *1 (same).
The Court recognizes that other courts have come to the opposite conclusion, finding that 8 U.S.C. § 1202(b) does impose a nondiscretionary duty to act. See Khamrabaeva, 2022 WL 4446387 at *5 (collecting cases). But as the court in Khamrabaeva cogently explains, those cases dealt with "challenges to COVID-related policies that suspended the issuance of diversity visas outright." Id. In cases where "plaintiffs challenged only the delay in adjudicating their particular applications," courts have found that § 1202(b) does not impose a duty to act. Id. (collecting cases). Thus, the distinction between a duty to adjudicate any visa applications and a duty to adjudicate a particular visa application is a significant one. See supra note 2.
The plaintiffs point to several other statutes, rules, and regulations that the plaintiffs argue establish or "confirm[ ]" the Department of State's duty to act. None of these additional arguments carry the day. ECF No. 12 at 12. The plaintiffs first cite 8 U.S.C. § 1153(e), which describes the "[o]rder of consideration" for various types of visa applications. The plaintiffs argue the statute's instruction that "visas . . . shall be issued" creates a duty to act, but as with 8 U.S.C. § 1202(b), context is key. Section 1153(e) merely provides the order in which the Department must prioritize consideration of visa applications: those issued "under subsection (a) or (b)" are to be issued in the order in which they were filed, and those issued "under subsection (c)" are to be issued "strictly in a random order." 8 U.S.C. § 1153(e).
The plaintiffs cite the D.C. Circuit's decision in Meina Xie v. Kerry, 780 F.3d 405 (D.C. Cir. 2015), however, that decision offers the plaintiffs no support. The plaintiff's claim in Meina Xie was that "the Department of State [was] illegally delaying review of visa applications filed by persons in certain immigration categories." Id. at 405. After the district court dismissed the claim, the D.C. Circuit reversed and held that that § 1153(e) establishes "a specific principle of temporal priority that clearly reins in the agency's discretion." Id. at 408. The plaintiffs here do not claim that the Department of State is usurping a statutorily imposed order of priority in reviewing visa applications.
The plaintiffs also claim that 8 U.S.C. § 1154(b) imposes a duty to act. But that statute merely instructs that, after determining that the applicant has met certain requirements, "[t]he Secretary of State shall then authorize the consular officer concerned to grant the preference status." At most, this statute creates a duty for the Secretary to authorize consular officers to grant status; it does not compel the consular officers to grant (or deny) status for every application.
The plaintiffs also point to the Foreign Relations Authorization Act of 2003, Pub. L. No. 107-228, § 233, 116 Stat. 1373 (2002), which states in relevant part that "[i]t shall be the policy of the Department to process each visa application from an alien classified as an immediate relative or as a K-1 nonimmigrant within 30 days of the receipt of all necessary documents from the applicant and the Immigration and Naturalization Service." But that language, too, fails to create a nondiscretionary duty to act.
Even though this language appears in an appropriations bill, it still carries the force of law. See, e.g., Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) ("Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly.").
By prefacing the instruction with "[it] shall be the policy of the Department," id. (emphasis added), Congress did not intend to create a binding duty. See Poursohi v. Blinken, No. 21-cv-1960, 2021 WL 5331446, at *8 (N.D. Cal. Nov. 16, 2021) (finding that virtually identical language in the Foreign Relations Authorization Act for 2000 and 2001 "contains only a precatory timeframe and thus creates no enforceable rights on behalf of applicants."); Milligan v. Pompeo, 502 F. Supp. 3d 302, 318 (D.D.C. 2020) (holding that "[w]hile Congress required the State Department to have a policy of adjudicating K-1 visas within 30 days of the receipt of all necessary documents from the application and the Immigration and Naturalization Service . . . it did not mandate a statutory deadline for K-1 visa adjudications") (quotation marks and citation omitted, emphasis in original).
The plaintiffs also claim that the Department of State's own regulations, 22 C.F.R. § 42.81(a), as well as the Foreign Affairs Manual, Dept. of State, 9 Foreign Affairs Manual (FAM) 504.1-3 (2022), create a duty to act. Section 42.81(a) instructs that "[w]hen a visa application has been properly completed and executed before a consular officer in accordance with the provisions of the INA and the implementing regulations, the consular officer must issue the visa, refuse the visa . . . or . . . discontinue granting the visa." 22 C.F.R. § 42.81(a). Similarly, the Foreign Affairs Manual instructs that "[o]nce an application has been executed, you must either issue the visa or refuse it. You cannot temporarily refuse, suspend, or hold the visa for future action." Dept. of State, 9 FAM 504.1-3.g (2022).
But as the Secretary observes, the Department's regulations also define "mak[ing] or fil[ing] an application for a visa" to require, inter alia, "personally appearing before a consular officer." 22 C.F.R. § 40.1(l)(2). Thus, "a visa application" has not been "properly completed and executed before a consular officer" until the applicant has "personally appear[ed] before a consular officer." If § 42.81(a) imposes any kind of duty to act on a visa application, that duty only attaches after an applicant has appeared before a consular officer. The plaintiffs have not yet done so.
Similar reasoning applies to the Foreign Affairs Manual. To the extent it imposes a duty to act, that duty only attaches after an application "has been executed," and the Manual itself reflects that an application must be "executed before a consular officer." 9 FAM 504.1-3.i.1; see also Khamrabaeva, 2022 WL 4446387, at *6 n.10 (interpreting "executed before a consular officer" to require "appear[ing] for a consular interview"). Again, the plaintiffs have not yet executed their application before a consular officer.
For the foregoing reasons, the plaintiffs have not identified any "discrete agency action" that the Department of State is required to take, so their APA claim fails.
B. The Plaintiffs Fail to State a Claim Because the Asserted Delay is Not Unreasonable
Even if the plaintiffs had established that the Department of State has a nondiscretionary duty to act on their visa applications, they have not shown that the Department's action has been "unreasonably delayed." 5 U.S.C. § 706(1). To assess whether agency action has been "unreasonably delayed," courts look to the factors described in Telecommunications Rsch. & Action Ctr. v. F.C.C., ("the TRAC factors"), which are:
(1) the time agencies take to make decisions must be governed by a rule of reason;750 F.2d 70, 80 (D.C. Cir. 1984). (quotation marks and citations omitted); see also Gonzalez, 985 F.3d 357 at 375 (applying the TRAC factors).
(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'.
Applying the TRAC factors, courts have roundly rejected and dismissed claims similar to those advanced by the plaintiffs here. Memon v. Blinken, No. 1:22-cv-0754, 2023 WL 1438396, at *1 (D.D.C. Feb. 1, 2023) (noting that "[a]s the State Department faces a substantial backlog of visa applications, lawsuits to speed review have become legion in this jurisdiction. Like most, Plaintiffs in this action ask to cut the line in front of less fortunate applicants without the means to secure counsel" and applying TRAC factors to dismiss complaint); Bega v. Jaddou, No. 1:22-cv-02171, 2022 WL 17403123, at *8 (D.D.C. Dec. 2, 2022) (applying TRAC factors and dismissing complaint); Begum v. United States Dep't of State, No. 1:22-cv-478, 2022 WL 16575703, at *7-9 (D. Md. Oct. 31, 2022) (same); Logan v. Blinken, No. 1:21-cv-2275, 2022 WL 3715798, at *7 (D.D.C. Aug. 29, 2022) (same).
The Court exercises its discretion and declines to convert the Secretary's motion to one for summary judgment. As a result, the Court will not consider the affidavits attached to the Secretary's motion. Instead, the Court will analyze the TRAC factors in the context of the defendant's motion to dismiss.
According to the Secretary, the affidavits are from "Rebecca Austin, the Assistant Director of the National Visa Center" and "Evan Fowler, the Immigrant Visa Unit Chief at the Nairobi Embassy." ECF No. 13 at 13. The affidavits purport to explain the Department's efforts "to adjudicate the large backlog of visa applications pending in the Nairobi Embassy in the face of numerous challenging circumstances, including but not limited to COVID-19, staffing shortages, and the restriction of non-emergency services in the leadup to the Kenyan general election." ECF No. 11 at 22.
i. TRAC Factors 1 and 2
The first factor is the "most important TRAC factor," Arab v. Blinken, 600 F. Supp. 3d 59, 69 (D.D.C. 2022), and courts frequently consider the first and second factors together. Begum, 2022 WL 16575703, at *7. These factors "focus on the reasonableness of the delay and whether Congress has set a timeline for the completion of the action in question." Id. at *7. As other courts have observed, "[t]here is no statutory or regulatory timeline that provides a 'rule of reason' to govern the State Department's adjudication of a visa application." Id. (quoting Ahmed, 2022 WL 424967, at *5). To the contrary, "Congress has given the agencies wide discretion in the area of immigration processing." Id. (quoting Alshawy v. U.S. Citizenship & Immigr. Servs., No. 1:21-cv-2206, 2022 WL 970883, at *1 (D.D.C. Mar. 30, 2022)).
As noted above, the 30-day "policy" promulgated in the Foreign Relations Authorization Act of 2003 is non-binding.
"Absent a congressionally supplied yardstick, courts typically turn to case law as a guide" to assess whether a given period of delay is reasonable. Sarlak v. Pompeo, No. 1:20-cv-35, 2020 WL 3082018, at *6 (D.D.C. June 10, 2020). The period of delay is "calculated from the earliest possible time that the Embassy could have scheduled the interview." Begum, 2022 WL 16575703, at *8 (quoting Alshawy, 2022 WL 970883, at *6); see also Mahmood v. U.S. Dep't of Homeland Sec., No. 1:21-cv-1262, 2021 WL 5998385, at *6 (D.D.C. Dec. 20, 2021) (calculating the delay "from the last Government action to the issuance of the opinion.") (quotation marks omitted).
In this case, the National Visa Center confirmed in October 2022 that it had approved all required documents. That was approximately four months before the plaintiffs filed their complaint in this case and approximately 8 months prior to this Opinion. This delay falls well within the bounds of delays that other courts have found reasonable. Begum, 2022 WL 16575703, at *7 (25-month delay between transfer of application to embassy and filing of case and 33-month delay between transfer of application to embassy and court's opinion not unreasonable); Nusrat v. Blinken, No. 1:21-cv-2801, 2022 WL 4103860, at *6 (D.D.C. Sept. 8, 2022) (delay of 32 months not unreasonable); Tekle v. Blinken, No. 1:21-cv-1655, 2022 WL 1288437, at *3 (D.D.C. Apr. 29, 2022) (23-month delay between "last agency action" and filing of complaint and 33-month delay between last agency action and court's opinion not unreasonable); Arab v. Blinken, 600 F. Supp. 3d 59, 70 (D.D.C. 2022) (delay of 33 months "not long enough to tilt the first two TRAC factors in favor of plaintiff"); Zaman v. U.S. Dep't of Homeland Sec., No. 1:19-cv-3592, 2021 WL 5356284, at *6 (D.D.C. Nov. 16, 2021) (42-month delay since applications were filed "insufficient to warrant emergency relief"). While there is no question that the delay faced by the plaintiffs in this case has been unpleasant, the Court cannot say that it has been unreasonable.
Even if the Court calculates the delay from January 2022, which is the date that "Plaintiffs electronically submitted all required documentation to the NVC for an appointment and issuance of the visas" (ECF No. 1 ¶ 40), the delay is still only approximately 17 months long.
The complaint offers no facts that "would allow this Court to measure the reasonability of the Government's delay." Begum, 2022 WL 16575703 at *8 (quoting Ahmed, 2022 WL 424967, at *5) (alteration accepted). The complaint "points to nothing specific about the relevant visa application[s] to distinguish [them] from the multitude of similar cases," id., nor anything that might indicate that the Department of State treated the plaintiffs' visa applications differently compared to similarly situated applications, see id. Although the plaintiffs state that "[t]here is considerable civil strife in Kenya and the twenty-year old children are at risk of personal harm in addition to the lack of education and career opportunities" (ECF No. 1 ¶ 47), the same can no doubt be said for virtually every individual who is currently awaiting an interview at the embassy in Kenya.
For these reasons, the first two TRAC factors weigh in favor of the Secretary.
ii. TRAC Factors 3 and 5
The third and fifth TRAC factors are directed to whether "human health and welfare are at stake . . . and the nature and extent of the interests prejudiced by delay." Begum, 2022 WL 16575703, at *9 (quoting TRAC, 750 F.2d at 80). It is indisputable that delays in processing immigrant visa applications—and immediate-family visa applications in particular—inflict pain on the applicants and their loved ones. That is certainly true in this case; as the complaint describes, "Ms. Mueller and Mr. Ruto have remained in Virginia separated from their children for years," which "has caused Ms. Mueller, Mr. Ruto[,] and their children anxiety and emotional distress." ECF No. 1 ¶¶ 43-46. The third and fifth TRAC factors weigh in favor of the plaintiffs. See Begum, 2022 WL 16575703, at *9 (finding that the third and fifth TRAC factors weighed in favor of the plaintiffs based on the impact of family separation); Xiaobing Liu v. Blinken, 544 F. Supp. 3d 1, 12 (D.D.C. 2021) (similar).
iii. TRAC Factor 4
The fourth TRAC factor "considers how a court order in Plaintiff's favor would shift existing agency priorities." Begum, 2022 WL 16575703, at *8 (quoting Ahmed, 2022 WL 424967, at *6). "This factor carries the greatest weight in many cases . . . ." Milligan v. Pompeo, 502 F. Supp. 3d 302, 319 (D.D.C. 2020). Courts have generally found that the fourth factor favors the Department of State because "resource-allocation decisions simply do not lend themselves to judicial reordering of agency priorities." Id. (quotation marks omitted, alteration accepted).
The plaintiffs have not pleaded any facts that would justify "shift[ing] existing agency priorities." Begum, 2022 WL 16575703, at *8 (quoting Ahmed, 2022 WL 424967, at *6). As the embassy's website states, "we are faced with a significant backlog of cases resulting from closures due to COVID-19. All applicants should expect delays in most stages of visa processing." As the plaintiffs note, "[d]iscovery would be necessary to determine what impact and burden, if any, an award of relief would have on Defendant's ability to manage its caseload." ECF No. 1 ¶ 79. But what the Court can conclude at this stage, without discovery, is that "a judicial order putting [the plaintiffs] at the head of the queue would simply move all others back one space and produce no net gain." Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (alterations accepted). Given that the plaintiff has pleaded no facts that would warrant such a reordering of the queue, "a court order in Plaintiff's favor would shift existing agency priorities" without justification. Begum, 2022 WL 16575703, at *8 (quoting Ahmed, 2022 WL 424967, at *6). Thus, TRAC factor four weighs in favor of the Secretary.
U.S. Embassy in Kenya, Status of Visa Processing at U.S. Embassy Nairobi, https://ke.usembassy.gov/visas/ (last visited July 14, 2023); see also U.S. Department of State, National Visa Center (NVC) Immigrant Visa Backlog Report, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html (last visited June 23, 2023) (noting that there is a worldwide backlog of 351,821 "eligible IV applicants still pending the scheduling of an interview"). The Court is permitted to consider this evidence in ruling on the Secretary's motion to dismiss. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (noting that courts "may properly take judicial notice of matters of public record" when ruling on Rule 12(b)(6) motions); Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004) (taking judicial notice of "publicly available" statistics "on an official government website "in reviewing the dismissal of [a] complaint under Rule 12(b)(6)").
iv. TRAC Factor 6
TRAC factor six "simply reminds courts that they need not find any impropriety . . . to hold that agency action is unreasonably delayed." Nusrat, 2022 WL 4103860, at *7 (quotation marks omitted). The complaint does not allege any impropriety on the part of the Department of State, so the Court has not considered the existence of impropriety or lack thereof in its analysis. This factor is neutral here. Begum, 2022 WL 16575703, at *9.
* * *
After weighing the six TRAC factors together, the Court finds that the plaintiff has failed to state a claim of unreasonable agency delay upon which relief can be granted. In short, the hardships the plaintiffs experienced are "outweighed by the rule of reason supplied by the case law and the fact that granting relief would be at the expense of others without any net gain." Begum, 2022 WL 16575703, at *9 (quoting Ahmed, 2022 WL 424967, at *6).
IV. CONCLUSION
For the foregoing reasons, the Secretary's motion to dismiss (ECF No. 10) is GRANTED. The sole count of the complaint is DISMISSED WITHOUT PREJUDICE.
See Palakuru v. Renaud, 521 F. Supp. 3d 46, 54 (D.D.C. 2021) (dismissing without prejudice because "the delay in adjudication may continue beyond a reasonable amount of time or [the plaintiff] may be singled out for disfavored treatment.").
The Secretary's Motion to Stay Discovery (ECF No. 15) is DENIED AS MOOT.
IT IS SO ORDERED.